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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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------x
EDWARD L. WHITE, P.C.,
Plaintiff,
vs.

No. 12-CV-1340 (JSR)

WEST PUBLISHING CORPORATION d/b/a
"WEST" and REED ELSEVIER INC.,
d/b/a LEXIS NEXIS,
Defendants.
----------------------------------------------------x

VIDEOTAPE DEPOSITION OF MARTIN S. HIGH, Ph.D.
Thursday, September 6, 2012
Oklahoma City, Oklahoma

REPORTED BY:
Becky C. Dame
Ref: 8096
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2
3

That's about it.
Q
updated?

4
5
6
7

10

Okay.
Thank you.

A

I can't comment on Ed's bio, but my bio,

that's -Q

8
9

That's the only thing that would be

Right.

Just your bio.

Okay.

And when did you -- when and how did you
first meet Ed White?
A

Ed was a student at Oklahoma State and

11

graduated before I started at OSU, but knew of Ed,

12

you know, as an alumni at the university.

13

his brother in some of my classes at OSU, so he and

14

I have had a long relationship since the '80s,

15

almost.

16

knew him, if that makes any sense.

17
18
19

Q

Also, had

So our relationship started before I even

Okay.

And when did you start performing

work for Ed White, P.C.?
A

I served as an expert on some of Ed's

20

cases, roughly, I'd say, 2002, 2003, give or take a

21

couple of years.

22

started working as an expert for him.

23
24
25

Q

I'm not exactly sure when I

And at what point did it evolve from

expert?
A

When I started going to law school, Ed
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2
3
4

THE WITNESS:
BY MS. ABRAMSON:
Q

Is it indicated on either of the two

documents that you're a coauthor?

5
6

I believe so, yes.

MR. BLUE:

Objection.

The documents speak

for themselves.

7

You can answer.

8

THE WITNESS:

9

My name is on the pleading,

so, obviously, at the very least, I agree with the

10

information that's in the pleading.

11

listed as author on the document, no.

12

BY MS. ABRAMSON:

13

Q

If my name is

So if you -- are there instances where

14

your name might be on a pleading where you were not

15

a coauthor?

16

MR. BLUE:

Objection.

17

THE WITNESS:

If I was listed as a

18

co-counsel in a case and a co-counsel wrote the

19

document and I agreed with the information in the

20

pleading, yes, I think it would not only be

21

appropriate, but I think it would be necessary if my

22

name were on the document as a co-counsel.

23

BY MS. ABRAMSON:

24
25

Q

Okay.

And just to go back one second.

We were talking about being a coauthor on
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the pleadings.

2

talking about the two works at issue in this case.

3

A

I just want to clarify that we're

I was asking your question more in the

4

abstract, but I think that abstract is applicable to

5

these documents as well.

6
7

Q

That you would consider yourself a

coauthor of the two works --

8

A

Yes.

9

Q

Okay.

And have you ever coauthored a

10

brief where you were not listed on the cover page or

11

on the signature block?

12

MR. BLUE:

I'm sorry.

13

question back, please?

14

THE WITNESS:

Can you read the

15
16

Yes.

For me, too.

BY MS. ABRAMSON:
Q

Sure.

17

Have you ever coauthored a brief or a

18

legal document where you were not listed on the

19

cover page for the signature block?

20

MR. BLUE:

I have a continuing objection

21

to the use of the phrase "coauthored" in the sense

22

that it's ambiguous whether you're talking about in

23

the legal sense or in his common understanding.

24

My understanding is that Dr. High has been

25

answering this based on his common understanding and
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more questions.

I just want to go back to High

2

Exhibit 6 for a minute.

3

A

Okay.

4

Q

I didn't get a chance to do this earlier,

5

but I would like for you to look over your affidavit

6

on the back and confirm that it's accurate.

7

A

Any particular paragraph?

8

Q

All of them.

9

Thank you.

10

A

I believe it's accurate, yes.

11

Q

Okay.

