AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 134

MOTION for Summary Judgment , MOTION for Permanent Injunction by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Hutter Decl., # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Declaration Hudis Decl., # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit T, # 13 Exhibit U, # 14 Exhibit Z, # 15 Exhibit BB, # 16 Exhibit CC, # 17 Exhibit EE, # 18 Exhibit GG, # 19 Exhibit HH, # 20 Exhibit II, # 21 Exhibit JJ, # 22 Exhibit KK, # 23 Exhibit LL, # 24 Exhibit MM, # 25 Declaration Ernesto Decl., # 26 Exhibit NN, # 27 Exhibit OO, # 28 Exhibit PP, # 29 Exhibit QQ, # 30 Exhibit RR, # 31 Exhibit SS, # 32 Exhibit TT, # 33 Exhibit UU, # 34 Declaration Wise Decl., # 35 Exhibit KKK, # 36 Exhibit LLL, # 37 Declaration Camara Decl., # 38 Exhibit MMM, # 39 Declaration Levine Decl., # 40 Exhibit NNN, # 41 Exhibit PPP, # 42 Exhibit QQQ, # 43 Exhibit UUU, # 44 Declaration Geisinger Decl., # 45 Declaration Schneider Decl., # 46 Exhibit Levine Depo Tr., # 47 Exhibit No. 1207 to Levine Depo Tr., # 48 Exhibit No. 1308 to Levine Depo Tr., # 49 No. 1308 to Levine Depo Tr., # 50 Text of Proposed Order)(Elgarten, Clifton)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
AMERICAN EDUCATIONAL
) Case No.
RESEARCH ASSOCIATION, INC.
) 1:14-cv-00857
) TSC-DAR
AMERICAN PSYCHOLOGICAL
)
ASSOCIATION, INC.; and
)
)
NATIONAL COUNCIL ON
)
MEASUREMENT IN EDUCATION,
)
INC.;
)
)
Plaintiffs-Counterdefendants )
)
vs.
)
)
PUBLIC.RESOURCE.ORG, INC.,
)
Defendant-Counterclaimant
)
______________________________
Videotaped 30(b)(6) Deposition of
AERA, APA and NCME
through the testimony of
Felice J. Levine, Ph.D.
Washington, D.C.
August 16, 2019
9:51 a.m.
Reported by:
Bonnie L. Russo
Job No. 3475330
PAGES 1 - 87
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Veritext Legal Solutions
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Videotaped 30(b)(6) Deposition of AERA, APA and

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NCME through the testimony of Felice J. Levine,

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Ph.D. held at:

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Spaces

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1441 L Street, N.W.

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Washington, D.C.

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Pursuant to Notice, when were present on behalf

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of the respective parties:

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CONTENTS
EXAMINATION OF FELICE J. LEVINE, Ph.D.
BY MS. TURNER
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EXHIBITS
6 Exhibit 1300 Public.Resource.Org,
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Inc.'s Rule 30(b)(6)
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Deposition Notice of
American Educational
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Research Association, Inc.
9 Exhibit 1301 Public.Resource.Org,
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Inc.'s Rule 30(b)(6)
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Deposition Notice of
American Psychological
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Association Inc.
12 Exhibit 1302 Public.Resource.Org,
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Inc.'s Rule 30(b)(6)
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Deposition Notice of
National Council on
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Measurement in Education, Inc.
15 Exhibit 1303 Plaintiffs15
Counterdefendants'
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Response and Objections
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to Public.Resource.Org's
Second Set of Requests
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for Production
19 Exhibit 1304 Plaintiffs19
Counterdefendants'
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Response to
Public.Resource.Org's
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Third Set of Requests
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for Production

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APPEARANCES:
On behalf of Plaintiffs/Counterdefendants:
CLIFTON S. ELGARTEN, ESQ.
CROWELL & MORING, LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
202-624-2523
[e-mail]

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1 EXHIBITS (CONTINUED):
2 Exhibit 1305 Plaintiffs24
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Counterdefendants'
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Responses to
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Public.Resource.Org's
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Second Set of Interrogatories
7 Exhibit 1306 Standards for
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Educational and
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Psychological Testing
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Sales Report
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AERA_APA_NCME_RFP2_0000027
12 Exhibit 1307 American Educational
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Research Association
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Standards for Educational
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and Psychological Testing
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(2014 Edition)
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2014 Sales Reports
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Showing the Number of Sales
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of Specific Units Sold
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AERA_APA_NCME_RFP2_0000001-26
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On behalf of Defendant/Counterplaintiff:
SHANNON TURNER, ESQ.
FENWICK & WEST, LLP
Silicon Valley Center
801 Mountain View, California 94041
650-335-7844
[e-mail]
-andMATTHEW BECKER, ESQ.
FENWICK & WEST, LLP
555 California Street
12th Floor
San Francisco, California 94104
650-335-7930
[e-mail]
Also Present:
Deanne M. Ottaviano, Esq., General Counsel,
American Psychological Association
Daniel Russo, Videographer
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EXHIBITS (CONTINUED):
Exhibit 1308 Standards for Educational 56
& Psychological Testing
(2014 Edition)
Exhibit 1309 1999 Standards
59
Exhibit 1310 AERA Book Order Form
65

PREVIOUSLY MARKED EXHIBITS:
Exhibit 1207 Standards for Educational
and Psychological Testing
Sales Report, 1999 Edition
Exhibit 1208 Standards for Educational
and Psychological Testing
Sales Report

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Public.Resource.Org, Incorporated,
defendant-counterplaintiff, filed in the United
States District Court for the District of
Columbia, Civil Action No.
1:14-cv-00857-TSC-DAR.
This deposition is being held at
Spaces, located at 1441 L Street, Northwest,
Washington, D.C.
My name is Daniel Russo from the
firm Veritext Legal Solutions and I'm your
videographer today. The court reporter is
Bonnie Russo from the firm Veritext Legal
Solutions.
Counsel and all present in the room
and everyone attending remotely will now state
their appearances and affiliations for the
record, please.
MS. TURNER: Shannon Turner from
Fenwick & West on behalf of
Public.Resource.org. With me today is also
Matthew Becker from Fenwick & West.
MR. ELGARTEN: Cliff Elgarten,

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PROCEEDINGS

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Crowell & Moring.

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THE VIDEOGRAPHER: Good morning. We

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MS. OTTAVIANO: Deanne Ottaviano,
APA.

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are going on the record at 9:51 a.m. on August

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16, 2019.

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behalf of the American Educational Research

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Association, the American Psychological

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Please note that the microphones are

THE WITNESS: Felice Levine on

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sensitive and may pick up whispering, private

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Association and the National Council of

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conversations and cellular interference.

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Measurement and Education.

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Please turn off all cell phones or place them

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THE VIDEOGRAPHER: Will the court

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away from the microphones as they can interfere

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with the deposition audio. Audio and video

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recording will continue to take place unless

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all parties agree to go off the record.

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being first duly sworn, to tell the truth, the

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whole truth and nothing but the truth,

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This is Media Unit 1 of the 30(b)(6)

reporter please swear in the witness.
FELICE LEVINE,

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video-recorded deposition of APA, NCME, AERA,

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through the testimony of Felice Levine taken by

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counsel for defendant in the matter of American

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Educational Research Association, Incorporated,

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Q.

Good morning.

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American Psychological Association,

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A.

Hi.

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Incorporated, and National Council on

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Q.

Will you please state your name and

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Measurement and Education, Incorporated,

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plaintiffs-counterdefendants versus

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testified as follows:
EXAMINATION BY COUNSEL FOR DEFENDANT
BY MS. TURNER:

spell it for the record.
A.

