Main Index: Trial Testimony June 18, 1997
1161
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 18, 1997
12 2:40 p.m.
13 Before:
14 HON. LEONARD B. SAND
15 District Judge
16
17
APPEARANCES
18
ORANS, ELSEN & LUPERT
19 Attorneys for Plaintiffs
BY: ROBERT L. PLOTZ
20 PETER E. SEIDMAN
21 COVINGTON & BURLING
Attorneys for Defendants
22 BY: SUSAN L. BURKE
23
24
25
1162
1 (Trial resumed)
2 THE COURT: Mr. Plotz.
3 MR. PLOTZ: Your Honor, there are actually just a
4 very few matters to bring up. We worked, both sides, I
5 think, very hard at narrowing down the issues on exhibits.
6 Many exhibits that had previously been offered have been
7 withdrawn. Many objections to exhibits have been withdrawn.
8 There are just, as far as the plaintiffs' offer of exhibits,
9 literally a handful of exhibits that we wish to raise with
10 the Court.
11 There are five exhibits which fall into two
12 categories. The first, Exhibits 29, 30, and 34 -- and I
13 have to say, due to the location of the physical exhibits
14 being in two places at once, I only have our own office
15 copies. I don't know if the Court still has the copies of
16 the exhibits.
17 But while they are being given to the Court, I
18 can say that all three exhibits relate to the secondary use
19 of the survey by the defendant AIP, and the Court will
20 recall that Dr. Lustig testified as to APS and there was a
21 lot of colloquy about whether or not this issue was still an
22 issue that had to be proven, and eventually what happened
23 was, there was a document-by-document determination as to
24 whether or not there would be an objection, and all of the
25 documents relating to the secondary uses by APS were
1163
1 eventually not objected to during Dr. Lustig's testimony.
2 These three exhibits relate to the same issue as
3 the other defendant, AIP, and --
4 THE COURT: The stipulation with respect to
5 intent to make further use relates to both defendants?
6 MR. PLOTZ: As I understand it. The issue,
7 though, that was raised during the trial and during
8 Dr. Lustig's testimony, why we needed to go further, related
9 to what the secondary uses were. The contention is not just
10 the survey but what the uses of the survey were that we
11 contend were false. If you look particularly at Exhibit 34,
12 that is AIP's version of Exhibit 33, which is in evidence,
13 which was APS's secondary use -- that was admitted, I
14 believe, during Dr. Lustig's examination, a secondary use in
15 September of 1987. This is simply the AIP analogue. So we
16 don't see a basis for distinguishing between the two.
17 THE COURT: Ms. Burke, do you have an objection?
18 MS. BURKE: Your Honor, these three documents
19 actually relate to the 1986 Barschall article, which has
20 been found to be barred by the statute of limitations, so
21 that the claims made in these documents have no bearing on
22 the claims that might be made about a cost effectiveness
23 survey. The 1986 Barschall article was a cost efficiency
24 survey. So we don't think they are relevant and they need
25 not be admitted into evidence.
1164
1 MR. PLOTZ: The fact that the '86 article is
2 outside the statute period just means we don't have a direct
3 claim that relates to it, but the Second Circuit case law
4 shows that it is relevant to the issue of what use the
5 defendants are making. And that's all we're offering it
6 for.
7 THE COURT: Yes. The objection is overruled and
8 they are received for the limited purpose just stated.
9 (Plaintiff's Exhibits 29, 30, and 34 received in
10 evidence)
11 MR. PLOTZ: Thank you, your Honor. The other two
12 documents, which are 56 and 87, have been objected to, as I
13 understand it, on the basis that they go into the editorial
14 decision making process of putting the article together.
15 That very same point was raised at trial.
16 THE COURT: I thought those were received.
17 MR. PLOTZ: Well, there are two documents. There
18 was much testimony about this. This is the issue of the
19 footnote of one of the Court's opinions. At pages 325
20 through 328 in the transcript where there was colloquy and
21 testimony with respect to this very same objection, the
22 Court overruled the objection and admitted the evidence, and
23 these are simply documents which relate to the very same
24 issue.
