Filing 42

TRANSCRIPT of PRELIMINARY INJUNCTION HEARING held on 4/14/09, before Judge FULLAM. Court Reporter/Transcriber DENNIS TAYLOR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/26/2009. Redacted Transcript Deadline set for 6/5/2009. Release of Transcript Restriction set for 8/3/2009. (jl, )

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RUDOVSKY et al v. WEST PUBLISHING CORPORATION et al Doc. 42 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA --: CIVIL ACTION : NO. 09-CV-727 : Plaintiffs : : vs. : Philadelphia, Pennsylvania : April 14, 2009 WEST PUBLISHING CORPORATION, : et at. : : TESTIMONY OF WITNESSES AT Defendants : PRELIMINARY INJUNCTION : HEARING ----------------BEFORE THE HONORABLE JOHN P. FULLAM UNITED STATES DISTRICT COURT JUDGE APPEARANCES: For the Plaintiffs: RICHARD L. BAZELON, ESQUIRE BAZELON, LESS & FELDMAN, P.C. 1515 Market Street, Suite 700 Philadelphia, Pennsylvania 19102 JAMES F. RITTINGER, ESQUIRE SATTERLEE STEPHENS BURKE & BURKE 230 Park Avenue New York, New York 10169 DAVID RUDOVSKY, et al. For the Defendants: --ESR Operator: Dennis Taylor --TRANSCRIBED BY: Drummond Transcription Service Haddon Heights, New Jersey 08035 Proceedings recorded by electronic sound recording, transcript produced by computer-aided transcription service. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The proceedings held in open Courtroom 15A from 1:42 p.m. until 2:18 p.m. have been previously transcribed and are filed under separate cover.) *** (In open court at 2:18 p.m.) MR. BAZELON: Yes, your Honor. I'd like to call my first witness, Douglas Frenkel. THE COURT: You're going to have to call him louder, Oh, there -- because I don't think he heard you. MR. BAZELON: THE COURT: Here he is. The record will note that the witness just handed counsel his testimony in written form, apparently. (Laughter.) MR. FRENKEL: ESR OPERATOR: Good afternoon, sir. Please raise your left hand -- please place your left on the Bible and raise your right hand. DOUGLAS FRENKEL, PLAINTIFF WITNESS, SWORN. ESR OPERATOR: last name, sir. THE WITNESS: ESR OPERATOR: MR. BAZELON: Douglas Frenkel, F-r-e-n-k-e-l. Thank you. With the Court's permission, I would Please state your name and spell your propose to mark Mr. Frenkel's CV as Plaintiff's Exhibit 1. THE COURT: MR. BAZELON: Go right ahead. Can I put a sticker on it or should I Douglas Frenkel - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. BY MR. BAZELON: Q. out. leave this -THE COURT: MR. BAZELON: MR. RITTINGER: Any -- any way you want to do it. All right. Thank you. 3 Your Honor, could we have an offer of proof as to what he's going to testify to, I don't know who he is? THE COURT: I think it will be faster just to find Maybe, you can whisper what he -- what you're planning to do with him. (Discussion held off the record at 2:19 p.m.) MR. RITTINGER: Well, your Honor, I -- your Honor, I have no idea what relevance he would have to a preliminary injunction hearing. THE COURT: I don't know, let's find out. DIRECT EXAMINATION Go ahead. Mr. Frenkel, can you identify for us, please, what has been marked as Plaintiff's Exhibit 1? THE COURT: That's his curriculum vitae, go ahead. All right. MR. BAZELON: And did you, Mr. Frenkel, have a role in connection with the West Practice Series and the origination of the West Practice Series for Pennsylvania Law? A. Q. I did. And can you tell us about when you began to have some Douglas Frenkel - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. involvement with respect to what came to be the West Practice Series? A. Q. It was -- it would have been in the mid-1980s. What were you asked to do by West, if anything? MR. RITTINGER: THE COURT: Objection. 4 Objection overruled. I was asked by a representative of West whether I could assemble a team of practitioners in Pennsylvania to serve as authors of a new series of form books with commentary that they wanted to come out with in a variety of subject matter areas. Q. What did you -- and what was your response to West? MR. RITTINGER: THE COURT: Objection. I'll bet he accepted. Let's -- he can go through this rapidly but these are not disputed facts, I take it, so let's get moving. A. My response was after thinking about it a bit, that this is something that I would be happy to try to do on their behalf and I did that. Q. A. What -- why did you undertake this assignment? Well, for a few reasons -MR. RITTINGER: THE COURT: Objection. It's a Let's find out, it will be faster. waste of time, but let's waste as little time as possible. A. I took -THE COURT: Go ahead. Douglas Frenkel - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. -- I took on the assignment for several reasons. First of all, I was a relatively new faculty member and one of the institutional expectations on me was to contribute to the development and improvement of the law in a variety of ways. And this was obviously something relevant to 5 -- to my work at the university. Number two, I thought that what they wanted to do was something that was needed. They -- West -- had expressed a desire to -- to do -- to put something out there on the market that was better than what was out there at the time. And I -- I said that I'd be interested in doing this but only if this could be -- what I thought -- was a quality combination, not only of forms but of text that would represent the best thinking of practitioners in the field, because I -- if I was going to be associated with this and put it on my CV, that's -- that's the kind of project I wanted to be involved in. Q. Did you express your purpose as you've just described it to West at the time? A. Q. Directly, yes. And did there come a time when you approached Professor Rudovsky about the possibility that his -- his becoming an author in the series? A. Yeah. Once -- once we decided to go ahead with this, David Rudovsky, in fact, was the first practitioner I approached as I Douglas Frenkel - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recall. Q. A. Why did you choose David Rudovsky? 