Sure. Felice, F-E-L-I-C-E, middle

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initial is J, Levine, L-E-V-I-N-E.
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Q. My name is Shannon Turner and I will 2
be taking your deposition today.
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Have you ever been deposed before?
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A. Yes.
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Q. And how many times?
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A. Once.
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Q. What case was that?
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A. This case.
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Q. Great. So are you the same Felice
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Levine who has given testimony in this case? 11
A. To the best of my knowledge.
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Q. Great. And have you ever testified
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at trial?
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A. No.
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Q. And have you ever testified for
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anyone other than AERA?
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A. No.
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Q. I'm going to ask you a series of
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questions today and the court reporter is going 20
to record your answer.
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Do you understand?
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A. Okay.
Q. So, you know, no head nods, uh-uhs,
uh-huhs, because that can be hard for the court
reporter to write down.
Is there any reason you cannot
provide truthful and accurate testimony today?
A. No reason at all.
Q. Are you taking any medication that
would affect your ability to give truthful
answers?
A. No.
Q. Great. Are you employed?
A. Yes.
Q. By whom?
A. American Educational Research
Association.
Q. Great. And what is your title
there?
A. Executive director.
Q. Can you please state your work
address for the record.
A. Yes. 1430 K Street, Northwest,

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A. Yes.
Q. And your answers are under oath and
under penalty of perjury so it's the same as
though you're in front of a court and a judge
and a jury.
Do you understand?
A. Uh-huh.
Q. If I ask a question and anything is
unclear or ambiguous, please ask me to rephrase
the question.
A. Okay.
Q. If you don't ask me to clarify, then
I'm going to assume that you understand the
question.
If you need a break at any time,
please let me know and as long as a question is
not pending, we can break.
A. Okay.
Q. And please verbalize your answer so
that the court reporter can write them down.
Let me finish a question before you answer,
that way we are not talking over each other.

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Washington, D.C. 20005, Suite 1200.
Q. Thank you. What did you do to
prepare for today's deposition?
A. I essentially reread my filings. I
thought I might read my prior deposition.
Q. Did you review your prior deposition
testimony?
A. Really only a few pages. A little
discussion that Mark and I had, it was a little
joke I made. You laughed. You just laughed.
That's good.
Q. Did you review any documents to help
refresh your recollection?
A. Just the fillings that I submitted.
MS. TURNER: I'll ask the court
reporter to mark this as Exhibit 1300.
(Deposition Exhibit 1300 was marked
for identification.)
BY MS. TURNER:
Q. Do you recognize this document?
A. I do.
Q. And what is it?

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A. This was the filing that set forth,
I suppose, primarily focused on the topics of
examination but the issues that we might
discuss today.
Q. Is this a 30(b)6) notice to American
Educational Research, Inc.?
MR. ELGARTEN: We agree it is.
THE WITNESS: Yes.
BY MS. TURNER:
Q. And you understand you are produced
as a witness designated to answer questions on
behalf of AERA today?
A. Correct, yes.
MS. TURNER: If I could have the
court reporter mark as Exhibit 1301.
(Deposition Exhibit 1301 was marked
for identification.)
BY MS. TURNER:
Q. Do you recognize this document?
MR. ELGARTEN: You can put the other
one in front of her and we will agree that she
is testifying on behalf of all three

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Q. Great. And you understand that
these are plaintiff's written responses to
Public.Resource.Org's request for documents?
A. Correct.
Q. Did AERA search for documents in
response to these requests?
A. I did.
Q. And how did AERA go about searching
for documents?
A. I looked through our files that were
saved information in our share drive where we
have information on this and through e-mails,
as did two other colleagues.
Q. Did you look for any hard copy
documents?
A. I suppose I did. I mean, I went
through the stack of our material.
Q. And did AERA produce documents in
response to these requests?
A. Yes.
Q. And did AERA withhold any documents
it otherwise found in its search?

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organizations.
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THE WITNESS: I see.
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MR. ELGARTEN: We will agree that 3
she's testifying on behalf of all three
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organizations and this was per agreement with 5
Mr. Becker.
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MS. TURNER: Great. So if you could 7
mark this as Exhibit 1302.
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(Deposition Exhibit 1302 was marked
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for identification.)
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MR. ELGARTEN: The deposition is 11
half over already.
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MS. TURNER: If we can have the
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court reporter mark this as 1303.
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(Deposition Exhibit 1303 was marked 15
for identification.)
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BY MS. TURNER:
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Q. Are you familiar with this document? 18
A. Yes.
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Q. What is this document?
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A. These were the questions that you
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all posed and that I responded to.
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A. No.
Q. And did APA search for documents in
response to these requests?
A. To the best of my knowledge, they
did.
Q. And how did APA go about searching
for documents?
A. I am assuming a similar mechanism,
hard copy files, to the extent -- to the extent
we have them and electronic.
Q. Okay. And did APA produce documents
in response to these requests?
MR. ELGARTEN: I will tell you all
documents were produced by all three parties.
THE WITNESS: Although I think the
ones I had are the ones that were responsive.
Everybody responded.
BY MS. TURNER:
Q. Do you know if the APA withheld any
documents it otherwise found in its search?
A. I am sure as a long-standing member
of APA, they withheld nothing.

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Q. Thank you. And for NCME as well?
A. I'm less of a long-standing -- I'm
sure they withheld nothing.
MR. ELGARTEN: The nature of the
NCME -THE WITNESS: I was going to say,
NCME is a smaller organization of the three of
us and they don't really -- they have a
management company managing the association so
there is nothing really they would have that I
wouldn't have.
BY MS. TURNER:
Q. Do you know if NCME searched for
documents?
A. Yeah, I'm sure they did across
e-mails, but they are more likely to have
things that I sent them as attachments by
virtue of being part of the management
committee of the testing standards project.
Q. And do you know if NCME withheld any
documents?
A. I am -- I'm sure they didn't.

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I went through the hard copies, but most things
I know I have electronically even if a hard
copy doesn't exist.
Q. Did AERA produce documents -A. Yes.
Q. -- in response?
A. Yes.
Q. Did AERA withhold any documents in
response?
A. No.
Q. What about APA? Did APA search for
documents in response to these requests?
A. Yes.
Q. And how did they go about searching?
A. I am assuming the same way.
Q. Okay. Did APA produce documents in
response to these requests?
A. Yeah.
Q. Did APA withhold any documents?
A. Not to my knowledge. Same response.
Q. Great. And for NCME, did NCME
search for any documents responsive to these

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Q. Okay.
A. As sure as one could be who is not
the executive director of NCME.
MS. TURNER: We will mark as Exhibit
1304, please.
(Deposition Exhibit 1304 was marked
for identification.)
BY MS. TURNER:
Q. And are you familiar with this
document?
A. Yes.
Q. And you understand that these are
plaintiff's written responses to
Public.Resource.Org's third request for
documents?
A. Uh-huh.
Q. Did AERA search for documents in
response to these requests?
A. Yes.
Q. How did AERA go about searching?
A. Essentially have testing standards
material and this case material in my office.

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requests?
A. Yes. They all -- we all received
this and searched and provided anything we had.
Q. Okay. And how did NCME go about
searching?
A. There's probably less of a stack
anywhere because there isn't someone who is
staffing NCME on this, but went through e-mails
and whatever someone might have had in print.
Q. Did NCME withhold any documents in
response to these requests?
A. No, not to my knowledge.
Q. If you could turn to Page 2, please.
A. Of the last one?
Q. Yes, of the last one.
A. Okay.
Q. If you look at the bottom of the
page, you see Request for Production No. 44?
A. Uh-huh.
Q. The requests asks for all documents
not previously produced on which you intend to
rely in this litigation.

