White et al v. West Publishing Corporation et al
Filing
58
DECLARATION of James Hough in Support re: 45 MOTION for Summary Judgment.. Document filed by Reed Elsevier Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W)(Hough, James)
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UNITED COURT DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ECF CASE NO.: 12-CV-1340
- - - - - - - - - - - - - - - - - - - - - - - - -x
EDWARD L. WHITE, P.C.,
Plaintiff,
-againstWEST PUBLISHING CORPORATION d/b/a "West", and
REED ELSEVIER INC., d/b/a LexisNexis,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - -x
VIDEO DEPOSITION OF EDWARD L. WHITE
New York, New York
August 30, 2012
REPORTED BY:
DANIELLE GRANT
Ref:
8095
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2
reason that you're aware of that you be unable
3
to testify at trial?
4
A
No.
5
Q
Could you please briefly describe
6
for me any formal education that you've had
7
beginning with college?
8
9
A
I went to -- I graduated from the
Oklahoma State University with a chemical
10
engineering degree in 1990.
11
started at Oklahoma City University and
12
graduated in '94 with a juris doctorate.
13
MR. MARKS:
And in '91 I
I'd like to mark as
14
White Exhibit 1, a copy of a résumé of
15
Edward L. White that I will represent to
16
you we printed off of your web site,
17
EdWhiteLaw.com.
18
(Resume of Edward L. White was
19
marked as White Exhibit No. 1 for
20
identification, as of this date.)
21
Q
And I'll ask you to take a look at
22
that and let me know if that your current
23
résumé?
24
A
It looks like my current résumé.
25
Q
If you can just take a look at
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White Exhibit 1 and let me know if there's
3
anything inaccurate in this résumé.
4
A
I believe it's accurate.
5
Q
Why did you leave McKinney
6
Stringer?
7
A
I was fired.
8
Q
Do you know why you were fired?
9
A
Yes.
10
Q
Why were you fired?
11
A
As most things, there's two kind of
12
reasons, there's the stated reason and there's
13
the actual reason but the stated reason was they
14
were unhappy with my performance.
15
Q
What was -- what do you believe the
16
actual reason was?
17
A
My boss and I didn't get along.
18
Q
And how long did you -- how long in
19
between leaving McKinney Stringer and joining
20
Noland Upton?
21
A
A week.
22
Q
And how long did you work at Noland
A
I worked at Noland Upton about a
23
Upton?
24
25
year.
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Q
And why did you leave Noland Upton?
3
A
Start my own practice.
4
Q
And you've had your own practice
5
continuously since 1997?
6
A
Yes.
7
Q
Are you admitted to practice in any
8
courts that are not listed on White Exhibit 1
9
under the heading licenses?
10
A
No.
11
Q
Have you ever been admitted pro hoc
12
vice in a court outside of Oklahoma?
13
A
Yes.
14
Q
Which courts have you -- to which
15
16
courts have you been admitted pro hoc vice?
A
The Northern District of Texas,
17
the -- I think the Eastern District of Texas,
18
and then the -- was it the Eastern District of
19
New York?
20
Q
21
New York?
22
A
23
24
25
But not the Southern District of
I don't think the Southern District
of New York.
Q
What kind of case were you
litigating that had you admitted pro hoc vice to
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2
of which were not the best cases, but.
3
think probably early in my career it would have
4
been 50, 60, 70, and it's tailed off in terms of
5
the number now.
6
Q
So I
Has there ever been a time where
7
your firm was handling less than ten cases since
8
the first year?
9
A
No.
10
Q
And over the past three years how
11
many active litigation matters has your firm
12
handled that have involved at least one court
13
filing by the firm, that would be dozens of
14
cases?
15
A
Yes.
16
Q
Are you the sole owner of Edward L.
17
White, P.C.?
18
A
Yes.
19
Q
How many employees does Edward L.
20
White, P.C. have?
21
A
One.
22
Q
Has it ever had more than one
23
employee?
24
A
25
Yes.
MR. BLUE:
Can I just ask for a
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2
A
Eleven years.
3
Q
So do you have any other employees
4
in addition to Miss Inman that work for your
5
firm, legal or support staff?
6
A
Me.
7
Q
You haven't had any other
8
assistants other than Miss Inman and the two
9
clerks and the associate you mentioned, correct?
10
A
11
Correct.
MR. BLUE:
Objection, vague.
12
Q
And who is Martin High?
13
A
Marty High is a -- he's of counsel
14
with the firm and he's an attorney and
15
professor.
16
17
Q
And how long has he been associated
with your firm?
18
A
I'd say since 2003.
19
Q
How do you know Mr. High?
20
A
Mr. High is a professor at Oklahoma
21
State and was my brother's professor in chemical
22
engineering and I got to know him that way
23
initially, and we became friends and eventually
24
colleagues.
25
Q
Do you have a -- any written
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his own behalf or on behalf of a client?
3
Q
On your own behalf?
4
A
Yes.
5
Q
And you had your own firm for ten
6
years before registering a single copyright,
7
correct?
8
A
Yes.
For --
9
Q
On my own behalf.
10
And is it fair to say that your
11
firm has prepared hundreds of court filings?
12
A
Yes.
13
Q
Is it fair to say thousands of
14
court filings?
15
A
Probably.
16
Q
Do you have any understanding of
17
whether copyright registration is a common
18
practice among law firms or attorneys with
19
respect to court filings they prepare on behalf
20
of clients?
21
A
I haven't asked.
22
Q
You don't have an understanding one
23
way or the other?
24
A
Correct.
25
Q
Are you aware of any other
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attorneys or law firms with registered
3
copyrights in court filings?
4
5
A
Again, I haven't asked, so, and I
haven't done the search, so no.
6
MR. MARKS:
I'd like to mark as
7
White Exhibit 5 a copy of a two-page
8
document bearing the Bates numbers
9
P00119 and 120.
10
(Certificate of Registration was
11
marked as White Exhibit No. 5 for
12
identification, as of this date.)
13
Q
14
Exhibit 5 before?
