Main Index: Trial Testimony June 13, 1997
665
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 GORDON & BREACH SCIENCE
PUBLISHERS S.A., STBS., LTD.
4 and HARWOOD ACADEMIC
PUBLISHERS GMBH,
5
Plaintiffs,
6
v. 93 CV 6656 LBS
7
AMERICAN INSTITUTE OF PHYSICS
8 and THE AMERICAN PHYSICAL
SOCIETY,
9
Defendants.
10
------------------------------x
11
June 13, 1997
12 10:05 a.m.
Before:
13
HON. LEONARD B. SAND
14
District Judge
15
16
17 APPEARANCES
18 ORANS, ELSEN & LUPERT, LLP
Attorneys for Plaintiffs
19 BY: LESLIE A. LUPERT
ROBERT L. PLOTZ
20 PETER E. SEIDMAN
21 COVINGTON & BURLING
Attorneys for Defendants
22 BY: RICHARD A. MESERVE
JEFFREY G. HUVELLE
23 SUSAN L. BURKE
24
25
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1 (Trial resumed)
2 THE COURT: Good morning. You may be seated.
3 The witness may resume the stand.
4 WILLIAM HOWARD JACO,
5 Resumed, and testified further as follows:
6 DIRECT EXAMINATION (Resumed)
7 BY MS. BURKE:
8 Q. Good morning.
9 A. Good morning.
10 Q. Dr. Jaco, when we stopped yesterday you had told
11 us that you were relieved when you received the verification
12 from G & B because you thought you could include them in the
13 survey without any problems, and I want to explore with you
14 now some of the reasons for that conclusion.
15 Do you have in front of you the verification
16 response that's marked as PX 513?
17 A. Yes, I do.
18 Q. How many journals was AMS verifying the data on?
19 A. This verifies data on the three Gordon & Breach
20 journals included in our survey.
21 Q. And what are the titles of those journals?
22 A. Applicable Analysis, Linear and Multilinear
23 Algebra, Complex Variables Theory and Applications.
24 Q. Dr. Jaco, do you consider those three journals
25 specialized journals?
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1 A. I think they would be classified as specialty
2 journals.
3 Q. Could you look at the survey itself and see
4 whether there are any other journals within that survey that
5 you view as comparable to the Linear and Multilinear Algebra
6 Journal?
7 A. I have a copy of the survey here which is
8 Defendant's Exhibit XXX. The selection of journals for our
9 survey was American publishers. All the journals were those
10 that were reviewed completely in their entirety by
11 mathematical review. So the inclusion is both specialty and
12 general journals.
13 So there are many specialty journals included.
14 We broke the analysis up into primary typeset journals. A
15 primary typeset journal is a journal where the publisher
16 generally has editorial and typesetting styles, and when
17 manuscripts come in, they often will even completely redo
18 the manuscript to have in their editorial and typesetting
19 style. So this requires a certain amount of cost to the
20 publisher.
21 The second was primary author-prepared journals.
22 These are ones where the author actually prepares a
23 camera-ready manuscript, submits it to the publisher and it
24 is published as author prepares it, and then translation
25 journals, which have additional cost because of translation
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1 and other scientific editorial things.
2 The American Mathematical Society has one
3 specialty journal which is included in the survey.
4 Q. Which journal is that, Dr. Jaco?
5 A. Mathematics of Computation.
6 All of the Society for Industrial and Applied
7 Mathematics journals are specialty journals, as most of the
8 specialty professional societies are, and then there are
9 many commercial publisher specialty journals.
10 Q. Dr. Jaco, either in the science specialty
11 journals or the commercial publisher specialty journals, are
12 there any that you view as directly comparable to the three
13 G & B journals?
14 MR. PLOTZ: I would object. Comparable in what
15 way? It is a very general question.
16 THE COURT: Suppose you restate your question
17 defining what you mean by "comparable."
18 Q. Dr. Jaco, do any of the specialty journals
19 included in the survey cover the same specialization as any
20 of the three Gordon & Breach journals?
21 A. Well, one of the SIAM journals is the Journal on
22 Matrix Analysis and Applications, which is the same as
23 Linear and Multilinear Algebra.
24 The SIAM journal on Mathematical Analysis is a, I
25 would assume, a competing journal, with one on complex
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1 analysis.
2 Q. Thank you Dr. Jaco.
3 The verification questionnaire, what other
4 information did it ask you to verify?
5 A. Our survey included collection of character
6 counts and price for the issues that were involved with the
7 character count, so that information as to what our survey
8 disclosed is provided, both the character count and the
9 price for the volumes that were considered in the character
10 count, or issues with which were considered. Then there
11 were other questions, circulation, which on none of these
12 was the information provided --
13 Q. Before we go on to circulation, Dr. Jaco, did you
14 provide any corrections to the prices?
15 A. Yes. On the 1988 issues in question, there were
16 corrections for each of the three journals that were in the
17 survey.
18 Q. Did the corrections raise or lower the price?
19 A. The corrections actually raised the price that we
20 had collected from the front matter of the journals.
21 Q. And what was the particular price that you were
22 seeking to verify with the publishers?
23 A. The way the price was obtained was that in the
24 front matter of the journals, because of mailing
25 requirements, a list price has to be provided. So, as a
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1 normalization, we use that as the price for the journals.
2 Many journals have discounting structures, have different
3 prices for different institutions, but it's quite complex,
4 so we had a question that said, do you have discounting
5 structures. For example, the American Mathematical Society
6 had a discounting structure for libraries. But we did not
7 use that. We used our, quote, list price. We had
8 individual price. We did not use that. We used our, quote,
9 list price. But this was the normalization for all the
10 journals. And so this information was actually published in
11 the survey. This is the price that we used.
12 And that way librarians could not only look at
13 the methodology that we did in counting characters that was
14 provided; the price that we used in arriving at the thousand
15 cents per character was provided, and therefore librarians
16 could look at this or anybody interested and say, I did or
17 did not pay that amount. They could calculate their own
18 values if they were so concerned, or they could see that the
19 publisher provided the discount and then they would be in a
20 position to either know that that was available or not
21 available to them and negotiate possible discounts.
22 Q. And specific to G & B, did you use the corrected
23 prices that G & B provided or did you use the prices that
24 your staff had obtained?
25 A. We used the corrected prices as well as the other
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1 information that they provided back in the questionnaire.
2 Q. Now, Dr. Jaco, I had interrupted you previously
3 when you were talking about circulation. Did the
4 questionnaire seek information on circulation?
5 A. The questionnaire asked for circulation
6 information, and the response from Gordon & Breach was that
7 the information was not available. Are back volumes
8 available? Are discounts available to institutions. It
9 asked for a description of the discount structure. Are page
10 charges requested? Are offprints available to authors? And
11 then it went into some detail. Describe that. And does
12 your journal receive support apart from page charges?
13 Q. And I'll get to the reasons why you asked for all
14 of that information, but specific to circulation, you
15 testified G & B did not include that -- did not provide you
16 that data.
17 Did other publishers provide you circulation
18 data?
19 A. Yes, a number of publishers did, and that's
20 included in the survey.
21 Q. What is the reason for including circulation data
22 in the survey?
23 A. Well, it particularly addresses the issue of, if
24 you have a small circulation, then you may need to have a
25 higher price. So this is a bit of information that anyone
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1 trying to make an analysis of the survey would at least have
2 available to him.
3 The intent of the survey was to organize
4 information so that people could have some type of an
5 overview of what was going on with journal prices, and this
6 is one of the factors that needs to be considered.
7 Q. Dr. Jaco, you had testified that AMS publishes
8 one specialty journal. Does it also publish general
9 journals?
10 A. Yes.
11 Q. How many journals does AMS publish?
12 A. At the time that I was at the AMS, they published
13 15 to 20 journals.
14 Q. Turning just to the AMS journals that are
15 included in the survey that we have here, is the circulation
16 data for those journals provided?
17 A. Yes, it is.
18 Q. There has been testimony previously in this case
19 that there is a great circulation difference between
20 specialty journals and general journals.
21 Did that hold true, in your experience?
22 MR. PLOTZ: Objection. Are we talking about a
23 mathematic survey in this case about a physics journal? I
24 don't know why we are going into this.
25 THE COURT: Restate your question.
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1 MS. BURKE: Pardon?
2 THE COURT: Restate your question.
3 Q. AMS publishes both specialty and nonspecialty --
4 and general journals, Dr. Jaco?
5 A. Yes. And the information in circulation is to
6 help people analyze the audience, the amount of subscribers,
7 and, therefore, be able to evaluate the cost. But it also
8 gives some idea of what the potential markets are for these
9 types of things and gives you an idea, and we have engaged
10 in the past in the issue of specialty journals versus
11 general journals as to what the potential audience is. And
12 while the arguments can be made in many ways, there is no a
13 priori reason why any should be higher or lower for one or
14 the other. In particular, for Mathematics of Computation,
15 the data provided here shows that it had a larger
16 circulation than our premier journal, Transactions, which is
17 a general journal.
18 Q. Just to make sure I understand, that journal that
19 you mentioned by name, is that a specialized journal?
20 A. Mathematics of Computation is a specialty
21 journals. Transactions of the AMS is a general journal.
22 Q. Did any commercial publishers provide you with
23 circulation data for your survey?
24 MR. PLOTZ: Objection.
25 THE COURT: Overruled.
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1 A. Yes, some do.
2 Q. Now, you had mentioned some other items that AMS
3 sought in the verification questionnaire. Why did AMS ask
4 for information on page charges?
5 A. Well, as in all of these things are -- is --
6 involve information that one needs to make, to make some
7 type of a learned decision about the information that they
8 are seeing on these pages. In particular, if a publisher
9 receives supplemental income to the subscription income --
10 revenue, I should say, supplemental revenue to the
11 subscription revenue, then that could impact the
12 subscription pricing for the journal.
13 So this was additional information to provide to
14 the readers so that they can make their own judgment on
15 that.
16 Q. Is that true, as well, for your question about
17 support, outside support?
18 A. Outside support page charges have been a
19 particular issue of contention, and so that was pulled out.
20 But page charges and possible grant or possible membership
21 dues support are all in one big category. But page charges
22 was particularly contentious and probably the only one that
23 has any really major involvement here because I don't know
24 of any journals that does support -- that's not true, I do
25 know of one journal that receives federal support.
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1 Q. Dr. Jaco, you referenced that page charges were
2 particularly contentious. What did you mean by that?
3 A. Well, I actually believe, I have not seen these
4 questionnaires that go back to the first survey in '83, but
5 I believe that many of these particularly refined items have
6 been in response to, particularly, Gordon & Breach
7 questioning the methodology, and so this was an effort to
8 try to bring in other factors that influence the pricing of
9 journals.
10 Q. Now, you mentioned that G & B provided
11 information on the discounts. Did they provide that
12 information for all three journals?
13 A. Yes.
14 Q. And how are those discounts described?
15 A. On the copies here, I believe that some of the
16 bottom parts are missing, but on the last one, "applicable
17 analysis," they have listed a price for libraries per volume
18 and an individual's price per volume.
19 Q. Did AMS consider using that library price given
20 that the survey -- that you knew the survey was going to be
21 read by librarians?
22 A. No, we did not use that. As I mentioned before,
23 we had a normalization which was what we referred to as list
24 price, because even ourselves discounted to libraries. We
25 did not use that price.
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1 Q. I'm sorry --
2 A. Even AMS discounted to libraries and individuals,
3 but we did not use those prices.
4 Q. Did the questionnaire seek any information from
5 publishers about the quality of their journals?
6 A. No.
7 Q. Does the survey contain any information about the
8 quality of the journals?
9 A. There was no comment to quality.
10 Q. When was this survey published, Dr. Jaco?
11 A. Well, the first survey, to my recollection, was
12 published in November of '83, the second in March of '86,
13 this particular one in November of '89.
14 Q. November of '89.
15 And what happened after the survey was published?
16 A. We publish the survey, and following that my
17 staff brought to me a paid advertisement sent to us by the
18 marketing department of Gordon & Breach and asked that it be
19 put in the notices on opposing pages. And the advertisement
20 was -- described briefly a diatribe of the survey and the
21 AMS. It questioned the intent and integrity of the AMS.
22 Q. Did the AMS publish the advertisement?
23 A. Yes.
24 Q. Was there any discussion about whether or not to
25 publish the advertisement?
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1 A. There was --
2 MR. PLOTZ: Objection.
3 THE COURT: He may answer that yes or no.
4 A. Yes.
5 Q. Did any other publisher take out an advertisement
6 about the survey?
7 A. No.
8 Q. Did any other publishers raise any issue about
9 the survey data?
10 A. At that time, no other information came to my
11 attention. However, during the deposition, information was
12 shown that another publisher had written in with a
13 correction, and that it was published in a later issue of
14 the notices.
15 Q. Other than receiving the paid advertisement, did
16 you receive any other communications from Gordon & Breach?
17 A. Following the advertisement, there was a letter
18 from Mr. Lupert, representing Gordon & Breach.
19 Q. Do you recall the details of that letter?
20 A. Not really. I mean, I could guess, but I don't
21 really recall the details.
22 Q. I am going to hand you what has been marked as PX
23 Exhibit 516.
24 Is that the letter that the AMS received from
25 Mr. Lupert?
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1 A. Yes, it is.
2 Q. And what was Gordon & Breach objecting to?
3 A. The first --
4 MR. PLOTZ: Objection, your Honor.
5 THE COURT: The letter speaks for itself.
6 THE WITNESS: Thank you.
7 Q. After AMS received this letter, what happened?
8 A. Well, we had an attorney, William Strong from
9 Boston, and I don't remember the name of the firm, who
10 represented us in publication matters. So we shared the
11 letter with Mr. Strong, and he then made a reply on our
12 behalf to Mr. Lupert.
13 Q. And do you recall the substance of the reply?
14 MR. PLOTZ: Objection.
15 THE COURT: Sustained.
16 Q. Did AMS retract the survey, as Gordon & Breach
17 had requested?
18 A. No --
19 Q. Why not?
20 A. Well, first, there was a procedure that was quite
21 standard with articles in the notices, a procedure for
22 grievance. This was to write a response in the form of a
23 letter to the editor to the notices, which we shared with
24 Gordon & Breach, that they certainly could do that, and we
25 welcomed them to do that. We certainly checked all of their
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1 contentions: the contention on agreement; the contention on
2 using the wrong price; the contention on the methodology,
3 the fact that they were claiming that theirs was a specialty
4 journal and other things were not applicable.
5 These things had been discussed before. They had
6 been discussed as early as '85 that the -- there was no --
7 MR. PLOTZ: I am going to object to the
8 discussions in 1985 before he was there.
9 MS. BURKE: Your Honor --
10 THE COURT: No. I didn't think that was the
11 objection.
12 Overruled.
13 A. OK. To just reorganize my thoughts on this, we
14 responded to the concerns of whether we had an agreement
15 with Gordon & Breach. We responded to the concerns about
16 the price. We responded that we had given due
17 consideration, in our opinion, to the concerns of
18 methodology.
19 I believe that Mr. Strong did not know whether
20 Mr. Lupert was aware that paid advertisement was sent nor
21 whether Mr. Lupert was aware of the fact that we used the
22 corrected or the verification forms as corrected by Gordon &
23 Breach. So we sent that type of information to Mr. Strong
24 at that time.
25 Q. You said that you resolved the concerns about the
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1 agreement. What did you mean by that?
2 A. The letter from Mr. Lupert raised an issue that
3 this violated the agreement you had with Gordon & Breach not
4 to include its publications in your surveys.
5 Prior to including Gordon & Breach in the survey,
6 I was familiar with some of the communications that had gone
7 earlier, but following this claim I went back and analyzed
8 the communications much more closely and with other people,
9 and so Mr. Strong responded to Mr. Lupert with our view of
10 the fact that we did not feel we had an agreement with
11 Gordon & Breach.
12 The so-called agreement that was mentioned in the
13 testimony yesterday pertaining, in our view, precisely to
14 the 1985 survey, even following the communication that we
15 would put a footnote only in the survey that said that
16 Gordon & Breach had been excluded at their request,
17 Dr. LeVeque was even at that time asking that they
18 reconsider and actually join and participate in the survey.
19 Following communication as to whether that footnote was OK,
20 his last response to them was, we hope that you will
21 reconsider and reparticipate in the survey.
22 As before my coming to the AMS, the trustees and
23 Dr. LeVeque decided that in the next survey all of Gordon &
24 Breach journals should be included, so I interpreted and I
25 sent this information back to Mr. Lupert that we had no
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1 agreement to not put them in the survey.
2 MR. PLOTZ: Your Honor, I object to the testimony
3 of what people did and decided before he was there. He
4 wasn't party to these discussions.
5 THE COURT: No, but he was apprised of them and
6 they form the basis of the response that was given to
7 plaintiff's counsel. I am accepting it not for the truth of
8 what was told to him but for the fact that it was told to
9 him and it was the basis of his response.
10 Q. After AMS informed Gordon & Breach that it did
11 not believe there was anything wrong with the survey and
12 that there was no agreement, did that end the matter?
13 A. No. I believe that -- I don't have the letter
14 from Mr. Strong here, but I believe the letter again
15 requested that the normal channels of grievance be pursued,
16 namely, a constructive response from Gordon & Breach to the
17 editors of the notices. I also don't know, but in my
18 recollection there must have been phone conversations
19 between Mr. Lupert and Mr. Strong, where Mr. Lupert proposed
20 that some form of arbitration over the disagreements be
21 undertaken.
22 At that time, Mr. Strong called me, and I don't
23 remember what any details of that was. I don't remember
24 whether he actually gave me a list of details. But
25 Mr. Strong --
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1 THE COURT: You can't tell us what Mr. Strong
2 told you. You can tell us what you did after you spoke to
3 him.
4 THE WITNESS: OK.
5 A. (Continuing) After speaking with him, I -- well,
6 while speaking with him, I told him that we were interested
7 in this but I could not make that decision alone, that I
8 would have to consult the trustees, and that we would get
9 back to him after consulting the trustees.
10 During that period of time there was an exchange
11 of mail between Mr. Lupert and Mr. Strong saying that we
12 must respond by the 1st of February, or maybe even it was
13 earlier, the 29th of January or something, that we must
14 respond by then or his clients would take any available
15 action, or any action that was available to them.
16 Q. Now, at this time, had the survey already been --
17 what was the status of the survey? Had it been sent out
18 yet?
19 A. The survey was published in the November '89
20 notices. That generally arrives to members in mid-November.
21 So it should have arrived to members in mid-November of '89.
22 Now we're talking about mid-January of '90.
23 Q. Now, would the survey have arrived to your
24 foreign members?
25 A. It should have.
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1 Q. What percentage of your membership is in the
2 United States, just roughly?
3 A. OK. We have 30,000 members, roughly 7,000
4 outside North America.
5 Q. Do you know how many in Germany?
6 A. Probably 3 to 500.
7 But, anyhow, to continue with the information: I
8 sent a reply back to Mr. Strong on the 31st of January from
9 the trustees. The conclusion of the trustees and myself,
10 and which we communicated back to Mr. Strong, was that there
11 were normal routes for grievances in the AMS if you
12 disagreed with something in the notices, and that these
13 avenues had not been pursued by Gordon & Breach, and
14 Mr. Strong wrote back that, indeed, if these avenues were
15 pursued and if the two parties still did not agree, then
16 maybe a third disinterested party or a panel of
17 disinterested parties could arbitrate.
18 Following, in early February, about the 9th of
19 February, if I recall correctly, Mr. Lupert responded to
20 this letter, answering many of the issues that Mr. Strong
21 had raised, but he ended his letter by saying that he hoped
22 that we could reach an amicable solution.
23 Q. I am going to hand you what is PX 526 and ask you
24 if that is the letter you are referring to.
25 A. Yes.
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1 Q. Dr. Jaco, you mentioned that you consulted with
2 the trustees.
3 How many trustees are there of AMS?
4 A. There are eight trustees.
5 BY THE COURT:
6 Q. Did any of the trustees have any relationships
7 with Gordon & Breach?
8 A. At that time one of the trustees was an editor
9 for Gordon & Breach, but this had nothing to do with -- I
10 mean, our trustees served as quite high on editorial boards
11 on many commercial publishers.
12 Q. And you testified that after consultation with
13 the trustees, you conveyed the AMS view to Mr. Strong?
14 A. I conveyed to Mr. Strong, who then wrote on the
15 1st of February to Mr. Lupert. In this letter that you
16 handed me, on the 9th of February, is Mr. Lupert's reply to
17 Mr. Strong's letter of February 1.
18 Q. And did Mr. Strong provide you a copy of that
19 letter?
20 A. Yes, he did.
21 Q. At that time, did you know that you had been sued
22 in Germany?
23 A. No.
24 Q. When did you learn that?
25 A. Later in February, we received, through
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1 Mr. Strong and over cover from Mr. Lupert, copies --
2 translated copies of litigation that were filed on the 1st
3 of February in Germany and acted upon the 2nd of February in
4 Germany.
5 Q. And do you recall what papers were provided to
6 you by Mr. Lupert?
7 A. There were translations of some kind of
8 statements by a Mr. Schneider, some type of a statement by
9 Mr. Lupert and the Court's order for an injunction on
10 distributing price surveys that included Gordon & Breach
11 journals in the Federal Republic of Germany.
12 Q. Dr. Jaco, I am going to hand you what has been
13 marked as Plaintiffs' Exhibit 527, 524 and Defendants'
14 Exhibit CCCC and DDDD and ask you if that is the package of
15 material that you received.
16 A. All of these documents were in the package. I am
17 not sure if there may not have been a German copy of the
18 thing in there but these were all in the package.
19 Q. What was AMS's reaction upon learning of the
20 German injunction?
21 A. Well, I think, first, the reaction was, for me,
22 deep concern for what it meant to the society being sued. I
23 think for people that aren't accustomed to this it is a
24 frightening experience.
25 I immediately shared it with the trustees, and
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1 the trustees, who are working mathematicians, were extremely
2 concerned by this, because it --
3 MR. PLOTZ: Your Honor, I object to what the
4 trustees said to him.
5 THE COURT: Well, the question is the response of
6 the Society, and the Society obviously is an abstract entity
7 and it exists only through counsel. Overruled.
8 Q. Dr. Jaco, you may continue.
9 A. This does not have all the information that I
10 recall in it, because there was a phrase right at the front
11 of it that said that action could be taken either in the
12 form of a fine or imprisonment to the directors of the
13 organization, and that particularly concerned the trustees,
14 because they didn't know what that meant, as many of them
15 travel to Germany --
16 Q. Dr. Jaco, just to help you out, if you look to
17 the number that has a Bates number on bottom, 011041, it is
18 the third page in your packet, is that the reference to the
19 fine that you recall?
20 A. I have 011042 as the first page in my packet.
21 Q. Here you go, sir.
22 A. Right. This is the -- where it says, "Each
23 contravention shall be punishable by imprisonment of up to
24 six months for contempt of court or an administrative fine
25 of up to Deutsch Mark 500,000, the alternative to the latter
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1 being also imprisonment for contempt of court, enforceable
2 against the directors of the respondent.
3 THE COURT: Now, where are you reading from?
4 Where is this?
5 MS. BURKE: It is the second page in the exhibit,
6 the first page.
7 THE COURT: Which exhibit?
8 MS. BURKE: 524.
9 THE COURT: 524 page --
10 THE WITNESS: It is 011041 on this thing but it
11 doesn't appear on my 524.
12 THE COURT: I don't have it. I have 524 in which
13 the first Bates is --
14 THE WITNESS: 011042.
15 THE COURT: 042.
16 THE WITNESS: The same as mine was.
17 MS. BURKE: I am sorry, your Honor. Could you
18 give me a moment?
19 (Pause)
20 MS. BURKE: I'm sorry, sir.
21 (Handing to the Court)
22 Q. Dr. Jaco, why was it that the trustees were
23 particularly concerned about that language in the petition?