6 Well, criminal procedure was one of the nine or ten subject And I knew matters that West wanted to cover in the series. David Rudovsky and, frankly, he was -- in my view -- the leading practitioner of the quality that I was looking for statewide. His name was very well known in both criminal defense and prosecution circles. I thought that he -- his name -- attached to a book like this would, frankly, be a good seller because I thought both sides of -- of a criminal case would want to know what David Rudovsky thought. And I also thought -- and knew -- of his writing, that he was a prolific author, he had -- I believe at the time -done a book on prisoners' rights, if I recall correctly. I had read -- I had read stuff that he has written in a more academic context. And, perhaps, most importantly, in combination with all of these things, I knew he would do the job, if he said he was going to do it, he would do it and he would bring the level of quality I was looking for. Q. A. Q. A. And did you ask Professor Rudovsky to take this on? I did. And I take it, he responded affirmatively? Well, I don't recall specifically -THE COURT: I'm going to -- I'm going to -- Douglas Frenkel - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: You may step down. Q. BY MR. RITTINGER: Q. A. First of all, this was in the 1980s, is that correct? That's correct. THE COURT: That's what he said. Right. A. -- he obviously -- obviously undertook it and at some 7 point, he affiliated with Professor Sosnov. MR. BAZELON: THE COURT: I have no further questions, your Honor. I don't appreciate the waste of time. Anything -- any questions? MR. RITTINGER: THE COURT: Just a couple, your Honor. Go ahead. CROSS-EXAMINATION MR. RITTINGER: Has any -- has anyone complained to you at any time -- have you heard anyone complain -- other than the plaintiffs and their attorney about the quality of the supplement, the 2008/2009 supplement? MR. BAZELON: THE COURT: but we'll let it in. A. No, no one has. (Pause at 2:25 p.m.) MR. RITTINGER: No -- no further questions, your Objection, your Honor, no foundation. Well, that's not proper cross-examination, Go ahead. Douglas Frenkel - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I take it you haven't made a practice of consulting with the practicing Bar as to whether they approve of this or not? THE WITNESS: THE COURT: THE WITNESS: THE COURT: Approved of? The supplements? Ah, well -Have -- have you discussed with any 8 practicing lawyers in Philadelphia whether the supplements are good or bad? THE WITNESS: Ah, I can't speak to the supplements, Judge, but the books have been very well received. THE COURT: THE WITNESS: THE COURT: Well, I know but not the supplements? I can't -- I can't say I have. Didn't think so. Go ahead. You may step down. THE WITNESS: Thank you. (Witness excused at 2:26 p.m.) MR. BAZELON: ESR OPERATOR: Professor Rudovsky. Good afternoon, sir. DAVID RUDOVSKY, PLAINTIFF, SWORN. ESR OPERATOR: Thank you, sir. Please spell your name -- state your name -- and spell your last name, sir. THE WITNESS: ESR OPERATOR: David Rudovsky, R-u-d-o-v-s-k-y. Thank you. David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document? A. Q. It was sent to my office some time in December of 2008. BY MR. BAZELON: Q. Mr. Rudovsky, I'm going to -- Dr. Rudovsky -- I'm going to harm. (Pause at 2:27 p.m.) DIRECT EXAMINATION ahead. I'm particularly interested in irreparable immediate MR. BAZELON: 9 Your Honor, Plaintiff's Exhibit 2 is the CV for Professor Rudovsky. THE COURT: And we will assume that if he were asked questions, he would repeat what's in it -MR. BAZELON: THE COURT: Yes. -- and that it would all be true. Go ask you the -- to turn your attention to the 2008/2009 packet part that was sent out by West in December of 2008. Can you tell the Court when you first saw this And did you -- how soon after that did you look through the document? A. Within a couple of days, I looked at it just to review it to see what it was. The background was that we had told West we were not in a position to prepare that pocket part after having done it for some eighteen years. David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And it was sent to us, anyway and I looked at it within a couple of days of receiving it. Q. What if anything did you learn about deficiencies in this 10 pocket part? A. Well, what I did -- and this is what I learned -- I looked at it -- I -- I was just curious to see what kind of job they had done. So, I looked at several sections where I knew there had been a fair amount of activity by the Pennsylvania courts, post-conviction, sentencing, appeals were three I think I looked at, because I was aware of certain cases that had come down which surely should have been included in any new supplement or packet part and when I looked, they weren't there. that somewhat curious and unsettling. I then -- what I did was looked at the table of cases in the back just to kind of eyeball it to see if there were any cases from 2008, because normally on the cycle we prepare our pocket parts, you would have 2007 and 2008 cases. I looked at all those cases and I -- I think -- I didn't see a single case cited with a 2008 date, which meant to me they had missed or had decided not to include scores of cases decided by the appellate courts relating to the material in the book. I then went a little bit further and -- and kind of compared the table of cases from the 2007 pocket part, which Mr. So, I found David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Sosnov and I had prepared and compared it to the table of cases for the 2008/2009 pocket part. And on my first review, I think I found one or two additional cases, that is of the hundreds of cases that we had already included, it appeared to me that there were -- on first glance -- one or two additional cases that had been included. It turned out on further review, we were able to determine that all they had included were three new cases, none of them particularly significant, two in a string cite and one with a parenthetical description, it didn't -- it didn't add anything to the -- the pocket part. And then, I and Mr. Sosnov also had occasion to look at cases where we knew that the Pennsylvania Supreme Court had actually reversed lower courts, either, Common Pleas Courts or the Superior Court to determine whether this pocket part would include -- what we call -- that negative case history. That -- that there had actually been reversals by the highest court in Pennsylvania and we looked at a number of cases that we were aware of in which those reversals had occurred and none of them were in the book. And -- and, essentially, what I found was that what had happened -- in our view -- was that the pocket part that was mailed out called the 2008/2009 pocket part, was almost verbatim -- again, with a couple of added cases and a couple of citations to