15
A
Yes.
16
Q
What is White Exhibit 5?
17
A
It's a certificate of registration
18
Mr. White, have you seen White
for a brief.
19
Q
And the title of the brief is
20
Plaintiffs' Combined Motion for Summary Motion
21
for Plaintiffs and Ramsey and brief in support,
22
correct?
23
A
Yes.
24
Q
And this was the summary judgment
25
motion that you filed in the Beer v. XTO Energy
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case on behalf of Miss Beer and Miss Bique in
3
their seeking of termination of liability on
4
their individual claims?
5
A
Correct.
6
Q
What is the reference to the date
7
of first publication on this form?
8
A
Are you asking me what the date is?
9
Q
I see that the date is May 20,
10
2009, and what I'm asking is what is that date a
11
reference to?
What happened on that date?
12
A
I believe that's when it was filed.
13
Q
Was there any distribution of the
14
motion and brief in support by you other than
15
filing it with the court?
16
A
I believe we sent it to the client
17
by regular mail -- the clients by regular mail.
18
And there may have been others, but that is a
19
likely one.
20
21
22
23
24
25
Q
Did you serve it on opposing
A
Via the court system it does that
counsel?
automatically.
Q
And other than filing the document
with the court and mailing a copy of it to your
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MR. BLUE:
3
A
4
accurate.
5
Q
Objection.
I think -- I think that's more
And you don't have any written
6
agreement with Dr. High governing ownership of
7
copyrights in work product that he contributed
8
to in connection with that case, do you?
9
A
I don't believe so.
10
Q
And Dr. High did in fact contribute
11
to the drafting of plaintiffs' combined motion
12
for summary judgment?
13
A
I'm sure he saw it and I'm sure he
14
said things about it, but whether he contributed
15
to drafting I couldn't say as I sit here today.
16
17
Q
He provided you with written
comments on your draft?
18
A
Yes.
19
Q
Made editorial suggestions?
20
A
Yes.
21
MR. MARKS:
I'd like to mark as
22
White Exhibit 6, a two-page document
23
bearing the Bates number P00054 to 55.
24
(Document, Bates stamped P00054 to
25
55 was marked as White Exhibit No.
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6 for identification, as of this
3
date.)
4
Q
5
Exhibit 6 before?
6
A
Yes.
7
Q
What is White Exhibit 6?
8
A
A certificate of registration for
9
Mr. White, have you seen White
plaintiffs' motion in limine.
10
Q
And this is a motion in limine
11
filed on behalf of the plaintiffs in the Beer
12
versus XTO Holdings case?
13
A
Right.
14
Q
And was this motion filed on behalf
15
of just Miss Beer and Miss Bique or was this
16
filed on behalf of the class?
17
A
Class.
18
Q
And is the reference next to the
19
line date of first publication, is that the date
20
that this motion in limine was filed with the
21
court?
22
A
Yes, I believe it was.
23
Q
And in addition to filing this
24
document with the court, did you mail a copy of
25
it to your clients?
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copyright in the organization certainly of the
3
materials, selection, organization.
4
Q
But you don't claim any copyright
5
in the individual exhibits themselves that were
6
prepared by third parties, do you?
7
8
A
document attached, I didn't, I didn't write it.
9
10
11
12
To the extent there was an XTO
Q
And you don't claim any ownership
A
Other than as it relates to its
of that?
selection and organization in the brief.
13
MR. MARKS:
I'd like to mark as
14
White Exhibit 7, the document bearing
15
Bates numbers P00056 through P00085.
16
(Summary Judgment Motion was marked
17
as White Exhibit No. 7 for
18
identification, as of this date.)
19
Q
Mr. White, White Exhibit 7 is the
20
summary judgment motion and brief in support
21
that you filed on behalf of Miss Beer and
22
Miss Bique on their individual claims against
23
XTO Energy, correct?
24
A
It appears to be, yes.
25
Q
And the reference to Ramsey on the
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relationship with you?
3
A
I don't believe so.
4
Q
Why was this document prepared?
5
A
The document was prepared in order
6
to attempt to secure summary judgment for the
7
named plaintiffs.
8
Q
9
10
Is there any other reason that you
prepared this document?
A
Well, they also -- it's in my
11
strategy of the litigation, but --
12
MR. BLUE:
13
situation where --
14
Q
I just want to avoid a
I'm not trying to intrude on work
15
product or privilege.
My question is, was there
16
any reason that you prepared this document other
17
in connection with your advocacy on behalf of
18
your clients in the Beer versus XTO Energy case?
19
A
No, essentially that was it.
20
Q
You qualified with essentially.
21
there any reason unrelated to your
22
representation of these clients that you
23
prepared this document?
24
A
None that I can think of.
25
Q
And at the time that you prepared
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the document you anticipated that you would be
3
filing it with the court on behalf of your
4
clients, correct?
5
A
Correct.
6
Q
And you filed the summary judgment
7
motion with the court because you wanted the
8
court to consider it and grant the motion,
9
correct?
10
A
That was the primary reason, yes.
11
Q
What are the ancillary reasons that
12
you filed with the court?
13
MR. BLUE:
14
MR. MARKS:
15
MR. BLUE:
Can we also -Without --- say it's the same
16
caveat, you're not talking about
17
litigation strategy or how he advised
18
the clients how to proceed.
19
Q
If it relates to litigation
20
strategy, I will accept that that's the reason.
21
You don't have to give me the particulars of the
22
litigation strategy.
23
A
Litigation strategy.
24
Q
No reason unrelated to prosecution
25
of a litigation?
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A
Correct.
3
Q
And you knew at the time it was
4
prepared that it would be available on Pacer,
5
correct?
6
A
Yes.
7
Q
For anyone with a Pacer
8
9
10
11
subscription to download?
A
I think you have to have a
subscription but I knew it would be on Pacer.
Q
And that anyone, any member of the
12
public who wanted to obtain it from Pacer would
13
be able to obtain it?
14
A
Assuming they had the subscription.
15
Q
Are you aware of any restrictions
16
on who can obtain a Pacer subscription?