24 A. Well, it addressed the directors as being
25 potentially involved in this personally. I think that --
688
1 OK, I don't think -- I know that my particular concern was
2 what did this imply for the Society, and also I could not
3 quite understand the fact that the injunction was brought
4 without any representation from the AMS and it had words
5 that this was issued without a prior oral hearing in view of
6 the urgency of the matter.
7 And so I was quite shocked by the fact that the
8 Court had actually taken this as such an urgent matter, so
9 urgent that we were not even represented in the bringing of
10 this injunction.
11 Q. At that time, did the AMS intend to publish
12 another survey immediately?
13 A. No. As I mentioned yesterday, we publish surveys
14 every two years, and the next one that would have been due
15 would have been due in 1991.
16 Q. At that time, had the survey -- do you know -- to
17 what extent had the survey been distributed in Germany?
18 A. I would assume that the membership of the society
19 in Germany hopefully had received it by then.
20 Q. When had it been mailed?
21 A. It would have -- it should have been to U.S.
22 members by mid-November, but we had a mailer in Europe that
23 took care of that, so it shouldn't have lagged more than a
24 week.
25 Q. Turning to the pleadings filed by Gordon &
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1 Breach, the petition and the affidavits, to what extent did
2 those statements fully reflect the facts?
3 MR. PLOTZ: Objection.
4 THE COURT: To what extent did what reflect the
5 facts?
6 MS. BURKE: Did those statements.
7 THE COURT: Which statements?
8 MS. BURKE: The Gordon & Breach petition for an
9 injunction and the affidavits filed in support thereof.
10 THE COURT: Overruled.
11 Q. You may answer, Dr. Jaco.
12 A. I think that there are -- I think the main thing
13 that is missing is that one of the objections and one of the
14 reasons for the petition was that we were misrepresenting
15 the prices of Gordon & Breach, but nowhere does it say that
16 we actually used the verification that they sent to us. So
17 I think that's probably a major omission in this.
18 Q. To what extent did the fact of the German
19 injunction affect AMS operations?
20 A. Well, from that point on, we were very involved
21 in concerns of litigation and all of our trustees from AMS
22 from that point on had an item that was concerned with this.
23 We immediately retained counsel in both the United States
24 and in Germany. By that time, we were aware that litigation
25 had been filed also in Germany as well as Switzerland
690
1 against AIP, APS and Dr. Barschall, so we contacted their
2 counsel at that time for advice. Our counsel met with
3 Mr. Meserve at that time.
4 Since their -- the case with AIP, APS and
5 Dr. Barschall was already proceeding in Germany, we made the
6 decision to wait and observe the outcome of that case before
7 responding to the injunction.
8 Q. Did you later -- did AMS later decide to
9 challenge the injunction?
10 A. AMS later discussed challenging the injunction,
11 but made a decision not to.
12 Q. What led up to that decision?
13 A. Well, as I said, that we were watching the court
14 proceedings involved by AIP, APS and Dr. Barschall in
15 Europe, and the German case had actually been resolved. And
16 so we decided the ball was then in our court to make some
17 type of a response to this.
18 So the trustees appointed a task force, including
19 the then president, the then treasurer and myself, to advise
20 the trustees on a course of action. This --
21 Q. What did the task force do?
22 A. This task force asked both counsel in Germany and
23 counsel in the United States to make an evaluation of the
24 proceedings against AIP and APS. They advised us on all of
25 our options, and then we had a meeting with them in order to
691
1 discuss this after they had collected this information for
2 us.
3 Following that meeting, the task force made a
4 proposal to the trustees. That proposal was to not fight
5 the injunction in West Germany. We believed that our case
6 was with merit. We believed that we would win the case.
7 But we were advised that we would have possibly a minimal
8 cost, in the neighborhood of $100,000. We did not feel that
9 it was worth spending the $100,000, because our revenue came
10 from increasing journal prices.
11 The other thing was that I think that following
12 the German litigation, Gordon & Breach filed litigation in
13 both Switzerland and France, and it appeared to us that we
14 could possibly be exposing ourselves to a long term of
15 litigation, and so we chose to back out of the fight.
16 Q. Just for clarity, Dr. Jaco, when you say that
17 Gordon & Breach filed litigations in France and Switzerland,
18 was that litigation against AMS?
19 A. No, it was against AIP, APS and I think
20 Dr. Barschall was involved certainly in Switzerland but I
21 don't know about France.
22 Q. Well, if the task force did not recommend having
23 the injunction lifted, what did the task force recommend?
24 A. Well, we had avoided doing the 1991 survey. This
25 particular litigation and threat of additional litigation --
692
1 this litigation had prevented us from moving forward with
2 the '91 survey, but we had decided that, since we were not
3 going to fight, that we would proceed with the '93 survey,
4 and this was the time to start organizing that. And so the
5 decision was made that we would do a '93 survey, that we
6 would leave Gordon & Breach out of the survey.
7 However, we felt that our membership needed to
8 know a couple of things. One, they needed to know what had
9 happened in the issues with Gordon & Breach, and we felt
10 that they needed to know why we were not fighting the
11 injunction in Germany.
12 So, the trustees recommended that we do the new
13 journal survey, that it try to get out as close as possible
14 to November of 1993, that I write an editorial in my
15 editorial column, stating why we felt that it was in the
16 best interest of the Society to not fight Gordon & Breach,
17 and our staff writer was to write a news story that informed
18 our membership of the situations with AIP, APS and the AMS
19 regarding litigation with Gordon & Breach.
20 Q. Is that what happened, Dr. Jaco?
21 A. Yes, except that the journal didn't come out
22 until December of 1993.
23 Q. I am going to hand you what has been marked as PX
24 528 and ask if that is the editorial you wrote.
25 A. Yes, it is.
693
1 Q. And where was this editorial published?
2 A. It was published on the second page of The
3 Notices.
4 Q. And what is The Notices, Dr. Jaco?
5 A. The Notices is our membership magazine. It is,
6 quote, a privilege of the AMS, so it has information about
7 the AMS in it.
8 Q. Did this editorial, as well as the '93 survey,
9 get sent to Germany?
10 A. Yes.
11 Q. And after the --
12 A. The injunction was only for surveys that included
13 Gordon & Breach.
14 Q. After the editorial was published, what happened?
15 A. I don't remember exactly how long after the
16 editorial was published, but I received a letter from a firm
17 called Clintons in the United Kingdom challenging the
18 editorial and threatening a suit of libel personally against
19 me on behalf of Gordon & Breach.
20 Q. Dr. Jaco, when you made a reference to "you
21 received," you personally or the AMS received?
22 A. It was directed to me personally, if I remember
23 right.
24 Q. I am going to hand you what has been marked as PX
25 Exhibit 530 and ask if that is the letter that you received?
694
1 A. Yes, it is.
2 Q. And what claims did Gordon & Breach make about
3 your editorial?
4 THE COURT: Are those set forth in this letter?
5 THE WITNESS: Yes.
6 THE COURT: OK.
7 Q. And what was your response to that, to the claims
8 that were made?
9 A. I mean, you asked me first what claims were made.
10 Do I say what claims were made or --
11 THE COURT: No. No. It is in the letter.
12 THE WITNESS: OK.
13 A. I'm sorry. Now go back to the question.
14 Q. What was your response to the claims?
15 A. Well, my first response was complete surprise,
16 because, first, I felt that we had given up the fight. I
17 was not happy with this, but I felt that we had made a
18 decision so that we would no longer be engaged in threats of
19 litigation from Gordon & Breach. So I was quite surprised
20 with this.
21 I was deeply concerned because it was directed to
22 me and saying that I personally had potentially caused
23 damage or injuries to Gordon & Breach. So this was
24 delivered to me, and not to our attorney. So I immediately
25 sent it to Mr. Strong for advice, and after -- I waited
695
1 until he responded back to me before I notified the
2 trustees, because I knew the first thing they would say was,
3 what advice did you receive.
4 Q. What had you said in your editorial that prompted
5 the Gordon & Breach reaction?
6 MR. PLOTZ: Objection.
7 THE COURT: Sustained.
8 Q. What happened next after -- did you consult with
9 the trustees?
10 A. I consulted with the trustees. I was deeply
11 concerned with what this meant to me personally, so I
12 consulted with attorneys.
13 We went back through the by-laws of the AMS and
14 found that the appointed officers were not indemnified by
15 the AMS but the elected officers were. So I requested that
16 our trustees indemnify me in this particular instance, and I
17 responded directly to the letter from Clintons rather than
18 going through a counsel, since the letter had been sent
19 directly to me.
20 Q. Do you recall what it is that you said in your
21 letter?
22 MR. PLOTZ: I am going to object.
23 THE COURT: Do you have the letter?
24 MS. BURKE: Yes. I will hand up what has been
25 marked as Defendants' Exhibit KKK.
696
1 MR. PLOTZ: I'm sorry. What is the exhibit?
2 MS. BURKE: KKKK.
3 Q. Is KKKK your response, Dr. Jaco?
4 A. Yes, it is.
5 Q. And did you write that letter?
6 A. I wrote the letter, but it was reviewed by our
7 counsel and by the trustees.
8 Q. What did you suggest to Gordon & Breach?
9 MR. PLOTZ: Objection.
10 THE COURT: Is it contained in this letter?
11 MS. BURKE: It is contained in the letter, your
12 Honor.
13 THE COURT: Sustained.
14 Q. What happened after you suggested to Gordon &
15 Breach that they write an editorial?
16 A. We responded with this. Clintons responded back
17 that since I had mentioned attorneys in Boston, they would
18 communicate with them and not with me in the future.
19 Following that, Mr. Strong received a letter from
20 Mr. Lupert advising him that --
21 MR. PLOTZ: Again, your Honor, there is a letter
22 and I think it speaks for itself.
23 THE WITNESS: Is it in the --
24 BY MS. BURKE:
25 Q. I will hand you the letter. It is Exhibit PX
697
1 532.
2 Go ahead, Dr. Jaco.
3 A. I don't -- do I tell you what is in the letter or
4 do I not tell you what is in the letter?
5 THE COURT: No, you don't. The theory is if it
6 is all in the document, you don't need an oral explanation.
7 THE WITNESS: I understand the theory.
8 Q. Looking at PX 532, what was your reaction to that
9 letter?
10 A. Well, of course, as I mentioned before, I was
11 extremely anxious and concerned about the potential of
12 litigation against the society, and, quite honestly, against
13 myself personally. I was very concerned as to what this
14 meant.
15 I think in this letter I did not find it as
16 particularly any different. I think that my interpretation
17 of this letter was that it was intended to scare me and
18 intimidate me. And it did that.
19 So, I did not respond to it. I don't remember if
20 Mr. Strong responded to that letter or not.
21 Q. And what happened after that?
22 A. We had offered -- I mean, the normal path for
23 grievance, which I had mentioned but I am not sure that I
24 made clear, was that if someone had a grievance with
25 something that was published in the notices, they would then
698
1 write a letter to the editor. The normal procedure is
2 whoever had done the first article which caused the
3 grievance would then respond to that, and sometimes that
4 could carry on for quite a while until sometimes even the
5 counsel of the society got involved in arbitrating these
6 types of things.
7 So we suggested that this happen. However, we
8 modified that grievance procedure for Gordon & Breach to say
9 that if they wrote their objections, then I would write a
10 response but before it were published we would share that
11 response with Gordon & Breach and that if they wanted to at
12 that time, they could pull out. If not, publish it, but we
13 would modify the grievance for at that time.
14 What we did receive back was a correspondence
15 from Mr. Lupert. I do not know if he or someone else wrote
16 this. But the correspondence had only in it what Gordon &
17 Breach wanted me to reply. It was not -- they did not
18 provide what I would be replying to, but only what I would
19 reply. And we could not accept that, because, basically, it
20 was a reply that everything we did was wrong.
21 Q. Did you sign any statement that what you did was
22 wrong?
23 A. No.
24 Q. To what extent did Gordon & Breach's personal
25 threat against you have any impact on AMS?
699
1 A. Well, as I mentioned before, the trustees had a
2 meeting where they made special indemnification of me. I
3 think that this whole procedure greatly affected a role that
4 AMS had played and enjoyed in the community. We often were
5 major participants in the library community meetings. We
6 often organized panel discussions on current issues. This
7 greatly prevented us from sticking our neck out on any
8 controversial issue. So I think that it affected the --
9 AMS's major responsibility they had of serving the
10 mathematics profession in an open and forthright way.
11 Q. Dr. Jaco, what did you do when you were asked to
12 testify in this case?
13 MR. PLOTZ: Objection.
14 THE COURT: Overruled.
15 A. I was telephoned by you, and the first thing that
16 I felt is I needed to consult with the AMS to make sure that
17 they approved my participating in this, and also to consult
18 with AMS attorneys to see if indeed the indemnification was
19 still applicable. It turned out that they did not feel it
20 was because it was directed to the executive director and
21 the actions of the executive director, so the trustees had
22 another meeting where they made the indemnification specific
23 to me, and so I think that I've appeared here with the good
24 wishes of the AMS, but I think all of us are a little
25 anxious that again stepping forward publicly, no matter what
700
1 our intent is -- and which I think is good intent -- we
2 subject ourselves to potential litigation again. So it
3 worries me.
4 MS. BURKE: Thank you, Dr. Jaco. I have no
5 further questions.
6 THE COURT: Mr. Plotz, you may inquire.
7 MR. PLOTZ: Thank you.
8 CROSS-EXAMINATION
9 BY MR. PLOTZ:
10 Q. Dr. Jaco, when you decided to do the 1989 survey
11 shortly after you became the executive director, you didn't
12 know that there was any issue at that time concerning Gordon
13 & Breach's inclusion, did you?
14 A. First, I did not make that decision. The
15 decision to do surveys had been regularly made. But prior
16 to my coming to the AMS, the trustees had said that one
17 thing they really wanted to happen was to redo the surveys.
18 So when I came, one of the discussions was that I would
19 quickly respond and get a survey out.
20 Q. But at that time, when you did that, you at that
21 time didn't know there was any issue one way or the other
22 about Gordon & Breach's inclusion, correct?
23 A. I don't remember being consciously aware. I may
24 have read the footnote in 1985, but I don't remember it.
25 Q. Well, I think you testified that you learned that
701
1 there was an issue because Mary Lane, your director of
2 publications, came to you and raised it with you, isn't that
3 right?
4 A. I think that in the deposition I said that I
5 learned of the thing and it was asked as to whether I knew
6 who told me. And I said I would assume it was Mary Lane
7 because that's with whom I was discussing the survey at that
8 time.
9 Q. Well, when you learned that there was an issue,
10 you reviewed documents in the AMS file to learn more about
11 it, right?
12 A. Yes, I did.
13 Q. And at that time, the extent of your knowledge of
14 what had happened in the past was based on your review of
15 those documents in the AMS files, correct?
16 A. And staff who were there.
17 Q. One of the documents that you reviewed was a
18 letter from Gordon & Breach's attorney in 1985 raising
19 issues about the first survey, correct?
20 A. It was in the files. I'm sure I reviewed that
21 letter. If it's the one to Dr. Maxwell. Is that the one
22 that you are referring to?
23 MR. PLOTZ: Just a moment. I'll get it for you.
24 Q. Let me show you Plaintiff's Exhibit 502 and ask
25 you if that is one of the letters that you referred to at
702
1 that time.
2 A. I, of course, don't remember actually seeing
3 this. But if it was in the file, I read the files, so I'm
4 sure I read this letter at that time.
5 Q. And that was the letter from Gordon & Breach's
6 attorney, June 5, 1985, raising objections that Gordon &
7 Breach had to the 1983 survey, correct?
8 A. Yes, it is.
9 Q. And in that letter, in the last paragraph, Gordon
10 & Breach requested either that AMS take these objections
11 into account in any future surveys or that AMS eliminate
12 Gordon & Breach from any future surveys, correct?
13 A. The last paragraph says that, yes.
14 Q. And this is one of the letters that you reviewed
15 back in 1989, in the fall of 1989, correct?
16 A. Again, I say I'm sure I reviewed it. And, as I
17 stated earlier, I believe that -- at least in my
18 understanding, I would believe that this letter prompted a
19 number of the inclusions in our verification statement and
20 inclusions of some of the issues of page charges, outside
21 support, and those things which are now included in the
22 survey.
23 Q. Now, in response to that letter, your
24 predecessor, Dr. LeVeque, wrote back, correct?
25 A. Yes.
703
1 Q. Let me show you Exhibit 503, and also hand you
2 504, because I am going to ask you about that shortly.
3 Exhibit 503 is the response of Dr. LeVeque to
4 Gordon & Breach's letter, correct?
5 A. Yes.
6 Q. And in that letter, in the third paragraph,
7 Dr. LeVeque said that, "If you instruct me to do so, I will,
8 of course, see to it that Gordon & Breach journals are not
9 listed." He was referring to another survey that was being
10 conducted, correct?
11 A. Yes. This is out of context, that part with the
12 longer sentence.
13 Q. I will read the whole sentence, if that helps.
14 A. Yes.
15 Q. "In collaboration with the European Mathematics
16 Council we are now preparing and updating an extended
17 version for survey covering both the American and European
18 journals. If you instruct me to do so, I will of course see
19 to it that Gordon & Breach journals are not listed."
20 A. Yes, that's the full exhibit.
21 Q. And Dr. LeVeque also stated, in the last
22 paragraph of this letter, "I would hope that these
23 considerations would persuade your client to agree, once
24 again, to participate in the survey. In any case, be
25 assured that we will proceed as he specifies in this
704
1 regard."
2 A. Yes.
3 Q. Dr. LeVeque said that?
4 A. Yes.
5 Q. And you reviewed this letter back in the fall of
6 1989?
7 A. I'm sure I did. I again, don't --
8 Q. And you understand that Dr. LeVeque was making an
9 offer to Gordon & Breach to proceed as Gordon & Breach
10 specifies?
11 A. Yes, and I believe Dr. LeVeque did, on that
12 survey.
13 Q. Now, take a look at Exhibit 504. This exhibit is
14 Gordon & Breach's response to that offer, isn't it?
15 A. Yes, it is a response to the letter of June 30.
16 Q. And in that response, Gordon & Breach took up the
17 offer that Dr. LeVeque had made in his letter, didn't they?
18 A. It says that, "There remains a large area of
19 misunderstanding, and be that as it may we have requested to
20 inform you on behalf of our client that it wishes to be
21 omitted from all surveys made by you in the future."
22 Q. And you read this letter also in the fall of
23 1989, didn't you?
24 A. I'm sure I did, yes.
25 Q. You understood that in this letter Gordon &
705
1 Breach was accepting the offer made by Dr. LeVeque, didn't
2 you?
3 A. No, I interpreted this that Gordon & Breach
4 wished to be omitted from surveys, but Dr. LeVeque's offer
5 is very specific to the '85 survey.
6 Q. Now, who is Michael Atiyah?
7 A. Sir Michael Atiyah is a well-known mathematician.
8 At that time he was serving as president of the European
9 Mathematical Council.
10 Q. That is the organization which was doing
11 companion surveys with AMS?
12 A. They were organizing a survey of European
13 journals.
14 Q. And they were doing it in collaboration with you,
15 weren't they?
16 A. It certainly was collaboration in the sense, I
17 believe -- I don't know exactly to what extent it was as far
18 as methodology. By the time I came in, another organization
19 had taken it over in Europe which used their own
20 methodology. But I would assume at this time that the
21 methodology was probably similar, so it would have
22 comparable results, and certainly in communication with what
23 one was doing. I don't know how extensive the, quote,
24 collaboration may have been.
25 Q. You understood also that the European
706
1 Mathematical Council had also agreed with Gordon & Breach
2 not to include Gordon & Breach journals in its survey,
3 didn't you?
4 A. There were letters introduced yesterday -- I'm
5 not sure that I had access to those letters at that time
6 from the European Math Council, but from testimony yesterday
7 that was introduced, I understood that they had agreed not
8 to include Gordon & Breach in the '85 survey.
9 Q. Let me show you Plaintiffs' Exhibit 509.
10 A. I'm not sure whether they had agreed. I would
11 have to see it.
12 Thank you.
13 Q. Let me direct your attention specifically --
14 well, first, this is a letter from Michael Atiyah to Martin
15 Gordon, is it not?
16 A. To M. B. Gordon, yes.
17 Q. And the letter shows that there was a cc to
18 Dr. LeVeque?
19 A. Yes.
20 MS. BURKE: Your Honor, I just object that this
21 is being asked of a witness that said he was not aware of
22 these letters at the time. I don't see the relevance.
23 THE COURT: The point is well taken. Let's move
24 on.
25 Q. Let me ask you, Dr. Jaco, leaving aside -- did
707
1 there come a time after approximately September of 1989 when
2 you reviewed the file relating to Gordon & Breach maintained
3 by the AMS in greater detail.
4 A. I think certainly after the paid advertisement
5 was sent accusing us of not opening up to an agreement, that
6 I pulled everything out again, reviewed it in great detail,
7 shared it with counsel, and discussed it again with staff
8 and trustees.
9 Q. And Plaintiff's Exhibit 509 is one of the letters
10 that you reviewed, at least on that occasion, isn't it?
11 A. I'm not sure I had this letter. I had
12 communication from Sir Michael, but I am not sure I had this
13 letter. Because this Mr. -- well, it was cc'd to LeVeque.
14 It may have been in the file. If it were in the file then I
15 reviewed it.
16 Q. I can represent to you that this was produced in
17 this litigation from the files of AMS.
18 A. OK. Then I probably --
19 Q. Does that help you as to whether or not you
20 reviewed this document?
21 A. Just like the other letters, if it were in the
22 file then I probably read it.
23 Q. We'll come back to that in a few minutes.
24 Now, at the time you were preparing to do the
25 1989 survey, having reviewed this file, you understood that
708
1 there was an issue relating to including Gordon & Breach in
2 the survey, didn't you?
3 A. Yes, I did.
4 Q. But you still wanted to include Gordon & Breach,
5 correct?
6 A. I felt that it was very important to, not only
7 that survey but all our surveys, that they be complete. So,
8 yes, I wanted to include all American publishers under
9 the -- whose journals were reviewed in their entirety by
10 math referees.
11 Q. So you consulted an attorney about this, correct?
12 MS. BURKE: Your Honor --
13 THE COURT: You may answer.
14 A. I didn't. It was -- I want to make sure about
15 "this."
16 What do you mean by "this"?
17 Q. About including Gordon & Breach in the 1989
18 survey.
19 A. As I've said before, for both reasons of
20 reporting to the trustees and what I thought was just wise
21 practice, I consulted the attorneys on issues where I didn't
22 understand what might be involved.
23 In this particular case, I really could not
24 understand where we had any legal exposure, since we were
25 taking publicly-available information, collecting it,
709
1 collating it, and putting it in our member magazine. So we
2 did consult the attorney, as, are we missing something here,
3 do we have to be concerned.
4 Q. And let me show you Plaintiff's Exhibit 512 and
5 ask you if that is the letter to your attorney requesting
6 such advice?
7 A. Yes. This is from the director of publications.
8 Q. That is from Mary Lane?
9 A. Yes.
10 Q. And, among other things, Ms. Lane enclosed with
11 this letter to your attorney copies of the correspondence
12 between AMS and Gordon & Breach in 1985, correct?
13 (Pause)
14 A. Yes. "I am sending you a copy of the original
15 correspondence relating to the threatened suit along with a
16 copy of the most recent survey published."
17 Q. So the answer is yes?
18 A. If that's the information you think -- I don't
19 know how extensive. It says, "the original correspondence
20 related to the threatened suit."
21 Q. And Ms. Lane asked AMS's attorney whether it
22 would be risky to include Gordon & Breach in this 1989
23 survey, correct?
24 A. I don't see the word "risky," but I assume that
25 it is in there, if you say it.