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Do you see that request?
A. Uh-huh.
Q. Okay. If you turn the page, the
plaintiffs' response, it states that:
"Plaintiffs have already produced or are
producing all documents on which they intend to
rely on this litigation, but note they have not
made any final determination."
Do you see that response?
A. Yes.
Q. When the plaintiffs respond "or are
producing," what does that mean?
MR. ELGARTEN: This is my language
because this asked what we're going to rely on
as a legal matter in the case, so you could ask
that question of me.
MS. TURNER: Well, these are also
plaintiffs' responses to the document request.
MR. ELGARTEN: That's right, and I
answered this question because I make the
determination of what we're going to rely on
ultimately in the case, and I do this in

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which we gave you, but unless you asked for new
forms of information.
MS. TURNER: If the court reporter
could please mark this as Exhibit 1305.
(Deposition Exhibit 1305 was marked
for identification.)
BY MS. TURNER:
Q. Are you familiar with this document?
A. Yes.
Q. What is this document?
A. These were additional sets of
requests or questions that you asked and our
responses.
Q. So you understand these are
plaintiffs' written responses to
Public.Resource.Org's interrogatories?
A. Yes.
Q. If you could just let me finish the
question.
A. Sorry.
Q. It's a little tough for the court
reporter to get it when we are talking over

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consultation with Ms. Levine in connection with
this, and so if you want to pose this question
to me, you can, but you can't make the judgment
about what we legally -- the documents to rely
on.
MS. TURNER: I understand that's a
legal question but what I wanted to ask Dr.
Levine is the language "or are producing."
BY MS. TURNER:
Q. So are plaintiffs withholding any
documents?
A. No. No.
Q. Okay.
MR. ELGARTEN: Sorry.
THE WITNESS: Really, you got
everything the first time around, folks. It
was -- this was a no-brainer to give you
whatever was left because there was nothing
left.
BY MS. TURNER:
Q. Great. Thank you.
A. I mean, there were some things left

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each other.
A. Okay.
Q. If you could turn to Page 10,
please, which is the last page of the document.
A. Uh-huh.
Q. Is this your signature?
A. Yes.
Q. And it's verifying that the
statements in plaintiffs' responses are true
and correct?
A. Correct.
Q. Do you have any reason to believe
that any of the statements in here are
incomplete or incorrect?
A. No, I have no reason to believe
that.
Q. Okay. Did plaintiffs withhold any
information responsive to these
interrogatories?
A. No.
Q. Thank you.
MS. TURNER: The court reporter can

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please mark this as Exhibit 1306.
(Deposition Exhibit 1306 was marked
for identification.)
MS. TURNER: For the record, this is
a document produced by plaintiffs that is
identified as Bates No.
AERA_APA_NCME_RFP2_0000027.
BY MS. TURNER:
Q. Dr. Levine, do you recognize this
document?
MR. ELGARTEN: Well, we have two
different questions here. I produced this
document from my files because I felt I had
told Mr. Becker -- I think it was Mr. Becker
that we looked for certain documents. This
document was not present in the files of the
client, but it was present in my law firm files
and since I had said something to Mr. Becker
that I would try to find something, and he
asked, I said, I didn't think I could find real
old information but he asked and I really
didn't object to it. I decided to produce this

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A. Yes.
Q. What is this document?
A. This document is a sales report of
the 1999 edition of the testing standards and
the preceding edition before the 1999 edition.
Q. Okay. What was the preceding
edition?
A. I think it was '85. I don't
remember exactly the year without looking at
the -- I think it was '85.
Q. Is this a document that is kept in
the ordinary course of business?
A. This or something equivalent.
Q. How is this document created?
A. I'm going to not exactly guess, but
I'm going to extrapolate from my knowledge,
how's that, because I did not -- I didn't
become executive director until 2002.
Q. Okay.
A. And I had no contact with the prior
edition, so when I came in 19 -- 2002, the 1999
edition was already published.

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to him.
So Ms. Levine had no role in this
because it followed the prior production, it
was pursuant to a discussion I had with Mr.
Becker. I think it was you, Matt.
MS. TURNER: Was this document
produced by plaintiffs on behalf of plaintiffs?
MR. ELGARTEN: It is produced on
behalf of all plaintiffs, yes, and she may know
what it is because -THE WITNESS: I know what it is.
MR. ELGARTEN: -- the original
source of the document was the client files, so
you can ask those questions but she doesn't
know that it was produced.
MS. TURNER: Understood.
BY MS. TURNER:
Q. Are you familiar with this document?
A. Yeah. I mean, I know what it is, I
can tell you what it is.
Q. Do you believe this document is
authentic?

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Q. Okay.
A. The prior edition was published by
-- on behalf of the three organizations by the
American Psychological Association. So this
was -- I'm going to assume a running tab, as it
were, of each year's sales for the years
preceding the 1999 edition.
Q. Okay. When say, "preceding the 1999
edition" -A. The 1999 edition picks up with
probably the 1768 as my -- this will be my
guess, as the partial year sales of the 1999
edition.
Q. Okay.
A. Because that's what we did similarly
in triangulating to the new edition.
So this is the sales report then of
the 1999 edition through 2013, which was the
end of December 2013 when this issue arose in
2014.
Q. Okay. If you look at the line where
it says: "1999 through 8-99," is it just --

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can you tell what the time period is there?
A. I'm going to allow -- again, infer
that this is the sales from -- from January
through -- January through August 1999, and
depending upon when it was literally published,
I suspect it might be the old edition. I don't
-- there is usually kind of a crossover.
Q. Okay. Were there any sales between
August and December of 1999?
A. I literally don't know but I can
only assume so.
Q. Okay. Is that -A. Although it may be crumped in the
2000 -- in other words, it might have been -the new edition -- I don't know when the new
edition literally came out, so let's say it
came out in September, so it might have been
incorporated in to what you are seeing as 2000.
I don't believe there is a gap. It's just a
matter of when the cutoff of one edition
happened and when the new edition happened.
Q. So when calculating a sales number,

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November 1999. I just don't know.
It may have been so de minimis at
that point that it was really a 2000 -- the
beginning of the reported sales might have been
in 2000 depending upon when the release of that
edition happened.
I could go a step further. It could
also be there is a little hiatus that they were
taking orders but then not selling because
maybe it didn't come out until November.
BY MS. TURNER:
Q. Dr. Levine, do you want to take a
quick break?
A. No, I'm fine.
Q. I think we will take a quick break
right now if that's okay with you.
A. Sure.
THE VIDEOGRAPHER: We are going off
the record. The time is 10:14.
(A short recess was taken.)
THE VIDEOGRAPHER: We are going back
on the record. The time is 10:20.

Page 30

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if a new edition comes out mid-year, let's say,
would that -- those numbers for the new
edition, the sales numbers be encompassed in
the following year's sales?
A. Well, I can tell you about 2014.
You have that report. 2014, we continued to
monitor 1999 in 2014, and you will see
something that looks like July or August 2014
to the end of the year. That is under my
watch. I don't know exactly what happened
under somebody else's watch.
MR. ELGARTEN: I believe Ms. Levine
is referring to the additional documents
showing sales figures that were provided to
you.
THE WITNESS: Yeah. Exactly. So
that's how we do it now. That's why I
extrapolated but logically, there is a little
bit of a hiatus so that side of the -- and I
don't know when it came out, so I suppose it
was either incorporated in or maybe it came out
at the end of the year. Maybe it came out in

Page 32

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MS. TURNER: Thank you.
BY MS. TURNER:
Q. Dr. Levine, during the break, did
you have an opportunity to review your prior
testimony in this case?
A. I did.
Q. Okay. And I will introduce to you
previously marked Exhibit 1207.
A. Thank you.
Q. And I will represent that this was
marked during your previous deposition in this
matter.
And, Dr. Levine, if you could state
whether or not the Exhibit 1207 and Exhibit
1306, the numbers between 1999 and 2013 are the
same?
A. Well, 1207 and 1306 are not
identical insofar as 1207 is reporting on the
1999 edition and 12 -- 1306 has information
about the prior edition which I believe is '85
but I would need to verify that by looking.
Q. Thank you. And if you can clear up