17
A
I don't know there's requirements.
18
Q
And you also knew that a copy of
19
the brief would be available from the courthouse
20
itself, correct?
21
A
Yes.
22
Q
And that any member of the public
23
who went in and complied with whatever terms the
24
Western District of Oklahoma has set up for
25
copying briefs could go in and may a copy,
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right?
3
A
Yes.
4
Q
And did the possibility that
5
somebody might make a copy of your brief from
6
Pacer and distribute your brief affect your
7
decision to write this motion?
8
9
10
11
12
A
If I had prior knowledge of that
fact, I still would have written the motion, if
that's what you're asking me.
Q
That is what I'm asking you.
The
answer is yes?
13
A
Yes.
14
Q
And did the possibility that
15
someone might make a copy of your brief in Pacer
16
and distribute your brief affect the quality of
17
your work on this motion?
18
A
No.
19
Q
And at the time you prepared the
20
motion, you had no way of knowing whether West
21
or Lexis would include a copy of it in a
22
database, correct?
23
A
Correct.
24
Q
Subsequent to your filing of this
25
document with the court, and until, until this
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one point represented?
3
A
Correct.
4
Q
And that's the only reason that you
5
provided a copy of the brief to them?
6
A
Yes.
7
Q
And to your knowledge that's the
8
only reason they requested a copy of the brief
9
was to assume the representation of the
10
individuals you had previously represented?
11
A
Yes.
12
Q
Have you ever offered to license
13
the copyright you claim in this work to anybody
14
else?
15
A
No.
16
Q
Has anyone ever asked you for such
17
18
a license?
A
19
No.
MR. MARKS:
I'd like to mark as
20
White Exhibit 8 a document bearing Bates
21
number P0001 through P00024.
22
(Motion in Limine was marked as
23
White Exhibit No. 8 for
24
identification, as of this date.)
25
Q
Mr. White, what is White Exhibit 8?
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3
A
in Beer versus XTO.
4
5
It's plaintiffs' motion in limine
Q
Can you describe for the process of
how this document was prepared?
6
A
Generally speaking, it was prepared
7
by me addressing the issues that I felt needed a
8
motion in limine filed on and gathering the
9
relevant background information and legal
10
authority and drafting a brief.
11
12
Q
provided editorial comment on this brief?
13
14
15
And you believe that Dr. High
A
I believe he probably did on this
Q
And did Miss Inman play a similar
one.
16
role with respect to White Exhibit 8 as she did
17
in White Exhibit 7 with regard to formatting the
18
document and providing the cover sheet and the
19
certificate of service, et cetera?
20
A
Yes.
21
Q
Were there any other contributors
22
23
to the preparation of the motion?
A
To the extent we talked to clients
24
about it that may have had comments, it's
25
possible.
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Q
Did anyone, to your knowledge,
3
other than you and Dr. High perform any of the
4
case research associated with the preparation of
5
this motion?
6
A
I'm sorry, what was that?
7
Q
I'm asking who did the case
8
research in connection with the preparation of
9
the motion?
10
A
It would have been me, and then to
11
the extent he was providing editorial comments,
12
there may have been work by Dr. High.
13
Q
And this document was prepared on
14
behalf of the class in Beer v. XTO Energy in
15
order to persuade the court to exclude certain
16
evidence from trial in this action?
17
18
19
A
Essentially.
I mean you know what
a motion in limine is, but yes.
Q
Was there any other reason that you
20
prepared this document other than for the
21
purpose of representing your clients in the Beer
22
v. XTO Energy case?
23
A
No.
24
Q
And at the time the document was
25
prepared you anticipated that it would be filed
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with the court, correct?
3
A
Yes.
4
Q
And you knew at the time it was
5
prepared that once filed it would be available
6
on Pacer?
7
A
Yes.
8
Q
And you knew at the time it was
9
10
prepared that once filed it would be available
for copying at the courthouse?
11
A
Yes.
12
Q
And the possibility that somebody
13
might copy and distribute your brief did not
14
affect your decision to write this motion, did
15
it?
16
A
Correct.
17
Q
And the possibility that someone
18
may copy and distribute your brief did not
19
affect the quality of your work on this motion,
20
did it?
21
A
No.
22
Q
At the time you prepared this
23
motion you had no way of knowing whether West or
24
Lexis would include a copy of it in a database,
25
correct?
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A
Right.
3
Q
And have you ever offered to
4
license the copyright you claim in this work to
5
anyone else?
6
A
No.
7
Q
Has anyone ever asked you for such
8
a license?
9
A
No.
10
Q
And has anyone ever asked you for
11
such a license?
12
A
No.
13
Q
Has anyone every asked you for a
14
license to your copyright in any of your
15
registered copyrights?
16
A
You're asking me if on the ones
17
that were filed on behalf of the firm, not my
18
clients.
19
20
Q
Correct, not your clients.
Thank
you for the clarification.
21
With regard to the documents for
22
which you secured a copyright registration, I'm
23
asking has anybody ever attempted to license
24
your copyright in any of those Works?
25
A
No one has ever expressly asked me
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for a license to an Edward L. White, P.C.
3
registered work, no.
4
Q
Have you ever offered a license to
5
the copyright in any Edward L., P.C. registered
6
work?
7
A
No.
8
Q
You brought Beer v. XTO Energy as a
9
putative class action, correct?
10
A
Yes.
11
Q
And with Miss Beer and Miss Bique
12
as the name plaintiffs, correct?
13
A
Correct.
14
Q
And on or about March 20, 2009, the
15
court granted your motion for class
16
certification, correct?
17
A
I think the date's right.
18
Q
You were appointed counsel for the
20
A
Yes.
21
Q
And Miss Beer and Miss Bique were
19
22
class?
appointed as representatives of the class?
23
A
Correct.
24
Q
On May, I think we've already
25
talked about that on May 20, 2009 you filed a
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Q
And the court denied the second
3
summary judgment motion for damages on behalf of
4
all plaintiffs as premature as there had been no
5
determination for liability for the class,
6
correct?