710
1 Q. Let me direct your attention to --
2 A. Oh, how risky is it to include Gordon & Breach.
3 Q. So the answer is yes, correct?
4 A. Yes.
5 Q. And the risk to which Ms. Lane was referring was
6 whether or not there was an agreement that would be breached
7 if Gordon & Breach were included in the 1989 survey, isn't
8 it?
9 A. I absolutely don't think that. I think the risk
10 is, are we doing anything that they possibly could sue us
11 over.
12 Q. Well, at that time you had had no communication
13 with Gordon & Breach concerning including them in the 1989
14 survey, had you?
15 A. But, if you recall, in the '85 letter there was a
16 threat to sue, and that was prior to any discussion about
17 any agreement or anything. That was just over a survey.
18 So I think --
19 Q. Well, did you at the time that you were
20 collecting information in 1989, and that this letter was
21 sent to your attorney, did you fear that Gordon & Breach was
22 going to sue you in connection with this survey?
23 A. No, I didn't. I didn't believe that they would.
24 Q. So you didn't fear that Gordon & Breach would sue
25 you, did you?
711
1 A. I really saw nothing that they could sue us over.
2 But the reason for the letter was advice: Am I
3 missing something?
4 Q. Now, this letter, this letter of September 11,
5 1989, also states, does it not -- and I'll quote from it:
6 "We have sent letters to each publisher, sample enclosed,
7 explaining what we have found and plan to publish."
8 Is that correct?
9 MS. BURKE: Your Honor, I would just suggest the
10 letter speaks for itself.
11 THE COURT: Yes. Sustained.
12 Q. Let me direct your attention to that part of the
13 letter.
14 A. I see it.
15 Q. Now, at that point you had not sent a
16 questionnaire to Gordon & Breach, however, correct?
17 A. I assume that we had not, because this letter was
18 sent to get advice about sending that.
19 Q. Were there any publishers other than Gordon &
20 Breach who, as of September 11, 1989, had not received a
21 questionnaire?
22 A. I, as I said in the deposition, I don't know
23 whether that's true, but if one wants to interpret the
24 letter literally, you would assume that other publishers had
25 been sent. Whether that actually had been mailed or not, I
712
1 don't know.
2 THE COURT: Is there a difference between the
3 questionnaire and intent to publish?
4 THE WITNESS: I'm sorry, I don't --
5 THE COURT: Your question was about the
6 questionnaire.
7 MR. PLOTZ: Correct.
8 THE COURT: And this letter is talking about,
9 have not yet sent the intent to publish letter.
10 MR. PLOTZ: I believe the questionnaire and
11 intent to publish letter are one and the same.
12 THE WITNESS: Yes, they are the same, yes.
13 Q. Gordon & Breach -- withdrawn.
14 You eventually did send the questionnaire and
15 intent to publish letter to Gordon & Breach, correct?
16 A. Yes, the publication department did.
17 Q. And that's Exhibit 513, right? Do you have that
18 in front of you?
19 A. It was here. Yes, I have it.
20 Q. And that letter to Gordon & Breach is dated
21 September 26, 1989, is it not?
22 A. Yes, it is.
23 Q. And it called for a response by October 5, did it
24 not?
25 A. Yes.
713
1 Q. About eight or nine days later?
2 A. Yes.
3 Q. This survey was sent out over -- at least over
4 two weeks after the surveys to the other publishers, was it
5 not?
6 A. This questionnaire was delayed because we were
7 getting counsel advice --
8 Q. So --
9 A. -- regarding the --
10 Q. So it was sent out late, correct?
11 A. As far as I know, yes.
12 Q. In fact, it contains an apology for being sent
13 out late, does it not?
14 A. Yes.
15 Q. And AMS intended to -- let me start over.
16 In general, AMS intended to include information
17 as to the publishers whether or not the publishers responded
18 to these questionnaires, isn't that right?
19 A. The letter says that if you -- I mean, the
20 question was -- the issue was, yes, it intended to put the
21 publishers in. And the questionnaire stated that if you do
22 not reply, then we will -- we'll assume that the information
23 you have received from us that we're going to publish is
24 correct --
25 Q. It says that in capital letters, doesn't it?
714
1 THE COURT: Yes, it does.
2 A. Yes, it does.
3 THE COURT: We will take our mid-morning recess.
4 (Recess)
5 THE COURT: Try not to ask questions which are
6 not designed to elicit a response from the witness but,
7 rather, simply to call the Court's attention to something
8 like whether something is capitalized or not capitalized.
9 You will have an opportunity to make closing argument, file
10 briefs. Try to use the proceedings to elicit testimony from
11 the witnesses.
12 MR. PLOTZ: Yes, your Honor.
13 BY MR. PLOTZ:
14 Q. The AMS, in preparing the 1989 survey, actually
15 typeset two different versions of the survey, didn't you?
16 A. Yes.
17 Q. And the difference between the two versions was
18 that one excluded Gordon & Breach?
19 A. There was an inclusion and an exclusion version.
20 Q. You did that because you understood that there
21 was an issue about whether or not Gordon & Breach was going
22 to be included in the survey, right.
23 A. I had not made a decision at that point, and the
24 trustees were going to be meeting that fall and they would
25 be involved in making the decision. We were very much
715
1 waiting for a response from Gordon & Breach to our
2 verification questionnaire. And so, we were prepared to,
3 depending on what kind of a response we got from Gordon &
4 Breach, to have to make a hard decision or an easy decision
5 as to whether to include them or not.
6 Q. Now, going back to the 1985 correspondence that
7 you reviewed, you understood, didn't you, that Gordon &
8 Breach's response had stated their desire to be excluded
9 from all surveys in the future, didn't you?
10 A. I understood that, yes. But I would like to
11 point out that Dr. LeVeque never responded to that.
12 Q. I'm not asking about Dr. LeVeque. I am asking
13 about Gordon & Breach.
14 You understood that, from Gordon & Breach's point
15 of view, they expected to be excluded from all future
16 surveys, correct?
17 A. They said that they wished to be excluded from
18 all future surveys.
19 Q. Now, when the 1989 survey was published, Gordon &
20 Breach protested its inclusion, correct?
21 A. Yes.
22 Q. And one of the reasons stated was because, in
23 Gordon & Breach's view, the prior agreement had been
24 breached, right?
25 A. The advertisement had that we had not lived up to
716
1 an agreement that they felt we had.
2 Q. You did not agree with that, right?
3 A. I did not agree with that.
4 Q. That was a dispute between the two of you, right?
5 A. Yes.
6 Q. Now, you wrote an editorial in the notices
7 about -- that you considered that there was a threat to
8 conducting price surveys, do you recall that?
9 A. Yes.
10 Q. Let me just show you Exhibit 520, which is the
11 editorial.
12 I want to direct your attention to about the
13 middle of the editorial, where you wrote "at the height of
14 these exchanges." Do you see where I am directing your
15 attention to?
16 A. Yes.
17 Q. Now, your view of it was that the AMS had yielded
18 to pressure to exclude Gordon & Breach back in 1985,
19 correct?
20 A. Yes.
21 Q. What exchanges were you referring to when you
22 stated that "the society yielded to pressure at the height
23 of these exchanges," which are your words?
24 A. I would assume it was the letter to Dr. Maxwell
25 where it was stated that if we include them in the survey,
717
1 then they would resort to any actions that were available to
2 them.
3 Q. In the editorial, you also referred to
4 correspondence with the European council, correct?
5 A. Yes, that's the '83 survey.
6 I believe that was the '83 --
7 THE COURT: Is the advertisement in --
8 THE WITNESS: The advertisement was in --
9 THE COURT: Excuse me. Is that an exhibit that
10 has been received?
11 MS. BURKE: It is an attachment, your Honor, to
12 one of the exhibits.
13 THE COURT: Which?
14 MR. PLOTZ: I'm not sure, Judge.
15 (Pause)
16 MS. BURKE: It is PX 518.
17 THE COURT: 518. Thank you.
18 OK. I'm sorry to have interrupted you.
19 Q. I am going to show you some correspondence with
20 the European council and ask you if that is the
21 correspondence that you were referring to in the editorial.
22 I am going to show you Plaintiffs' Exhibit 507A, 508, and
23 509.
24 I believe you have 509, do you not?
25 A. I may. Yes, I have 509.
718
1 Q. So you have before you now 507A, 508 and 509?
2 A. Yes.
3 Q. And let me ask you if that is the correspondence
4 that you were referring to in this editorial --
5 correspondence relating to the European Mathematics Council.
6 A. I don't know if this specifically -- there were
7 other correspondences, too. This was written in '87, so
8 they had to do with an earlier survey. They would have had
9 to do with the '85 survey.
10 Q. So these would have referred to the same survey?
11 A. These, I think, refer to the European Math
12 Council survey of European mathematical journals, which
13 appeared in the November 1986 notices.
14 Q. Just to be clear, your testimony is that you are
15 not certain whether you were referring to this exchange of
16 correspondence when you wrote the editorial?
17 A. There were a number of letters, and I'm not sure
18 if these were precisely, but this was probably part of the
19 correspondence that I was referring to.
20 Q. And you understood that part of that
21 correspondence, that in part of that correspondence, Sir
22 Michael Atiyah of the European council indicated that the
23 European council would be omitting Gordon & Breach from all
24 two fewer surveys, didn't you?
25 A. I heard you say that yesterday. I'm not sure
719
1 that I had that particular part at that time. But my
2 editorial does not refer to that type of thing there. It is
3 referring to the -- I think the March 19 letter. If
4 anything, it is the one that is just referring to the fact
5 that there was threatened litigation.
6 Q. I won't quibble the point, Dr. Jaco, and I'll
7 heed the Judge's instruction --
8 A. OK.
9 Q. -- not to simply direct your attention to
10 portions of the documents. We know that we have an
11 opportunity to do that at another time.
12 In this editorial, you didn't disclose that there
13 had been an exchange of correspondence in 1985 relating to
14 Gordon & Breach's wish not to be included in the survey, did
15 you?
16 A. I thought that I had something in here that --
17 where I said that I did not believe that we had an
18 agreement, but I would have to read through it.
19 Q. Now, you wrote that the Gordon & Breach had
20 collected -- that the information, rather, as to Gordon &
21 Breach had been collected by AMS in the same way as for
22 other publishers. You wrote that in the editorial, did you
23 not?
24 A. Yes.
25 Q. That is not exactly true, is it?
720
1 A. Yes, I think it is true. The information on
2 Gordon & Breach, we took the information from the front
3 matter of the journals, we counted characters exactly as we
4 counted for everybody else. The only exception would have
5 been in the delivery of the verification document, which was
6 delayed for them, but, as we've stated before, they were the
7 only publisher that was threatening some type of action, and
8 so I think it's very analogous that you are in a schoolyard
9 and there is a thousand kids in the schoolyard, if one is
10 threatening you, you behave differently in that regard.
11 Q. Gordon & Breach hadn't threatened you in
12 connection with this survey, had they?
13 A. They had threatened us in connection with this
14 survey before.
15 Q. And what was -- and where was the threat
16 contained with respect to the --
17 A. In the letter to Dr. Maxwell.
18 Q. -- with respect to the prior survey?
19 A. In the letter to Dr. Maxwell.
20 Q. Now, in your questionnaire to Gordon & Breach,
21 you asked for different kinds of price information and
22 verification, correct?
23 A. Yes. Well, we asked for discounting structure,
24 and then we asked for a description of your discounting
25 structure. And we asked for verification of the prices that
721
1 we had in there, yes.
2 Q. And you got certain information from Gordon &
3 Breach, didn't you?
4 A. Yes, we did.
5 Q. You got specific information as to the specific
6 prices charged to libraries, didn't you?
7 A. Yes.
8 Q. Did that information -- was that information --
9 withdrawn.
10 Did that information find its way into the 1989
11 survey?
12 A. If you look under the column of whether discounts
13 are allowed to institutions, that is indicated, as, yes,
14 discounts are allowed to institutions.
15 Q. You asked in the questionnaire for more than
16 whether discounts were available, didn't you?
17 A. We asked for discount structures, yes.
18 Q. And you were given the discount structure,
19 weren't you?
20 A. We were given the discount prices and the
21 discounts were allowed to institutions, the same as our own
22 organization.
23 Q. You were given specific subscription information
24 as to Gordon & Breach prices charged to libraries, weren't
25 you?
722
1 A. Oh, yes, yes.
2 Q. You did not include that information in your
3 survey, did you?
4 A. That was not included for anybody, so we treated
5 Gordon & Breach the same as we did everybody else, including
6 ourselves.
7 Q. So the answer is no, right, you didn't include
8 the information?
9 A. No, it wasn't included for anybody, that type of
10 information.
11 Q. Is there a reason you asked for the information?
12 A. I think the reason that we asked for information
13 was that there were subscripts put on various discounting
14 things, because the column said "Discounting to
15 institution," and then I think if you look at -- there are
16 subscripts, I don't remember some of them, but some people
17 discounted only for second things, not for first issue, and
18 some discount to -- societies discount to members only,
19 those types of things. So that type of generic discounting
20 structure was pointed out, not dollars. Dollars were not
21 pointed out in anything because they are quite complex.
22 Q. Now, you testified on direct examination that
23 Gordon & Breach did not provide circulation information in
24 response to the questionnaire, correct?
25 A. It's not on the particular document I had. It
723
1 had information not available.
2 Q. Gordon & Breach was not unique in that respect,
3 was it?
4 A. No.
5 Q. In fact, many publishers did not provide
6 circulation information?
7 A. Yeah, I don't -- the columns are left blank and
8 did not -- are not available or something in there and so --
9 Q. In fact, not only commercial publishers in some
10 instances did not disclose subscription information, is that
11 correct?
12 A. We could go through and look. I know some
13 commercial publishers did. I do not know if noncommercial
14 publishers did not.
15 Q. Now, you understood that Gordon & Breach
16 requested an arbitration of this dispute, correct?
17 A. Yes. I testified to that, I think.
18 Q. And you understand that an arbitration would have
19 involved, generally speaking, both sides presenting their
20 version to a neutral?
21 A. Yes, I think I testified that Mr. Strong wrote to
22 Mr. Lupert that if the disagreement continued, or if Gordon
23 & Breach did write and they were not satisfied with their
24 writing and took the normal route of grievances, then we
25 certainly would be interested in having arbitration with
724
1 either a disinterested person or a panel of disinterested
2 persons. So we responded that if they tried the normal
3 route of a grievance and they were still not satisfied,
4 then, indeed, yes, we would sit down with something like
5 this.
6 Q. So the answer to my question is you understood
7 basically what an arbitration would involve?
8 A. I think I understand that, yes.
9 Q. You understand that arbitration, generally
10 speaking, moves more quickly than litigation?
11 A. We did not bring the litigation. In fact --
12 THE COURT: No, try to answer the question.
13 THE WITNESS: Well, I don't know.
14 We were actually progressing on a path where we
15 offered Gordon & Breach an opportunity to use the normal
16 path of grievances. If they were not satisfied with that,
17 then we wrote, we will sit down with a panel or a
18 disinterested individual. So I think that we knew what
19 arbitration meant, and I would -- I can honestly say, we
20 wanted an amicable settlement to this. We had no argument
21 with Gordon & Breach.
22 Q. You understood -- well, you refer to a normal --
23 the normal path. You don't contend, do you, that it is the
24 normal path in commerce to have a review process that you
25 described?
725
1 A. I think we conducted our organization as a
2 business, and I think that we did have normal procedures of
3 paths for grievances that we followed.
4 Q. You understand, don't you, that when two entities
5 have a dispute that they can't resolve privately, that some
6 form of dispute resolution is involved?
7 A. I would hope so.
8 Q. And it could be litigation?
9 A. It could be.
10 Q. It could be arbitration?
11 A. It could be.
12 Q. It could be some form of alternative dispute
13 resolution?
14 A. I'm sure, yes.
15 Q. You understood that Gordon & Breach was offering
16 to arbitrate, correct?
17 A. Yes.
18 I mean, I did not have -- Mr. Lupert called
19 Mr. Strong.
20 Q. But you understood, didn't you?
21 A. Yes, we discussed arbitration. I said that.
22 Q. And you declined to arbitrate --
23 A. No.
24 Q. -- at that time?
25 A. No, we did not. In fact, you can look right in
726
1 that letter, that if they are not satisfied with writing --
2 THE COURT: You are going around in a circle.
3 THE WITNESS: OK.
4 MR. PLOTZ: I will move on.
5 THE COURT: You made your position clear.
6 Q. But you understood at that time that if you did
7 not agree to arbitrate at that time, that Gordon & Breach
8 might file a lawsuit, didn't you?
9 A. I think that Mr. Lupert made it clear that if we
10 did not come to arbitration, then other means may be taken.
11 Q. And, in fact, that's what happened, Gordon &
12 Breach filed a lawsuit after Mr. Strong's response?
13 A. No, Mr. Lupert responded to Mr. Strong on
14 February the 9th, and in that letter he still was discussing
15 with us arbitration and said that we hope that we can have
16 an amicable solution. But the litigation was filed prior to
17 the February the 9th letter.
18 Q. You hadn't been served at that point, had you?
19 A. No. But as far as we knew, on February the 9th,
20 we were still traveling down an amicable path.
21 Q. Well, you understood that there had been
22 discussions between the lawyers for the two sides relating
23 in part to arbitration, right?
24 A. Yes.
25 Q. You understood that, as part of those
727
1 discussions, the attorneys for Gordon & Breach asked for a
2 response from your side by January 29, correct?
3 A. Yes.
4 Q. You understood that the response came a few days
5 late, on February 1st?
6 A. Yes.
7 Q. And that response was not to agree to arbitration
8 at that time, right?
9 A. Under the circumstances that were given, is what
10 I think it said, not "at that time," but under these
11 circumstances, we don't want to.
12 Q. And the lawsuit was after that, correct?
13 A. It was filed, as far as I know, on February 1 is
14 the date and it was put in effect on February 2.
15 Q. Now, you don't contend, do you, that in
16 connection with the costs of defending a lawsuit, that AMS
17 is in any different position from any other defendant, do
18 you?
19 A. No.
20 THE COURT: Any other?
21 MR. PLOTZ: Defendant in any lawsuit.
22 A. I don't know exactly about insurances and
23 whatnot, but I would assume the point you are trying to make
24 is, anybody, if they are sued, they have to defend
25 themselves.
728
1 Q. And you don't contend, do you, that Germany does
2 not offer a fair and impartial system of justice, do you?
3 A. I would assume they do.
4 Q. You don't contend that German procedure did not
5 allow the filing of this lawsuit, do you?
6 A. It obviously allowed it.
7 Q. You don't contend the German court didn't have
8 jurisdiction over this lawsuit, do you?
9 MS. BURKE: Your Honor, I think we are getting
10 beyond the scope of the witness's knowledge.
11 MR. PLOTZ: Your Honor, the witness has testified
12 a lot about how he felt about this lawsuit.
13 THE COURT: Did you have any inkling, prior to
14 notification of the German suit, that you would be sued in
15 Germany?
16 THE WITNESS: No, but I think at that time we
17 knew that AIP and APS had been sued in Germany.
18 Q. And you understood that German procedure
19 permitted AMS to litigate the issue and seek to have the
20 preliminary injunction lifted, don't you?
21 A. Yes, I understood that we could have proceeded to
22 lift the injunction.
23 Q. And that was a -- and AMS subsequently decided
24 not to do so, correct?
25 A. Yes. I testified earlier as to that.
729
1 THE COURT: Do you have regularly-retained
2 counsel in Germany?
3 THE WITNESS: No, we retained counsel upon the
4 suit, and then -- as far as I know, that counsel is not
5 retained today, but I don't know that for a fact.
6 Q. Do you know anything about the relative costs of
7 defending a lawsuit in Germany versus, say, the United
8 States?
9 A. No. As I think I testified earlier, that we
10 asked amongst, as part of the information, for the task
11 force to make a decision, and they informed us that it would
12 be in the neighborhood of $100,000 to start the litigation
13 at the bottom end of it.
14 Q. Do you know anything about the relative costs of
15 defending a lawsuit in Germany --
16 A. No.
17 Q. -- compared to the United States?
18 A. I have no idea.
19 MR. PLOTZ: May I have just one moment?
20 (Pause)
21 Q. Now, you were asked some questions with respect
22 to the 1993 editorial that you wrote. You were asked some
23 questions on direct examination, correct?
24 A. Yes.
25 Q. The upshot of that was that Gordon & Breach did
730
1 not file a lawsuit, correct?
2 A. They did not.
3 Q. They didn't file a lawsuit against AMS, right?
4 A. No.
5 Q. Or against you?
6 A. No.
7 Q. You testified about concerns that you had about
8 testifying in this case, correct?
9 A. Yes.
10 Q. Now, Gordon & Breach hasn't called you to testify
11 in this case, right?
12 A. No.
13 Q. The defendants called you to testify?
14 A. Yes.
15 Q. Gordon & Breach hasn't threatened you in
16 connection with testifying in this case?
17 A. No.
18 Q. Have you had any contact other than at your
19 deposition with Gordon & Breach in connection with this
20 litigation?
21 A. No.
22 Q. In fact, you gave a deposition in this case,
23 didn't you?
24 A. Yes, I did.
25 Q. And the deposition was taken initially by counsel
731
1 for the defendants in this case, isn't that right?
2 A. That was in your office. Is that the one you are
3 talking about?
4 Q. You were questioned by counsel for the
5 defendants, weren't you, at the deposition?
6 A. Yeah, OK, but then you, too.
7 Q. And then I cross-examined you, right?
8 A. Yes.
9 Q. Both sides examined you, correct?
10 A. Yes.
11 Q. Were any threats made in that connection?
12 A. No.
13 MR. PLOTZ: I have nothing further.
14 THE COURT: Any redirect?
15 MS. BURKE: I have no further questions, your
16 Honor.
17 THE COURT: Thank you.
18 Thank you, you may step down.
19 (Witness excused)
20 THE COURT: Mr. Meserve, do you still wish to
21 call a witness out of turn?
22 MR. MESERVE: Yes, we do, your Honor.
23 THE COURT: Yes, you may.
24 MR. MESERVE: Our next witness is Michael Keller.
25 Ms. Burke is going to do the exam.
732
1 THE COURT: Ms. Burke, if you could tell us what
2 exhibits you anticipate using, it would help.
3 MS. BURKE: Your Honor, we would introduce
4 Defendants' Exhibit BB.
5 THE COURT: BB?
6 MS. BURKE: BB.
7 MICHAEL A. KELLER,
8 called as a witness by the defendants,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MS. BURKE:
12 Q. Mr. Keller, where do you work?
13 A. I work at Stanford University.
14 Q. And what position do you hold there, sir?
15 A. I'm the university librarian. I'm the director
16 of academic information resources, which in other places
17 might be called the director of academic computing. And I
18 am the publisher of something called The High Wire Press.
19 Q. What is The High Wire Press?
20 A. The High Wire Press is a co-publishing enterprise
21 inside my operation at Stanford which is intended to assist
22 publishers of scholarly journals create Internet editions of
23 their journals.
24 Q. How long have you held that position, Mr. Keller?
25 A. I have been in that position since the fall of
733
1 1994.
2 Q. And what did you do prior to 1994?
3 A. Prior to that, I was for one year called the
4 director of university library at Stanford. Before that,
5 for seven years I was the associate university librarian and
6 director of collection development at Yale University.
7 Before that, I was five years at Berkeley, UC Berkeley, as
8 the head of the music library. Before that, I was eight
9 years at Cornell University where I had had a number of
10 positions. Basically, I was the head of the music library
11 there and a senior lecturer in musicology, and for a period
12 of time I was also the head of the undergraduate library.
13 Before that I was three years at the State University of New
14 York at Buffalo as a referencing cataloging librarian in the
15 music library there.
16 Q. So putting them all together, Mr. Keller, how
17 long have you been a librarian?
18 A. 27 years.
19 Q. What degrees do you have that pertain to being a
20 librarian?