12

You can take a moment.

Thank you.

Okay.

And this is something that we've gone over

13

already with Mr. White, but I would just like to

14

confirm it with you.

15

The summary judgment motion that we looked

16

at earlier in the Beer litigation, that wasn't

17

created for the purpose of licensing the work, was

18

it?

19

A

No.

20

Q

Okay.

And the same being the Motion in

21

Limine, was it created for the purpose of licensing

22

the work?

23

A

It was not.

24

Q

We discussed this, but if anyone were to

25

license either of those two works, you would not be
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MR. BLUE:

Objection.

2

You can answer.

3

THE WITNESS:

Asked and answered.

To the extent that I

4

received a promise of future compensation for the

5

ultimate disposition of the cases, yes, but I didn't

6

receive compensation over and apart from that, no.

7

BY MS. ABRAMSON:

8
9

Q

Okay.

Has anyone ever offered to buy or

take a license to a legal document that you created?

10

A

No.

11

Q

Has anyone ever bought or taken license to

12

a legal document that you created?

13

A

No.

14

Q

Have you ever offered to sell or license a

15

legal document that you created?

16

A

No.

17

Q

Have you ever sold a license to anyone a

18

legal document that you created?

19

A

No.

20

Q

Okay.

And you mentioned earlier that you

21

believe that there is a market to sell legal

22

documents after they were filed in court; is that

23

correct?

24

A

Yes.

25

Q

And what is that belief based on?
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4
5

A

Because probably for the simple fact that

Lexis Nexis and Westlaw sell them.
Q

And when did you become aware that Lexis

and Westlaw sell them?
A

I -- I -- no later than the ABA Journal

6

article when I learned about the litigation, but I

7

believe I've seen the fact that briefs were

8

available through one of the two providers through,

9

you know, the reams and reams of literature that you

10
11
12
13

get from Westlaw and Lexis.
Q

And are you aware of a market other than

in Lexis or Westlaw for the legal documents?
A

I, generally, know that attorneys, you

14

know, are interested in seeing what other attorneys

15

have done in a particular case or how they've

16

written a particular filing or a particular

17

pleading, so, yes.

18
19

Q

Are you aware of any attorney ever paying

for or licensing a legal document?

20

A

I am not.

21

Q

Okay.

22
23
24
25

MS. ABRAMSON:

That's all the questions

that I have.
MR. GERBA:

Can we just take two minutes

and we'll switch places?
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the facts in the noted places."

He also says, "You

2

also need to bolster the legal framework as noted";

3

correct?

4

A

Correct.

5

Q

I'd like to mark as White Exhibit 8 a

6

document Bates numbered P00442 to P00453.

7

(Exhibit 8 marked for identification)

8

MR. BLUE:

9
10

I think, John, you might have

said "White Exhibit."
BY MR. GERBA:

11

Q

High Exhibit.

12

I'm sorry if I did.

Do you recognize this document, Dr. High?

13

A

I do --

14

Q

And --

15

A

-- in that I recognize that it's a --

16

obviously, a Motion for Summary Judgment in the XTO

17

case.

18

Q

And do you believe that this is a draft of

19

Exhibit 3?

20

A

Well, I hope it's just a draft that we

21

didn't file this with all the blanks in it, so --

22

yeah, I would assume it's a draft.

23
24
25

Q

If I could direct you to Page P00446.

you see Paragraph 5?
A

Yes.
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Q

It says "The named plaintiffs' wells are

2

both subject to the 80 percent contract."

3

that, in brackets, it says "Add proof."

4

And after

that?

Do you see

5

A

Yes.

6

Q

Do you have any understanding of what the

7
8
9

"Add proof" indication was there for?
A

I suppose that what that is is Ed's

comment to me to get into the exhibits and contracts

10

involved in the case to add citations supporting

11

that representation.

12
13

Q

And if I could have you turn to Page

P00447.

14

A

Okay.