7
A
8
court did.
9
The court's order reflects what the
complicated.
10
Q
I think it was a little more
You would agree with me that the
11
court denied motion for summary judgment on
12
damages to the class?
13
A
Yes.
14
Q
And on April 13, 2010 the court
15
decertified the class, correct?
16
A
Yes.
17
Q
And the court found that you were
18
not adequately protecting absent class members,
19
correct?
20
21
22
A
Again, the court's order says what
Q
And the court's order said that --
it says.
23
reflected its determination that you were not
24
adequately representing the class, correct?
25
MR. BLUE:
Objection.
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A
It said what it said.
3
Q
As a result of that order you were
4
removed as counsel for the class, correct?
5
A
Yes.
6
Q
And the court also found that Miss
7
Beer and Miss Bique were no longer adequate
8
representatives of the absent class?
9
A
Yes, I believe that's correct.
10
Q
And at the end of April 2010,
11
Mr. Goodard and Mr. Fenkhauser (phonetic) filed
12
a motion to intervene as names plaintiffs with
13
new counsel, correct?
14
A
Goddard, yes.
15
Q
Excuse me, Goddard, thank you.
16
And after the court's
17
determination that you were no longer adequate
18
class counsel, you wrote to members of the
19
absent class and offered to represent them
20
individually, correct?
21
A
I'm not sure the sequencing is
22
exactly correct but I did -- there was certainly
23
communications.
24
25
Q
Communications between you and
members of the class following the court's
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decertification of the class, correct?
3
A
4
decertification.
5
Q
6
Well, there's no class following
Members of the -- members of the
formerly certified class?
7
A
Yes.
8
Q
And in those communications you
9
offered to represent those parties individually
10
in continuing litigation against XTO Energy,
11
correct?
12
13
14
15
A
Again, the letters speak for
themselves, but yes, essentially that's correct.
Q
You wanted to stay involved as
counsel for those parties, correct?
16
A
Yes.
17
Q
And by May 15, 2010, you had filed
18
copyright registrations for 15 of the court
19
filings and discovery documents that you had
20
prepared while acting as counsel for the
21
formerly certified class?
22
A
I think the dates are right, yeah.
23
Q
And you wanted to prevent new
24
counsel from copying the work product you had
25
done on behalf of the class, correct?
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A
I wanted to protect my intellectual
property, if that's what you're asking me.
Q
And the concern that you had was
5
that other lawyers who were seeking to act on
6
behalf of the same individuals you were seeking
7
to represent would use your work product in
8
their own efforts to represent those same
9
individuals?
10
MR. BLUE:
11
Objection.
Go ahead.
12
A
That was certainly a concern.
13
Q
What other concern did you have?
14
A
Well, again, it's -- I think that
15
the best way to say it was I was seeking to
16
protect my intellectual property and that was a
17
significant concern.
18
Q
What else motivated the timing of
19
registering 15 documents in the case other than
20
the fact that you had been removed as counsel
21
for the class, there was a motion to intervene
22
with new class counsel, and you were seeking to
23
represent those same individuals in their
24
individual capacity?
25
A
Well, part of it was I didn't have
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2
a trial that I had expected to have and so I had
3
more time.
4
copying by subsequent counsel was a concern is
5
accurate.
6
Q
But your assertion that that was
And what I'm trying to understand
7
is were there any other concerns motivating the
8
last 15 copyright registrations that you've made
9
in your career on behalf of your firm?
10
MR. BLUE:
Objection, asked and
11
answered?
12
A
Yes.
13
Q
And what were they?
14
A
A desire to protect my intellectual
15
property.
16
17
18
19
20
21
VIDEOGRAPHER:
Excuse me, Counsel,
we're coming down to seconds.
MR. MARKS:
That's fine.
Why don't
we go ahead and change now.
VIDEOGRAPHER:
The time is 11:53
and we're off the record.
22
(Whereupon, at 11:53 a.m., a recess
23
was taken to 11:59 a.m.)
24
(The deposition resumed with all
25
parties present.)
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2
Q
They haven't suggested that West
3
Law or Lexis and what materials are on West Law
4
or Lexis should play any part in the fee award?
5
A
I haven't heard them say that.
6
Q
When did you first become aware of
7
West Law, the existence of West Law?
8
A
I believe in law school.
9
Q
When did you first become aware of
11
A
Same.
12
Q
When did you first become aware
10
Lexis?
13
that West Law was making briefs and other court
14
filings written by attorneys available to
15
subscribers?
16
A
I don't know.
17
Q
Do you recall how you became aware
18
that West Law was making brief and other court
19
filings written by attorneys available to
20
subscribers?
21
A
I believe I became aware as a
22
result of performing a search and that brief --
23
a brief or more than one brief appeared as a
24
result to that search.
25
Q
So in other words, briefs came up
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in response to searches that you were doing?
A
Correct.
And I don't remember if
4
it was -- the search revealed that or if
5
clicking on another result revealed that, but
6
some way as a result of a search it appeared
7
that there were briefs on file or available on
8
Lexis, I think.
9
10
Q
And so that's how you learned that
Lexis was making briefs available, right?
11
A
Right.
12
Q
Do you recall the approximate time
13
14
15
16
frame in which you learned that?
A
It would have been, you know,
within the last year or two.
Q
And when did you first become aware
17
that West Law was making briefs and other court
18
filings written by attorneys available to
19
subscribers?
20
21
A
It would have been after I became
aware of the Lexis offering.
22
Q
And within the past year?
23
A
Again, within the past year or two.
24
Q
How did you become aware that West
25
Law was making briefs and other court filings
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2
A
No.
3
Q
How did you become aware that a
4
document prepared by Edward L. White, P.C. was
5
available on Lexis?
6
A
I think, and I don't know if this
7
is true in fact, my assumption was once I
8
figured out that briefs were available that I
9
had assumed that basically all federal briefs
10
were available, that there was some sort of
11
program to pull those off and kind of in an
12
automated fashion index and process.