21 A. I have an undergraduate degree with majors in
22 biology and music, a graduate degree in historical
23 musicology, another graduate degree on library science with
24 a emphasis in academic librarianship, and I have an
25 uncompleted Ph.D. I have not completed my thesis in
734
1 historical musicology.
2 Q. What are your responsibilities at Stanford?
3 A. I am the senior-most university officer
4 responsible for the university libraries, which means that I
5 provide leadership, policy direction. I manage, through a
6 very large and complex organization, approximately 18
7 library units, and an overall budget on the order of $36
8 million a year. In academic computing I have similar
9 responsibilities, and then I have The High Wire Press, which
10 is a subset of those, too.
11 Q. Of that $36 million budget, Mr. Keller, what
12 percentage goes to scientific journals?
13 A. Let me break that down in a little different way
14 for you. There is a ten and a half million dollars library
15 materials budget of which approximately one quarter goes to
16 scientific, technical and medical journals.
17 Q. Do you know how many physics journals are in
18 Stanford's collection?
19 A. There are approximately 950 journals, although
20 only about 500 of them are active ones. That is, ones that
21 are still publishing.
22 Q. What about the nonactive journals? Do they
23 remain on the shelves?
24 A. They remain on the shelves, although some of them
25 are not on the shelves of the physics library. They are in
735
1 the storage library.
2 Q. Is the storage library used at all?
3 A. Absolutely.
4 Q. Are you familiar with the articles that Professor
5 Barschall wrote?
6 A. Yes, I am.
7 Q. Have you ever served on any committee of the
8 American Physical Society or the American Institute of
9 Physics?
10 A. I have served on a subcommittee of the American
11 Physical Society, that for journal pricing.
12 Q. How long did you serve on that committee?
13 A. I served on that committee from approximately
14 January of -- or February of '92, until January of 1996.
15 Q. What did you do?
16 A. I was asked to be the librarian on a committee of
17 several persons to make recommendations -- help make
18 recommendations to the publications oversight committee of
19 the American Physical Society regarding the pricing of their
20 journals.
21 Q. Were you paid for your services?
22 A. No, I was not. I was, however, reimbursed for my
23 expenses.
24 Q. How about in connection with your work on this
25 case, have you been paid for your services?
736
1 A. No, I have not.
2 Q. Have you ever provided any services similar to
3 those that you provided to the APS committee to any other
4 scholarly societies?
5 A. Yes, I have. With regard to the science
6 societies, the ones that I've worked most closely with are
7 the American Society for Biochemistry and Molecular Biology
8 and the American Association for the Advancement of Science.
9 I have worked less closely with many of the other
10 societies with whom we co-publish Internet editions.
11 Q. Mr. Keller, I want to direct your attention back
12 to some testimony that has come in the case before. We
13 heard Dr. Kingma, the expert for Gordon & Breach, testify
14 that libraries should look at only two factors when making
15 acquisition decisions: subscription price and the patrons'
16 use, patrons at the particular library.
17 Do you agree with that?
18 A. No, I do not.
19 Q. Based on your experience, how do librarians
20 actually decide what journals to buy?
21 A. There are numerous factors. Certainly,
22 subscription price and patron use are among those factors.
23 But, in addition, we consider what I call the local practice
24 of the discipline. We consider the global practice of the
25 discipline. We consider also the nature of the information
737
1 trade which allows us to acquire the information resources
2 for the practice of the discipline.
3 We are concerned also with timeliness of
4 reporting, timeliness of delivery. We're concerned with the
5 budgets of our libraries and how the marketplace of ideas in
6 a given discipline can be accommodated in the budgetary
7 marketplace in our institution for that discipline.
8 We consider not just the present users, we
9 consider also those who will come in the future. And in a
10 funny way we also consider the use of this information by
11 the historians of science and technology.
12 Q. Now, turning to one of the first factors that you
13 mentioned, you mentioned the local practice of the
14 discipline. Is that the same thing as Dr. Kingma's
15 reference to the patrons?
16 A. It is a larger examination than what I believe
17 Dr. Kingma was referring to. Specifically, we looked -- we
18 do talk to the patrons, of course. We do talk to the
19 faculty. We talk to them not just about what they think
20 they are doing but what they think is going to happen in the
21 future. We like to follow research trends from their
22 perspective as much as from the perspective of the global
23 practice of science, or a science.
24 We consider also the use of scientific
25 literature -- the actual use of scientific literature by our
738
1 faculty and by our students. In the case of students, we
2 can look, for instance, at the reserve reading lists and
3 required reading lists for any given course. With regard to
4 the faculty, we discover that the faculty, when they talk to
5 us about what journals they use, remember the journals that
6 they use most often and most frequently. And those are of
7 course the ones that are most frequently cited in their
8 literature.
9 But we perform individual analysis of ISI data of
10 our scientists, our faculties' citations of other science,
11 other publications. We abstract information from the ISI
12 databases to understand with some precision what our faculty
13 are citing. And we often find that there is a difference
14 between what they are saying to us and what they are
15 actually doing.
16 Q. You also mentioned that the discipline at
17 large -- I think you used the global discipline, and, again,
18 directing your attention to Dr. Kingma's testimony, he said
19 that it's just not helpful for librarians to look beyond
20 their particular patrons, in that they should not be
21 concerned with patrons elsewhere.
22 Would you agree with that?
23 MR. LUPERT: I think I am going to object to
24 these characterizations of the testimony.
25 MS. BURKE: I have the transcript cites if your
739
1 Honor would like them.
2 THE COURT: Well, assume that's what he said, but
3 the record will indicate what he actually said. But for
4 purposes of this question, assume that is what he said.
5 A. The fact is that we do look at the global
6 practice of the science. Whatever Dr. Kingma's perception
7 and whatever the basis for that perception, at the kind of
8 institutions where I have worked, the practice of the
9 science at large is of great concern to the faculty, for
10 several reasons. One is they desire to know who their
11 colleagues are working on a particular topic, a particular
12 theme, those who have created an instrument or have used a
13 methodology which could be adapted to their uses and their
14 purposes.
15 Secondly, they are in competition with these
16 other practitioners around the world for money, for research
17 grants.
18 Thirdly, especially in those fields where there
19 is some commercial application for a discovery or a
20 potential application for a discovery, there is a desire on
21 the part of scientists and engineers and physicians,
22 physician scholars, to document their primacy in the
23 discovery of a method, of an instrument, of a compound, in
24 order to protect their interests in such a discovery.
25 So the global view is a rather important one for
740
1 those institutions -- and there are many of them -- who are
2 very actively engaged in the research aspects of these
3 sciences.
4 Q. Mr. Keller, you also used the term of art
5 "information trade."
6 First, are you including within that term
7 consideration of price?
8 A. Yes, absolutely.
9 Q. What other elements are there in "information
10 trade"?
11 A. Librarians are concerned with subscription price,
12 with publishing practices, with the means by which they can
13 obtain journals are publishers. They are concerned with
14 their relationships with other middle people called jobbers,
15 or book sellers, or vendors who are between the library
16 decision makers and the publishers.
17 We are concerned with -- I think I'll stop there.
18 Q. If Dr. Kingma testified that it is inappropriate
19 to look at the identity of who is publishing a journal when
20 making the acquisition decision, would you agree with that?
21 A. I do not agree with that.
22 Q. Why not?
23 A. We come to understand, in the course of our
24 careers, and especially as we are subject specialists, which
25 publishers are responsible for what kind of information and
741
1 what quality of information. We come to associate with some
2 publishers various kinds of marketing practices and pricing
3 practices.
4 We sometimes order materials by publisher. We
5 establish standing orders with our middle people for
6 materials, perhaps on a single subject from a single
7 publisher, or perhaps all the materials coming from a single
8 publisher. So there are times, of course, when knowledge of
9 a publisher are specifically interesting, but in general
10 they are interesting because they help us inform the choices
11 that we make, both for selection and deselection.
12 Q. G & B prices its science journals, its physics
13 journals, on a flow system. From the librarian's point of
14 view, is that a plus or a minus?
15 A. That is a minus.
16 Q. Why is that?
17 A. It is very difficult for us to understand how
18 much we will pay for a specific relationship with that
19 particular publisher in a given year. So what -- this is an
20 extreme example of what we call supplementary invoicing,
21 where we agree to a purchase in a given year and, because
22 the publisher has extra material to publish, we get an extra
23 invoice. And we then have the difficult decision to make
24 whether we will accept the material and thus pay the extra
25 money or not accept the material and have an incomplete set
742
1 of that year's record of that particular science.
2 So the practice of flow -- what is the term
3 again?
4 Q. Flow -- flow pricing.
5 A. Flow pricing.
6 MR. LUPERT: I think it is called flow system.
7 A. -- flow system is one that is confusing to us.
8 Q. Mr. Keller, you also referenced the need to
9 consider future generations of scholars. How do you predict
10 those needs?
11 A. We predict them partly on the performance of the
12 past, partly through conversations with the local faculty,
13 partly by reading the journals themselves, partly by
14 watching the investments made by the funding agencies to
15 understand where they are making their investments in
16 research.
17 We use that information to select or deselect
18 journals, as the budgetary pressures on us are tight or
19 loose.
20 Q. Who do you encompass within the term "funding
21 agencies"?
22 A. They range from a government agency such as the
23 NSF and the NIH to private foundations, national and
24 international. So occasionally corporations are involved in
25 funding research.
743
1 Q. Mr. Keller, you also mentioned consultation with
2 faculty. What is the role that the faculty play in the
3 collection/acquisition decisions?
4 A. The role of the faculty is to keep us informed of
5 what they are up to, and we work very hard to liaise with
6 them on a more or less constant basis through our subject
7 specialists to understand what they are up to. The
8 relationship between the subject specialist, the scholarly
9 biographer and the scholar practitioner is really quite
10 intimate, and oftentimes our subject specialists are in
11 effect members of the department. They sit in the
12 department meets. They may even go to meetings of
13 laboratory groups. They certainly go to meetings of the
14 disciplinary societies and listen to the papers that are
15 being presented by not only their own faculty but faculty
16 from other institutions.
17 THE COURT: How large is your staff?
18 THE WITNESS: My staff is 500 people, full-time.
19 I have some part-timers.
20 Q. Mr. Keller --
21 THE COURT: All of whom are full-time engaged in
22 acquisition of --
23 THE WITNESS: No, sir. There are 32 subject
24 specialists and who are responsible for collection
25 development decisions, and there is a staff of approximately
744
1 25 or 30 people engaged in the business of acquisitions.
2 THE COURT: Meaning?
3 THE WITNESS: Meaning taking the decisions made
4 by the subject specialists and turning them into orders or
5 claims for missing journals. There are, additionally,
6 another 50 or 60 people who serve on the reference desk at
7 least some of the time -- some of them are full-time in the
8 network and some of them are part-time in the network --
9 who, through the questions that come to the reference desk,
10 keep the subject specialists informed, if they haven't been
11 informed already, of what they have heard in the way of
12 interesting questions. Of course those questions indicate
13 some of the directions that some of the faculty will be
14 taking.
15 BY MS. BURKE:
16 Q. Mr. Keller, you have been talking about Stanford
17 and Yale. Are you also familiar with how smaller
18 institutions make their collection acquisition decisions?
19 A. I am familiar but obviously less familiar.
20 Q. And the same -- to what extent do they rely on
21 the same type of factors that you have described for us
22 here?
23 A. To the extent that smaller institutions are not
24 research institutions but are teaching institutions -- you
25 are talking now about colleges and small universities -- the
745
1 decisions are different, because they do not have the same
2 responsibility to the faculty, who are not in effect in the
3 game of research and the acquisition of support for research
4 and the reporting of the results of research.
5 Their concerns then go to providing an adequate
6 base of reliable information about whatever science it is
7 that they are mainly teaching. Their decisions, therefore,
8 go in the direction of the journals of record, the review
9 journals, that sort of thing.
10 Q. Mr. Keller, what are you including in the term
11 "journals of record"?
12 A. For me, a journal of record is one that is a
13 large journal typically, one that is heavily cited, one that
14 has the intention and realizes the intention of reporting a
15 very large swath of the research through peer review reports
16 to the readership, readership being the other practitioners
17 of the discipline, the teachers of the discipline and the
18 general public at large.
19 Q. Now, we've heard a lot about specialized niche
20 journals. Who are the primary consumers of those journals?
21 Is it the large research institutions or the smaller,
22 nonresearch institutions?
23 A. Well, certainly the large research institutions,
24 whether they are universities or institutes, academies or
25 corporations, are the more fervent consumers of niche
746
1 journal articles.
2 Q. And why is that?
3 A. Because they need that information to work in
4 whatever subject the niche is treating. Certainly, small
5 colleges are less frequently consumers of niche journal
6 articles.
7 Q. Mr. Keller, we've been talking about acquisition
8 decisions. What factors do you look to when making a
9 decision to cancel a journal?
10 A. Well, cancellation is essentially an acquisition
11 decision, too.
12 First, it is of interest to us whether there are
13 any consumers on the faculty of that information -- of that
14 journal source -- those journal articles at the moment. We
15 are concerned with whether there are active -- there is
16 active research in other places, because we wouldn't want to
17 disadvantage those who come behind, those who just don't
18 happen to be doing this work at the moment at a place like
19 Stanford and Yale. We concern ourselves with the price of
20 the information. We concern ourselves with the importance
21 of the information -- numerous factors. They are very much
22 related to all the ones that I have already mentioned.
23 Q. I would like to draw your attention now
24 particularly to price. Dr. Kingma says that it's
25 inappropriate to normalize journal prices because that
747
1 assumes that you're purchasing paper and ink. And he drew
2 the analogy to cars, buying a car by tonnage.
3 Would you agree with his conclusions?
4 A. I do not agree with his conclusion.
5 Q. Do librarians normalize journal price?
6 A. Librarians do normalize journal prices.
7 Q. How do they do that?
8 A. They do it by the means already discussed here.
9 They do it on the basis of cost per article, cost per page,
10 and cost per some measure of characters, frequently
11 kilocharacters or megacharacters. They use the information
12 sources that they already have. If they are very assiduous.
13 They will go into the invoices and check the prices that
14 were actually paid at the individual institution.
15 Q. Now, you've included the costs per character
16 measure. Did Professor Barschall invent that measure?
17 A. No, he did not.
18 MS. BURKE: Your Honor, I'm sorry. I actually
19 need to mark Defendants' Exhibit KKK, as well.
20 Q. Mr. Keller, I am going to hand you what will be
21 marked as Defendants' Exhibit KKK.
22 Mr. Keller, are you familiar with this exhibit.
23 MR. LUPERT: I object, your Honor. This is
24 nowhere mentioned in Mr. Keller's report. It is not
25 mentioned in the report.
748
1 THE COURT: I will allow that question. I don't
2 know where it is going, but, overruled, without prejudice to
3 renewal.
4 Are you familiar with it?
5 THE WITNESS: Yes, sir.
6 Q. What is it, Mr. Keller?
7 MR. LUPERT: I think that my objection now
8 becomes the appropriate objection, at least in terms of the
9 one that I am making.
10 THE WITNESS: Actually, there is a reference in
11 my report to these articles.
12 MR. LUPERT: But there has been no production of
13 any of this.
14 MS. BURKE: Actually, your Honor, this has been
15 produced. We provided to counsel, we informed them that it
16 was marked as an exhibit and we provided them copies a few
17 weeks before trial, according to the agreed-upon procedure
18 of the parties.
19 MR. LUPERT: This was produced after the
20 deposition. It was produced after the report was issued --
21 THE COURT: You say this is referred to in your
22 report?
23 THE WITNESS: Yes, sir.
24 MR. LUPERT: Could you show me where?
25 THE WITNESS: Absolutely. May I have my
749
1 deposition?
2 MR. LUPERT: Well -- I have a standing objection
3 and I don't want to interrupt any more.
4 THE COURT: Overruled.
5 BY MS. BURKE:
6 Q. Mr. Keller, what is the exhibit that you have
7 before you? What is the Defendants' Exhibit KKK?
8 A. This is a selected set of the continuum of
9 documents relating to citation analysis, citation studies,
10 costs per character and kilocharacter, costs per page and
11 costs per article, to which I refer in my deposition as a
12 continuum of articles preceding, before Dr. Barschall's
13 study and following Dr. Barschall's study.
14 Q. I would like to direct your attention just to the
15 first page, the top page of the exhibit, and ask you what
16 cost minimization measures are used in that article?
17 A. In this article, the -- they provide an
18 approximate cost in cents per 10,000 words.
19 Q. What is the date of this article?
20 A. May 10, 1933.
21 Q. Now, you have mentioned four different ways to
22 normalize price in the literature and you have identified
23 those as well. Which do you view as the least reliable way
24 of normalizing prices?
25 A. From my perspective, the least reliable way to
750
1 normalize prices is costs per page, because the pages are
2 made up in so many different ways and sometimes even in
3 different ways even in individual journals.
4 The second least desirable means to normalize
5 costs is costs per article, because articles vary in length.
6 Q. Mr. Keller, back to the cost per page, and you
7 referenced differences. Could you explain that for me
8 further?
9 A. Excuse me.
10 Q. You referenced the differences in the pages.
11 What do you mean by that?
12 A. One can find journal pages that are small, versus
13 other journal pages which are large. For instance, those
14 are -- those look like 8 and a half by 11 pages, and I think
15 the pages to which testimony was given from Ferroelectrics,
16 the pages look like 5 and a half by 8 and a half. There are
17 problems -- there are differences in margins. There are
18 differences in size of type. There are differences in
19 numbers of equations, numbers and size of charts, diagrams
20 and other illustrations.
21 There are differences in the use of empty space,
22 blank pages, half pages, and so forth. So comparing
23 pages -- cost per page is inherently unfair in a way. It
24 allows you -- it allows one to compare a 5 and a half by 8
25 page with one size type to an 8 and a half by 11 page with
751
1 another size type. It really isn't a fair measure.
2 Q. Is that measure ever used by scholars?
3 A. Well, yes. There is continuing reference to
4 these -- to these character -- to these page costs, but
5 they, as all the other measures that we were just assessing
6 in these last few minutes, were contributory to the decision
7 making and in a way contributory to the understanding.
8 If I could digress a little bit?
9 This whole consideration of cost per some
10 measure, some normalized cost, I think, has become very
11 important in the last 15 years, because publishers whose
12 prices were increasing at greater than inflation rates,
13 multiple of inflation rates in this country, sought to
14 explain those price increases, and what they sought to do
15 with the normalizing measures was to convince librarians
16 that they weren't actually increasing the price at that
17 level, they were increasing the price because they had more
18 pages to print, there was more science to bring in. It was
19 an attempt to provide a context and hopefully one that
20 helped librarians make decisions to stay with -- to keep a
21 particular journal or a particular publisher's journals.
22 Q. And is it helpful?
23 A. Well, as I say, the measures which are least
24 helpful are the cost per page. The measure that is the best
25 normalized measure from my perspective is the cost per some
752
1 measure of character, one that allows us to bring all of
2 those costs into some kind of normalized alignment.
3 Q. Dr. Kingma testified about the Barschall articles
4 and he said that librarians would be misled because they
5 only provide a snapshot of data and that data changes from
6 year to year.
7 Would you agree that librarians would be misled
8 by a snapshot?
9 A. No.
10 Q. Why not?
11 A. Well, since we librarians know the Science
12 Citation Index, the Social Science Index, the Arts and
13 Humanity Citation Index, since we are familiar with the
14 annual reports of numbers of citations in particular
15 journals and the impact factors, the annual report of impact
16 factors, we are very well aware and know how to extract that
17 information for a particular discipline or a particular
18 title over the course of many years.
19 The Barschall methodology, the one which used the
20 cost per character against the impact factor, was a new --
21 slightly new wrinkle, but it was obvious from that source of
22 the data, from the ISI reports, that that same methodology
23 could be used over many years preceding or following the
24 Barschall report.
25 Q. When did you first become familiar with citation
753
1 analysis?
2 A. When I was in library school, 1972 and 1973.
3 Q. Dr. Kingma testified that a library should rely
4 on other types of studies, on a patrons' use study and on a
5 study of interlibrary loans. Would you agree with that
6 testimony?
7 A. Both of those are useful measures, whereas
8 interlibrary loan can give us precise understanding of who
9 is acquiring what through library departments, because we
10 are in effect required by the agreements with the publishing
11 community to track interlibrary borrowing. Actually, it is
12 interlibrary borrowing that we are talking about. We do
13 track those very specifically and precisely.
14 With regard to patron use, we really enter now
15 into the realm of population studies and there are various
16 methodologies that are used in these population studies, but
17 we have no really good way to get precise information. We
18 only can know, at best, what some people do with some of the
19 journals that are present. We know when they move it from
20 one place to another. If we put little pieces of tape
21 around the journals, we know when they break the tape. We
22 don't actually know what they are reading. We don't know
23 actually what they do with the information that they extract
24 or if they have extracted information at all. So they are
25 expensive to perform. They come on top of other duties.
754
1 They come at a time when we don't have a lot of money for a
2 lot of people. We use them sparingly.
3 Q. But you do use them?
4 A. Absolutely.
5 Q. Do you view them as more reliable than the
6 Barschall survey?
7 A. Hardly more reliable than the Barschall survey.
8 There are so many variables involved with the patron use
9 studies -- with the exception of interlibrary borrowing.
10 Document delivery is another matter because
11 document delivery can occur quite outside of our realm of
12 knowledge and we can't know all the incidences --
13 Q. I don't know what you mean when you say when
14 document delivery occurs outside the realm of your
15 knowledge.
16 A. It can occur outside the realm of knowledge.
17 Document delivery is the process undertaken by a scientist
18 or another scholar to obtain a copy of an article through a
19 commercial document delivery service. They may go directly
20 to that service. They may indeed have a contract through
21 their lab or their department for such a service. And it a
22 may be something we know nothing about. And, frankly, we
23 don't use a lot of it because we depend on interlibrary
24 borrowing as our mode of responding to faculty requests for
25 materials that aren't on our shelves.
755
1 Q. So is document delivery a commercial substitute
2 for interlibrary borrowing?
3 A. Yes, it is. Essentially it is.
4 Q. How does the concept of monopoly apply to the
5 journal market?
6 A. Each publisher, in effect, has a monopoly on the
7 information they publish. Those articles, until they are
8 reprinted in an anthology or a Festschrift,
9 f-e-s-t-s-c-h-r-i-f-t, these articles are the property of
10 the publisher or licensed to the publisher and there are no
11 other articles exactly like them. There may be other
12 articles on the same subject in the same or different
13 journals, but each article is a unique product and
14 whoever -- whatever publisher has published that article in
15 effect has a monopoly on that article or on that collection
16 of articles.
17 Q. Does that mean in some instances you would want
18 to buy two specialty journals covering the same specialty?
19 A. Absolutely. Multiple subscriptions to specialty
20 journals and to general journals is absolutely commonplace.
21 Q. Do you have any notion as to how large this
22 market is in terms of dollars?
23 THE COURT: Which market?
24 MS. BURKE: The market for journals, for
25 scientific journals.
756
1 A. Yes, I do. We had performed a study of the top
2 500 journals, scientific, technical, medical journals, as
3 listed by the ISI each year, and used published sources for
4 their subscriptions, their institutional subscriptions, in
5 very much the same way that Professor Barschall and many
6 others have extracted that information.
7 We have extracted circulation information from
8 similar public sources and from the journals themselves, and
9 multiplied out the numbers of subscribers, institutional
10 subscribers, and those subscription rates, and for the top
11 500 journals, which is probably only 10 percent of all the
12 scientific and medical journals -- or, excuse me, not 10
13 percent, it would be 1 percent of all the scientific and
14 technical journals -- there is approximately $2.3 billion
15 trading going from institutions to publishers in any given
16 year. It is a very large marketplace, and very much an
17 international marketplace.
18 Q. And I take it from that that there is promotion
19 in that marketplace?
20 A. Absolutely.
21 Q. How do publishers promote their journals to
22 librarians?