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for the record, 1999 in 1306, what standard is
that -- are those sales for?
A. In 1306, I believe they are the 1999
edition.
Q. Okay. Thank you. And, Dr. Levine,
if you could turn back to 1306, Exhibit 1306.
A. Uh-huh.
Q. For the 19 -- if you see 1989 there
at the top through 1998.
A. Uh-huh.
Q. What versions of the standard are
encompassed in these sales units?
A. I am going to -- I am going to -1989 shows a number of 21,920, so therefore, in
my -- I am inferring therefore that that
encompasses -- it could encompass a prior
edition, four years of sales at 21,000, seems
to me like that 21,000 might aggregate a prior
edition.
Q. Thank you, Dr. Levine. Let's -A. But I don't know. I mean, you know,
it's roughly -- you could see roughly 5,000 a

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go back and review that detail.
BY MS. TURNER:
Q. Thank you. And then for the 1989
through 1998, those numbers there -A. Uh-huh.
Q. -- which standard is that for?
A. '99.
Q. So 1989 -A. I'm sorry. '85 -- that continues
with the '85 through, let's say, the
presumptive '85 through 1998, so -- and not
atypically as the scientific and research and
practice community are anticipating a new -- an
updated revision like all of us, you know, want
the I10 and not the I8 so people are waiting
for the new edition of the -- the sales
declines not because of the lack of value of
the product but because the communities are
aware that a new edition is under preparation.
Q. Thank you.
A. Or new standards that will be
published in the new edition are under

Page 34

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year times four years, it could be -- it could
1
be just '85 to '89. That's what I guess I'd
2
estimate, within our set of typical rate of
3
production of sales in the early -- in the
4
early years of publication.
5
Q. Thank you, Dr. Levine. Just to
6
clarify for the record, are you speaking about 7
the entry for pre-1989?
8
A. Yes, right, which says -- which is a
9
summated, pre-1989 is summated from '85 -- 10
well, I don't know when it starts, but let's
11
say '85, '86, '87, '88, four years times X,
12
let's say four years times 4500 would give you 13
roughly this 21,000.
14
Q. Thank you. And so your testimony is 15
that this is the 1985 standard?
16
A. If -- yeah.
17
MR. ELGARTEN: I believe it's her
18
assumption or inference.
19
THE WITNESS: Yes. If we looked -- 20
if we opened it up, it would say the last
21
edition was, and I think it's '85 but I didn't
22

Page 36

preparation.
MS. TURNER: And if the court
reporter can please mark as Exhibit 1307.
(Deposition Exhibit 1307 was marked
for identification.)
MS. TURNER: And for the record,
this is a document produced by plaintiffs
identified as Bates
No. AERA_APA_NCME_RFP2_000001 through 26.
BY MS. TURNER:
Q.

Dr. Levine, do you recognize this

document?
A.

Yes.

Q.

What is this document?

A.

This document is aggregation of our

various sales reports from the 2014 edition
through -- what we've had in our files that you
asked us to produce, through 2018.
Q.

Do you believe this document

produced by plaintiffs is authentic?
A.

All of the pieces are authentic.

Q.

Thank you.

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A. What I mean by that is, doesn't -1
it wasn't prepared initially as one document.
2
It's several different pieces of documents for 3
different purposes, so as you see, additive
4
documents so they were not all produced at
5
once.
6
Q. Thank you. And as the aggregate,
7
this is authentic?
8
A. Correct.
9
Q. And is this -10
A. And it's everything we have.
11
Q. Thank you. And are these documents 12
that are in the aggregate, this document, is it 13
something that's kept in the ordinary course of 14
business?
15
A. Yes.
16
Q. And how was it created?
17
A. It's created through our inventory
18
sales report, through our association
19
management system and through our financial 20
accounting system.
21
Q. And do you know what association
22

Do you see that?
A. Yes, I do, uh-huh.
Q. And what does that mean?
A. I would say -- I believe it's the
sales of the 1999 edition.
Q. And if you look under "Actuals," the
column "Actuals, December 31, 2014," do you see
that 42,219.40?
A. Isn't that what you were asking me
about?
Q. Yes.
A. -- before, previously. Did I
misinterpret your prior question?
Q. No. I was asking about what the
publication income was. We will walk through
the numbers.
A. Okay. Fine.
Q. Do you see the numbers in
December -A. Yes.
Q. -- are those for sales of the 1999
standards?

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management system that is? Is that
proprietary?
A. It's NOAH and I believe it's through
NOAH although we may keep the standards on a
separate spreadsheet, that are -- but it is
definitely through our own financial reporting
system.
Q. Okay. Thank you. And if you could
please turn to what is identified as Page 7,
and can you tell me what this page is?
A. Are these numbered?
Q. If you look at the bottom, there is
a number.
A. There are numbers. Okay.
So this is our reporting of the
standards development fund from the end of -for fiscal years 2014, '15, '16, '17, '18, at
that point unaudited and projected through
April 30, 2019.
Q. And if you look under "Profit and
Loss," there is an entry for "Publication
Income."

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A. Yes. It could have something else
in it, but I don't think so. I mean, I can't
think of what it would be.
Q. Okay. And if we turn to the next
column, which is December 31, 2015.
Do you see that 6995?
A. Uh-huh.
Q. How many sales -- again, is this for
sales of the 1999 standard?
A. It -- yes, it should be. Net of
expenses.
Q. Okay.
A. And that's true of 42,219.40, net of
expenses.
Q. And how many sales would that be for
6995?
A. Depending upon who purchased it, it
could be two.
Q. If we go to the next column under
December 31, 2016, you see it says: "Zero
Dollars?"
A. Uh-huh.

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Q. Is it accurate to say that there
were no sales of the 1999 standard in 2015 -I'm sorry, in 2016?
A. Yes.
Q. And the next column under December
31, 2017, it says: "Zero dollars."
A. Uh-huh.
Q. Is it accurate to say that there
were no sales of the 1999 standard in 2017?
A. Correct.
Q. And moving to the next column for
December 31, 2018, it says: "137.85."
A. Uh-huh.
Q. And about how many sales is this of
the 1999 standard?
A. Could be -- depending upon who
purchased it, it could be four or five I
suppose.
Q. And when you say, "depending on who
purchased it," what do you mean?
A. Whether it was a member or nonmember
of one of our associations. I don't quite

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that sales declined of the 1999 standard
between 2014 and 2019?
A. Uh-huh.
Q. And why is that?
A. Because the 2014 edition was
released in mid-year.
Q. And why would the release of the
2014 standard affect the sales?
A. It's updated and expanded guidance
about best practices and testing, and our user
community of scientists and students and
faculty and teachers and test administrators
and test developers would turn to the new
standard.
Q. Thank you. If we could turn to the
next item, it says: "Book royalty revenues,"
that's right below the publication income.
A. Correct.
Q. What does that mean?
A. That's the -- that's income from the
new -- from the 2014 edition.
Q. And if you look under "actual," the

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remember the selling price at that point or if
1
it was an institutional sale, a library sale.
2
Q. Are there different prices?
3
A. Yeah, for members and -- members get 4
a discount in all three organizations. It's
5
the same amount, whatever that might be.
6
Q. And you mentioned institutions, do
7
they get any kind of discount?
8
A. Only for book sales, because it
9
would be much higher than 137. I think it's 10
more than ten but it's bulk.
11
Q. And moving to the next column, it
12
says: "Projection as of April 30, 2019."
13
You see it says: "Zero dollars"
14
there?
15
A. Yes.
16
Q. Is it accurate to say that there are
17
no projected sales numbers for the 1999
18
standards in 2019?
19
A. Up through that point, yeah.
20
Q. Looking at these numbers across the 21
board from 2014 to 2019, is it accurate to say 22