13
14
Q
Do you understand sitting here
today whether or not that's the case?
15
A
I don't know if that's the case.
16
Q
Did you ever search Lexis for a
17
copy of a brief or other court filing prepared
18
by your firm?
19
A
I believe I did.
20
Q
And were you able to locate any?
21
A
I believe I was, yeah.
22
Q
Which documents were you able to
23
identify?
24
A
25
I believe some of the Beer
documents, one or more of the beer documents.
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3
Q
A
I don't know.
search?
4
5
And when did you conduct that
After they were
registered in 2010, but I don't know when.
6
Q
Certainly within the last year or
7
two which is the time frame in which you've
8
indicated you first became aware that Lexis made
9
briefs available, correct?
10
A
Correct.
11
Q
And have you ever conducted a
12
search for your own materials on West Law?
13
A
No.
14
Q
Has anyone ever done that on your
16
A
It's possible, I don't know.
17
Q
Sitting here today, you're not
15
behalf?
18
aware of anybody having searched West Law for
19
copies of your briefs or other court filings on
20
West Law?
21
A
Correct.
22
Q
When was the last time that you
23
used Lexis to access one of your own documents?
24
A
I don't know.
25
Q
Within the past year?
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correct?
3
A
I believe that's correct.
4
Q
And has that dispute been resolved?
5
A
Yes.
6
Q
And other than that fee dispute,
7
have you had any dispute of any kind with West?
8
MR. BLUE:
Other than this?
9
Q
Other than the litigation?
10
A
I think -- I think years prior to
11
that I had switched one other time and -- and
12
had a dispute with them as well, so my
13
recollection is I may have in a prior instance.
14
Q
And at any point prior to filing
15
this suit, did you ask Lexis to remove materials
16
written by Edward L. White, P.C. from its
17
database?
18
A
No.
19
Q
And prior to filing did you have
20
any communications with Lexis about not putting
21
any of your materials into the database in the
22
first place?
23
A
I don't believe so.
24
Q
And did you ever have any
25
communication with anyone at Lexis about the
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availability of materials, of your materials in
3
this database?
4
5
6
7
A
Other than this litigation I don't
believe so.
Q
And have you had billing disputes
with Lexis?
8
A
I don't believe so.
9
Q
And did --
10
A
I mean, I actually feel recently I
11
had a deal where there was a sizable
12
transactional charge of some sort and we
13
negotiated a lesser amount.
14
would fit that.
15
Q
So I think that
Has anyone ever told you that a
16
request to Lexis to remove materials from its
17
database would be futile?
18
A
No.
19
Q
Did you have any reason to believe
20
that such a request would be futile?
21
A
Yes.
22
Q
What's the basis for your belief
23
that a request to Lexis to remove materials from
24
its database would be futile?
25
A
Same, essential expectation and
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action, have you had conversations with other
3
attorneys about the availability of briefs on
4
West Law or Lexis?
5
MR. BLUE:
I'll object to the
6
extent that previous answers have
7
discussed that.
8
Q
You can answer.
9
A
I believe I have.
10
Q
Who's that?
11
A
Couldn't say specifically.
Like
12
most lawyers, I talk to my friends and
13
colleagues about various legal matters and it
14
would have been in that context of, you know,
15
did you realize that this was out there.
16
17
Q
Sitting here today, you can't
recall a specific conversation?
18
A
No, I can't recall a specific.
19
Q
Has anyone ever told you in words
20
or in substance that they would writing legal
21
briefs if they were copied and distributed by
22
West Law and Lexis without permission?
23
A
No.
24
Q
Has anyone told you in words or in
25
substance that the quality of their briefs would
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diminish if they were copied and distributed by
3
West Law and Lexis without permission?
4
A
No.
5
Q
Has anyone ever told you that they
6
had complained to West Law or Lexis about the
7
availability of court filings on West Law or
8
Lexis?
9
A
It, you know, it's one of those
10
deals, I don't have a specific recollection but
11
I believe that somebody I talked to had
12
mentioned that they had complained.
13
Q
You don't recall who this person
15
A
No, I don't.
16
Q
Man or a woman?
17
A
I believe it was a man, but I've --
14
is?
18
I've had quite a few conversations with folks
19
about this issue so I can't be sure who it was.
20
Q
Since the filing of the complaint,
21
you mean?
22
A
Since and before.
23
Q
So you've had quite a few
24
conversations about this issue before you filed
25
a complaint in this action?
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the percentage of attorneys who might have
3
accessed either of those Works through West Law
4
or Lexis is tiny as a percentage of the people
5
who have obtained copies of those documents
6
through Pacer or from the court itself?
7
A
I don't know what fraction of
8
people that have accessed those Works have done
9
so through Lexis or West Law versus Pacer, if
10
11
that's your question.
Q
And if somebody wanted to see those
12
briefs so that they could compete more
13
effectively with you, they could go get a copy
14
from Pacer, couldn't they?
15
A
If they specifically knew about the
16
case at issue and knew that they wanted those
17
specific briefs, but it's, you know, not part of
18
my complaint in this case is that it's the
19
systematic way and you know, the text search
20
ability and the ability to pull up a whole set
21
of briefs on an issue is what undercuts my
22
ability to practice.
23
brief's available if you know that case and you
24
know you want that brief, which has always been
25
the case, but it's that there's a systematic way
It's not just that one
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that someone can have access, use, and basically
3
have a whole roadmap for a case based on briefs
4
on file.
5
Q
And can you identify a single
6
client represent -- client representation that
7
you have lost because of the availability of one
8
of your Works on West Law or Lexis?
9
A
I can't imagine someone coming to
10
me and saying I would have hired you but I went
11
to Joe Smith because he told me he could get
12
these briefs off Lexis.
13
I can't imagine how it would.
14
Q
It's never happened but
And are you aware of any case that
15
you have lost in part because your litigation
16
adversaries had access to briefs that you had
17
filed in the past?