23 A. There are numerous ways. Most often the faculty
24 members who are editors, advisers, members of boards of
25 directors, authors will ask that their -- the journal with
757
1 which they are associated be purchased. It is not universal
2 but frequent.
3 Very often, publishers send us promotional
4 materials, notifications, lists, catalogs, all kinds of
5 things. We see publishers at professional meetings,
6 meetings of librarians and also meetings of the scholarly
7 societies themselves, whether on the floor or whether by
8 invitation to presentations. For the last ten or 15 years
9 there have been national and international SERIALIST
10 interest groups which had been assembled to bring together
11 the various middle people in this scholarly chain of
12 information, scholarly chain of communication between the
13 authors and the readers, the publishers, the jobbers and
14 vendors, the libraries.
15 Q. What impact does the publisher's marketing have
16 on the process that you described earlier in your testimony
17 on the various factors of how you go about making a
18 collection decision?
19 A. Those promotional items can be useful. They
20 frequently cite impact factors, for instance, or they will
21 refer to impact as title terms -- significant, high,
22 sometimes with a qualifier: in this subdiscipline, in this
23 topic. They will stimulate us to undertake an analysis in
24 the decision making process into which we will pour some or
25 all of these other factors that I have been mentioning.
758
1 Q. Suppose that you attended the Frankfurt Book Fair
2 or one of the large book fairs and you were given the
3 Barschall articles by the defendants, to what extent would
4 that have impacted your collection decisions?
5 A. I don't think it would have impacted it very
6 much, if at all. The survey and the various derivatives of
7 the data that the reports are -- accord almost entirely with
8 our understanding of the world today, and there is in a way
9 no new news there. We would not ever have considered
10 canceling our last copy of the American Institute of Physics
11 or the American Physical Society, which are huge physical
12 research organizations and physics teaching organizations.
13 For most of the large research libraries, that information
14 would have been, in effect, redundant. The methodology is
15 interesting, and I would say that we haven't yet reached, as
16 a community, a conclusion about the cost per character
17 compared to impact factor as a measure of use, and there has
18 only been the one article that I know of.
19 Q. What about a letter from the defendants that
20 claimed that they were a great bargain or among the highest
21 in quality and value? Would such a letter, with the
22 attachment of the Barschall article, cause -- to what extent
23 would that influence your collection decisions as to their
24 competitors?
25 A. I don't think it would have had any influence at
759
1 all in that particular comparison. I can't imagine that a
2 place -- a kind of institution where that kind of
3 information would have been useful in persuading an
4 institution not to deselect, that that might have been some
5 use in stanching the flow of subscribers away from a journal
6 at some small percentage of institutions where the budgets
7 were really tight and there was a -- getting down to the
8 last journal of record and, you know, what are we going to
9 do here, folks, and it might have been an useful as an
10 argument to get more money or it might have been useful in
11 choosing to do something else altogether.
12 Q. Mr. Keller, what was your reaction when you
13 learned about the lawsuits that had been brought by Gordon &
14 Breach?
15 MR. LUPERT: I'm sorry. Could you repeat that
16 question.
17 Q. Mr. Keller, what was your reaction when you
18 learned about the lawsuits brought by Gordon & Breach
19 against the defendants?
20 MR. LUPERT: Objection. Irrelevant. Beyond the
21 scope of this.
22 THE COURT: What is the relevance?
23 MS. BURKE: Your Honor, it is the notion that --
24 I will withdraw the question, actually.
25 I have no further questions.
760
1 THE COURT: Do you want to start your cross now
2 or break for lunch?
3 MR. LUPERT: Whatever you would like to.
4 THE COURT: How long do you think you will cross?
5 MR. LUPERT: The cross certainly will be
6 obviously more than ten minutes. It won't be terribly long,
7 I hope, but it certainly will be more than ten minutes.
8 THE COURT: All right. Well, why don't we break
9 now until 10 of 2.
10 (Luncheon recess)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
761
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 MICHAEL A. KELLER,
4 Resumed, and testified as follows:
5 CROSS-EXAMINATION
6 BY MR. LUPERT:
7 Q. Mr. Keller, you have taken the position on a
8 variety of occasions, have you not, that physics libraries
9 need to have persons with knowledge of physics running them,
10 correct?
11 A. Actually, I've taken a more general position that
12 subject specialists are needed for most specialties in
13 research university libraries.
14 Q. In fact, that's a word you used, a phrase you
15 used, "subject specialist," in your testimony.
16 By "subject specialist," do you mean, for
17 example, that if you're running a chemistry library it helps
18 to know a good deal about chemistry, right?
19 A. Yes.
20 Q. And obviously the same is true for physics?
21 A. Yes.
22 Q. A subject specialist, as you define it, the man
23 or woman who runs the physics library is someone who
24 presumably knows a good deal about physics and the esoterica
25 of physics, correct?
762
1 A. That's correct. But I'd like to qualify that if
2 you would let me.
3 Q. Let me try to define it very carefully. You, for
4 example, are -- if I don't use the right word, correct me --
5 a musicologist by subject training, correct?
6 A. That's correct.
7 Q. Do you have before you the Barschall studies?
8 Yes, you do. Those are Exhibits 1 and 2.
9 A. 2 and 3, actually.
10 Q. Thank you. 2 and 3?
11 A. Yes, I do.
12 Q. Would you just take a look generally at the list
13 of journals that are on Table 1 of the Physics Today
14 article, please, Exhibit 3. Can you find Table 1? It says
15 "Library subscription costs."
16 A. Yes.
17 Q. When I asked you at your deposition whether you
18 could identify -- that is, whether you had any knowledge of
19 any single one here, I think you were good enough to say
20 that you couldn't differentiate between any of these. You
21 don't know anything about any of these journals, right?
22 A. I know something about those published by the APS
23 and otherwise not much.
24 Q. In fact, you didn't know anything about Gordon &
25 Breach's physical --
763
1 A. No, no.
2 Q. -- Physics of Chemistry and Liquid or its
3 Particle Accelerators, or any of the other specialized
4 journals; is that correct?
5 A. That is correct.
6 Q. It is not in your field?
7 A. That is correct.
8 Q. And I think I asked you at your deposition also
9 whether you knew the difference in physics between review
10 letters and research journals.
11 I'm correct, am I not, that you don't know the
12 difference between those general categories?
13 A. I'm sorry. That's not correct.
14 Q. What is the Gordon & Breach Comments journal; do
15 you know that?
16 A. I have no idea.
17 Q. In connection with review letters and research
18 journals, do you have any understanding whether there may or
19 may not be a difference, just generally speaking, in terms
20 of their frequency of citation as that word "impact" is used
21 by the ISI? In other words, do you know whether review
22 journals are cited frequently than letters journals, letters
23 journals more frequently than research journals, or any
24 other combination?
25 A. By "frequently," do you mean the total number of
764
1 citations or the average article -- the average number of
2 citations per article?
3 Q. The impact factor.
4 A. The impact factor. I probably couldn't
5 distinguish between the two by just looking at impact
6 factors to tell whether one was a review article or one was
7 a journal of record article.
8 Q. I don't think I'm asking you that. I'm asking
9 you whether there is a difference, to your knowledge,
10 between the impact factor as it pertains to review journals
11 in the physics world on the one hand, letters journals on
12 the one hand, research journals on the other hand.
13 A. I couldn't testify to that one way or the other.
14 Q. You don't know? Because it's not in your field?
15 A. Correct.
16 Excuse me, you're statement is correct but
17 whether it's because it's not in my field is not correct.
18 Q. You use the letters STM in your writings. What
19 does that exactly stand for?
20 A. It's used in describing publishers and journals
21 in the fields of science, technology and medicine.
22 Q. Do you agree with me that in the United States,
23 more than half of the STM libraries don't have a subject
24 specialist in their field?
25 A. I have no way of agreeing or disagreeing with
765
1 you.
2 Q. Have you written on the subject of the need for
3 librarians to -- libraries to have subject specialists?
4 A. Yes, I have.
5 Q. In fact, when you wrote about it, you were
6 writing about it in the context of advocating the need for
7 subject specialists?
8 A. Absolutely.
9 Q. And the reason that you were advocating the need
10 for subject specialist librarians is because at that time
11 not every library had a subject specialist in the STM area,
12 correct?
13 A. No, that's not correct.
14 Q. Wasn't there a survey done that you wrote about
15 that indicated that approximately 60 percent, perhaps even a
16 little bit more than 60 percent, of the STM libraries in
17 this country did not have subject specialists?
18 A. That may be, but you'd have to refresh my memory
19 by showing me that citation.
20 Q. But does that accord with, whether you wrote
21 about it or not, the fact that there are approximately --
22 let's just say more than half so that I don't try to test
23 you on -- I'm not trying to test you on a specific
24 percentage. But generally speaking, it is a fact that more
25 than half of the libraries in this country do not have an
766
1 STM specialist?
2 A. Mr. Lupert, you questioned me on this using the
3 60 percent during my deposition. I went along with it then,
4 but I actually don't know what the percentage is.
5 Q. But at your deposition, you did go along with
6 that number, didn't you?
7 A. Yes, I did.
8 Q. You said that sounds about right, yes?
9 A. Yes, I said that.
10 Q. And you wrote an article, did you not, with the
11 title "Late Awakening: Recruiting subject specialists to
12 librarianship and collection development."
13 A. Correct.
14 Q. I don't see where this was published. Do you
15 recall?
16 A. It was published in a volume of articles by
17 Greenwood Press, the title of which is something like,
18 "Recruiting -- recruitment and retention in collection
19 development in research libraries."
20 Q. This is in fact the article we were talking about
21 a moment ago where you were advocating the need for subject
22 specialists, correct?
23 A. That's one of the articles or papers.
24 Q. One of the articles.
25 A. Yes.
767
1 Q. And you wrote, among other things, that subject
2 specialists are desired because they have the experience
3 necessary to make qualified decisions to build research
4 collections, correct?
5 A. That's correct.
6 Q. And you also took the position that, without a
7 subject specialist, you would not have the requisite
8 knowledge of the scholarship, literature, methodologies and
9 ongoing trends and developments of the disciplines in
10 subject areas for which librarians have to select materials?
11 That's your position?
12 A. If you're quoting from my article, that's my
13 position.
14 Q. I'll be happy to show it to you, but doesn't that
15 accord with --
16 A. It's absolutely in line with what I said and what
17 I believe.
18 Q. You were in fact, in this article, citing to a
19 survey that had been published in the early 1980's by the
20 Association of College and Research Libraries, which showed
21 certain percentages of the -- within the librarian community
22 as to who had the requisite subject specialty, correct?
23 A. Could be. I -- you need to show me the article.
24 Q. That you don't remember?
25 A. No.
768
1 Q. I am referring to the article which has been
2 marked as Exhibit 807, if I could show you this.
3 A. You bet.
4 Q. Just to refresh your recollection. And if you
5 could turn to page 47.
6 MS. BURKE: 807?
7 MR. MESERVE: You said 807?
8 MR. LUPERT: Mr. Keller, what's the --
9 THE WITNESS: Plaintiffs' Exhibit 807.
10 MR. LUPERT: Thank you. I am referring to the
11 pagination, page 47.
12 Q. You could look at the first full paragraph on
13 that page, referring to a survey in 1983 of the Association
14 of College -- it was published in '83.
15 A. Yes.
16 MS. BURKE: Your Honor, I just wanted to point
17 out that we had not received a copy of this exhibit.
18 THE COURT: All right. You pointed it out.
19 MR. LUPERT: I think this was actually turned
20 over to us by the defendants, your Honor.
21 Q. It shows, does it not, that that survey attempted
22 to determine, using the statistics set forth, who was
23 applying for jobs with the requisite -- in the particular
24 subject specialties. And it says, for example, that "A
25 survey of advertisements for professional positions in
769
1 academic libraries over a 20-year period showed that in
2 1979, 27.6 percent of advertised positions required a
3 subject matter degree." Do you see that?
4 A. Actually it says "subject masters," and I might
5 point out that that refers to all professional positions,
6 not merely or solely to subject specialist positions.
7 Q. Now, I wonder if you could just jump up to the
8 first full sentence. You see a reference to "37.6 percent
9 of the people were earning or already had a second masters
10 degree."
11 So if I used 37 percent and I say 37 percent of
12 them were earning or already had a second masters degree, I
13 just did the math and said a little bit more than 60 percent
14 didn't seem to have the second degree.
15 A. Actually, that assumption that you have made is
16 probably not correct.
17 Q. Well, how much am I off by? 2 percent?
18 A. No. I think if you read that sentence you will
19 see that there are varying references to degrees, and in
20 fact the early part of that sentence reads, "93.5 percent of
21 the members surveyed were earning or already had masters
22 degrees," presuming the MLS or its equivalent. So it might
23 be some percentage there of that 93.5 that are subject
24 specialists already. I, for instance, entered the field
25 with a masters degree in musicology and got my library
770
1 degree well after the fact. Indeed, that's what this whole
2 article is about.
3 THE COURT: These statistics are about MLS's,
4 aren't they?
5 THE WITNESS: No, sir, that is not what these
6 statistics are about. They lump masters degrees in library
7 science and other subjects in that 93.5 percent. And the
8 article, the theme of this article, is recruiting subject
9 specialists to librarianships, persons who already have
10 subject specialties.
11 Q. Right. Because there was a need, obviously you
12 perceived a need, in the librarian community for that
13 particular type of person. Otherwise why would you have
14 written a long article about this?
15 A. It's correct.
16 Q. What you're doing is you're debating with me
17 whether it's 60 percent or some other percent?
18 A. I'm saying to you that your arithmetic in this,
19 in the assumption that it's 60 percent that do or do not is
20 something that we cannot conclude from the data at hand.
21 Q. Sir, were you asked the following question and
22 did you give the following answer at your deposition? This
23 is at page 105, line 25.
24 "Q. Have you taken the position at any time in
25 any written material that about 60 percent of the STM
771
1 librarians do not have an educational background in the
2 particular STM area that their library focuses on?
3 "A. I don't recall that I did.
4 "Q. Does that question sound about right to
5 you?
6 "A. It sounds about right, yes."
7 You gave that answer?
8 A. And I indicated that you led me to that, number
9 one, and, number, two, you have taken these numbers out of
10 the context, which context I have now attempted to describe
11 in more detail.
12 Q. Is there any library in the United States, at an
13 STM library, that doesn't have a subject specialist?
14 A. I have no idea.
15 Q. There obviously must be some, right?
16 A. I have no idea.
17 Q. Do you agree with me --
18 THE COURT: When you say -- I think I would like
19 a definition from you of "subject specialist."
20 THE WITNESS: Yes, sir.
21 THE COURT: How are you using the term?
22 THE WITNESS: One may obtain a subject specialist
23 in several different ways. They are easily divided into
24 three, of which the third is a combination of the first two.
25 One may become a subject specialist by having an education
772
1 in that subject. And by that we usually mean, in the
2 research libraries, a masters degree -- usually, but not
3 always.
4 Secondly, one may become a subject specialist by
5 virtue of one's experience in a library or in the field.
6 Thirdly, one may become a subject specialist by a
7 combination of the two, some education and some experience.
8 MR. LUPERT: Shall I go on?
9 THE COURT: Yes.
10 Q. Stanford -- and this is -- this can't be
11 debated -- Stanford is one of the great universities in the
12 world. You agree with that?
13 A. I'm happy to assert, sir.
14 Q. Yale is one the great universities in the world?
15 A. Without question.
16 Q. There are a lot of lesser universities in this
17 country, right?
18 A. There are a lot of other universities in this
19 country, yes.
20 Q. There are a lot of universities that don't come
21 close to having the personnel in their libraries that you
22 said Stanford is able to afford, correct?
23 A. Absolutely.
24 Q. Do you have -- you know also that the Barschall
25 surveys reached beyond the United States, that is, they
773
1 were -- that Physics Today and that magazine that you have
2 there is sent to physicists in whatever countries AIP has
3 and its member society has members?
4 A. Yes.
5 Q. That means there are a lot of countries out there
6 with librarians who are getting this as well?
7 A. And physicists.
8 Q. And physicist, thank you. I take it you are not
9 familiar with the staffing of the libraries in Italy?
10 A. I'm much less familiar with staffing in any
11 foreign institution than I am with America.
12 Q. I take it, too, there is a whole host of
13 countries obviously outside of your knowledge base; some you
14 might know enough about and some you might know a drop
15 about, but you certainly aren't here to tell us about any
16 foreign libraries?
17 A. Absolutely.
18 Q. Now, I take it, using again this concept of
19 subject specialist, that if you don't have any knowledge of
20 the field, it's going to be very difficult to keep up with
21 future trends, correct?
22 A. You've got -- you're equating a number of things
23 here. One cannot be a subject specialist and not have some
24 knowledge of the field.
25 Q. If you are not a subject specialist, isn't it an
774
1 axiom that it's going to be harder for you to keep up with
2 the field than someone who is?
3 A. It would be harder for you to keep up with the
4 field than someone who is, yes.
5 Q. Are there approximately 500 universities in the
6 United States?
7 A. Actually I don't believe that's correct.
8 Q. What's the number?
9 A. I believe there are about 1,000 degree-granting
10 institutions in the U.S.
11 Q. Are there about 500 universities that have
12 graduate programs?
13 A. I -- I can't --
14 Q. Or is it more than that?
15 A. I cannot testify to that.
16 Q. But it's a lot, right? It's in the neighborhood
17 of 500 to 1,000, at least in that neighborhood?
18 A. I'm sorry. I can't testify to that.
19 THE COURT: Is somebody, a librarian who has
20 acquisition authority, who has no expertise in the area -- I
21 guess my question is this: Doesn't the extent of reliance
22 on faculty input vary in relationship to the extent of
23 familiarity of the librarian?
24 THE WITNESS: Without question, but it also
25 varies with the experience of the librarian dealing with
775
1 scientific journals, whether -- you find many institutions
2 that have science libraries where all sciences are covered,
3 and the science library staff there may or may not be expert
4 in all those disciplines. They become more familiar and
5 they approach subject specialist status as they deal with
6 that literature over time, as they answer reference
7 questions, as they interact with the faculty and the
8 graduate students and so forth.
9 THE COURT: Just by coincidence, during the lunch
10 break when I looked at the mail, one of the letters that I
11 received was from New York University asking what books are
12 required for the course next year. Isn't that common?
13 THE WITNESS: Absolutely. But for the purposes
14 of creating a course reserve, so they wouldn't put up
15 something on course reserve that you as a faculty member did
16 not want on course reserve. And in the case of subject
17 specialists, as subject specialists are those with less than
18 perfect knowledge or less than extensive knowledge of the
19 subject, they might read those books in an effort to improve
20 their knowledge. They might even sit in on your course.
21 THE COURT: But if you take a very esoteric field
22 of physics, ferroelectric -- did I pronounce that right?
23 MR. LUPERT: Ferroelectrics.
24 THE COURT: -- the likelihood of having a
25 librarian who is a subject specialist who had a familiarity
776
1 with ferroelectrics of a level which would permit
2 distinctions in terms of quality or importance of journals
3 in that field is very slight?
4 THE WITNESS: That likelihood increases
5 dramatically with the likelihood that there is any research
6 or teaching going on in that field at a given institution,
7 so you would expect there to be, in those places that would
8 be interested in ferroelectrics as a research topic or a
9 topic for teaching, to have an engineering library, to have
10 a physics library, and a computer sciences library, and
11 therefore subject specialists qualified, as I have
12 indicated, interested and knowledgeable to deal with that
13 question.
14 THE COURT: So one of the first questions
15 confronting the librarian who is looking to decide, what do
16 I subscribe to next year, with respect to a specialized
17 topic, is, is there somebody on our faculty who has
18 sufficient interest in this field as to make it something we
19 should consider?
20 THE WITNESS: That's one of the questions, yes,
21 sir.
22 THE COURT: Indeed, I think the editor of
23 Ferroelectrics testified earlier that if there were not such
24 a person, there would be no point in subscribing to a
25 particular --
777
1 THE WITNESS: But the contrary is true, as well.
2 You might find someone who is very well able to answer that
3 question in an institution who has decided not to get
4 Ferroelectrics or decides to deselect it.
5 THE COURT: It would seem to me, just
6 intuitively, which is often erroneously, but intuitively,
7 that the greater degree of specialization of the
8 publication, the more likely is the acquisition to be a
9 function of a faculty decision?
10 THE WITNESS: It is, as I said, the degree of
11 likelihood varies with the degree to which the institution
12 would be interested in it. But there are some examples, and
13 actually I think the whole field of solid state physics is a
14 good one -- the genomic research is another good one, where
15 the decision to acquire a specialized journal would also
16 depend upon the faith, belief, judgment of the faculty and
17 the librarian as to the relevance of that subject for work
18 in the future.
19 And, indeed, we find ourselves making -- arriving
20 at bad judgments and when, in a period after the research
21 had begun, we fail to pick up a specialty journal, we have
22 to go back and do remedial collection building to bring into
23 the institution the information and resources that are
24 needed for the teaching or the research in that field.
25 Because the faculty changed and the people come and go,
778
1 research moneys are suddenly available to this team, and so
2 forth. There are lots of different factors there.
3 BY MR. LUPERT:
4 Q. Just picking up on this point, it seems to be a
5 fact that for a very, very long time, including the 1990's,
6 certainly the 1980's, maybe even earlier, there just hasn't
7 been enough money for libraries to buy everything that their
8 faculty would like them to buy, hence decisions have to be
9 made, right?
10 A. It is true that the purchasing power has not been
11 available to buy the things that we would desire, but by
12 saying "we," I mean the entire academic community, which
13 includes the librarians and especially the librarians,
14 because we would rather buy, especially in the research
15 universities, as much as for the future as for the present.
16 Q. Right. And the problem is -- all I'm saying, and
17 I think this was a given -- is there just simply isn't
18 enough money around; some decisions have to be made?
19 A. Correct.
20 Q. You have to pick one product over another or
21 several others because you can't buy all of them?
22 A. Correct.
23 Q. And I take it, it also, therefore, must be true
24 that, within a physics department, for example, there would
25 be certain specialists who would be advocating for
779
1 ferroelectrics, if that's their area, and there would be
2 another group of specialists who would be advocating for an
3 APS journal, hypothetically, for whatever reason, and
4 another faction advocating for another, and the three
5 purchase prices add up to a figure, and there is just not
6 enough money to buy all three. That has to happen?
7 A. That's correct. And the role of the librarian in
8 all of those cases is to mediate among the various
9 specialists, but also among the various other factors that I
10 have mentioned.
11 Q. And if a librarian ultimately can't mediate it,
12 he's going to make the choice. Somebody has to. It's his
13 hard luck. He has the bottom line decision to make, right?
14 A. Actually, "she" is much more likely to be the
15 case.
16 Q. I have three daughters. I should always be using
17 "she" in every sentence, they tell me.
18 THE COURT: Is that the case, that the librarian
19 will make that decision, or is it more likely to be made by
20 the chairman of the department?
21 THE WITNESS: No, the librarian makes the
22 decision.
23 Q. Thank you, Mr. Keller.
24 Now, you have been good enough to, in both your
25 report and in your testimony, to kind of -- I don't want to
780
1 use the word "tick off" but be listed, that's what I'm
2 searching for, the various factors, considerations a
3 librarian has to take into account. You have told us, for
4 example, have you not, that a librarian has to talk to his
5 faculty -- if the librarian is any good at what he's doing
6 or she's doing, has to talk to the faculty, correct?
7 A. Yes, I indicated the librarian -- in most cases
8 the scholarly bibliographer and the scholarly practitioner
9 are in the same community.
10 Q. In fact, I think you have written that, among the
11 other things you would expect a good librarian to do, is to
12 bone up on the area and even attend conferences, subject
13 matter conferences, if you will, not just librarian
14 conferences but --
15 A. I just testified to that.
16 Q. And you agree with me that that --
17 A. Absolutely.
18 Q. -- it's a good idea for the librarian to even go
19 out and attend conferences, correct?