25 MS. BURKE: Your Honor, although certainly the
1165
1 line is blurred between what is editorial and what is not
2 and you have overruled some of our objections on those
3 grounds, these two documents in particular have no bearing
4 other than on the editorial process. Gloria Lubkin is the
5 editor. She has not been deposed in this case. And the
6 other document is an e-mail, with editorial comments, that
7 has nothing to do with the dissemination or distribution.
8 It strikes the defendants that these are just purely as to
9 the editorial process and they aren't relevant in this case.
10 THE COURT: What is the significance of 56?
11 MR. PLOTZ: Your Honor, the close linkage of the
12 APS management to the preparation of the article goes to the
13 Castrol element of the objectivity of the survey.
14 THE COURT: Havens is suggesting to Barschall
15 that he change the title?
16 MR. PLOTZ: Havens is on, if you will, the
17 business side, not the editorial side, and it shows the
18 linkage of the business side to the preparation of the
19 article, which we contend is relevant to the Castrol element
20 of whether this was an objective study by Barschall.
21 MS. BURKE: Your Honor, Havens was actually the
22 editor in chief.
23 THE COURT: I sustain the objection to 56.
24 Now, what is 87?
25 MR. PLOTZ: 87 was an affidavit that was filed in
1166
1 one of the European litigations, in which Ms. Lubkin, the
2 editor, made what we contend are inaccurate, false
3 statements relating to the editorial process.
4 THE COURT: I sustain the objection to 87.
5 MR. PLOTZ: That completes our issues.
6 THE COURT: Ms. Burke?
7 MS. BURKE: Your Honor, we have a few documents
8 that all relate to the unclean hands. Essentially it is
9 half of the correspondence. It has been objected to on
10 hearsay grounds. We are offering the documents not for the
11 truth of the matters stated but in order to provide the
12 Court with the means by which to judge the plaintiffs'
13 intent.
14 I would just walk through one example so that you
15 will understand how it is relevant. I will hand you up a
16 document that has been admitted into evidence, a document by
17 Mr. Lupert, and the correspondence that preceded it. In
18 Mr. Lupert's letter, he appears to be quite reasonable and
19 proposes a settlement. On its face, there is nothing
20 inherently unreasonable about it, but when it is viewed in
21 the context of the prior letter from Ms. Edelman when she
22 explains the circumstances and states that there is no
23 secondary promotional issue and that it is merely a matter
24 of free speech, then Mr. Lupert's letter no longer is
25 reasonable, and so for you to have the ability to judge
1167
1 Mr. Lupert's letter, you really need to see what he is
2 responding to.
3 There is another person and example as well.
4 THE COURT: Let's stop with that. The objection
5 is to the Dorsey & Whitney letter?
6 MR. PLOTZ: Yes. This came up during
7 Dr. Tailor's cross-examination, you may recall, and I made
8 the argument that it was double hearsay because it's a
9 lawyer's letter of what the lawyer's client told her.
10 Neither the lawyer nor the client was ever deposed or a
11 witness in this case, and it seems to me that there is no
12 way of getting around the fact that this letter is being
13 offered for the truth, for what IEEE and Vig's position is,
14 and you can only judge Mr. Lupert's letter if you accept as
15 true what is in the letter, and the way for them to have
16 done it is to have called Dr. Vig as a witness.
17 THE COURT: Why can't I accept as true the fact
18 that this is what was said by Dorsey and Whitney to
19 Mr. Lupert?
20 MR. PLOTZ: Well, certainly it's not hearsay if
21 accepted for that purpose.
22 THE COURT: Yes. But isn't that what it is being
23 offered for?
24 MR. PLOTZ: I don't think it is.
25 MS. BURKE: Yes, your Honor. That is exactly
1168
1 what it is being offered for.
2 MR. PLOTZ: That is what they say, but I don't
3 think it can be so limited, because you cannot judge the
4 response to the letter without being able to judge the
5 substance of the lawyer's letter that was written. The way
6 to do that is for Dr. Vig to have testified.