18
A
Again, I can't imagine that
19
specifically coming up but it certainly is, and
20
I didn't mention that fact before, but that, the
21
access of adversaries to briefs in an easy
22
fashion that involve Edward L., you know, Ed
23
White, is another way in which I could have been
24
harmed by the --
25
Q
The fact that a litigation
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2
adversary could have used West Law or Lexis to
3
obtain copies of briefs you have filed in the
4
past?
5
A
Correct.
6
Q
And your litigation adversaries
7
know who you are presumably, right?
8
A
Presumedly.
9
Q
So they could go to the courthouse
10
and get copies of your briefs and filings,
11
couldn't they?
12
A
Again, not as in a simple of
13
fashion, but yes.
14
Q
So it's easier for them to get it
15
through West Law and Lexis, but they could get
16
it through publicly available records at the
17
courthouse or on Pacer, correct?
18
A
Yes.
19
Q
You have also alleged that you have
20
suffered irreparable injury from the
21
availability of the motion for summary judgment
22
and the motion in limine on West Law?
23
A
I think we allege that, yes.
24
Q
And is the irreparable injury any
25
different from what you've described?
Is that a
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the Pacer system.
3
Q
And that's true for court filings,
4
right, too, when you make a public court filing
5
the public has access to it, right?
6
A
Correct.
7
Q
Are you damaged by the availability
8
at the courthouse of copies of your public
9
filings?
10
11
A
I suppose to a limited extent, yes,
the same extent, but part of the system.
12
Q
And you're being irreparably
13
injured by the fact that the court makes your
14
documents available to the public, right?
15
MR. BLUE:
16
17
18
Objection.
A
I don't know if I'd say it that
Q
Would you say you're being
way.
19
irreparably injured by the availability on Pacer
20
of your briefs and other court filings?
21
A
Again, I don't know that I'd say it
22
that way.
23
different situation in my mind.
I don't -- they have -- it's a
24
Q
And what is the difference?
25
A
The federal systems for filing
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White.
3
Q
Mr. White, I'd like to start by
4
asking you a question that was asked earlier
5
today, and I understand from my colleagues that
6
the transcript may not have come out clearly so
7
bear with me, I'm just going to ask the question
8
again.
9
We were speaking earlier today
10
about the summary judgment motion that you
11
filed on behalf of Miss Beer and Miss Bique in
12
the Beer v. XTO Energy case.
13
Do you recall that?
14
A
Yes.
15
Q
Did the possibility that someone
16
might make a copy of your summary judgment
17
motion and supporting brief from Pacer and
18
distribute that material affect your decision to
19
write the summary judgment motion?
20
A
No.
21
Q
Your professional reputation has
22
not been compromised by the fact that West Law
23
and Lexis subscribers have been able to access
24
some of your court filings through those
25
services, has it?
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A
I don't believe so.
3
Q
And your ability to represent
4
clients effectively has not been comprised by
5
the availability of some of your past court
6
filings on West Law or Lexis, has it?
7
A
My ability to represent them
8
effectively has not been compromised, but as I
9
explained, I think it affects my business.
10
Q
Because other lawyers are able to
11
compete for business with you by -- through
12
access to your briefs?
13
14
A
Well, as we've discussed, but yes,
essentially.
15
Q
The brief filed on your behalf in
16
opposition to West's and Lexis's partial motions
17
to dismiss cited briefs written by other
18
lawyers, correct?
19
A
I believe that's correct.
20
Q
I don't want to make this a memory
21
test.
22
memorandum of law in opposition to defendants'
23
motions to dismiss filed on your behalf in this
24
case.
25
Let me hand you a copy of plaintiff's
If I could point your attention to
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old -- some ole subject matter just to get to
3
new points.
4
And you are aware that the same
5
ground rules that Mr, Marks had talked about
6
before still apply to my questions, correct?
7
A
Yes.
8
Q
We don't need to go over any of
9
them again, you feel comfortable, do you
10
understand them?
11
A
Yes.
12
Q
Great.
13
Have you ever physically
filed a document with the court?
14
MR. BLUE:
Objection.
15
A
With any court?
16
Q
With any court?
17
A
Yes.
18
Q
And when you say specifically
19
filed, have you ever gone down and hand filed
20
with the clerk of the court?
21
A
Yes.
22
Q
What is your understanding
23
regarding the right of the public to access the
24
court files that you would physically file with
25
the court?
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A
I think it varies depending on the
3
court clerk, hours of operations, their
4
particular policies, but generally are you
5
asking me what their -- is it available
6
publicly?
7
Q
8
What are you asking me?
Does the public have the right to
access the document?
9
A
Typically.
10
Q
Do they have the right to typically
11
review the document subject to any
12
confidentiality?
13
A
Yes, typically.
14
Q
Would they have the right to make
15
copies of the document?
16
MR. BLUE:
17
clarification.
18
about does the court allow them to make
19
copies or are you asking him a legal
20
conclusion whether that is somehow legal
21
and permissible?
22
I'm going to ask for a
When you're talking
MR. WHITNEY:
I'm asking
23
understanding what the public is able to
24
do?
25
MR. BLUE:
Okay.
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Typically my understanding is the
3
public is able to make copies or have copies
4
made by the clerk.
5
Q
And do you have any understanding
6
that that's impermissible if the public makes
7
copies of those documents?
8
9
MR. BLUE:
said before.
Objection.
Same thing I
I'm just trying to see
10
what -- are you saying permissible under
11
the court rules or permissible as a
12
matter law or just either way.
13
Q
Either way?
14
A
My understanding is that it's
15
generally permissible under court rule as long
16
as there's not a confidentiality agreement as
17
the caveat.
18
19
20
Q
And is it impermissible under any
other rules?
A
Well, I think that gets into
21
questions of fair use, what the person is making
22
a copy for, so I think it could be permissible
23
or it might not be permissible depending on what
24
they -- what the document's used for.
25
Q
And what kind of use would you say
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this date.)
3
(E-mail bearing Bates numbers P86
4
to P91 was marked as White Exhibit
5
No. 12 for identification, as of
6
this date.)
7
Q
Mr. White, have you seen what's
8
been marked as Exhibit 11 before, which is the
9
one that starts with Bates number P25?