20 A. Yes.
21 Q. The conferences as a physicist is what I'm
22 talking about, correct?
23 A. Or other subject specialties.
24 Q. Let's just talk about physics because that's what
25 this case is about.
781
1 And the librarian should be talking to his
2 brethren at other libraries; that's another good thing a
3 librarian should do?
4 A. Yes.
5 Q. He should be talking not only with physicists at
6 his own university but he should try to figure out what the
7 national global trends are, as you testified, right?
8 A. Yes.
9 Q. This also assumes that the library has the budget
10 to allow the librarian to attend the conference and do all
11 these things. But it is obvious, is it not, from all of
12 these things that this librarian has to do, that you will
13 ultimately make some decisions, hard decisions, that it
14 takes a lot of time and effort; is that correct?
15 A. You know, it's very hard to do any kind of
16 industrial work study of the thing. I think we all do this,
17 as we do many other things in the course of our work.
18 THE COURT: Well, I was going to ask you, you
19 said that at Stanford you have 32 subject specialists.
20 THE WITNESS: Yes, sir.
21 THE COURT: Is a subject specialist's full-time
22 assignment the acquisition decisions?
23 THE WITNESS: No, sir. Only -- there is no
24 subject specialist whose full-time work is collection
25 development.
782
1 THE COURT: Could you venture an estimate of the
2 percentage of time that the 32 subject specialists devote to
3 acquisitions?
4 THE WITNESS: I could give you several ranges,
5 with different parts of that population. The humanities
6 selectors and the rare book and special collections
7 selectors tend to spend more time doing collection
8 development work. They probably spend 40 to 50 percent of
9 their time directly on that work, and the other part of
10 their time they would spend in liaison with the faculty and
11 with the discipline at average at large and with answering
12 reference questions, with research inquiries and helping
13 students write papers.
14 On the far end of that scale, ironically it would
15 be the subject specialists in the sciences, because they
16 make -- because of the pressure on our purchasing power,
17 they tend to make most of their decisions at the time of
18 renewal, and those decisions tend to be incremental, one way
19 or the other. So having made their decisions for the
20 majority of their budget, they have to spend a lot of other
21 time running subject libraries and answering reference
22 questions, and they actually don't spend as much time in
23 collection development as do the folks in the center.
24 The social scientists fall somewhere in the
25 middle, depending upon the degree of arcaneness of the
783
1 subject, the dependence upon numeric data, how well our
2 collections match the research du jour and that sort of
3 thing.
4 Q. You had described -- I think this is your word --
5 that the analysis that the librarian goes through, whatever
6 amount of time it takes them, is a subjective analysis, is
7 that a fair statement?
8 A. Absolutely.
9 Q. You have taken the position, as well, that the
10 Barschall study is an objective analysis, correct?
11 A. The Barschall study uses objective data.
12 Q. It is an objective study in all its ways? It is
13 taking objective available information about character
14 count, subscription price, and a figure called impact, and
15 it's putting them into a ratio. Each of those components is
16 not subjective, correct?
17 A. To the degree that it's extracted from data that
18 all the rest of us have and it's representative of
19 objective data, that data is objective. The whole article
20 is certainly not objective.
21 Q. Would you agree with the statement that I'm about
22 to make that -- take a look at the tables in the Bulletin
23 article, Exhibit 2, for example. Do you see them?
24 A. Which table?
25 Q. All of them, any of them. All or any.
784
1 A. Yes.
2 Q. That if a librarian actually were going to use
3 these tables and nothing else to make decisions and the
4 journals among which he had to choose or she had to choose
5 were listed, the whole analysis would take a few seconds?
6 A. I can't answer that hypothetical because it's out
7 of this world. It's unreal.
8 Q. If you look at Table I, Journal Name Publisher,
9 you see all that information?
10 A. Yes, I do.
11 Q. Do you see the cost per impact?
12 A. Yes, I do.
13 Q. If you look at Table IV, the last table, IV -- do
14 you see it?
15 A. Yes, I have it.
16 Q. Professor Barschall tells us that Table IV is a
17 ranking of the order of increasing cost per impact of
18 journals; do you see that's exactly what he's done here?
19 A. I see that is the order of that table, yes.
20 Q. So that if you wanted, for example, to make a
21 decision as between two journals and you found this
22 information relevant, it would take you a second to figure
23 out which is better and which is worse, right?
24 A. As I testified before, the --
25 Q. Would it take you a second to figure that out,
785
1 sir?
2 A. I would not --
3 Q. That's my only question.
4 A. I would not do it that way. I cannot operate
5 under that hypothetical because it's not in my world.
6 Q. You can't operate under the hypothetical that I'm
7 asking you, which is, isn't it very simple to just simply
8 flip through these tables and figure out which is better and
9 which is worse according to this cost impact formula?
10 A. Better or worse for what? There are so many
11 questions that are unanswered with that hypothetical that it
12 is not possible for me to answer.
13 Q. I want you to assume for me, as an expert in what
14 you have been produced as, that you have a library somewhere
15 in Montana, for example, that has limited staff available,
16 and it has not a very good librarian, just doesn't have
17 somebody who's really devoted to doing all these tasks that
18 you have outlined, gets a copy of this Barschall set of
19 tables, and it happens in his physics department he has to
20 make a choice between five of them for renewal purposes. Is
21 it easy or is it hard to use these tables?
22 A. As the sole source of a decision?
23 Q. I didn't say as the "sole source of a decision."
24 I said, is it easy or is it hard to use them?
25 A. I don't believe it's hard to use them, no.
786
1 Q. But you obviously are suggesting in all of these
2 answers that under no circumstances whatsoever should a
3 librarian solely use the Barschall tables, correct?
4 A. I can imagine only certain circumstances, and
5 they are, I would say, incredibly obscure, where reliance on
6 citation studies, impact, cost per character, or cost per
7 character per impact would be a direct -- direct determinant
8 in a decision to acquire or deselect a title.
9 Q. There has to be, just as a matter of human
10 conduct, some risk that librarians aren't going to do the
11 tasks, at least all of the tasks, you have outlined; is that
12 not a generally acceptable proposition?
13 A. I would say there are some tasks that are
14 relevant to a particular decision and some that aren't.
15 Q. Putting aside the relevance or not, isn't it just
16 fundamentally accurate that with 1,000 universities in this
17 country, with some very large number around the world
18 receiving these Physics Today tables, that there are going
19 to be some librarians somewhere that are going to not be
20 willing or have the ability or training to go through all of
21 the kinds of analyses that so obviously are appropriate to
22 determine use, future trends, and the like?
23 A. For some, future trends are irrelevant.
24 Q. All right. So for those that are just simply
25 looking at what's going on in their university, or that's
787
1 the only thing that you want to take into account, you will
2 not give me this point? You will not agree with this point?
3 A. I'm just trying to qualify the point so that it's
4 not so general that it's useless.
5 Q. Will you agree with me that if you take a look at
6 the tables in the Bulletin article again -- do you have that
7 before you, Mr. Keller?
8 A. Yes, I do.
9 Q. -- that, looking through the tables themselves,
10 and you are a librarian, that there is no way of telling
11 just by looking at them whether a particular journal covers
12 a large number of topics or just one specialized topic?
13 A. One would have to know something about the
14 subject to do that.
15 Q. There is no way in looking at this to tell what
16 the number of subscribers or potential readership is
17 using -- looking at these tables, correct?
18 A. That is correct.
19 Q. There is no way of telling anything about the
20 cost factors that might be relevant in the publication?
21 THE COURT: Cost to publish.
22 MR. LUPERT: Thank you, sir.
23 Q. In the publication is --
24 A. The cost of publication?
25 Q. -- what I'm stumbling to say. Yes.
788
1 A. That's hardly relevant to the decision a
2 librarian would make.
3 Q. There is no way of knowing, by looking at those
4 tables, whether the impact factor itself, the number called
5 "impact," for any particular journal, is going to fluctuate
6 100 percent year to year, or any other fluctuation, correct?
7 A. That's correct. But, as I testified, one would
8 perform this exercise or use the data from my side to create
9 a broader picture.
10 Q. Because you are a very good librarian, sir,
11 correct?
12 A. Right.
13 Q. But the --
14 A. I think I'm testifying for the class of people
15 called librarians.
16 Q. The data that's presented in these tables,
17 however, certainly doesn't give you any more than this one
18 year's figure, so there is no way to tell whether the next
19 year or the year before there was a substantial difference
20 in the impact factor for a particular journal, correct?
21 A. That is correct.
22 Q. Now, if you look at Table II in the Physics Today
23 article -- do you have that before you?
24 A. Yes, I do.
25 Q. Isn't it a true statement that it is
789
1 inappropriate, in your opinion, to substitute the Barschall
2 formula for the other factors you have listed in your
3 report -- strike that. Strike the whole question. Excuse
4 me.
5 Isn't it inappropriate, in your view, to ever use
6 a ranking of publishers to decide which publisher to buy
7 from? And I'm talking about this ranking of publishers.
8 That's what this case is about, sir. This table. Isn't it
9 your opinion that it is inappropriate to use this table to
10 decide --
11 A. You're talking about Table II in the Bulletin
12 article or Table II in the Physics Today article?
13 Q. I'm talking about Table II in the Physics Today
14 article.
15 A. Sure.
16 Q. Why don't you take a glance at that. That's that
17 ranking of publishers, you remember?
18 A. Got it.
19 Q. You have that in front of you?
20 A. I do, indeed.
21 Q. Focusing on that, am I not correct that it is
22 your opinion that it would never be appropriate to make a
23 purchase decision based on ranking of publishers? And I'm
24 talking about that ranking in Table II.
25 A. I think that's a fair statement, yes.
790
1 Q. Because it's the journal that counts, not who
2 publishes it?
3 A. It does matter who publishes it, of course, and
4 it is the journal that counts, but, as I said before, these
5 decisions are not made in isolation. They are made with
6 lots of other information.
7 Q. The Barschall formula, this ratio comparing
8 cost -- I don't have to repeat it. Everybody knows what it
9 is. But it's the ratio. I want you to focus on the ratio,
10 not just on its components but the ratio. That is, it
11 compares cost, on the one hand, with impact, on the other.
12 You have that in mind, sir? That's unprecedented as far as
13 you know, correct?
14 A. As far as I know it is unprecedented.
15 Q. And is unprecedented. You don't have any
16 knowledge of any --
17 A. As far as I know, this litigation has
18 successfully chilled any attempt to use this --
19 MR. LUPERT: Judge, I really object and move to
20 strike. I find that to be offensive, frankly.
21 THE COURT: It is stricken. Just answer the
22 question.
23 THE WITNESS: Yes, sir.
24 Q. It is an unprecedented formula. Let's forget
25 from 1988 on. At the time Barschall did it, it was totally
791
1 unprecedented, right?
2 A. That's correct.
3 Q. Now, in your report and in your examination this
4 morning --
5 THE COURT: Just a moment.
6 MR. LUPERT: I'm sorry.
7 THE COURT: What was totally unprecedented?
8 THE WITNESS: The utilization of a cost per
9 character count to the impact factor.
10 THE COURT: That ratio?
11 THE WITNESS: As far as I know, that was
12 unprecedented. That was new; in effect, a new aspect of
13 information science.
14 Q. Now, in your report as an expert on this case for
15 the defendants, you said that "The Barschall studies of the
16 cost of physics journals are among a continuum" -- you used
17 the word "continuum" -- "of bibliometric studies that have
18 developed on applied citation analysis and value analysis."
19 That's the word that you used?
20 A. That is correct.
21 Q. Do you recall at the deposition -- I will show
22 you the testimony if you need it -- you said that, where we
23 asked you about what you were referring to in this
24 continuum, you said: "ISI had issued a large number of
25 studies. Garfield has done a number of studies. There have
792
1 been a number of other ones in a variety of fields. I would
2 have to do literature search to give you all those names."
3 Do you remember saying that?
4 A. I do indeed.
5 Q. And then I asked you the question:
6 "Q. Before you wrote the sentence in your
7 report about this being a continuum, didn't you do such a
8 list?"
9 And you answered:
10 "No, I just know they exist."
11 And I asked you:
12 "What did you mean by the word 'continuum'?
13 You answered:
14 "That means they started before Barschall and
15 they kept going after Barschall.
16 "Q. Give me a single example of a study before
17 Barschall's that applied either citation analysis or
18 counting of characters?
19 "A. Citation analysis has been done by Gene
20 Garfield in the publications of the ISI itself before and
21 after Barschall.
22 "Q. Anybody else?
23 "A. I'd have to look them up."
24 That was your testimony, and that was not too
25 long ago, April 22, 1997?
793
1 A. That is correct.
2 Q. And is what happened that, after you gave your
3 testimony, sir, you had conversations with the defense
4 attorneys and you came up with Exhibit KKK?
5 A. No, actually I didn't have any conversations with
6 them about that exhibit.
7 Q. You came up with this yourself, sir?
8 A. No, they came up with it.
9 Q. Oh, they came up with it.
10 And then KKK, which is these so-called
11 continuums, continuum studies, is this what you are
12 referring to, as well?
13 A. I testified to the fact that there was a
14 continuum of studies using citations and citation analysis
15 before Barschall and after Barschall.
16 Q. Is this the continuum you know about?
17 A. That is part of the continuum I know about.
18 Q. How do you know about them?
19 A. Because I have used them over the years, but I
20 don't remember every last one of them.
21 Q. Sir, KKK is a 1933 Industrial and Engineering
22 Chemistry journal --
23 A. No, excuse me. I think KKK is a suite of
24 journals. There is a host of them here.
25 MR. LUPERT: Judge, these were delivered to us in
794
1 a stack with no cover letter after this deposition, no
2 reference to them, and I move to strike them.
3 THE COURT: What was delivered?
4 MR. LUPERT: Delivered. I'm talking about this
5 Exhibit KKK. It is what we were objecting to before.
6 THE COURT: What would be accomplished by my
7 striking it?
8 MR. LUPERT: I could answer that if I might, but,
9 please.
10 THE COURT: This is not an instance where the
11 content of the exhibits themselves -- there are 193 pages --
12 is of moment. Nobody intends that I read word for word the
13 193 pages which comprise Exhibit KKK, and if they do, they
14 are sadly mistaken.
15 What is significant is the validity of the
16 witness's testimony that citation analysis compilations are
17 a process or a procedure that didn't originate with
18 Barschall. Isn't that --
19 MR. LUPERT: I think I would go one step further,
20 because this is a commercial case involving use of those for
21 commercial purposes. The issue becomes, I think, more
22 focused on that than on whether in fact there has been
23 citation analysis. Our objection is only to the extent that
24 the Court might rely on these or think -- or an argument
25 would be made that the Court should rely on these to prove
795
1 anything as to the -- that's relevant to this case.
2 THE COURT: I take it that the proffer is
3 corroboration for the witness's testimony that, to his
4 knowledge and experience, citation analysis is not a new
5 phenomenon in the field of library science.
6 MR. LUPERT: If that's all this is, Judge, then I
7 don't --
8 MS. BURKE: They were also offered into evidence
9 because under Castrol there is reference to the state of art
10 in the scholarly literature, and it is offered for that
11 purpose.
12 THE COURT: That's a nuance that -- all right.
13 Let's move on.
14 BY MR. LUPERT:
15 Q. I have very little more, just a couple of details
16 I wanted to go over with you.
17 The issue of what is important to a librarian,
18 obviously the subscription price is very important to the
19 librarian in this analysis, correct?
20 A. Yes, it is.
21 Q. But the subscription price is not the only
22 relevant factor on the price side, correct?
23 A. That is correct.
24 Q. And you agree, do you not, that the cost of
25 identifying -- that the costs associated with the
796
1 librarian's identification of the material is something that
2 has to be factored in, correct?
3 A. That is correct.
4 Q. Locating the vendor, cost of bringing it to the
5 library, those are other factors that the librarian must
6 take into account, correct?
7 A. Yes, sir.
8 Q. That would also include, for example, whether or
9 not one publisher includes air mail delivery as part of its
10 price while other publishers may not; that's a factor the
11 library should consider? And among everything else.
12 A. That is a factor it may not -- may or may not be
13 a factor of cost.
14 Q. Well, it may be, if the air mail has to be -- if
15 it's necessary to get the journal quickly and the library
16 has to pay it, then that's not as good as if it's already in
17 the price and is always sent by air mail, right?
18 A. That's correct.
19 Q. And the cost of copying, whether or not -- if
20 there's a differential between what one publisher charges
21 for copying and another, that's another factor?
22 A. I don't believe so.
23 Q. Preservation costs, you agree with me on that
24 one, don't you?
25 A. In the long run.
797
1 Q. That's a factor?
2 A. In the long run those are factors, yes.
3 Q. Storage costs, that's a factor?
4 A. Yes, sir.
5 Q. Need for an interpreter, if it's in a foreign
6 language, that would be another factor, and the library
7 should take that into account in buying a journal?
8 A. No, we don't take that into account.
9 Q. When you were asked the question concerning what
10 other cost factors should be taken into account -- and it's
11 quite a long answer and I don't want to burden the Court
12 with it, but you testified, did you not -- and this is on
13 page 117 to 118 in the middle of this fairly long answer:
14 "You ask yourself as a librarian, are the
15 journals in foreign languages and therefore do we have to
16 have someone around who's got the language capability to
17 interpret for those that don't have that particular
18 language. All these are costs to the library."
19 Does that refresh your recollection now that
20 that's one of them?
21 A. Yes, but the cost for an interpreter is different
22 than having someone on staff who knows the languages.
23 Q. That's correct, but that is a factor that should
24 be taken into account.
25 I want you to put -- you published a lot of
798
1 articles, in a variety of fields.
2 A. Yes, I have.
3 Q. Do you think it's an advantage in the sciences,
4 ever, to be able to get your article published quickly and
5 into the hands of the particular readership quickly?
6 A. Yes, absolutely.
7 Q. You heard Doctor -- you have been here a lot this
8 week. Were you here when Dr. Taylor testified?
9 A. Yes, I was.
10 Q. And you heard him testify about the advantage he
11 perceived for his journal in Gordon & Breach's flow system,
12 from the office point of view, in getting his work out to
13 the research readership more quickly. Do you remember that
14 testimony?
15 A. I do remember that testimony.
16 Q. You don't have any reason to disagree with that
17 as a proposition, do you?
18 A. Actually, there are many publishers, many other
19 publishers, who without the flow system produce the reports
20 of research on a much more timely basis than does the
21 particular journal that he was testifying about.
22 Q. But you don't disagree with me, generally
23 speaking, that, assuming Gordon & Breach is able, through
24 the flow system, to get material out, that that is a bad
25 thing?
799
1 A. The publishing of scientific reports is not a bad
2 thing, no, sir.
3 Q. Getting material out quickly into the hands of
4 the readership of it when you're dealing with fast-moving,
5 important technology is a good thing?
6 A. Actually, in that particular case, six months is
7 a very short period of time, so that a period of refereeing
8 and publication time after submission of a manuscript of six
9 to twelve months is in fact fairly slow.
10 Q. You know that to be true within the physics area?
11 A. I know that to be true within the information
12 technology industry in general, yes.
13 Q. You made a study of this in the physics area?
14 A. I'm not talking about physics. I'm talking about
15 solid state electronics and those other aspects which feed
16 silicon valley industries, where we are very close.
17 Q. Ferroelectrics, that's what you think
18 ferroelectrics is all about?
19 A. Ferroelectrics is partly about that, yes, by the
20 testimony of your witness.
21 Q. I'm having a fight with you about this.
22 Is it your testimony, so that we have this
23 straight, that Taylor was just wrong in his view that the
24 flow system is a good thing because he's able to get this,
25 what he considers important ferroelectrics research out
800
1 quickly?
2 A. He was qualifying his answer with what I know to
3 be the state of the half-life of the literature of many of
4 the aspects of the information technology industry next door
5 to Stanford university.
6 Q. Did you hear Dr. Taylor testify that
7 ferroelectrics is publishing approximately 25 percent of all
8 the research in the world in this area?
9 A. I did.
10 Q. That makes that journal of some significance,
11 don't you think?
12 A. Actually I can't testify to that at all.
13 Q. Because you don't know anything about the area?
14 A. No, actually, we subscribed to Ferroelectrics and
15 canceled it a number of years ago, and I have had very few
16 requests for any articles from it.
17 Q. Because you obviously don't have any faculty in
18 that area?
19 A. Oh, no, thank goodness.
20 MR. LUPERT: I have no further questions.
21 THE COURT: Anything further of this witness?
22 MS. BURKE: No, your Honor.
23 THE COURT: Thank you. You may step down.
24 (Witness excused)
25 THE COURT: Before we take a recess, on
801
1 Tuesday -- I take it we will still be on trial on Tuesday?
2 MR. LUPERT: Yes, I fear so.
3 THE COURT: -- we will start at 11 a.m. I have
4 another matter.
5 MR. MESERVE: 11 a.m. on Tuesday?
6 THE COURT: 11 a.m.
7 The next order of business is the
8 cross-examination of --
9 MR. MESERVE: Mr. Gordon.
10 THE COURT: All right. We will take a
11 five-minute recess.
12 (Recess)
13 THE COURT: Mr. Gordon, you may resume --
14 MS. BURKE: Your Honor, just before we begin,
15 Mr. Keller was reading off the machine his testimony, and
16 has noticed that there is a transcription error that leaves
17 the misimpression that there are no ferroelectricians at
18 Stanford because there was an inadvertent "thank" put in.
19 And we would just request --
20 MR. LUPERT: No, he said that there are
21 ferroelectricians at Stanford. There is no dispute about
22 that.
23 THE COURT: Yes. It justifies the cost of the --
24 MR. LUPERT: That should be the first question to
25 Mr. Gordon.
802
1 MARTIN B. GORDON,
2 Having been previously sworn, resumed, and
3 testified further as follows:
4 CROSS-EXAMINATION
5 BY MR. MESERVE:
6 Q. Good afternoon, Mr. Gordon.
7 A. Good afternoon.
8 Q. Mr. Gordon, you agree, don't you, that the
9 journals of the APS and AIP are the premier journals in
10 physics?
11 A. I think that they are some of the premier
12 journals in physics.
13 Q. They are among the most respected journals?
14 A. Among -- among the most respected general
15 journals, yes.
16 Q. And among the most cited journals?
17 A. Yes.
18 Q. And they offer good value for the money, don't
19 they?
20 A. That gets into the question of what people feel
21 they need.
22 Q. Do you think they offer good value for the money?
23 A. Do I think they offer good value for the money?
24 I think they are premier journals. To equate that with a
25 money question is frankly -- I think they are very good
803
1 journal -- they are a very good journal. There are several
2 general journals which are also cited, and some which are
3 not, which are overall journals, which are fundamentally
4 excellent publications, and the AIP Physical Review -- for
5 example, it's always AIP, APS, is my confusion. Physical
6 Review, for example, is one of the leading standard journals
7 at this time in the world.
8 Q. Mr. Gordon, I realize that you have disagreements
9 with the Barschall methodology, but you do agree, don't you,
10 that the G & B physics journals are expensive on a price per
11 character basis; isn't that right?
12 A. I also have a disagreement in the -- on the whole
13 concept of character, because of the variation of cost in
14 setting different kinds of characters.
15 THE COURT: Well, but the cost of setting is cost
16 to the publisher.
17 THE WITNESS: Well, but it --
18 THE COURT: And I think that Mr. Meserve's
19 question is cost to the acquirer.
20 THE WITNESS: Yes, but the cost to the acquirer
21 obviously depends upon the cost to the consumer.
22 We're getting into the cost per character
23 question, I assume.
24 Q. The question I was actually requesting, the
25 question I asked had to do with the price per character.
804
1 The price paid by the library for a Gordon & Breach journal,
2 isn't it in fact the case that the Gordon & Breach physics
3 journals are expensive on a price per character basis?