Page 44

next column "actuals as of December 31, 2014,"
it is "119,113.49."
Do you see that?
A. Yes.
Q. And what does that represent?
A. That represents the standard
development fund's royalty from the sales of X
number which we can see from the sales report
edition.
Q. When you say, "edition," do you
mean -A. 2014.
Q. Okay. And moving to the next column
where it has "actuals as of December 31, 2015,"
do you see the number "130,425.40?"
A. Uh-huh.
Q. Is that for sales of the 2014
standard as well?
A. Correct. The royalty.
Q. Royalty. Thank you.
And moving to the next column for
"actuals as of December 31, 2016," do you see

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that number, "110,046.35?"
1
A. Uh-huh.
2
Q. Is that for sales of the 2014
3
standard during 2016?
4
A. It's the fund's royalty from that
5
period.
6
Q. And moving to the next column where 7
it says: "Actuals as of December 31, 2017,"
8
the number "97,407.50."
9
Accurate to say that is also for the
10
royalty for the sale of the 2014 standard?
11
A. Correct.
12
Q. And moving to the next column,
13
"unaudited as of December 31, 2018," see that 14
number, "$98,994.98?"
15
A. Uh-huh.
16
Q. Accurate to say that that's for
17
royalties from the sale of the 2014 standard? 18
A. Correct.
19
Q. And then the last column there is
20
"projection of April 30, 2019," it says: "Zero 21
dollars."
22

Q. And what does royalty mean here?
A. Royalty is a percent of the gross
sales.
Q. Do you know what that percent is?
A. I would need to -- I would need to
refresh my memory. I think it is now 50/50.
Q. And are you certain that the numbers
here under book royalty revenues are royalties
according to that split rather than gross
revenues?
A. Under book royalty revenue?
Q. Yes.
A. Yes, I am. That's why it is called
something different.
Q. Thank you. If you could please turn
to Page 19 of the document in front of you.
A. Yes.
Q. Do you recognize this chart?
A. Yes, I do.
Q. What is it?
A. This is the sales report of the 2014
edition starting in July when it was released

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A. It didn't tank.
Q. So is it accurate to say that there
were no sales projected of the 2014 standard in
2019?
A. It -- this reflects when the royalty
payments are made. It's a different -- it's a
different process for the 2014 edition than for
the 1999 edition.
Q. Can you tell me a little bit about
that process?
A. In 2019 -- the 1999 edition, AERA as
publisher underwrote -- AERA as publisher was
reimbursed for all expenses, so this is the -you will see -- you will see printing and other
items -- well, you would see if you looked at
your prior report, printing and other items.
If you went through those documents
that you got, so this is the -- with the 2014
edition, the AERA underwrites all costs and so
this is the royalty. We have a royalty
arrangement to reimburse us for costs.
Functionally, it's the same.

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through -- at that point, it was the report
through end of September or almost the end of
September 2016.
Q. Okay. And looking at the total sold
number, is it accurate to say that the total
number of units sold had declined between 2014
and 2016?
A. Between 2014 and 2016?
Q. Yes.
A. Without looking at the end of the
year report, I'm not sure it is accurate to say
that.
Q. I'm sorry, you -A. Because you are comparing ---well,
you are clearly comparing the 3242 and asking
that question to the 2474, but sales come in,
I'm going to say unanticipated ways, so there
could be a bookstore ordering X number of
copies for a university bookstore or a college
bookstore for costs for January, February,
March and sometimes we get very large sales
orders in November preparing for the next

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semester, and so it might have bumped up, so
this could have been 3242 for a fall semester
cost, so I can't infer that without looking at
the final, you know, set of -- the final end of
year because -- in particular, because for
training and academic purposes, sales don't
just come linearly by month and it really
depends upon -- kind of in the aggregate, who
is teaching what, when, or who is having a
workshop when, and I know it seems sort of
weird, but we have been getting a lot of orders
in the past couple of years in that November
and even December period for the new semester,
and it seemed like in the beginning, it was
happening in the summer for the fall semester
and who's to explain what the academic
workplace is like, so the best way of looking
at it is the, you know, the stable end of 12
months particularly because -- because this is
used for training and workshop and course
purposes.
Q. And is there any reason why, for

1
2
3

Q.

And can you tell me what the dates

are, the sales comparison is for?
A.

This is comparing 2015 through -- it

4

was prepared undoubtedly for the same

5

management committee meeting and it's comparing

6

January through September 28, 2015, to '16 in

7

the same period.

8
9
10

Q.

Okay. And why is it comparing on a

ten-month basis here between 2015 and 2016?
A.

The same reason, because of it being

11

an interim report before this committee met, or

12

I had a conference call or something, but there

13

is always an end of year report and you could

14

see, this report gives more nuanced information

15

as I was saying in my earlier statement about

16

member and nonmember purchases and about E-book

17

purchases and print purchases and bundled

18

purchases.

19
20

Q.

What is a bundle?

A.

Bundle is, you could buy -- and a

21

further discount, the E-book edition and get a

22

hard copy.

Page 50

1

this chart, there are cutoffs through September

2

of 20 --

3

A.

Yes, because we tend to prepare this

4

report that you are looking at for a meeting of

5

our management committee. Management committee

6

is a joint committee of the three organizations

7

and so whenever the management committee has

8

its meetings typically twice a year, we will

9

produce them, and since you asked us to produce

10

anything we had, you'll see some unusual

11

reports, like, we are going to have a meeting

12

in November and so there will be the equivalent

13

one in November and we had one in -- we had a

14

phone call this past July. We probably have an

15

equivalent one up through July just to kind of

16

keep everybody updated.

17

Q.

Okay. If you could please turn to

18

the next page, Page 20. So I think it's the

19

one -- right there.

20

A.

Yes. This one.

21

Q.

Do you recognize this chart?

22

A.

Yes.

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Q. And looking at these numbers for the
ten-month period of January 1, 2015 through
September 28, 2015, and the same period for
2016, is it accurate to say that sales
declined?
A. It is only accurate to say it
declined in comparing the same ten-month period
which could have the same distortion I
previously spoke to.
Q. And turning back, you had mentioned
the print E-book bundle?
A. Uh-huh.
Q. Why would someone want both an
E-book and a print copy?
A. Well, I can tell you why I would
want it and then we could -- you could deduce
why others would want it. I suppose those of
us trained and reared in the nonelectronic
world, like to touch print, but yet most of us
are also technologically savvy as around this
room so you might want for reading purposes the
electronic version, to be able to skim, remind

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yourself of what you are doing, you might want
it for a lecture, like, I would bring an iPad
into a lecture or seminar or discussion or
workshop, but when I am really planning what I
am going to say, I might want to be able to
have hard copy to line and take notes or, you
know, to do a deeper reading.
And I think that's an extrapolatable
experience, though I can't speak for every user
that if for a modest amount extra, you can get
the print, I suppose 50 years from now, nobody
will know what the word print means, but if you
can have both, you know, for a modest amount,
then you could have your cake and eat it.
Q. Any other reasons?
A. It's good enough that I can think
of. And other forms of users similarly. I
suppose having one on their shelf if you -- if
your briefing staff, let's say, you are
developing new tests and you run a test company
or revising tests and you can project it on a
screen, but if you had a print edition, you

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it, but that's what I'd recommend somebody do.
MS. TURNER: If the court reporter
can please mark this as Exhibit 1308.
(Deposition Exhibit 1308 was marked
for identification.)
THE WITNESS: Meaning we do have
some distributor sales.
BY MS. TURNER:
Q. Do you recognize this document?
A. Yes. And would this represent, if I
can ask, would this 8-14 be when you downloaded
this?
Q. Correct, yes.
A. Okay. Okay.
Q. So what is this document then?
A. This is from AERA website and it is
the publications part of our portal, and this
is the -- the access to ordering the 2014
edition.
Q. Does this appear to be an accurate
capture of the AERA website?
A. Yes.