rules -- but virtually verbatim which had been sent out under David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well. our names a year and a half previously or a year previously which we had done. 12 It -- it had, basically, they'd put a different cover on it, 2008/2009 instead of 2007/2008 and -- and that's what they did. Q. Very upsetting. Professor Rudovsky, when you and Professor Sosnov prepared an annual pocket part -- which I take it you had done for a number of years before 2007/2008, is that correct? A. Q. Yes, sir. Approximately, how many new cases each year did you include in the new pocket part? A. Finally, including -- we -- we included anywhere from a hundred to a hundred and fifty, sometimes, more new cases. We would read every case that was decided by the appellate courts in Pennsylvania. We read every case in this field, decided by the U.S. Supreme Court and some selected federal cases. We followed rule changes as well, statutory changes as We did that during the year, we accumulated all of that. And then, when we distilled it and added material to the pocket part, our best estimation is that we added up to a hundred and fifty new cases each year. Some were just in a string cite, it gives another authority for an established proposition. Many were new -- new principles of law or different principles of law, building on David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. to date. Q. Now, Professor Rudovsky, can you identify for the Court, say that. what had happened before. part. We would explain that in the pocket 13 Some were questionable decisions in our mind, we would Some left issues open, we would say that. In other words, we'd try to bring the pocket part up the cases which were cited in the prior year -- 2007/2008 -pocket part, that had been reversed by the Pennsylvania Supreme Court in the succeeding year but were not shown as having been reversed by the Supreme Court in the 2008/2009 pocket part? A. They -- I can't -- from memory, they are in the amended complaint, I believe, we listed the -Q. Let me -- can I show you the amended complaint, Paragraph 26 and ask you if this refreshes your recollection? A. Yes. MR. BAZELON: THE COURT: May I approach, your Honor? Go right ahead. Yes, to my best recollection, these were the cases that on our initial review, we found were not covered by the -- by the 2008/2009 pocket part where the Pennsylvania Supreme Court had actually reversed decisions of the Superior Court or the Common Pleas Court. I should say, this was a sample, this was not an exhaustive study. Since then, we've found some additional ones, David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but on -- on our first take on this -- and I think we made it 14 clear to -- to West -- this was a sample of cases in which they did not advise the subscriber that cases they had previously cited -- or we had previously cited -- had been overturned on appeal. THE COURT: THE WITNESS: And how many cases were there? There were -- there were six of these that -- I believe -- one, two, three, four -- actually, we -- we had seven, because one was just noting than an allowance of an appeal had been granted, it hadn't yet been ruled on but -- but the Pennsylvania Supreme Court had granted a review. So, there were six reversals and one cited in the complaint where the Pennsylvania Supreme Court granted a review, but it had yet decided the case. Q. And since that time, have you become aware of at least one additional case that was cited in the 2007/2008 pocket part -A. Q. Yes. -- that was reversed in the succeeding year and not cited for having been reversed in the 2008/2009 pocket part? A. Yes. And -- yes, we did. There's a case -- I'll give the citation -Commonwealth versus Holmes, the citation is 933 Atlantic 2nd, 57, again, this was another case that had been previously cited from the Superior Court. The Supreme Court in 2007, October reversed in large David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 part the Superior Court. This also was not included. 15 And I might add that in the new pocket part -- which has just been published -- it's not referenced, either. And so we have it even with the new pocket part, we have a case from the Pennsylvania Supreme Court reversing a Superior Court decision, this new pocket part that was sent out over this weekend makes no reference to it. THE COURT: (Laughter.) THE WITNESS: THE COURT: I -- I refused to answer that question. Okay. Your Honor, I'm sorry, I missed that? And which court do you think was correct? MR. RITTINGER: I -- I missed your comment, I'm sorry, your Honor. THE COURT: I just asked him which court was correct? Oh. MR. RITTINGER: THE COURT: BY MR. BAZELON: Q. It was a joke. Professor Rudovsky, in addition to cases that were reversed that had been cited in a prior pocket part, but the reversal had taken place in the next year and were not referenced as such, did you find that there were cases that had been cited in the prior pocket part which had been affirmed by opinion of the Pennsylvania Supreme Court in the succeeding year where -- where that was not noted? A. Yeah. David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 I did and I just might as well, of the six cases that had been reversed and were not included in the original pocket part sent in December, one of them is a case called Commonwealth versus Leigh, 935 Atlantic 2nd, 865, that too was not included in the new pocket part, even though we had specifically advised West of that fact. pocket part. To answer your question directly, we found two cases in which the Pennsylvania Supreme Court granted a review and affirmed the lower court -- so I'll give you both of those citations -- the reasoning was somewhat different, the Pennsylvania Supreme Court adopted its own reasoning in its affirmance, but neither of those cases were cited in the 2008 pocket part and they're not in the new pocket part, either, the pocket part that's just been sent out. And I'll give you the two cases, one is Commonwealth versus States, S-t-a-t-e-s, 938 Atlantic 2nd, 1016 and the other is In the Interest of J period, E period, 937 Atlantic 2nd, 421. As I say, both cases affirming the Superior Court -using somewhat different reasoning but affirming -- but neither Supreme Court case included in the 2008 pocket part that went out or the most recent, the 2009 pocket part. Now, I haven't had time to go through all -- you know -- four hundred pages, but