4 A. It depends how you define "character." That's a
5 point I wish to contest.
6 Q. "Character" is the confusion, is that it?
7 A. Yes. If I set a full page of display mathematics
8 and I set just straight text, I have then on a
9 per-character -- this is not a valid measurement of the
10 character to character.
11 Q. Let's assume that all the journals are just full
12 of full text, which is the assumption in the Barschall
13 methodology.
14 A. Yes. That's a false assumption.
15 Q. That's an assumption?
16 MR. LUPERT: I think the witness says it's a
17 false assumption, which makes the question improper.
18 Q. It's an aspect of the methodology, and I
19 understand that I'm trying to set aside the issues having to
20 do with the methodological questions, and I'm just trying to
21 see if we can agree on the fact that -- I realize you have
22 criticisms of the methodology. Don't you agree that if one
23 applies the methodology, the Gordon & Breach journals are
24 expensive on a price per character basis?
25 A. I don't -- I couldn't -- I couldn't say.
805
1 Q. Well --
2 A. Because what does "expensive" mean? More than
3 the library can afford? Because of other budget factors?
4 THE COURT: No.
5 THE WITNESS: Here -- I'm --
6 THE COURT: Please, "expensive" means if you have
7 to write a check to one publisher for one journal or write a
8 check to another publisher, another journal, which check is
9 larger? "Expensive" --
10 THE WITNESS: What? I'm sorry, your Honor.
11 THE COURT: Obviously, in the realm --
12 THE WITNESS: Relatively expensive is what you're
13 saying?
14 THE COURT: Well, I think the question was a
15 comparison, and that entails a relevant concept.
16 THE WITNESS: "Relatively expensive" are the
17 words --
18 Q. Would you agree with that proposition?
19 A. Yes.
20 Q. Now, in their pretrial memorandum, your attorney
21 stated, "Like most other commercial publishers of physics
22 journals, G & B has focused on developing specialized
23 journals for a small audience." You agree with that
24 proposition, right?
25 A. Yes --
806
1 Q. In physics?
2 A. Yes. But, unlike other commercial publishers,
3 such as Elsevier or Springer, we don't have standard
4 journals which really are competitors to what I would
5 call -- or comparable to Physical Review, as well as the
6 more niche journals. These are old established journals, as
7 old as Zeitschrifter fur Physike is one I mentioned, the
8 Elsevier journal, several other general journals, which are
9 produced by commercial publishers, and that is not part of
10 our list.
11 Q. But commercial publishers like Gordon & Breach
12 have journals that are specialized journals for small
13 audiences?
14 A. Yes.
15 Q. In fact, your strategy is, I believe you
16 testified yesterday, is to fill niches that other publishers
17 don't accommodate; isn't that right?
18 A. That the community needs.
19 Q. That's right. And you try to fill niches that
20 are not being otherwise met by other journals?
21 A. If the community feels they need them. They may
22 be met by other journals, but the community may feel it's
23 insufficient.
24 Q. You also agree, don't you, that -- and again I am
25 referring to the Plaintiffs' pretrial memorandum -- that in
807
1 most instances, these journals have worldwide subscriptions
2 numbering in only the hundreds; isn't that right?
3 A. Yes.
4 Q. And some of them in fact have subscriptions
5 numbering as low as about 200? Some of the ones in the
6 Barschall survey?
7 A. The ones in the Barschall -- I would have to
8 refresh my memory on that.
9 Q. I am going to hand you an exhibit that has been
10 marked as Defendants' Exhibit DDDDDD, six D's. This is a
11 document that was produced to us in the course of discovery
12 in this case. It doesn't actually set out the circulation
13 information. It does set out information as to the print --
14 what are called print runs.
15 Your actual subscriptions have to be less than
16 the print runs; isn't that right?
17 A. Not in all cases. Some of these may have been
18 second printings.
19 Q. Well, it says, "New print run, old print run."
20 You do multiple --
21 A. No, no. "New print run" in this case refers to
22 the old basic print run, not to the first printing,
23 necessarily. There was -- if I could put it this way, there
24 was a fundamental change in policy, I should explain this,
25 which involved the development of digital electronic storage
808
1 and print-on-demand capability, which was -- what we did in
2 the past was archive journals, because we would get orders
3 20, 30, 40 years later, not 40 years yet because they're not
4 40 years old, but the new print run was partially based on
5 the lack of necessity to store that kind of information.
6 Q. When did you adopt this technology where you
7 stored the information electronically?
8 A. I don't recall --
9 Q. It's within the last few years, isn't it?
10 A. No, it's -- it goes back a little further where
11 we started scanning older material and material which was
12 going out of print. But it became the policy for new
13 material, not to print the -- not to print as much as we
14 needed -- if I can back up even further?
15 Before that, there was available to us -- we
16 found suppliers in Asia that could economically print as few
17 as 25 or 50 copies on a reprint. And therefore, the need
18 for the storage for the length of time was no longer
19 necessary. And that was one of the factors in the old print
20 run, new print run.
21 Q. Well, let's take an example. Let's look at
22 Fundamentals of Cosmic Physics, which is what you talked
23 about on your direct testimony.
24 A. Yes.
25 Q. That's at the top of the page that's
809
1 Bates-numbered 10711. That has a new print run of 300;
2 isn't that correct?
3 A. Yes.
4 Q. If you will turn to the first page of that
5 exhibit, doesn't it state in the second sentence, "The new
6 totals allow for 50 to 100 stock copies after dispatch and
7 takes into account quantities for tract journals." Isn't
8 that right? Did I read that correctly?
9 A. Yes.
10 Q. Doesn't that suggest that in fact the number of
11 subscriptions that you had for Fundamentals of Cosmic
12 Physics in 1988 was about 200 copies?
13 A. No. We are talking about a specific issue of
14 Fundamentals of Cosmic Physics, and the tract sale was
15 highly variable. In some cases a single tract would sell
16 1,000 or 1500 copies. In some cases it would sell 50 or 100
17 copies. This was -- this -- these were made essentially to
18 give us the base stock that we needed for subscriptions and
19 then to deal -- except for a few copies -- with the tract
20 sales when we saw the flow of orders.
21 Q. But you would at least print enough copies to
22 meet your current subscriptions; isn't that right?
23 A. Well, here we get to current subscriptions.
24 Q. The subscriptions that existed at the time you
25 were doing the printing of the journal? If you have orders
810
1 for 300 -- if you're printing 300, you must print at least
2 as many as you need --
3 A. Oh, yes.
4 Q. Isn't that right?
5 A. To the dispatcher.
6 Q. You don't agree with the pretrial memorandum, do
7 you, that says for your physics journals, these journals
8 have worldwide subscriptions numbering in only the hundreds,
9 is that correct, isn't it?
10 A. That's right. I absolutely agree.
11 Q. Now, Mr. Gordon, there are substantial costs
12 associated with printing the very first copy --
13 A. Yes.
14 Q. -- of any of your journals; isn't that right?
15 A. Yes.
16 Q. Those are the costs of the editorial and the
17 typesetting and all the things that are involved that you
18 know much better than I?
19 A. Yes.
20 Q. Those costs occur if you sell only one copy of a
21 journal; isn't that right?
22 A. That's correct.
23 Q. For some of your journals, isn't it in fact the
24 case that typesetting can be 60 to 80 percent of the total
25 cost?
811
1 A. Oh, yes.
2 Q. If your physics journals have larger circulation,
3 isn't it in fact the case that you could spread the fixed
4 costs over more copies?
5 A. Absolutely.
6 Q. And the fixed costs per copy would be less; isn't
7 that right?
8 A. Yes.
9 Q. Now, when you set the price of a journal, you set
10 the price in order to cover your costs; isn't that right?
11 A. Initially when we set the price, we set the price
12 to cover the expected size of the market for that journal.
13 And we realized there was going to be a three- to five-year
14 period before, at minimum, before we achieved that market
15 size. And that is the basis of our cost setting policy.
16 Q. You hope that within three to five years at least
17 that you will be selling enough subscriptions at whatever
18 price you set so that you will at least cover your costs,
19 right?
20 A. So that price times quantity will equal cost,
21 yes?
22 Q. Well, it will equal more than cost, won't it?
23 Isn't there a profit element involved?
24 A. Yes.
25 Q. And Gordon & Breach is a for-profit enterprise,
812
1 isn't it?
2 A. Yes.
3 Q. So your subscription prices are meant not only to
4 cover your costs but to provide a profit to the enterprise?
5 A. Yes.
6 Q. What is the margin of profit that Gordon & Breach
7 seeks after three to five years for its physics journals?
8 MR. LUPERT: Objection, your Honor. This is
9 proprietary information which the Court has already ruled is
10 irrelevant.
11 MR. MESERVE: Your Honor, if I may respond?
12 THE COURT: Yes.
13 MR. MESERVE: Their brief and their testimony has
14 been replete with the fact that they set their prices to
15 cover their costs. And Mr. Gordon's in testimony yesterday,
16 he was asked about when journals would become profitable,
17 and he talked about the profit of the operations. So this
18 is something that has been not only introduced by his direct
19 testimony in this case, but is also something that has been
20 explicitly raised here.
21 THE COURT: What issue in this case is it
22 relevant to?
23 MR. MESERVE: Pardon me?
24 THE COURT: What issue in this case is it
25 relevant to?
813
1 MR. MESERVE: Well, your Honor, much of their
2 argument has been that, because their prices are set in
3 order to cover the substantial costs that they incur and
4 that we should feel sorry for them because of that, I
5 believe that the evidence that I will be able to elicit is
6 that scientific publishing is in fact a very, very
7 profitable enterprise.
8 We have not been allowed to go into this in
9 discovery. I was quite surprised to see in the brief and in
10 the testimony we have heard so far in this case that the
11 cost is the justification for the prices that they provide.
12 I would like to inquire of this witness as to the
13 profitability of this enterprise.
14 THE COURT: What is the relevance of the
15 quantity? The witness has just testified to the fact that
16 it is a for-profit organization and that, in making cost
17 price -- in setting a price, he considers cost times
18 quantity -- he wants price times quantity to equal cost plus
19 price.
20 MR. MESERVE: That's right.
21 THE COURT: What's the difference if it's 5
22 percent or 10 percent or 20 percent, what issue in this case
23 is impacted by that?
24 MR. MESERVE: Your Honor, the plaintiffs in this
25 case have asserted, and perhaps as suggested even by your
814
1 Honor in some of your remarks, is that it would be
2 appropriate for some kind of a representation to be made
3 that the specialized cost basis of small journals justifies
4 special considerations.
5 THE COURT: I know you were upset by my line of
6 inquiry, but --
7 MR. MESERVE: No, no, your Honor.
8 THE COURT: What I was trying to do is to focus
9 the issues and what the objections are. Now, one of the
10 objections is that it is unfair to rank publications based
11 on their criteria utilized by Barschall, and that
12 recognition should be given to the fact that there is a
13 benefit to the scientific community by their being the niche
14 journals.
15 All right. That's one of their claims. Now, I
16 just don't see how any of the issues change with respect to
17 whether their profit margin is 5 percent or 10 percent. The
18 defendant isn't saying -- the defendant has an unclean hands
19 defense, but it isn't predicated on any claim that I'm aware
20 of that Gordon & Breach has unclean hands because its prices
21 are exorbitant.
22 Am I wrong, Mr. Meserve?
23 MR. MESERVE: You are quite correct, your Honor.
24 The unclean hands element of this case is not related to the
25 possibility that Gordon & Breach has undue profits. What I
815
1 am trying to address is an issue which is heavily
2 emphasized, that specialized journals should be treated in
3 some special way in the survey because of the fact that they
4 have these unusual costs, and they certainly, at least on a
5 per-unit basis, do have unusual costs. That may not be the
6 whole story with regard to Gordon & Breach's journals,
7 however, your Honor.
8 THE COURT: You asked the question whether Gordon
9 & Breach when it creates a niche journal envisions making a
10 profit after a startup period and calculates that in the
11 price. And the answer is yes. The answer has been yes.
12 MR. MESERVE: I will move on, your Honor. I can
13 get at this indirectly in a way that I think that Mr. Gordon
14 will be comfortable with.
15 BY MR. MESERVE:
16 Q. Mr. Gordon, you could make a profit on your
17 scientific journals if you have sales of only 50 copies;
18 isn't that right?
19 A. If we feel the market is going to be 50 copies --
20 if we feel the market is only going to be 50 copies, we
21 price and produce the journal so that it could be done on a
22 lower cost basis in the manner of typesetting, for example,
23 or whether we ask authors to submit camera copy, etc., etc.,
24 or in some cases --
25 THE COURT: So they can be copied, right?
816
1 THE WITNESS: Yes. But it's the same --
2 THE COURT: You do not --
3 THE WITNESS: -- calculation, yes.
4 THE COURT: You do not engage in any publication
5 unless there is an anticipation of, at some reasonably
6 foreseeable time, it being profitable?
7 THE WITNESS: There are publications which we do
8 engage in which we don't see to be profitable but we feel
9 the long-term spinoff effects may be profitable, for
10 example.
11 MR. LUPERT: Judge, would it help if we just
12 stipulated that Gordon & Breach is a for-profit entity and
13 wants to make money on every journal, ultimately?
14 THE WITNESS: In some way, yes.
15 MR. LUPERT: There is no dispute on that point.
16 MR. MESERVE: I think Mr. Gordon had said they
17 found a way to operate in which they could make a profit if
18 they only sell 50 copies of their journals.
19 THE WITNESS: We feel that's our job as a
20 publisher not to say we can only do this 20,000 copies or we
21 can't do it. Our job is to determine the market and see how
22 it can be reached.
23 Q. You agree, don't you, as well, with the pretrial
24 memorandum that was filed by your counsel, that, "Basic
25 principles of economics dictate that the journals directed
817
1 at a smaller audience will be more expensive on a
2 per-subscription basis." You agree with that, don't you?
3 A. Oh, yes.
4 Q. Now, most of the subscribers to your journals are
5 libraries, isn't that right?
6 A. Many journals, yes. Not all.
7 Q. I'm talking about your physics journals.
8 A. Not all. Physics journals, yes.
9 Q. And you're not sure --
10 A. No --
11 Q. -- whether you have more copies sold to academic
12 libraries or to industrial libraries with regard to your
13 physics journals, are you?
14 A. It depends upon the subject, and it is not
15 something we review.
16 Q. So you don't know?
17 A. We tend to review the gross income when we're
18 assessing the validity of the journal.
19 Q. But the question I asked was -- the question is
20 the allocation of subscriptions between industrial or
21 corporate libraries and academic libraries, and you don't
22 know how that split works for physics journals; isn't that
23 right?
24 A. It depends upon the subject area.
25 Q. Well, for the physics journals that were covered
818
1 by the Barschall survey, do you know what the allocation is
2 between --
3 A. No, I don't --
4 Q. -- academic and corporate?
5 A. I don't know the allocations of other journals at
6 this time, no.
7 Q. Well, we have heard testimony in this case about
8 the Ferroelectrics journal, and I'm going to hand you a copy
9 of one issue of Volume 75. I will hand you No. 3, which is
10 Defendants' Exhibit VVVVV, five V's. And if you will look
11 inside, this is, as you will see, Mr. Gordon, is a volume
12 from 1975?
13 A. It's an issue, yes.
14 Q. It's one issue?
15 A. Yes.
16 Q. Excuse me. It's one issue from Volume 75. I
17 would ask you to look on the inside page, the inside cover.
18 It states, does it not, "The corporate subscription rate per
19 volume is $472, including air mail postage; individual
20 subscription rate, $145, including air mail postage; and the
21 university and academic library subscription rate per volume
22 is $290, including air mail postage."
23 A. That's right.
24 Q. Did I read that correctly?
25 A. Yes.
819
1 Q. So you charge significantly more for corporate
2 subscriptions than you do for academic subscriptions, right?
3 A. Yes.
4 Q. And the Barschall survey covered your prices for
5 academic libraries; isn't that right?
6 A. Yes.
7 Q. Now, the volume I have handed you, you said, is
8 one issue, and in the case of Ferroelectrics and for your
9 other physics journals, you aimed to have an issue that is
10 about 350 pages --
11 A. No.
12 Q. A volume, excuse me.
13 A. A volume, a volume.
14 Q. And this issue is about 80 pages?
15 A. Between 50 and -- obviously, if it goes to 450,
16 that's fine too.
17 Q. But you're hitting a volume as around 350 --
18 A. Yes.
19 Q. And one issue is about a fourth of the volume?
20 A. Yes.
21 Q. And this is typical, is that the pamphlet I
22 handed you is about 80 or so pages long?
23 A. That's right.
24 Q. $75, one fourth of a subscription price for an
25 academic library?
820
1 A. But if you notice the last page of this issue 3,
2 not counting the author index now, is page 404, and that
3 would be the number of pages already published in this
4 volume, so the two previous issues would have contained a
5 greater number than the average.
6 Q. I understand. But if it's four issues -- I'm
7 trying to get the point not so much the number of pages, but
8 if it's four issues, it's about the fourth of a subscription
9 price per issue?
10 A. Yes. Well, in this case, for example, the total
11 number of pages published for this volume -- do you have the
12 next issue?
13 Q. No. 4, 490 for this one.
14 A. 490 for this volume, not 350.
15 Q. But you aim in general to hit about 350, and you
16 go plus and minus for that; isn't that right?
17 A. We aim within 100 pages. It's just a target --
18 Q. I understand.
19 A. The target is about 400, 380, something like
20 that, because --
21 Q. Now, you understand as well, don't you, that
22 there is a gap, a gap that has widened over time, between
23 what the libraries would like to be able to purchase and the
24 funds that they have available for purchasing, right?
25 A. You're talking about U.S. libraries?
821
1 Q. U.S. libraries.
2 A. Yes.
3 Q. And the libraries are very worried about that,
4 and appropriately so, right?
5 A. Yes.
6 Q. And the prices of journals have gone up over
7 time, isn't that right?
8 A. Yes, but that's partly due to the method of
9 distribution has changed.
10 Q. It could be. And many journals are now
11 publishing more pages than they published in the past?
12 A. Yes.
13 Q. And the number of new journals has increased? In
14 fact, Gordon & Breach has, I think you testified, something
15 on the order of 20 to 40 journals per year in all fields?
16 A. Yes.
17 Q. And the libraries you hope at least would like to
18 acquire some of those journals?
19 A. Yes.
20 Q. And the libraries don't have the funds to do it,
21 do they, in all cases?
22 A. Obviously they never had in all cases.
23 Q. You agree, don't you, that the library crisis,
24 which I will call this gap, is a legitimate problem to
25 discuss and analyze; isn't that right?
822
1 A. The problem is a difficult problem to discuss,
2 but, yes.
3 Q. And you agree as well, don't you, that it is not
4 improper for a library to consider the price of a journal,
5 among other factors, in making decisions as to what to
6 purchase?
7 A. Among other factors?
8 Q. Among other factors?
9 A. Obviously.
10 Q. In fact, it's necessary for a librarian to
11 consider price, right?
12 A. Yes.
13 Q. Now, you have testified about the flow system.
14 As I understand it, you testified that basically you publish
15 the papers when they are ready, and that can mean that you
16 publish more volumes than you anticipate in a year and
17 sometimes fewer volumes?
18 A. Yes.
19 Q. Isn't that right? You set your prices on a
20 volume basis.
21 A. Not in all cases. In some cases --
22 Q. But in the case of the physics journals, you set
23 the prices per volume?
24 A. In some cases we set it on a 12-monthly-issue
25 basis, but --
823
1 Q. In 1988?
2 A. The physics journals is set on a volume basis.
3 MR. LUPERT: Mr. Meserve, I think you just have
4 to give him a chance to answer some questions.
5 MR. MESERVE: I apologize, Mr. Gordon, if I'm
6 stepping on you.
7 Q. In some years you publish more volumes, other
8 years you publish fewer volumes; it just depends on the
9 material that's available; isn't that right?
10 A. Yes, and in some years we publish the respective
11 number of volumes, but they contain more pages or less pages
12 than our average.
13 Q. You don't tell the consumer, meaning the
14 purchaser, what the estimated number of pages per volume is,
15 do you?
16 A. No.
17 Q. If you have a lot more material than you
18 expected, you close up one volume and you start a new
19 volume; isn't that right?
20 A. Sometimes. Sometimes we will just increase the
21 number of pages per volume.
22 Q. If you have a lot more material you just --
23 you've got your 350 page target?
24 A. Or 450, whatever.
25 Q. And you will start a new volume?
824
1 THE COURT: One at a time.
2 THE WITNESS: Yes.
3 Q. And when you do that, you charge the librarians
4 for more volumes, don't you?
5 A. First we try to anticipate it in the renewal, by
6 getting a window on the expected flow from the academic
7 editor and so -- where the information basically what his
8 current flow is. And if he is expecting, for example, a
9 two-volume special conference issue rather than a one-issue
10 special conference issue, etc., etc., during the year, and
11 this is -- we try as much as possible to include this in the
12 renewal -- the anticipation in the renewal price. And where
13 we are -- where we have the adjustments to make are in those
14 cases where the anticipation has been incorrect, and if we
15 then suddenly come up with two more volumes than we thought,
16 we don't hold the material until the next renewal period.
17 We invoice for another two volumes and publish immediately.
18 Q. Well, we have just heard from the librarians.
19 The librarians have complained about that flow system,
20 haven't they?
21 A. Some have. We are dealing with the authors. We
22 feel it is a service to the authors.
23 Q. But you agree, don't you, that it creates
24 problems for librarians?
25 A. For some librarians it creates problems.
825
1 Q. In fact, I think you just testified a moment ago
2 that for some of your journals, you've gone to an annual
3 basis for subscriptions, isn't that right?
4 A. No, an annual basis for all of the journals,
5 we've gone to an annual basis of subscription. All right.
6 And the basic difference, as I say, is we try and anticipate
7 the differential that will be coming in the following year.
8 THE COURT: Now I'm confused. Lawyers subscribe
9 to various publications on an annual basis. No one knows,
10 for example, how many opinions the Supreme Court will render
11 next year, so one subscribes. Then it's the publisher's
12 economic risk whether there will be many more than
13 anticipated or less than anticipated because the annual
14 subscription rate is fixed.
15 Now, with Gordon & Breach, when you say you've
16 gone to an annual basis --
17 THE WITNESS: Annual billing basis is what I --
18 THE COURT: Annual billing basis.
19 THE WITNESS: Yes.
20 THE COURT: Does that mean a fixed annual price?
21 THE WITNESS: No. It means that in -- before
22 Gordon & Breach, other publishers would publish and invoice
23 each volume throughout the year as it was ready. For the
24 beginning of the flow system, when we did it, we didn't use
25 the calendar-year basis at all. Whenever the volume was
826
1 finished, that's when we did the renewal. We then decided
2 it would be a lot easier if we could regularize as much of
3 this as possible by anticipation, and --
4 THE COURT: But just to cut through: If, in
5 fact, the number of volumes in a particular year are greater
6 than anticipated, the librarian pays the additional cost?
7 THE WITNESS: That's right. If they are less
8 than the volume, than the number anticipated, then he gets a
9 credit against it, or renews for a smaller number of volumes
10 in the next year.
11 Q. So it catches up on the number of volumes?
12 A. Exactly. And the same is true for the page
13 differentials there.
14 Q. Yesterday -- you know that Barschall included 11
15 of the Gordon & Breach journals in his survey?
16 A. Yes.
17 Q. You know that? You were asked how many physics
18 journals Gordon & Breach published in 1988 --
19 A. Yes.
20 Q. And you claimed in your direct testimony
21 yesterday that you had searched and found it was about 24?
22 A. I think -- I -- I was told it was 24. I'm sorry.
23 Q. You testified yesterday that you searched and
24 found it was 24.
25 A. I didn't -- I didn't look for the 24 figure. I
827
1 was told it was about 24.
2 Q. Can you list the physics journals that you allege
3 should have been included?