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know, you could say, hey, look, look, look.
Similar. I'm not saying it's only used for,
you know, courses, lectures and workshops.
It's for the deeper, I suppose the deeper
reader and maybe more particularly for those of
us who have at least had more print experience.
Though there is some -- I think
there is some degree of research that you might
find it even with your own e-mailing, you know,
kind of out of sight, out of mind a bit, so
that if you only have it electronically, you
might not recall things as easily as being able
to just pull it off a shelf and remind
yourself, get up to speed quickly, even for
those who read electronically.
Q. So for someone to purchase the 2014
standard, how do they go about doing that?
A. They can do it in a range of ways.
The most immediate, I suppose, would be through
the AERA website because we are the publisher.
Of course, there are some bookstores
that carry it, so there's other ways of buying

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Q. Great. So you had spoken about
ordering the 2014 standard.
A. I suppose we could update our
website and take the word "now" out, since it
has been available for a while. Got to get
that staff to it.
Q. You had said that one way that
someone can order a copy of the 2014 standard
is through the online store, and would they -on this website, how would they go about doing
that?
A. Well, there is a hypertext link -well, including ordering the 1999 edition.
Read more. I would have to scroll down and
remind myself since I don't order it but there
is a hypertext link to the online book store.
Q. I can represent, I think it's at the
top, right above the -A. You are right. Order now. Right.
Q. Great. So do you offer electronic
copies of the 2014 standard for sale through
the website?

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A. I believe there is -- yes, I believe
there is a hypertext link to the provider who
-- whose platform doesn't sit on our own
platform. It needs a particular kind of
platform and protection of the PDF in such a
way that it is -- only purchasable.
Q. So is it accurate to say that to
order online a copy of the -- an electronic
copy of the 2014 standard, it's done through
some kind of third-party platform?
A. Correct. I am blocking on the name
of the company we use. I should have refreshed
my memory, but it's a platform that both does
its own publishing, it's own E-publishing, it's
storage and works for any number of publishers.
Q. Thank you. If someone wanted to go
about purchasing a copy of the 1999 standard,
how would they do that?
A. Right here. I think it's that
hypertext link to order previous edition of the
standard. It's in the store.
Q. Can someone order it online?

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MR. ELGARTEN: I think this is
actually beyond the scope of your deposition
notice, but I am not trying to overly restrict
you but just keep that in mind.
MR. BECKER: We just want to -MR. ELGARTEN: I am trying not to -I am just noting that I believe it is, but you
want to ask a few questions, that's fine. I
just don't want to spend a lot of time.
MR. BECKER: We are not. We are
just considering it on your sales, but just
want to make sure that the method of sales is
updated to the present.
MR. ELGARTEN: Okay.
MS. TURNER: Thank you.
MR. ELGARTEN: That's fair, or I
think it's fair for the moment.
MS. TURNER: The questioning will
not be long.
BY MS. TURNER:
Q. Dr. Levine, do you recognize this
document?

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A. Yes.
1
Q. Okay. So -2
A. I believe.
3
Q. So if I could -4
A. Yeah.
5
Q. If I could turn your attention to
6
order -- to order a previous edition of the
7
standard, 1999, there's a hypertext link, and
8
it says: "Please use the mail fax order form
9
available on the left-hand side of the page
10
under the books tab."
11
A. Then I may be wrong. Good reading. 12
Q. Thank you. What I went to law
13
school for.
14
A. Sure. I almost went.
15
MS. TURNER: If you could please
16
mark this as Exhibit 1309.
17
(Deposition Exhibit 1309 was marked 18
for identification.)
19
THE WITNESS: I hope you don't think 20
AERA is old style. I don't even have a fax
21
machine.
22

Page 60

A. Yes.
Q. What is it?
A. This is the -- the website specimen
information on the 1999 edition informing
potential users that there is also a 2014
edition.
Q. Does this appear to be an accurate
capture of the AERA website?
A. Yes.
Q. And can you purchase -- if you are
looking on this website, can you purchase the
1999 standards in the online store for AERA?
A. Well, you've just updated me on the
fact that it looks like we did not include
that, I suppose as can happen with prior
editions of works, that it looks like a mail
and fax order.
Q. Can a person e-mail the form to AERA
to purchase the 1999 standard?
A. E-mail it with an attachment?
Q. Correct.
A. Sure.

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Q. Do you know how to do that from
here?
A. Let's see. From this particular
page, from this particular page, no, but there
is any number of pages that have a pubs e-mail
and -- or in this case, one could, I suppose,
call and learn how they could e-mail the -- the
form completed without faxing it.
Q. Okay. Are you certain that you can
e-mail the form to order a copy of the 1999
standard?
A. Am I certain? I am certain that we
would take a sale for anything any way it came,
we are pretty small. You might think of old
AERA, 25,000 members, an annual meeting of 15
or 16,000, but our staff is under 30 people,
you know, so anything that comes in, we are
really pretty user friendly. If somebody
answers the phone, it won't be me, but it even
could be me and everybody helps everybody out,
so if anybody calls and wants to get something
done, they'll get to somebody on the

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look on our website, many publishers are eager
to sell the print edition and then delay E-book
editions, so we are trying to reach everyone in
the modality that they work in and -- which
includes with some of our major volumes being
able to purchase pieces.
Q. Any plans to make it available in an
electronic format?
A. Which?
Q. The 1999 standard.
A. It hasn't come up, I suppose. I
mean, it hasn't come up with any of our
classics, and I think it is not likely, and we
have many other classics that were -- Complete
Research on Teaching, something that is a major
classic methodology book called Methods, and we
have 2005 editions and we are not even thinking
that there would be enough of an interest in
getting old pieces that way. People can buy
it, you know, or use it from the university
libraries.
MS. TURNER: If the court reporter

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publication staff or they'll get to our
customer service or a membership director, if
not, a publications director and somebody will
say -- might even say fax it to me and I'll get
it done.
Q. Are there any instances that you
know of where someone had e-mailed an order
form for the 1999 standard?
A. Any instances where they e-mailed
it?
Q. Correct.
A. Not without my checking with our
publications director or membership, customer
service person.
Q. Is the 1999 standard available in an
E-book format?
A. No.
Q. Is it available in any electronic
format?
A. No. We think of ourselves as quite
a progressive, however, publisher, insofar as
many -- for many of our products and you can

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can please mark this as Exhibit 1310.
(Deposition Exhibit 1310 was marked
for identification.)
MR. ELGARTEN: Same question. We
are wandering from your list of subjects.
MS. TURNER: Almost done. Just a
few more questions.
THE WITNESS: As long as you fill
out one of each, I'm okay, when you are done
really. I think your law firm should have one
of each of these.
BY MS. TURNER:
Q. Do you recognize this document?
A. Definitely. I mean more or less.
Q. And what is this document?
A. This is an order form for -depending upon when you downloaded it, for our
various books, AERA's books that are available.
Q. Okay.
A. Do you know when you downloaded
this?
Q. It's the same as the other ones, so

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that would be August 14.
A. Okay. So then it is current.
Q. Can someone order the 1999 edition
through this order form?
MR. ELGARTEN: Want to call her
attention to this?
BY MS. TURNER:
Q. Sure. Yes. If you look down where
it says: "Standard for educational and
psychological testing," it is the sixth gray
bar and at the bottom of that, it says: "1999
edition."
So if someone wanted to order the
1999 edition, would they put in the quantity?
A. Yes.
Q. The note?
A. Yes. Uh-huh.
Q. Can you PDF this order form and then
send it via e-mail?
A. There it is. The answer to your
question. [e-mail] on the other side.
Q. Perfect.