just on a cursory review between last night and tonight, we have found four Supreme Court cases highly They didn't even correct that in the new David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. pertinent to our work that are not included in what has just been sent out to subscribers. (Pause at 2:39 p.m.) BY MR. BAZELON: Q. 17 Why is it important, Professor Rudovsky, to cite a Supreme Court of Pennsylvania affirmance, if all it's doing is affirming the opinion below -- or the holding? MR. RITTINGER: THE COURT: Objection, your Honor. Objection overruled. I think two primary reasons. Oftentimes, an appellate court even when they affirm will adopt their own reasoning, it wouldn't be the affirmances of the judge, you often have different kinds of reasoning, different kinds of rationales. The second one is more practical, that's the end of the issue as far as Pennsylvania is concerned, the issue was decided by the Superior Court, there's still an argument that might get reversed. I can't imagine a practitioner wouldn't want to know that the Supreme Court has finally talked authoritatively on a particular issue and that's why it's important. THE COURT: You would agree that a practitioner might even go so far as to Shepardize? THE WITNESS: Honor, that's correct. And probably should Shepardize, your David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BAZELON: Q. Professor Rudovsky, you mentioned in your testimony rules 18 changes, can you tell us what you meant by that? A. Yes. Well, I mean, the treatise, obviously, is -- concerns Pennsylvania Criminal Procedure, a lot of that is governed by Rules of Court. Both the Pennsylvania Rules of Criminal Procedure, there are Rules of Juvenile Procedure, there are Rules of Appellate Procedure, sometimes, there are Rules of Evidence that interrelate as well. All of which we cover. There are Rules of Habeas Corpus, we have a section -- we have a chapter on federal habeas corpus litigation. So, there are rules that govern all those areas and what we've done over the years -- both in the main volume and in the pocket part -- is to alert the reader to changes in those rules. Q. And I take, Professor Rudovsky, that it's not just a -- that not referring to a reversal or a granting of a petition for review, is not simply a matter of the citation, itself, but it also affects the discussion that takes place within the text? A. Well, that's right. I mean, the -- the Judge did say, you could always Shepardize although I'm not sure why you'd need a treatise, you could always take an original case and go from that. What West wanted from us and what we set out to do David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. starting in 1991 when we first -- or 1990 -- when we first published this book, is to give the practitioner, not just a 19 list of cases in each area but a discussion of those cases, what the cases mean, how the law is developing, what issues are open, what arguments could still be made, notwithstanding certain decisions from both sides, prosecutor or defense. And, indeed, when you look at our pocket parts, we try to integrate that. So, if a major case came down, we just wouldn't say, the Supreme Court has decided this issue in X, we would then explain what the Supreme Court did including all those other factors that as a lawyer, you'd want to know, Shepardizing it, wouldn't necessarily give you that. Q. What kind of feedback have you gotten over the years, Professor Rudovsky, in connection with your authorship of this treatise? MR. RITTINGER: THE COURT: Objection. Objection overruled. We've gotten comments, questions, feedback from a variety of sources, I think the subscribed list includes defense lawyers, prosecutors, judges, prison-law libraries, universitylaw libraries and the like. Leonard and I have fielded -- probably over the years -- hundreds of -- of kind of inquiries or comments. about this case, can you give me some more advice? You talked You know, something like that, 'cause they'd pick something up in the David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. issue. So, when lawyers look at a particular issue, sometimes, they comment on it, sometimes, they say, you did a treatise. 20 I get letters from inmates all the time, who use this as a reference book in pro se litigation. I've had comments from prosecutors about a certain good job, that's a good analysis, other times, they just ask us a question. But there's -- there's kind of a constant -THE COURT: I think he wants you to brag about how mostly they're favorable comments. (Laughter.) MR. BAZELON: Thank you, Judge. I would say over the years, that -- that the comments have been favorable, some are just inquiries but I -- I don't -- I can say this thing, I've never gotten a negative comment in the sense that this isn't up to par. And I can also say that in eighteen years of producing the -- our producing -- both the main volume and the pocket part, we have never in eighteen years gotten a negative comment from the West ever. That is, everything we've sent in to my They never come back and said, knowledge, they've published. substantively, you missed a case, you -- maybe, you ought to consider this. They've basically taken what we've sent in and David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. -- and published it. (Pause at 2:44 p.m.) BY MR. BAZELON: Q. 21 Professor Rudovsky, what is the relief that you are asking the Court to provide? A. that. I -- I think we do want -- and it sounds like West is agreeable on the West Law, that people who access this electronically, ought to know that Ms. Sosnov and I are no longer associated with the book. We stopped our work as of 2000 Oh, wait a minute, could you -- I think the Judge has heard -- 2007/2008 and any of the updates are being done by someone else. The other thing we're asking for and I think it's -it's also important, is that current subscribers ought to know not only that we are no longer associated with the publication of the book, that it's being produced only by West -- you know -- internally by -- by their own authors. But they have a right to the extent they've relied in this book because they have confidence in the work that Mr. Sosnov and I have done, that they have a right to return it and -- and not use it any more. I mean, that's -- that I think is what is necessary at this point, at least, that's what we're asking the Court to do. (Pause at 2:46 p.m.) Professor Rudovsky, do you feel that the sale of the David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. means. MR. RITTINGER: THE COURT: I don't understand it -2008/2009 pocket part on or about December of 2008, was done with, either -- well, it was done with an expression by West that it was endorsed by you? MR. RITTINGER: THE COURT: Objection. 