10
A
Yes.
11
Q
And what is it?
12
A
This is the -- a copy of the e-mail
13
that's received from the court upon filing of a
14
document and this particular one is document
15
176, a motion in limine.
16
Q
And is this the motion in limine
17
that is at issue in this case that you're
18
accusing Lexis and West and copyright
19
infringement on?
20
A
I believe it's the same one, yes.
21
Q
And Exhibit 12 for Bates number
22
23
P86, can you tell me what that document is?
A
It's the same kind of thing, it's
24
an e-mail notice regarding the motion for
25
summary judgment.
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Q
And is that the same -- is that the
3
motion for summary judgment that is at issue in
4
this case that you're accusing West and Lexis of
5
copyright infringement on?
6
7
8
9
10
11
12
13
14
15
A
I believe so, there are two but I
think this is the correct one.
Q
Did you receive these notices after
filing the Works at issue in the Beer v. XTO
Energy case?
A
Yes, I would have received a notice
by e-mail.
Q
Do you have an understanding of who
can get these notices?
A
Anyone who's entered an appearance
16
in the case, any counsel or parties or pro se
17
entered an appearance, and I think in this
18
particular instance it indicates on page P87 who
19
got the notice.
20
Q
Do you know if attorneys who are
21
not representing parties in this case can
22
receive these ECF notices?
23
24
25
A
I don't receive any in cases where
I'm not an attorney but it's possible I suppose.
Q
What was your understanding of the
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availability of these briefs after they were
3
filed?
4
5
MR. BLUE:
answered.
6
7
Objection, asked and
You can answer it again.
A
My -- I knew that they were filed
8
and therefore available on Pacer and also I
9
believe that you could get a -- I say this -- I
10
think you can get a paper copy at the courthouse
11
although I have not done that in a long time.
12
Q
If I can turn you to the -- sort of
13
the top third of these documents, we can look at
14
Exhibit 11 but you can see that the same
15
language exists on Exhibit 12.
16
second to last sentence above where it says U.S.
17
District Court near in the middle of the page,
18
"To avoid later charges, download a copy of each
19
document during this first viewing."
20
want to back it up it says -- let me read the
21
whole paragraph to make it clear.
22
It says, the
If you
"Judicial conference of the United
23
States policy permits attorneys of record and
24
parties in a case (including pro se
25
litigations) to receive one free electronic
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E. White
Q
You do recognize, understand
3
however that ECF filed documents are made
4
available to the public via Pacer, correct?
5
A
6
Generally, yes.
MR. WHITNEY:
I'm going to mark the
7
next document as Exhibit 13, which is
8
Bates number LN3080 to LN3181.
9
(Document bearing Bates numbers
10
LN3080 to LN3181 was marked as
11
White Exhibit No. 13 for
12
identification, as of this date.)
13
Q
Mr. White, the court reporter has
14
just handed you a document that on the top
15
states United States District Court Western
16
District of Oklahoma ECF Registration Form.
17
Do you see that?
18
A
Yes.
19
Q
Have you seen this document before?
20
A
I suspect that I fille one out but
21
22
I don't recall seeing one before.
Q
And you've testified that you have
23
an ECF registration with the Western District of
24
Oklahoma, correct?
25
A
Correct.
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restate it I would appreciate it.
3
Q
Okay.
Are you aware that by filing
4
a document with ECF, you are authorizing any
5
member of the public to access and copy the
6
document filed through ECF?
7
8
MR. BLUE:
legal conclusion.
9
10
Objection calls, for a
You can answer.
A
I'm aware of the idea as expressed
11
in this policy that litigants -- litigants
12
receive a free copy and others can purchase
13
copies as specified here.
14
MR. BLUE:
I just want the record
15
to show that Mr. White is referring to
16
Exhibit No.
17
THE WITNESS:
18
MR. BLUE:
19
Q
15.
15.
Do you have any objection to
20
members of the public accessing your document, a
21
document that you had filed with the court via
22
ECF accessing it via Pacer?
23
A
Not generally.
24
Q
Do you have a specific objection to
25
a member of the public accessing a document you
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say it it's going to mean the same thing.
3
The response number four,
4
notwithstanding the general objections,
5
plaintiff have -- plaintiffs have no responsive
6
documents.
7
Do you see that?
8
A
Yes.
9
Q
Do you have any agreements with
10
other counsel regarding the ownership of
11
co-authored Works?
12
A
The question presumes that these
13
are -- that the Works at issue are co-authored
14
Works.
15
therefore I don't -- the only person who would
16
be a co-author even respectively is Mr. High,
17
Dr. High, and I think in these instances he
18
was -- he made some editorial comments but I
19
think I was the author, so I don't think there's
20
any agreements that respond.
I don't believe that's true and so
21
Q
You are aware that Mr. High's name
22
appears on the caption of the Works; is that
23
correct?
24
25
I can show you the -A
I know it does on one.
MR. BLUE:
Sorry.
I don't think
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it's proper to call it the caption.
3
mean the cover page?
4
MR. WHITNEY:
You
Yes.
5
A
Yes, it does, on both.
6
Q
Okay.
And notwithstanding that his
7
name appears on the cover page, and I believe
8
the signature block, and the signature block of
9
these two documents, of the motion in limine and
10
the motion for summary judgment, is it your
11
position that he is not a co-author of these
12
documents?
13
A
Yes.
14
Q
Turn to request number five.
All
15
documents, the request seeks all documents
16
concerning your agreement with any person other
17
than clients or counsel regarding the ownership
18
of co-authored Works.
19
notwithstanding the general objections
20
plaintiffs have no responsive documents.
21
The response,
Do you see that?
22
A
Yes.
23
Q
Do you have any agreement with any
24
person other than clients or counsel regarding
25
the ownership of co-authored Works?
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Do you see that?
3
A
Yes.
4
Q
Have there been any communications
5
between you and LexisNexis regarding the Works
6
at issue in this case?
7
8
9
A
I don't believe so.
Other than the
litigation.