15

Q

And there, under the Legal Framework,

16

again, there's a bracketed section that says "Add

17

discussion to show:

18

sale between a controlled company; and, two,

19

defendant has burden to plead and prove any

20

deductions to be taken.

21

Kansas and Oklahoma."

22

One, can't base royalties on

Need separate analysis for

Do you see that?

23

A

Yes, I do.

24

Q

Do you have an understanding as to what

25

that indication is?
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A

Again, I believe that's a notation from Ed

2

to me asking to include case citations, argument,

3

that support those propositions.

4
5

Q

And that's what the Legal Framework

section refers to?

6

A

Exactly.

7

Q

You would agree with me that the Legal

8

Framework is a fairly important section of the legal

9

brief?

10

A

It certainly is.

11

Q

And if you could look at Page P00448.

12

There's -- at the bottom of the page, there's a

13

heading.

14

in brackets, it says, "Amend to incorporate class

15

definition adopted by the Court in its order."

16

It says "Class definitions," and, again,

Do you see that?

17

A

I do.

18

Q

Do you have an understanding about what

19
20

the language in the brackets there refers to?
A

A similar contention.

It's probably a

21

notation from Ed to me to add that information to

22

the pleading, to the brief.

23

Q

So what I'd like to do now is mark as High

24

Exhibit 9, the document Bates No. P00392 through

25

P00409.
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A

Correct.

2

Q

And in its place, if we look at P00398,

3

P00399, P00400, P00401, P00402, you have now added

4

the -- what is now called the Arguments and

5

Authority section of this brief; is that correct?

6

A

Correct.

Assuming, again, that I'm -- I

7

believe it's correct, your premise that I'm the one

8

that edited, deleted, and then added, and I believe

9

that's correct.

10
11

Q

That's all I'm asking for is what your

belief is about that.

12

A

That's my belief as well.

13

Q

I'd like to mark as High Exhibit 10 a

14

document that's Bates numbered P00425 to P00441.

15

(Exhibit 10 marked for identification)

16

BY MR. GERBA:

17

Q

Do you recognize this document?

18

A

It looks like it's another version of the

Q

And that's Exhibit 3, right, another

19
20
21

MSJ.

version of Exhibit 3?

22

A

Exactly.

23

Q

And, again, do you have any understanding

24

with me about this document about whose edits are

25

reflected?
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2
3

A

Just flipping through here, I don't have

any indication whether this is my edits or Ed's.
Q

Can you take a look at Page P00430, the

4

bottom third of the page, there's a comment

5

indicated on the right and in brackets it says

6

"MSH1."

Do you see that?

7

A

Yes, I do.

8

Q

Does "MSH" refer to Martin S. High?

9

A

That would be me, correct.

10

Q

So do you believe at least some of the

11
12

comments and editing here would be from you?
A

At least -- at least some.

At least that

13

one, for sure.

14

with Word.

15

these comments, I can't -- I can't say conclusively

16

whether all of the deletes and additions were from

17

me or just some of them, but, obviously, you know,

18

some of them were, at least that comment is.

19

Q

Again, it's hard -- I am familiar

I know how Word works, but looking at

Let's turn to Page P00434, and towards the

20

middle of the page, it says "Proposition 3.

21

Underpayment of royalties is readily determined."

22

Do you see that?

23

A

Yes, I do.

24

Q

And after that, it has what appears to be

25

three paragraphs that continues onto Page 435,
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information that was added.

2

A

Yes.

I see that.

3

Q

And back on 434, on the right, towards the

4

bottom, there is an indication that says Deleted.

5

Add specific discussion tied back to your UMF No.

6

7."

Do you see that?

7

A

Yes.

8

Q

Do you have any recollection of whether

9

this insertion was yours, whether you put in this

10

text here?

11

A

12

Whether I put in the text, "Add specific

discussion tied back to UMF No. 7"?

13

Q

14

about that.

15

I'm sorry.

I'll reask.