22 Objection overruled. I don't know what he I don't, either --- I'm sorry, your Honor, I -- I -- MR. RITTINGER: THE COURT: will clarify it. MR. RITTINGER: -- that makes two of us, maybe, the answer Right. Well, it -- it was clearly an endorsement in that sense, as I understand the question. When you -- if you received that 2008 supplement in December of 2008 -- which as I said, in our view totally incomplete and -- and inadequate -- as you've pointed out, the cover page of that listed Ms. Sosnov and I as the authors in bold print -- large print. And then, at the bottom -- I think -- with the assistance of the publisher's staff. I think any lawyer who received that would assume that Ms. Sosnov and I were the authors of that product. Somebody on the staff may have added something, but we continue to be -and, remember, people who got that pocket part, presumably, had David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the book for years, have known we've published the book for years, published the pocket part each year. 23 Clearly what -- in my view -- what West was saying is -- trading on our name -- saying, here's the new pocket part, it's as good as all of the other pocket parts, here's the law that you should know for 2007/2008. MR. RITTINGER: answer as not responsive. THE COURT: Oh, I think it's responsive. Objection Your Honor, I'd move to strike the overruled, it doesn't mean anything. MR. RITTINGER: THE COURT: Hmm? It's his view that since it's under -- the reader would understand he was responsible for what's in it, that's what you wanted to get, right? MR. BAZELON: BY MR. BAZELON: Q. And Professor Rudovsky, how did you feel about that, about Yes. having your name used that way? A. I -- I -- I -- it's -- it's the reason I retained you, I -I mean, I -- I can I -- I was -- we -- we were both stunned. use that word without exaggerating. I can't imagine that a publisher could put out something, charge somebody for it, use our names, when it was, I -- and -- and sham is the only word that comes to mind that actually describes it. David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 names. And I was immediately concerned -- quite frankly -not that people would have come up to me and complained -- but someone is going to look at that, rely on it as they have over the years, look at the pocket part, there's no change in the law. Sure and they Shepardize and maybe they'll find it, but if they do that, they're going to say, what are these guys doing? case. THE COURT: Would you agree then that you suffered They didn't alert me of a -- of a new Supreme Court There was nothing new other than these three meaningless citations in -- in this pocket part that gave the subscriber anything that was worthwhile. they had gotten the years before. It was the same as 24 And prominently displayed on that pocket part were our emotional distress as a result of this whole thing? THE WITNESS: I -- distress, I -- I would say -- I -- I won't categorize it as emotional distress, Judge, at -- at this point. I was -- I -- we -- we were both professionally stunned, quite frankly, that -- that our names were being used on a sham product. And that West which -- counsel is right, they have a very good reputation -- I -- I literally, couldn't believe it. David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And when I -- when I started to compare those cases, I said, I must be missing something. I went back and I went back and I 25 went and literally, they put out one year, what they had put out the year before with -- with no changes of any significance. BY MR. BAZELON: Q. I take it that in addition to the three new cases, did they also include some changes in the Rules of Criminal Procedure? A. There were -- there were references to new Rules of They also -- when they send out the pocket Criminal Procedure. part, they send out -- as -- as another part of the package -the Rules of Criminal Procedure, which I assume were updated, that's just a separate package, you pay separately for, another fifty dollars or whatever that -- that goes out with it. I don't recall -- I could be wrong on this -- I don't recall any commentary on the new rules, they may have cited the rules, not even an indication that the rule was changed. They clearly did not make any changes in Juvenile Rules which were significant and Rules of Appellate Procedure which were significant, no changes in those rules even though there had been rule changes. THE COURT: MR. BAZELON: THE COURT: May I ask a -That's all I have, your Honor. -- stupid question No. 17? Does everybody who purchased the original publication, does everybody purchase the annual pocket parts in your David Rudovsky - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 understanding? THE WITNESS: My understanding is when you purchase 26 the book, you agree by -- with West -- that you'll be sent the pocket part automatically as a subscriber. cut off your subscription at any time. But I -- I think the practice is, if you had subscribed, let's say, in 2004, you would have gotten the volume and then, each year, you would get the pocket part and then, you'd be billed for the pocket part. THE COURT: THE WITNESS: -- of the way it worked. THE COURT: MR. BAZELON: MR. RITTINGER: It's your turn. Nothing further. Thank you, your Honor. Okay. Thank you. You can certainly That -- that's my understanding of the Your Honor, is it all right if I use the podium? THE COURT: Sure, anywhere you want. Thank you. MR. RITTINGER: Your Honor, I'd like to mark the customer letter dated 2009 as Defendant's Exhibit -- you got my letters, I guess? THE COURT: Anyway you want to do it. (Pause at 2:52 p.m.) MR. RITTINGER: yourself or a copy for -THE COURT: I don't care, as long as I have access to Your Honor, do you want a copy for David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. RITTINGER: Q. get -(Discussion held off the record.) CROSS-EXAMINATION witness? THE COURT: MR. BAZELON: MR. RITTINGER: Yes, of course. Are you providing counsel a copy? It's the copy of the letter, you'll one. DEPUTY CLERK: MR. RITTINGER: THE COURT: What is