Q
Of course.
Have there been any
10
communications between you and West Law
11
regarding the Works at issue in this case?
12
13
14
A
Other than the litigation
communications, no.
Q
Request number 26 seeks all
15
communications with third parties other than
16
counsel of record in this case about LexisNexis.
17
The response, notwithstanding the general
18
objections as to the complaint Works, plaintiffs
19
have no responsive documents.
20
Do you see that?
21
A
Yes.
22
Q
Have there been any communications
23
with third parties other than counsel of record
24
in this case about LexisNexis with regard to the
25
Works at issue in this case?
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2
from Pacer and read them, and to the extent that
3
I read them I, you know, you learn something
4
from them.
5
Q
So I guess that's using them.
Have you ever copied any of the
6
content in a brief filed by another attorney in
7
court that you have acquired via Pacer in a
8
document that you have subsequently filed in a
9
court?
10
A
I don't believe so.
I believe I
11
have, like I said I've read the briefs.
12
will identify relevant cases.
13
trusting of other, you know, let's say Joe Smith
14
writes a brief.
15
is thus but I want to read the case myself, I
16
tend to not be really comfortable copying
17
people's work.
18
copyright issue but because I don't know how
19
thorough they were to the starting point
20
sometimes.
21
Q
They
I'm not very
It's fine that he says the law
Not -- not just because it's
Is it your position that the cases
22
cited in a brief are the copyrighted material of
23
the author who cites them?
24
25
A
It can be.
As -- as copyright case
law goes from my understanding, the selection of
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2
the material to be included in a documents can
3
be a copyrightable element.
4
your question?
5
MR. BLUE:
Does that answer
There may have been some
6
confusion, if I can get some
7
clarification.
8
the citation being copyrightable or do
9
you mean the underlying case?
Are you talking about
10
Q
The citation.
11
A
I don't think the citation itself
12
is protectable.
13
Q
What is protectable?
14
A
I think I explained to the extent I
15
understand it, it's that the gathering,
16
compilation of that particular set of cases as
17
it related to the legal issue at hand can be a
18
protectable element of what is copyrightable.
19
Q
So if you cite hypothetically three
20
cases to support an issue, is it your view that
21
no other lawyer can ever cite those three cases?
22
A
No.
23
Q
So in what way would it be
24
25
copyrightable?
A
I think it's like everything else
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2
you can go ahead.
3
A
It's possible.
4
Q
In the Works at issue in this case,
5
is it your contention that the -- the
6
organization of the cases that you've cited in
7
those briefs are copyrightable?
8
9
A
Well, I mean, it's -- the
organization of those cases in toto in the
10
brief, yes.
11
paragraph 27 the fact that I cite the Smith
12
case, is that particular fact copyrightable, I
13
don't think so.
14
Q
But if you're asking me in
And when you're quoting a case in
15
these briefs, is that copyrightable?
16
MR. BLUE:
17
Objection, calls legal
conclusion.
18
Can I just have a standing
19
objection on legal conclusion on this
20
line of questioning?
21
22
MR. WHITNEY:
Q
Sure.
And I'm trying to understand what
23
your claim to copyright infringement is here.
24
I'm asking you specifically with regard to the
25
Works at issue in this case.
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and, you know, to the extent that the
3
plaintiff has a position on those
4
things, it's going to be particularly by
5
counsel in the proper legal context.
6
MR. WHITNEY:
I understand.
7
ask a few more questions.
8
objection is noted.
9
MR. BLUE:
I'll
Your
Thanks.
10
A
And your question was?
11
Q
Do you claim copyright ownership in
12
the format of this brief, table of contents,
13
brief in support, undisputed material fact,
14
argument authorities, summary judgment standard,
15
conclusion?
16
A
When stated that way, I don't think
17
I would claim, you know, because lots of briefs
18
have that general organizational structure, but
19
I think when you get into the details of -- if
20
the format is all the words, yes.
21
is just the fact that it has headings, no.
22
Q
If the format
Now, we've touched on this before
23
but I think it's one specific question I don't
24
think was asked.
25
of -- either of the two briefs at issue in this
Have you ever accessed any
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2
was taken to 2:58 p.m.)
3
(The deposition resumed with all
4
parties present.)
5
VIDEOGRAPHER:
The time is 2:58 and
6
we're back on the record.
7
Q
Mr. White, to the extent that
8
anyone accessed your briefs on Lexis or West
9
Law, you're not aware of the reasons why they
10
did, correct?
11
A
Correct.
12
Q
And you did not create the motion
13
for summary judgment at issue in this case in
14
order to license or sell it to other lawyers,
15
correct?
16
A
Not -- not for that purpose.
17
Q
And you did not create the motion
18
in limine at issue in this case license in order
19
to license or sell it to other lawyers, correct?
20
A
Same answer.
21
Q
Has anyone ever offered to license
22
any of your briefs, pleadings or motions?
23
A
Not directly.
24
Q
Have they offered indirectly?
25
A
Well, to the extent I've been
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2
contacted and people have asked me to serve as
3
co-counsel on the case, I think in part that's
4
the work on cases I've done and they know I have
5
knowledge that is embodied in those briefs.
6
7
Q
But they've offered to retain you
as co-counsel?
8
A
Correct.
9
Q
They haven't offered to license a
10
brief that you had previously offered?
11
A
Correct.
12
Q
And have you ever attempted to
13
license any of the Works you've created and
14
filed with courts of record?
15
16
A
You mean to sell a, "Here's a copy
fro $50," that kind of a transaction.
17
Q
Correct.
18
A
No.
19
MR. MARKS:
20
MR. BLUE:
21
22
23
24
25
Nothing further.
Nothing from the
plaintiff.
VIDEOGRAPHER:
The time is 2:59 p.m
and we're off the record.
(Time noted:
2:59 p.m.)
____________________________________
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EDWARD L. WHITE
3
4
5
Subscribed and sworn to before me
6
this___________day of __________2012.
7
________________________________________
NOTARY PUBLIC
8
9
10
11
12
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15
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21
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