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Q. And what is it?
A. That's the -- I suppose, of course,
having seen the other two, it looks like it's
the 1999 edition without that 1999 sales
estimate.
Q. And if you could turn back, please,
to what was marked as Exhibit 1306.
A. Yes.
Q. Is this the same document?
MR. ELGARTEN: As I said, I produced
this document, the additional document I
believe it's the same document.
THE WITNESS: Well, I'm assuming.
BY MS. TURNER:
Q. So is the answer yes then?
A. Yes.
Q. Okay.
MS. TURNER: Why don't we take a
quick break.
MR. ELGARTEN: Okay. Are we almost
done?
MS. TURNER: We are.

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A.

No heads will roll this afternoon.
And just so you know, our -- that
e-mail is customer service and membership.
It's not membership questions. It's just -- it
is -- we see our membership team as customer
service.
Q. So if someone e-mailed that with the
order form, would they be able to place an
order through that e-mail address?
A. Absolutely, yeah. That's where you
put the PDF. We don't -- the order for film,
it comes through customer service, the label on
the e-mail is membership, but it's really
membership customer service department or team.
Q. Okay. I'm going to hand you a
document that was previously marked 1208,
Exhibit 1208.
I'll represent this was previously
marked in your prior deposition in this matter.
A. Uh-huh.
Q. Do you recognize this document?
A. Yes.

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THE VIDEOGRAPHER: We are going off
the record. This is the end of Media Unit No.
1. The time is 11:04.
(A short recess was taken.)
THE VIDEOGRAPHER: We are going back
on the record. This is the start of Media Unit
No. 2. The time is 11:26.
MS. TURNER: Thank you.
BY MS. TURNER:
Q. Dr. Levine, if you could please turn
back to what has been marked as Exhibit 1307.
A. Yes.
Q. And if you could please turn to the
bottom of the page, No. 7.
A. Yes.
Q. And you testified earlier that the
publication income entry under profit and loss
is for sales of the 1999 standard?
A. Yes, publication income.
Q. And can you let us know if that is
net of expenses or is that a gross number?
A. I think that's a -- in that context,

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I'm going to say it's the gross number.
1
Q. Okay. If you could please turn to 2
Page No. 25 at the bottom.
3
A. Yeah, well, I'm doing it. 25 are
4
you saying?
5
Q. Yes, please.
6
A. Of the same document?
7
Q. Of the same document.
8
A. Okay. Got it. Okay.
9
Q. Great. And the top chart here, can 10
you tell us what this is?
11
A. Okay. So this is total sales by
12
year.
13
Q. Okay.
14
A. For 2014 to 2018.
15
Q. Okay. If I could turn your
16
attention to 2018.
17
A. Uh-huh.
18
Q. Is it accurate to say that sales in 19
2018 were higher than in 2017?
20
A. Correct.
21
Q. And why is that?
22

reupdated, to take account of new things that
didn't exist, so in 1985, for example, there
was no real use of technology in the way that
there is in 2018. So this, you know, modest
increase is probably some number of courses and
perhaps brought a worldwide distribution.
Q.

And to clarify, these are -- for

sales of the 2014 standard?
A.

Correct.

Q.

And the chart directly below that?

A.

Uh-huh.

Q.

What does this chart represent?

A.

This is total quantities sold

through April 30 each year, so building upon my
prior point about September 28, this document
was created before we had a mini -- the
management committee had a mini-meeting in May,
so it was April 30, so they could get a
snapshot before their meeting which was
mid-May, so it is April 30, so then it compares
year-to-date, you know, as you'll see in
financial statements year-to-date and

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A. Why did it happen?
Q. Yes, if you know.
A. More purchases. Sorry. It seemed
self-evident. Why it happened. I suppose
really links to my prior point. You know, you
can't -- you couldn't really necessarily
abstract -- extrapolate from September 28th
that -- even though with certain forms of
quote-unquote publications in the world of
publications, one might think of them as having
a limited shelf life.
This publication is a publication
about guidance and wisdom and best practices in
the field, and as that is more wide -- of more
-- of wider interest, it -- unlike even an
academic publications, that might be superseded
by -- well, here, it might be superseded by a
new edition, but superseded by next, you know,
next stages of a research program, that a work
that has value can have expanded in during use.
So until such point as with other
guidance, it needs to be, you know, rethought,

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comparable period, so the -- we were very
pleased with the fact that the 2019, you know,
performance suggests, you know, this -- the
work is -- is considered, you know,
increasingly -- is increasingly penetrating new
users.
Q. And to clarify, this is also for
sales of the 2014 standard?
A. All, correct, yeah.
Q. And this chart shows through 2015
through 2019, the total sales just for January
through April 30 -A. Correct.
Q. -- of each year?
A. Correct. It's sort of like a
snapshot of how -- recognizing the variation of
when it might be audited, which you have no
control over, it still gives sort of a
comparable snapshot.
Q. And is there any reason -- you spoke
before about the increase between 2018 and
2019, do you know any reason why there was an

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uptick in sales during that same time period?
A. Without looking at who purchased, I
might extrapolate that it was used in more
courses or maybe more workshops, which could be
a university or college sale anticipating a
course, maybe even a summer course or courses.
The 2015 high is reflecting the fact
that this is really the first six months of
publication or the availability of the
standards, so there was a lot of pent up
interest.
Q. If you could please turn to Page 2
of the same document.
A. Uh-huh.
Q. It should look like this.
A. Yes. Yes.
Q. I think the other side.
A. Good. Because this one is not made
for my eyes. Okay.
Q. Can you tell me what this chart is?
A. This is new edition -- wow, this is
a -- you have to be quaintly interested in

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total number of the total sales, it says:
"4,227."
Do you see that?
A. Correct.
Q. Okay. And if we could just turn
back to the page we were just looking at, Page
25.
A. Yep.
MR. ELGARTEN: Do the numbers match?
MS. TURNER: There is a slight
discrepancy so we just want to clear it up.
MR. ELGARTEN: Okay.
THE WITNESS: I was going to say
somebody on staff can't add a column. I don't
want to say that. Total sales, 4236.
BY MS. TURNER:
Q. Right. So if you see in the column
of 2014, it says: "Total sales 4,236," and on
Page 2, it says: 4,227."
Any reason for that discrepancy?
A. It's human error, really, I suppose
one was an effort to do a transfer from an

Page 74

1

data, but this is new edition and the number of

2

copies sold by member group and nonmembers.

3

You see the -- so, for example,

4

NCME, two NCME members bought I suppose nine

5

copies, so nonmember sales which might be book

6

stores or faculty buying for courses but more

7

likely university book stores or agents, in

8

2014, there were, just as an illustration, six

9

purchases of 15 copies. Does that help?

10
11

Q.

Yes. So let me try to rephrase it

just to make sure I have it.

12

So, for example, in the column with

13

the number of copies at the top, if you go to

14

the nine?

15
16

A.

Uh-huh.

Q.

And directly below, there is a two

17

under NCME member, that means that two NCME

18

members bought nine copies each?

19

A.

Correct.

20

Q.

And this is for the 2014 standard?

21

A.

Yes. 2014 standards in 2014.

22

Q.

Thank you. And if we go over to the

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Excel spreadsheet or something of the number of
copies. The other one was a higher number,
right?
Q. Yes.
A. So I am assuming something wasn't
recorded. It might not have been human error.
It was missing data, but it should have been -in my view as a scientist, it should have been
recorded as missing data, but it wasn't. So
just unknown.
Unknown purchases as to the
quantity, probably one, you know, just given
the dominant mode of -- of us also, you know,
being interested in volume sales because that
means it penetrates and hits more users and
students.
Q. So is the number on Page 25, the
4236 number, is that the more accurate number?
A. Let's see. 25. That's the higher?
Q. Correct.
A. Yes. At that point, we didn't have
E because we were just starting.