it? Defendant's Exhibit A? 27 It's best to mark your own exhibits. Your Honor, may I show this to the MR. RITTINGER: Now, this customer letter was submitted with your papers on the motion for a preliminary injunction, isn't that correct? A. Q. I believe that's correct, yes, sir. And in response to counsel's question as to how you were being irreparably harmed today and what you wanted -- the irreparable harm stopped, you said, that you wanted people to know that you are no longer associated with the work, isn't that correct? A. That's part of what we wanted, that's correct, that's right. Q. That's one of the things. And this letter specifically so advised subscribers, David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. isn't that correct? A. It does indicate -- that's right -- it does state that we 28 did not participate in the 2008/2009 pocket part. Q. All right. And that you're no longer going to be associated with the work -A. Q. That's correct. -- isn't that correct? All right. So, West already did that, isn't that correct? They did that. Okay. And you also said the second part of the preliminary injunctive relief that you want is, you want people who paid for what you call, the sham publication to be reimbursed, isn't that correct? A. Q. That's correct. All right. And this letter offers to give a refund to any West subscriber who asked for it -A. Q. A. Well, I --- does it not? -- I don't quite read it that way, quite frankly. I think what this letter says is, we sent out a pocket part to you. On review it was not all it should have been -We will send out a new pocket part in I'm paraphrasing here. David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the future. And then, -- and this was in the earlier argument -if you're not satisfied with the information provided -- which is referring to the new 2009 pocket part -- please contact Customer Service. The problem is when the new pocket part was sent out 29 on Friday -- I haven't seen it, 'cause I haven't got it yet, so I don't know what's included altogether -- but I -- as I understand it, there's no notice, other than to say, take out the old one, put in the new one. There's nothing there that refers them to either this notice or to their right to reimbursement. Q. So, it's your position that this letter is not offering to give back money to the subscribers? A. Q. Not -- in the context in which it was said and -You want it said a different way, is that correct? MR. BAZELON: your Honor. A. That's right. And we actually made some suggesting to you Objection to interrupting the witness, that -- on the letter -- you rejected them. We -- there were discussions between counsel on what the letter ought to include. is in context. You sent this out. All I'm saying Sending this out in March and then sending out the pocket part -- the new one that you've just sent out in April -- doesn't do what you're suggesting it does that's -- David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Is it --- that's my view. -- is it your understanding that counsel objected to this 30 part of the letter? A. There were discussions as to what the letter ought to contain, I don't know what -- what parts were -- I -- I do know what we wanted as the letter did not go out. parts were included and which parts -Q. A. Q. A. Q. A. So, you don't know whether --- were not. -- your counsel did or did not object to this part -Don't know. -- is that correct? (No verbal response.) (Pause at 2:56 p.m.) BY MR. RITTINGER: Q. Now, other than being informed that you were no longer I don't know which associated with the work -- which this letter does -- and that you want all subscribers to get a refund, is there any other irreparable harm that you're suffering today that you can advise the Court of? A. Yes. As I said, the -- the irreparable harm we're suffering today -- in our view, I -- first of all, we talked about the West electronic and how -- you know -- that change hasn't been David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made yet, that's -- that's ongoing, people who access the electronic version are not informed in an adequate way that we're no longer part of this publication. one. Q. A. Q. Well, let -- let me interrupt you there. Yes. They were involved in the Scope section, isn't that 31 So, that's -- that's correct? A. The -- the Scope section, no -- nobody reads, you know, when -Q. A. Well --- if I -- if I -- let me finish. If I, as a lawyer, have a problem in criminal procedure and I think -- well, I've been -- I need an issue, I need a case on post-conviction relief in Pennsylvania. And maybe, the Rudovsky/Sosnov book would be helpful. I'd go to that section of the book, I'd go to 16.3 and I see what cases are there. I -- I don't go to the Scope section which is just kind of the West description of what you'll find, that's where you put the fact that we're no longer associated. I, as a lawyer -- as a practitioner -- would have no reason to go to the Scope section. In fact, I didn't even know about a Scope section until I was -- I was informed by counsel. THE COURT: Okay. We understand your position. What else have you got? David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back? THE COURT: No, you cannot. Let's hear the witness. A. A. A. -- the -Q. A. Well, that's my question. No, the -MR. BAZELON: No, no, that wasn't his question. THE WITNESS: THE COURT: THE WITNESS: THE COURT: I -- I'm sorry, your Honor? I think we understand -Okay. -- your position. 32 I wanted to know what other questions he has? BY MR. RITTINGER: Q. Now, it is also true, is it not, that the supplement -- the new supplement -- makes it absolutely clear that you and your co-author are no longer involved with the publication? A. out. It is true on the cover page, ah, you say that we -- I Here's -- here's the problem with -- with what you've sent -- the question, I don't think. MR. BAZELON: THE COURT: It was not the question. Go ahead -- Well, first of all, again as -MR. RITTINGER: -- again as -MR. RITTINGER: -- could I have the question read Your Honor -- David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. 