4 A. Not here. I could. I could go back. In fact,
5 we presented this, I think --
6 Q. Yes. That was to be presented by a witness who
7 was withdrawn. I'm asking the question.
8 MR. LUPERT: Objection to the characterization.
9 THE WITNESS: No, we presented this --
10 MR. LUPERT: Mr. Meserve hasn't any idea about
11 any of this. He is testifying.
12 THE WITNESS: We presented this --
13 MR. LUPERT: Mr. Gordon. Please, excuse me. I
14 object to the characterization.
15 THE COURT: It is a quarter to 4. We are not
16 going to be finished by 4:30.
17 Do you want the defendants to furnish Monday
18 morning the list of 13 G&B physics journals not included in
19 the Barschall survey?
20 MR. LUPERT: I would be happy to do that.
21 MR. MESERVE: We are trying to determine whether
22 this is one of these issues that is still in the case or
23 not, your Honor.
24 THE COURT: I see.
25 MR. LUPERT: We will be happy to produce it.
828
1 MR. MESERVE: If Mr. Lupert is going to no longer
2 pursue this issue, then I don't need to pursue the question.
3 MR. LUPERT: No, no, it's not that, it's just
4 that I objected to your characterization that I somehow need
5 another witness to do this.
6 THE COURT: Will you --
7 MR. LUPERT: Absolutely.
8 THE COURT: Will the witness have those available
9 here on Monday morning?
10 MR. LUPERT: Yes, certainly.
11 THE COURT: Very well.
12 BY MR. MESERVE:
13 Q. In discussing the comments journals yesterday,
14 you testified that the comments journals were more expensive
15 because the authors are paid?
16 A. Yes.
17 Q. How much are the authors paid?
18 A. The authors were -- the initial arrangement was
19 that they were paid the equivalent of a half a day's
20 consulting fee, which at that time was $125. Now, remember,
21 they were also asked to write short articles, four to six
22 pages. Subsequently, with inflation and time, that was
23 raised to -- and demand -- that was raised to $175. But the
24 reason that payment was inserted was that the idea was --
25 which we were asking for -- was an overview as you would ask
829
1 a consultant on a research area.
2 Q. In 1988 the price was $125 for --
3 A. In 1988 it was -- it may be at $175.
4 Q. The author was paid $175?
5 A. $175 per article.
6 Q. And in a typical volume of a comments journal, do
7 you have any idea how many authors would typically appear?
8 A. I would have to go back and check. I have no
9 rec --
10 Q. Do you have any idea, an order of magnitude
11 estimate?
12 A. Not any longer, no. This is a very old journal.
13 Q. You testified yesterday, as well, that your
14 comments journals provide a -- I think you used the words "a
15 general overview of the field;" is that right?
16 A. That's what they're set up to provide, yes.
17 Q. Let's take an example. "Comments on condensed
18 matter physics," which is one of the ones that was included
19 in the Barschall survey.
20 A. Yes.
21 Q. You agree, do you not, that, in the way you have
22 used the terms, that condensed matter physics is not a
23 specialized area, that's a broad area, isn't it?
24 A. In those terms, yes.
25 Q. In fact, Physical Review B, the subject area of
830
1 Physical Review B, is condensed matter physics?
2 A. Yes.
3 Q. So your comments journals aren't limited to
4 highly specialized areas at all, are they?
5 A. No. They are listed -- they are not limited to
6 highly specialized -- it's exactly that they're limited --
7 they're not limited to highly specialized areas. What they
8 do is deal with research in subsections, but generally
9 what's going on in condensed matter physics.
10 Q. Let me make sure I understand your argument. On
11 the one hand, some of your journals are so specialized that
12 they shouldn't be included in the survey, and on the other
13 hand some of your other journals are so general that they
14 shouldn't be included?
15 A. No, that's not my argument.
16 MR. LUPERT: Objection, Judge --
17 A. My argument was that these were not research
18 papers. These were overviews. And therefore they were not
19 comparable to anything else in the survey.
20 Q. I see. The general theme is that your journals
21 are just different from everybody else's.
22 A. Those six that were included were completely
23 different. Those six were not research publications. And
24 this was comparing, especially with citation, research
25 publications with non-research publications.
831
1 Q. So your testimony --
2 A. That focus.
3 Q. -- is that some of your journals are so
4 specialized and they are therefore different and some of
5 your other journals, your comments journals, are just
6 different because they are not research papers; is that
7 right?
8 A. And some are different for other reasons. There
9 are many -- many --
10 Q. But they are all different?
11 MR. LUPERT: I object to the form of the
12 question.
13 Q. Right?
14 A. They are not all different, no.
15 MR. LUPERT: I think --
16 THE COURT: Yes. There is no need for argument.
17 MR. MESERVE: I'm sorry, your Honor.
18 Q. Yesterday you testified about the incident
19 involving a librarian in Belgium by the name of Simone
20 Jerome.
21 A. Yes.
22 Q. Do you remember that? I'm going to hand you
23 cluster of exhibits. These are Plaintiffs' Exhibits 640,
24 641, and 643.
25 Your testimony yesterday is that you got upset
832
1 when you saw an Internet posting, which is Plaintiffs'
2 Exhibit 640, and you testified that after that you dropped
3 the matter.
4 MR. LUPERT: I don't believe --
5 A. No, no, that was not my testimony.
6 MR. LUPERT: Judge, I hesitate to object so
7 frequently, but that is hardly what his testimony was. I
8 mean, there's a long -- he said he delegated the
9 responsibility to someone else in his organization and then
10 ultimately this matter was dropped, but it was after some
11 correspondence between the parties and a whole host of other
12 things.
13 THE COURT: Objection sustained.
14 MR. LUPERT: Thank you.
15 BY MR. MESERVE:
16 Q. Mr. Gordon, in fact, after the posting by the
17 librarian of Exhibit 640 on the Internet on November 28, in
18 fact, isn't it the case on November 29, the very next day, a
19 law firm by the name of Ashurst Morris & Crisp sent a letter
20 to the rector of the university at which the librarian was
21 employed?
22 That's Exhibit 641.
23 A. Yes. I see the exhibit, but I had nothing to do
24 with this or any part of this, as I've testified, and the --
25 my guess is that this was not -- this is not the first
833
1 letter in the series.
2 MR. LUPERT: I object to that. I'm going to move
3 to -- I hate to move to strike my own witness's testimony,
4 but he --
5 THE COURT: Your move to strike -- your
6 attorney --
7 You did not individually authorize the sending of
8 the --
9 THE WITNESS: No, no.
10 THE COURT: -- that --
11 THE WITNESS: No, I had no --
12 THE COURT: Now, tell me, your organization, how
13 is it structured? Who runs the show?
14 THE WITNESS: My firm. I in this run the show
15 because I'm overall director. But we have obviously local
16 administrators and local editors and workers all over the
17 world. I operate from a relatively small office in
18 Switzerland.
19 THE COURT: Let's take this letter.
20 THE WITNESS: May I answer --
21 THE COURT: Well, no. Who would have the
22 authority to authorize the sending of this letter?
23 THE WITNESS: I passed the authority to the
24 director of one of our British operations, Mr. Roger Green,
25 who is in the court today, to handle the matter.
834
1 THE COURT: This particular matter?
2 THE WITNESS: Not this particular letter. This
3 whole matter came up --
4 THE COURT: Define "matter."
5 THE WITNESS: Well, that's why I want to get into
6 this first letter, which in some way comes back to your
7 question, as I read it now.
8 MR. MESERVE: In some way?
9 THE COURT: There are certain prerogatives that
10 the Judge has and I'm exercising them.
11 THE WITNESS: That's all right.
12 THE COURT: What is the matter that you directed
13 Mr. Green to handle?
14 THE WITNESS: A prior publication by this Simone
15 Jerome, over the Web, I believe, not this one.
16 BY MR. MESERVE:
17 Q. Mr. Gordon, I will represent to you that there
18 was no prior -- we asked for this kind of material in
19 discovery, and this particular exhibit was produced to us in
20 discovery by the plaintiffs, and there was no prior posting
21 by this librarian that was produced to us.
22 A. It seems --
23 Q. This was a response to a prior --
24 A. This is the response to something. It says, "The
25 spokesman of Gordon & Breach gives us a long explanation of
835
1 their publishing policy, but he did not explain why the
2 policy" -- that sounds like a response to a prior letter, or
3 a prior posting. That's why I noticed it now.
4 THE COURT: Let me ask you this. If you have a
5 trademark, Polo, you will have a group or an individual who
6 polices the mark, you will give instructions to persons or
7 organizations to say, be on the alert for any infringement
8 on the mark, and if there is any infringement on the mark
9 take whatever is necessary to stop it, to enforce our
10 rights, because unless we do we'll lose the mark. OK?
11 Now, does Gordon & Breach have any policy or
12 direction with respect to comments made with respect to
13 Gordon & Breach in the press? Is there some service or
14 some --
15 THE WITNESS: No, there is not.
16 THE COURT: Is there somebody in your
17 organization who has responsibilities with respect to this
18 type of matter?
19 THE WITNESS: No. Most of the items -- this was
20 an exception because it was over the Web and it was seen by
21 Mr. Green in the organization. But most of the matters
22 which come up come up through the outside academic editors,
23 who phone us and say this has been done. Even the Barschall
24 survey we did not, or I did not, find out about directly.
25 It was only after we had the complaints from the academic
836
1 editors about it that we became involved at all.
2 Q. Mr. Gordon, you do not dispute, do you, that
3 Plaintiffs' Exhibit 641 --
4 A. Yes.
5 Q. -- is in fact a letter that was sent to the
6 rector of the University of Liege?
7 A. I am just -- I -- I take your word for it, yes.
8 Q. This was produced to us by your counsel?
9 A. Yes.
10 Q. You do not dispute, do you, that Plaintiffs'
11 Exhibit 43 was a subsequent letter to that rector?
12 A. Yes.
13 Q. Both of those letters are seeking a retraction?
14 A. Yes.
15 Q. The second letter includes, as an attachment, a
16 letter from Mr. Lupert, does it not?
17 MR. LUPERT: Judge, I really object to, not just
18 the use of my name, but the fact that this witness has no
19 knowledge of it and these documents, they haven't taken the
20 deposition of any relevant witness about it, and they are
21 just trying to prove something through a witness who has
22 been candid about his involvement in all those other
23 incidents and it just happens this is one of the few -- he
24 had nothing to do with it. It took place in England where
25 Mr. Green was and you've just got the wrong witness up there
837
1 for this one.
2 THE COURT: Overruled.
3 Q. Attached to Exhibit 643 there is a letter from
4 Mr. Lupert, is there not? It's that double-spaced --
5 A. Yes.
6 Q. -- document dated February 12?
7 A. Seems to be signed by him.
8 Q. Mr. Lupert says on the top of the second page in
9 the first full paragraph, the one that begins "moreover," it
10 has to do with a requested retraction: "Moreover, should
11 the statement Ms. Jerome now proposes be issued, she and the
12 university that employs her may well become enmeshed in
13 various litigations in Europe and the United States that
14 deal with the issue of the appropriate way to compare the
15 costs of scientific journals."
16 A. I'm sorry. I --
17 Q. It's on page 2 of Mr. Lupert's letter.
18 THE COURT: Third paragraph.
19 A. Oh, the very top, yes. Yes.
20 Q. Do you understand that this librarian in Belgium
21 was threatened to become enmeshed in the litigations not
22 only in Europe but in the United States?
23 A. I --
24 Q. You don't know.
25 A. I have no comment on why it was written that way.
838
1 Q. Well, you don't dispute that this --
2 A. I have no -- no, I assume if we said it was sent
3 out it was sent out.
4 THE COURT: But even though it was not sent with
5 your -- you were not intimately involved in this, what was
6 done and said here was consistent with your policy and your
7 practice?
8 THE WITNESS: No. Our practice, your Honor, was
9 to, when people made false statements -- and this was one of
10 the worst because it attacks the people who publish in the
11 journal saying we publish only bad material. But to attack
12 the -- to make an error, we ask for -- we show the facts and
13 ask for a correction.
14 THE COURT: The error was what?
15 THE WITNESS: The first -- apparently the first
16 letter was the first error, with wasn't -- which isn't here.
17 This was the second -- or the first posting. The error was
18 the slur and attack on the -- and we felt --
19 THE COURT: Slur and attack -- finish your
20 sentence.
21 THE WITNESS: On our authors, saying, in effect,
22 only people -- their offer to shelter for authors who have
23 not found their way to more selective journals.
24 THE COURT: That's a criticism.
25 THE WITNESS: But that is attacking their
839
1 integrity as authors.
2 THE COURT: That is saying that the authors who
3 appear in your publications are authors who have not been
4 able to be published in other journals. That's --
5 THE WITNESS: That's how -- no, it's because they
6 have very poor SCI factors.
7 THE COURT: Your policy is that that type of
8 criticism directed to a Gordon & Breach publication --
9 THE WITNESS: To publication in general --
10 THE COURT: It makes as an appropriate response a
11 letter which says that unless the library and the university
12 take certain actions they will be enmeshed in various
13 litigations in Europe and the United States?
14 THE WITNESS: That was not the first response.
15 THE COURT: Did you hear my question?
16 THE WITNESS: Yes. No, I'm saying, that was not
17 the first response. That was an ultimate response. But
18 that was -- that was the response that was worked on by the
19 people. Is it appropriate?
20 THE COURT: I'm just trying to find the
21 criterion. What you're saying here is that what was most
22 offensive was the disparagement of your authors.
23 THE WITNESS: Authors and the publications, yes.
24 And we felt because it was talking about SCI, blah, blah,
25 blah, and there -- might be a, you know, some tie with the
840
1 existing -- with the survey that had been published, etc.
2 BY MR. MESERVE:
3 Q. You thought an author, a librarian in Belgium,
4 enjoyed some association with the defendants?
5 A. No, no, no, I'm not making that statement. With
6 the publication of the defendants, that this information
7 that she refers to about SCI factor came from the --
8 Q. You understand SCI is a reference to the Science
9 Citation Index?
10 A. Yes.
11 Q. The Science Citation Index is in every library,
12 isn't it?
13 A. Yes, but they are talking about the juxtaposition
14 of the price and the SCI. That was the key.
15 THE COURT: SERIALIST refers to?
16 MR. MESERVE: It's the name of, I guess, of what
17 they call a bulletin board on the Internet, and it's a place
18 where people can make comment, and evidently this librarian
19 had the misfortune of making a comment about Gordon &
20 Breach.
21 THE WITNESS: Which in the first instance we just
22 responded to.
23 Q. By threatening?
24 A. No. The first instance was a response which this
25 one is a response to.
841
1 Q. Well, Exhibit 641, which was sent --
2 A. Exhibit 640 is not the first -- is not the first
3 posting, is what I'm saying.
4 Q. Well --
5 A. It may be the first posting that we have, but I
6 think, as I read it, as I said, it appeared to be a response
7 to our response to the first posting.
8 MR. MESERVE: Your Honor, we had in fact proposed
9 to enter -- proposed as an exhibit in this case the prior
10 postings in this case. And I'll provide them.
11 MR. LUPERT: What is the exhibit number on it?
12 MR. MESERVE: It's Exhibit No. UUUUU, five U's.
13 Your Honor, this is the full sequence.
14 THE WITNESS: OK. Why didn't we start with that
15 at the beginning?
16 MR. MESERVE: Because your counsel had opposed
17 the first two items as exhibits.
18 BY MR. MESERVE:
19 Q. If you will look at Exhibit UUUU, which I have
20 just handed you, Mr. Gordon, that is, is it not, a note on
21 Mr. Schneider's letterhead? Mr. Schneider is a person who
22 is employed in the Gordon & Breach enterprise, right?
23 A. That's right.
24 Q. It includes two messages, does it not, one by a
25 Donna Lively, and one from an L. Hunter Kevil; is that
842
1 right?
2 A. Yes.
3 Q. And then if you will turn to the second page,
4 which is the second exhibit, that is a Gordon & Breach
5 response, is it not, having to do with a response to the
6 prior postings? The prior postings were not by Simone
7 Jerome?
8 A. I don't know. I think -- from what I understood,
9 all the postings were by -- I had no direct knowledge of
10 this. So I'm saying all of -- as far as I understood, the
11 postings were by Simone Jerome.
12 Q. So far as the --
13 A. That was my understanding. That's all.
14 Q. Now you understand that the very first posting by
15 Simone Jerome was the posting that I handed you as
16 Plaintiffs' Exhibit 640, which is page 4 of Exhibit UUUUU,
17 right?
18 A. I'm not sure that that was the first -- I'm still
19 not sure that that was the first posting.
20 Q. Well, I could represent to you, Mr. Gordon, that
21 this is the first document by Simone Jerome that we were
22 provided in discovery in this case.
23 A. Well, I'm sure that may be true, but what -- the
24 reason is, there is no way a posting of the 28th of November
25 would be followed by a legal letter on the 29th -- of this
843
1 magnitude -- on the 29th of November.
2 Q. Well, if you'll look on the second paragraph of
3 Plaintiffs' Exhibit 641, which is the letter from Ashurst
4 Morris & Crisp?
5 A. I'm sorry. This is 641, I'm sorry.
6 Q. 641?
7 A. Yes.
8 Q. If you will look in the second paragraph of that
9 letter, it makes a reference to only one posting, isn't that
10 right? A posting on November 28, the very day before, isn't
11 that right?
12 A. Yes. But the first letter would not have gone
13 out in response to that. It's impossible. When this matter
14 came to my attention, it came to my attention through a
15 telephone call from Mr. Green, and this was days after it
16 happened. So it would not have been in reference -- there
17 does appear to be something missing from this. It is not
18 possible for one day to take place.
19 THE COURT: No, it is possible. That was my
20 question to you. The first thing that appears on this, I
21 guess, Internet or whatever it is, is on November 21. There
22 were two publications.
23 THE WITNESS: That's right.
24 THE COURT: And then there is a response in the
25 same medium, right, Rita Church?
844
1 THE WITNESS: That's right.
2 THE COURT: Then this librarian sends what is --
3 THE WITNESS: A response.
4 THE COURT: -- an exhibit -- no, not a -- she
5 makes another comment -- on November 28. It is Exhibit 640.
6 And the very next day, there is a lawyer's letter.
7 THE WITNESS: To her.
8 THE COURT: To her employer.
9 THE WITNESS: To her employer, yes.
10 THE COURT: Now, the way that could happen, and
11 that's why I'm asking, is whether there is a prearranged
12 mechanism or policy, such as the trademark copies have or --
13 THE WITNESS: No, my point, your Honor, is that
14 there was no prearranged policy, and that's why it took
15 contact. It even took, you know, the authorization -- this
16 is not something that's normally part of Mr. Green's job,
17 but because he had proximity to it and everything else, and
18 even to contact the lawyer --
19 THE COURT: So you don't -- so you have no
20 explanation for why something is on the Internet on the 28th
21 and on the 29th there is a lawyer's letter making specific
22 reference to the communication on the 28th?
23 THE WITNESS: I have no explanation, unless there
24 was a previous -- the lawyer's letter was originally planned
25 for a previous or a different, you know, or there was --
845
1 I --
2 THE COURT: If you look at the second page, it is
3 all with reference to Ms. Simone Jerome.
4 THE WITNESS: There appears to be something prior
5 to that missing, which was a prior posting of Ms. Jerome. I
6 don't see how -- I could ask Mr. Green -- but I don't see
7 how this could have been -- this could have been done in
8 that time. That's the part that -- it's not the nature of
9 the response or anything else. It just seems impossible
10 that this is the full sequence of events.
11 THE COURT: All right.
12 BY MR. MESERVE:
13 Q. I would like to turn to another element of your
14 testimony yesterday. You were asked by counsel about a
15 letter that you had sent to the American Physical Society
16 and Professor Barschall on January 6, 1987. That was
17 Plaintiffs' Exhibit 21?
18 A. Yes, sir.
19 Q. Do you have it there? It may have disappeared?
20 THE COURT: 21?
21 MR. MESERVE: It was one of the exhibits used
22 by -- I have a copy. It's not there.
23 THE WITNESS: No.
24 MR. MESERVE: Your Honor, I have an additional
25 copy.
846
1 A. Yes.
2 Q. You testified yesterday that, in this letter,
3 that you had effectively put Barschall and the American
4 Physical Society on notice of your grievances with the
5 survey methodology. I would like to ask you a few questions
6 about this letter. You understand, don't you, that Physics
7 Today is a publication of the American Institute of Physics
8 and not of the American Physical Society?
9 A. Yes. I -- I -- I --
10 Q. You now understand it.
11 A. I understand it many times and I get it confused
12 many times.
13 Q. Sure. I think that sometimes the members of the
14 APS get confused about that. But you have no reason to
15 dispute that the American Physical Society doesn't serve as
16 a mail drop for the American Institute of Physics, does it?
17 A. It does, in our --
18 Q. How do you know that?
19 A. In our experience.
20 OK. After our talk at the deposition, I did
21 verify with my office that this kind of error was made often
22 in our office with the address and which society it was, and
23 for ads, for example, which we advertised in, which we took
24 in Physics Today, the ads, the mailing -- the checks were
25 mailed the same way, and none of them were marked not
847
1 received nor came back.
2 Q. So your testimony is that in other instances
3 you --
4 A. With the same confusion.
5 Q. You had transmitted mail to the American --
6 intended to have mail go to the American Institute of
7 Physics and you sent it to the American Physical Society?
8 A. That's right.
9 Q. And it was ultimately received by the American
10 Institute of Physics?
11 A. The checks we're sure of.
12 Q. The checks because they cleared?
13 A. Because they cleared, yes.
14 Q. You understand, don't you, that American Physical
15 Society and the American Institute of Physics, although
16 related entities, had different offices in the same
17 building?
18 A. Yes.
19 Q. Do you know that they have different mail rooms?
20 A. You explained that to me.
21 Q. You have no reason to dispute that, do you?
22 I mean, you have no reason to dispute that they
23 have different mail rooms as well; isn't that right?
24 A. I would have no way --
25 Q. This is also addressed to professor Henry
848
1 Barschall and apparently was sent to him at the New York
2 address; is that right?
3 A. I believe so.
4 Q. You understand now that Professor Barschall in
5 fact lived at the university where he was a professor, which
6 is the University of Wisconsin in Madison, right?
7 A. Well, this was put care of, and basically we --
8 Q. You hope it's forwarded.
9 A. No -- we assume it will be forwarded, yes.
10 Q. You didn't send this letter with a return
11 receipt?
12 A. No. It wasn't that kind of letter.
13 Q. And you have no reason to dispute the testimony,
14 do you, of the various APS and AIP officials who were
15 deposed in this case that this letter was never received in
16 1987?
17 A. Well, the only --
18 Q. You have no reason to dispute that, do you?
19 A. The only question I have is that this appears to
20 be the only document where this mixup occurred, where that
21 happened. And why it would be limited to two copies of this
22 and for nothing else is the one thing that -- that surprised
23 me.
24 Q. So you surmised from the fact that other
25 misaddressed mail got through that perhaps this letter also
849
1 got through?
2 A. One copy should have gotten through at least.
3 I'm not surmising. Obviously I can't come to a
4 conclusion about it.
5 Q. You can't come to a conclusion.
6 A. No.
7 MR. MESERVE: Your Honor, I am about to turn to
8 another subject that may take a little while. I am prepared
9 to go into it or --
10 MR. LUPERT: Actually, it would be very useful --
11 we have joint plans that might be served, frankly, if we had
12 a few extra minutes this afternoon.
13 THE COURT: We are adjourned until Monday at 10
14 a.m.
15 (Adjourned to 10:00 a.m., Monday, June 13, 1997)
16
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18
19
20
21
22
23
24
25
850
1
2 INDEX OF EXAMINATION
3
4 Witness D X RD RX
5 WILLIAM HOWARD JACO......666 700
6 MICHAEL A. KELLER........732 761
7 MARTIN B. GORDON.........802 802
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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25
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