7 THE COURT: It seems to me that it is a classic
8 case of the admission of something not for the truth but as
9 evidence that the words were spoken, or in this instance
10 written, and it is just like a lawyer's question isn't
11 evidence but to evaluate the answer one has to put it in the
12 context of the question.
13 MR. PLOTZ: I understand that point, your Honor,
14 and my problem is just this. The issue on the unclean hands
15 defense is the essentially good faith of the plaintiff in
16 this, and if you're going to judge whether Mr. Lupert's
17 letter is a reasonable letter, unreasonable letter, or
18 whatever it is, you can't just judge that with respect to
19 the words that are in the Edelman letter. You have to
20 address that against whatever the facts of the situation
21 are.
22 THE COURT: That doesn't make the letter
23 inadmissible. That goes to its probative value or the
24 probative value of the Lupert letter, but it doesn't go to
25 the admissibility of the Dorsey & Whitney letter not for the
1169
1 truth but as evidence that this is what was said to
2 Mr. Lupert and to which he was responding. I will receive
3 it.
4 MR. PLOTZ: I take it that the defendants are
5 then not going to make any argument as to the IEEE version
6 of what happened in this incident. The only evidence about
7 what actually happened in this incident is Dr. Taylor's
8 testimony.
9 THE COURT: Dr. Taylor's testimony and
10 Mr. Lupert's letter. Was that received in evidence?
11 MR. PLOTZ: Yes.
12 THE COURT: Very well.
13 MR. PLOTZ: In light of your Honor's ruling,
14 there are a number of other similar exhibits that obviously
15 we object to but I acknowledge they fall within the same
16 category.
17 THE COURT: All right. Just state what those are
18 so the record will be clear that they are received not for
19 the truth but as evidence that that was what was said to --
20 are these all to Mr. Lupert?
21 MS. BURKE: Yes. The majority. A few are to
22 prior counsel.
23 They are ZZZ, EEEE, MMMM, OOOOO4, PPPPP10, 12,
24 and 13, RRRRR2, TTTTT3 and 5.
25 MR. PLOTZ: That's right.
1170
1 (Defendant's Exhibits ZZZ, EEEE, MMMM, OOOOO4,
2 PPPPP10, 12, and 13, RRRRR2, TTTTT3 and 5 received in
3 evidence)
4 MS. BURKE: The remaining documents, your Honor,
5 are the documents that Mr. Meserve used in examining
6 Mr. Gordon, and they are the published version of the FISC
7 panel report, the supplement to the FISC panel, and the
8 supplement to the FISC panel report, and the prepublication
9 draft of the FISC panel report. He used those and there was
10 testimony about them. He neglected to formally move them
11 into evidence and we want to move them in at this point.
12 THE COURT: Is there objection?
13 MR. PLOTZ: There is, your Honor. You will
14 recall that this was the subject of much pretrial activity
15 and there was some discussion at the trial as to the scope
16 of what was permissible as to the FISC report. It went to
17 the financing and initiation of the report, and Mr. Gordon
18 was asked questions relating to those issues without
19 limitation. The report itself, though, it seems to me, goes
20 beyond that. The questions and answers on the FISC report,
21 initiation and financing, are in the record, and it doesn't
22 seem to me that the reports themselves or the drafts of the
23 reports add anything to what is in the record.
24 THE COURT: No, I think they might very well, in
25 terms of the issues of good faith, what the actual facts
1171
1 are, and what was told to whoever received the FISC report
2 or questionnaires and so on. The objection is overruled. I
3 will receive them.
4 MS. BURKE: Thank you, your Honor. That's all we
5 have.
6 THE COURT: That's all you have?
7 MR. PLOTZ: Yes, your Honor.
8 THE COURT: Thank you. We did set a timetable
9 for briefing and reply briefs, and I assume that the parties
10 were going to submit proposed findings of fact and
11 conclusions of law.
12 MS. BURKE: Yes, your Honor.
13 MR. PLOTZ: Yes.
14 THE COURT: Very well. Thank you all.
15 MR. PLOTZ: Thank you, your Honor.
16 MS. BURKE: Thank you.
17 o0o
18
19
20
21
22
23
24
25
|