33 As -- as a user, I would almost never look -- whether it's this pocket part or any other pocket part -- to the cover page of the pocket part. Again, as a user, I would go to 16.3 and see what new cases there are or what new discussion there is. So -- and that's why I think it was essential that something more than just the pocket part be sent out with new shelving instructions, that the subscriber -- that the reader -actually be told that we no longer are part of this. And you can -- if you were relying on the work we have done over the years -- and that's why you have it -- then, you have a right to return it and -- and we'll give you a full credit. So, the answer is, no, I -- I think on the face of this, given the way lawyers use pocket parts, nobody looks at a pocket part and says, you know, examines the names on it. You go right to the section that deals with the substance and there it is. And so, unless there's some direct notice to the subscriber/lawyer, user at the library -- whoever it might be -I don't agree with your premise, no. Q. Let me get that straight. Nobody looks at the names on the -- of the authors on the -- on the front page of the supplement? A. I -- on a pocket part -- I've used pocket parts for, you David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. A. Q. Yeah. Nobody would look at the names on the new supplement, A. Q. A. know, for -- I've been a lawyer for forty years, I look at the book, I see there's a book by who -THE COURT: I -- I -THE COURT: don't have to make -A. In my -- my experience, I -THE COURT: -- I don't. -- a long --- you can either answer yes or no, you The question that he asked is -- 34 So, nobody looked at the names on the -- on what you call, the sham supplement as well, isn't that correct? A. No, because -- you know, the -- you don't -- you look at the names on the book and if it is a sham publication, ah, they'll associate -- if you're referring to the December of 2008, they'll associate our names with it, whether it's on the pocket part -Q. A. Q. Well --- or on the binder, it's the same thing. Okay. Let me -- let me just try to understand your that's your testimony, 'cause nobody ever looks at the names on the first page of the supplement. David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But your testimony is also that people would look at the names on the supplement that it replaced, is that your testimony? A. They wouldn't have to look at the names, they would know 35 this was a pocket part, they've been subscribers for years, they are getting Rudovsky and Sosnov every year. They get a letter that says, here's the new Rudovsky and Sosnov pocket part, put it in. page. Q. All right. So, then to -- to answer my questions, they would look at the names on the supplement or they wouldn't have to look at them? A. You might look at it, you might not look at it when you They -- they know it, they don't have to read that first open it up, it's -- you know when you shelve it, if you shelve it personally, you might look at it, in terms of research, you're probably not looking at the first page. Q. All right. MR. RITTINGER: Let me have marked, please, as -- or as Defendant's Exhibit 2, it would be a dec -THE COURT: Except that you started out with the -I'm -- MR. RITTINGER: THE COURT: -- Defendant's Exhibit A. I'm sorry, your Honor? MR. RITTINGER: THE COURT: Your first exhibit was Defendant's Exhibit David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? MR. BAZELON: Objection to form, your Honor, but about it? BY MR. RITTINGER: Q. Professor, could you turn to Paragraph 7 and the last A. MR. RITTINGER: Defendant's Exhibit B, your Honor. 36 The declaration of David Rudovsky. (Pause at 3:01 p.m.) MR. RITTINGER: Honor, a copy of the -THE COURT: All right. May I give it to the witness, your This is his declaration, what do you want to ask him sentence -- and I'll -- I'll read it for you? The treatise, including all pertinent parts except for the 2007/'8 pocket part were prepared by us pursuant to a July, 1987 agreement with West -with West Publishing Company. It turns out that that's not correct, isn't that beyond that, objection to the question, A, on the grounds of relevance and, B, I thought your Honor was interested in focusing on the -THE COURT: MR. BAZELON: THE COURT: I am. -- irreparable harm. But let's find out what he wants. David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. the -MR. RITTINGER: THE COURT: Well, your Honor -- your Honor -A. There are -- as it turns out -- three written agreements 37 we've had with West over the years. Let me answer the question this way, we -- we had Let him answer the question. Because as a legal matter, I can't answer your question, which contract controls, you'll have to argue that to the Judge. I can say there was a 1987 agreement. There was a And 2000 agreement when we agreed to do the second edition. there was a 2007 agreement for the 2007 pocket part. the only agreements we've had with West. Those are When I first discovered in December when I looked at the new pocket part and was concerned, I looked at my file, I just pull the relevant material. I immediately found the 1987 agreement, it had a blue backer on it that we used to have. And I had on top of it, the most recent agreement, which was the 2007 agreement for the pocket part. I did not I notice at that time the 2000 agreement, it was my mistake. should have noticed it in my file at that time, I did not. We, therefore -- I prepared this declaration based on the 1987 and the 2000 agreement -- the 2007 agreement -- I'm sorry, the 2007 agreement -- which said it superseded all previous agreements. I did that. You then had a filing in which you attached the 2000 David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. agreement, it was unsigned by West as I recall. I then looked In 38 in my file to see if I had that 2000 agreement, I had one. fact, I had a signed copy by West and I provided it. Which agreement controls -- which provisions of the agreements control -- I can give you my view on it -THE COURT: I'd rather not hear it. -- if you want to know it, but that's -- that's what I have -MR. RITTINGER: Well, your Honor, I didn't -- -- well -- we have those three agreements. I didn't ask for your -- for -And that's why I'm not giving it. All right. Is it fair to say that you had forgotten about the existence of the 2000 agreement at the time that your complaint was filed? A. I think that's fair to say. At the time we filed the complaint I -Is it -- is it --- that's fair to say, I --- I'm sorry -- I'm sorry. -- did not recall a written 2000 agreement, that's right. And is it also fair to say that you had forgotten about the existence of the 2000 agreement at the time you filed your motion for a preliminary