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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2
3
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
25
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