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Q. So if you could please turn to Page
3 of the same document.
And what's on this page of the
document?
A. Well, the -- what is the whole
document about? Is that what you want to know?
Q. This particular page, yes.
A. Yeah. So it's -- so it's an effort
to depict or report on net sales by number of
copies aggregating the copies less than ten and
including the nonmembers, so that of the 2,356
nonmember sales, less than a third -- probably
somewhere in the neighborhood of 28 percent
were individual, and you could see that -- if I
am not -- I don't know that the 934 were all
individual but once you get above ten, you are
talking about, you know, persons, merchants or
book dealers or book stores.
Q. And to clarify, this is for sales of
the 2014 standards?
A. 2014, that first year, which is the
first six months and I hope those numbers tie.

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cut off for printing purposes.
A. Correct. Definitely.
Q. Okay. Can you tell me what this
document is or these pages represent?
A. These are at the most microlevel
number of sales, it looks like somehow we did
intervals of five and then above 65, I suppose
they are the literal numbers that someone put
in, I mean that we were reporting. That's the
way we counted, so it's the exact count so you
can see it's -- it really isn't in intervals of
five. It's under 10. It's 10, 11, 12, so it's
the literal count and it jumps from 30 to 35 to
40, 47, 50, so it's the literal purchases.
With some of these categories, there
appears to be more than one of those, but -and then the revenue that it generated and then
when you see that discount is for that -- which
we saw on another sheet, it's the volume sales
discount for above ten.
Q. To clarify, this is for the 2014 -A. 2014.

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The financial I have no doubt tie. And this
Sheridan Books I believe is our platform for
the E-book. That wasn't reflecting E-book.
That was reflecting them serving as the
printer. I think they were also the platform.
Q. When you say, "serving as the
printer," is that for the physical copy?
A. Yeah, literal printer. We don't
print in-house. So we printed 5,400 -- AERA
printed 5,436-ish, I suppose it was probably a
run of 5500 initially and then needed to go
into a second printing in November.
Q. If you could please turn to the next
page, Page 4.
A. Uh-huh. Yes.
Q. And then also on Page 5 as well if
you want to take a look.
A. You must think research is crazy
that we do all these little microlevel tables.
Okay. Let's see. Okay.
Q. So I can represent to you, I believe
these are the same documents but it was just

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1

Q.

-- standard?

2

A.

Correct.

3

Q.

2014 standard --

4

A.

Yes.

5

Q.

-- in the year 2014.

6

A.

Correct.

7

Q.

Okay.

8

A.

And you didn't receive other copies

9

of this because we were really obsessing on

10

what was happening, you know, we wanted to know

11

kind of what was happening as we were

12

launching, so we were running all this stuff,

13

like, you wouldn't want to see this every year

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at that level.

15
16

Q.

If you could turn to Page 15 of the

same document.

17

A.

Uh-huh. Uh-huh.

18

Q.

At the top, it states that it's the

19

standards royalty calculation.

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Do you see that?

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A.

Yep.

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Q.

And then just to clarify for the

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record, you testified earlier about the royalty
percentage.
A. Yeah.
Q. And you believed it was a 50/50
split?
A. It switched though at the beginning
of AERA having underwritten -- all these costs
had a little bit higher royalty. If you really
want to know, I have to double-check but I
think now it's 50/50.
Q. Okay. Do you know when that change
happened?
A. I believe, but I would want to
verify that it happened after the first full
year, meaning it was -- I would have to look.
I don't remember. I think it was the first six
months of sales and '15 and then it switched.
Q. And if I could just draw your
attention -A. But I would really have to look. If
that's important to you, I would need to verify
it.

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Q. And the publisher is 45 percent?
A. Yeah. I will let our attorney know
if I am recalling wrong. So it might have been
50/50 at the beginning and then 45/55.
Q. And then -A. That's what happens when you are
part of the same family, you forget how much
you make.
Q. And If you could just turn to Page
16 there.
A. 16?
Q. Yes, the next page.
Again, this is the royalty for the
six months ending June 30, 2018?
A. Yes.
Q. To clarify -A. It says right here, "development
fund," so that is prima facie as it were here.
Q. And the royalty -A. That's 55 percent of the joint
project so that's 45 percent to AERA.
Q. Okay. And then on the following

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Q. If I could draw your attention -where it says royalty percentage, it says: "55
percent."
A. Where are you here?
Q. If you look down, it says: "Royalty
percentage, total royalty," it's kind of
grouping of text right before the last one.
A. Correct. So that's what it was
originally I suppose, then 45/55 or something
like that I suppose.
Q. So for the six months ended in 2017,
does it refresh your recollection that it was
-- 55 percent was the royalty percentage?
A. So it may -- it might have ended
with '17 I suppose, standards royalty
calculation. 1, 2, 16. It could be -- it's
not 50/50, it might be 45/55.
Q. And how is that split?
A. The testing standard is the larger
amount.
Q. Testing standard is 55 percent?
A. Yes.

Page 84

1

page, Page 17.

2

A.

Same, yeah.

3

Q.

So you are saying 55 percent was the

4

royalty --

5

A.

Yeah.

6

Q.

-- for the year ending December 31,

7

2018?

8

A.

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Uh-huh. Yes.
MS. TURNER: Okay. Unless your

counsel has any questions, we are done.
MR. ELGARTEN: I have no questions.
Thank you.
THE VIDEOGRAPHER: We are going off

14

the record at 11:48 a.m. This concludes

15

today's testimony given by Felice Levine on

16

behalf of APA, NCME, AERA. The total number of

17

media units used was two and will be retained

18

by Veritext Legal Solutions.

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20

(Whereupon, the proceeding was
concluded at 11:48 a.m.)

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I declare under penalty of perjury

3 under the laws that the foregoing is
4 true and correct.
5
6

Executed on _________________ , 20___,

7 at _____________, ___________________________.
8
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10
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_________________________________
FELICE J. LEVINE, PH.D.

12
13
14

SUBSCRIBED AND SWORN TO BEFORE ME

15
16

THIS _____DAY OF ________________, 2019.

17
18

__________________ ______________________

19

(NOTARY PUBLIC)

MY COMMISSION EXPIRES:

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CERTIFICATE OF NOTARY PUBLIC
I, Bonnie L. Russo, the officer before
whom the foregoing deposition was taken, do
hereby certify that the witness whose testimony
appears in the foregoing deposition was duly
sworn by me; that the testimony of said witness
was taken by me in shorthand and thereafter
reduced to computerized transcription under my
direction; that said deposition is a true
record of the testimony given by said witness;
that I am neither counsel for, related to, nor
employed by any of the parties to the action in
which this deposition was taken; and further,
that I am not a relative or employee of any
attorney or counsel employed by the parties
hereto, nor financially or otherwise interested
in the outcome of the action.

<%11937,Signature%>
Notary Public in and for
the District of Columbia
My Commission expires: June 30, 2020
Page 87

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[family - identification]
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[logically - nonmember]
logically 31:18
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roughly 34:22,22
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running 29:5
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s 3:3 4:1 7:1
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[sales - standing]
31:3,4,14 32:4
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self 71:4
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spaces 2:12 8:7
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standing 17:21
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[start - trying]
start 69:6
starting 48:22
77:22
starts 35:11
state 8:15 9:20
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statement 52:15
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t 4:1,1
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technologically
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tend 51:3
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third 4:21 19:14
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thought 13:5
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tie 78:22 79:1
time 11:15 23:16
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title 12:17
today 8:11,20 10:3
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told 26:14
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truth 9:13,14,14
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trying 60:3,6 64:3

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[tsc - witness]
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turn 7:9 21:13
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[word - zero]
word 54:12 57:4
z
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zero 41:20 42:6
work 12:20 64:4
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x 35:12 45:7 49:18
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yeah 18:15 20:18
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yep 76:8 81:21

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