Let's be clear

Let's start with this first:

Do you

16

remember if Mr. White ever asked you to add specific

17

discussion tied back to UMF No. 7 in this section?

18

A

I don't remember that specific request.

19

Q

Thinking back on it, sitting here today,

20

do you think this would have been something that

21

Mr. White was asking you to do?

22

A

I would -- based on the way we have worked

23

on this document, I would say that that was a

24

request by Mr. White to me, yes.

25

Q

And then, starting on Page P00434 and
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continuing on 435, the underlined text there for the

2

next three paragraphs, would you believe that that

3

was, then, text that you added?

4

A

I believe so, yes.

5

Q

And if we could look down at the bottom of

6

Page P435, there's's another indication on the right

7

that says "Deleted prop IV, add damages discussion."

8

Do you see that?

9

A

Correct.

10

Q

Do you believe that that was Mr.

-- that

11

text previously in there, which was now being

12

deleted, was Mr. White asking you to add a damages

13

discussion?

14

A

I would assume that that's the case, yes.

15

Q

And then there is two paragraphs that were

16

added under that heading on 435 and continuing on

17

436.

18
19

Do you believe that that would have been
text that you added to the brief?

20

A

Correct.

21

Q

And then it continues -- the bottom there,

22

you can see on page -- I'm sorry -- 436, in the

23

middle, it says "Deleted Prop V.

24

class damages."

25

A

Add preview of

Do you see that?

Now I'm not with you.

Tell me again which

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page number?

2

Q

436, P00436.

3

A

Okay.

4

Q

About midway down the page.

5

A

Yes.

6

Q

It says "Deleted prop V.

7

Add preview of

class damages."

8

A

Okay.

9

Q

Do you see that?

10

A

Again, if this particular document

11

proceeded in the way that we're assuming, that --

12

that would be Ed's request of me to add this

13

particular material.

14

Q

15

P436 to 437.

16

paragraphs of added material.

17

And then it goes on for the next page,
Again, it looks like there's two

Do you see that?

18

A

Yes.

19

Q

And do you believe that that -- you know,

20

judging by the normal way you and Ed would work,

21

that this was text you added?

22

A

Correct.

23

Q

And then if we can look on Page P437.

24

A

Yes.

25

Q

About midway through the page again, it
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says on the right, "Deleted," and in brackets "Add

2

specific discussion tied back to UMF No. 7"?

3

A

Yes.

4

Q

And, again, do you believe that that's Ed

5

asking you to add that part of the brief?

6

A

I believe so, yes.

7

Q

And, again, there's underlying text that

8

goes on from P437 to P438, and do you believe that

9

that text is what you added in response to Ed asking

10

you to add specific discussion tied back to UMF No.

11

7?

12

A

Given, again, how this document would have

13

been initiated and Ed making suggestions on what we

14

needed to add, yes.

15

Q

There's a significant amount of text that

16

we've discussed that's underlined and added in this

17

draft that you said, based upon how you and Ed

18

normally work, you would have added to the draft;

19

right?

20

A

That's correct.

21

MR. BLUE:

Objection.

22

THE WITNESS:

23

MR. GERBA:

That's correct.
I'd like to mark as High

24

Exhibit 11 the document Bates numbered P00464 to

25

P00494.
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JURAT

2

WHITE VS WEST PUBLISHING ET AL

3

I, MARTIN S. HIGH, Ph.D., do hereby state

4

under oath that I have read the above and foregoing

5

deposition in its entirety and that the same is a

6

full, true and correct transcription of my testimony

7

so given at said time and place.

8
9
10

_________________________________

11

Signature of Witness

12
13
14

Subscribed and sworn to before me, the

15

undersigned Notary Public in and for the State of

16

Oklahoma by said witness, MARTIN S. HIGH, Ph.D., on

17

this ________day of__________________, 2012.

18
19
20
21

_________________________________

22

NOTARY PUBLIC

23

MY COMMISSION EXPIRES:___________

24

JOB #8096

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