injunction? David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. If that was done before I filed the amended declaration, 39 that's right. Q. Okay. Now, I believe the -- the 1987 agreement is attached as an exhibit, is that correct? A. Q. Yes, it is. All right. MR. RITTINGER: agreement, please? Now, could I have the -- the 2000 Do you want to mark that as C? (Pause at 3:04 p.m.) (Discussion held off the record.) MR. RITTINGER: Defendant's Exhibit C, an agreement between the plaintiffs and West Group Publisher dated as of September 7th, 2000 are executed by West Group. THE COURT: August 22nd, 2000. MR. RITTINGER: Your Honor, each signature is dated I'm sorry. Where does it say that, I see with a different date, the last date is the -- is the date that I referred to executed by West. (Pause at 3:06 p.m.) BY MR. RITTINGER: Q. A. Q. Now, is that a copy of the 2000 agreement? It is. All right. And is -- according to your understanding today -- is David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. that the agreement pursuant to which the West Pennsylvania Practice was published? A. Q. A. Q. A. Q. The second edition, that's correct. The second edition? Yes. And by the way, it says West Group on the spine, correct? It does. Right. You knew who West Group is, don't you? We started with West Publishing, it was West Group, it's It's West. 40 Thompson West. Q. You don't dispute that that was an agreement with the publisher that published the second edition, is that correct? A. Q. A. Q. I -- I assume it was, that's right. Okay. Absolutely. Now, I want to direct your attention first of all to Paragraph B2 -- 2B -- capital B -- do you see that? A. Q. Yes. All right. And I'm going to read that into the record: Authors will provide upkeep to the work on an annual basis or as otherwise agreed by publisher and authors, including but not limited to supplements, revisions or new editions of the work in order to David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 object. Q. page. A. Q. A. Q. Yes. Do you see that? I do. A. Q. I do. All right. And you agreed to that provision at the time you entered into the 2000 agreement? A. Q. We did. All right. And then -(Pause at 3:08 p.m.) -- turning your attention to Paragraph 3A2 on the next keep it current and marketable. All references to 41 the work in this agreement also apply to such upkeep as well as to the original work unless otherwise provided. Do you see that? And I'm going to read that into the record, use of authors' names. MR. BAZELON: Your Honor, excuse me, I -- I want to I think -- it appears that we're going to go to reading And I in provisions with the question of, did you agree to it? think that's a waste of time. THE COURT: I do, too, but if he wants to waste time, David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. I do. THE COURT: That's right there. sake. Q. If the work or upkeep is prepared by a person other than authors, publisher may identify that person on the new material and any related advertising and give him or her authorship credit in addition to or in lieu of credit given to the authors. Do you see that? sentence. Q. If -- if the work or upkeep is prepared by persons other than the -THE COURT: By a person. he may. MR. RITTINGER: THE COURT: BY MR. RITTINGER: Q. Use of author's name: Publisher will have the right to use author's names in connection with the work and upkeep of the work. I'm sorry? 42 I said, you may waste time if you want to. So, at the time you entered into the 2000 agreement -THE COURT: Read the next sentence -- read the next Read -- read it for heaven's Is there a comparable provision to that according to your understanding in the 1987 agreement? David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Not in those -MR. BAZELON: 43 Your Honor, I'm going to object, but I'm going to stop objecting, 'cause I understand that you're going to listen to all of it. THE COURT: Either there is or there isn't, I don't know whether there is or not. MR. BAZELON: THE COURT: Exactly. A continuing objection. It's going to speak for itself. You -- you can compare them, in those words, there's -- there's not, but that's the best I can say, right. Q. Well, is there any comparable provision according to your understanding? A. There -- I'll have to look at the '87. (Pause at 3:10 p.m.) There is a provision in the '87 agreement, Section -- under what's titled miscellaneous agreements that: The author shall have first option to prepare pocket parts and revise volumes. And then, it goes on: If the authors are deceased or for any reasons, the authors do not exercise such option to prepare pocket parts and related material, then the publisher may arrange for these at its own expense and in that event, the authors would not have any compensation. So, there is a provision that deals with the David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. contingency of us not continuing as authors. 44 So, there is a -- in that sense -- a comparable provision, not with all the terms you just read. Q. Is there a provision that is similar to the provision of the -(Pause at 3:11 p.m.) THE COURT: May I make a modest suggestion which is that the agreements are or could be in evidence and they speak for themselves and you make your arguments based on them, not on what this -MR. RITTINGER: THE COURT: All right. -- witness says about it. I -- I accept that, your Honor. MR. RITTINGER: BY MR. RITTINGER: Q. The 2007 agreement and I'll -- I'll cover this quickly. It's your position that that does not apply, correct? It's not -- ah -- as a legal matter and there could be argument, the 2007 agreement purports to supersede all previous agreements. It describes the work as being the work -- the -- the volume and the pocket parts. And then it has this language in there someplace -which I'll put my finger on it -- where it says, it supersedes all previous agreements. I'm not an expert in this area, I'm not going to make any argument on that. I'm just saying that there is an argument David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. A. Q. A. Q. question? BY MR. RITTINGER: Q. I'm going to read to you, first of all, Paragraph 1, 45 here that could be made that the 2007 agreement is the one that controls. Q. A. Q. But I -- Well --- you probably don't want my opinion on that. Let me -- let me -- you are a professor and you're -- you're careful in what you've -- what you do when you write books and you -THE COURT: What's your question -- what's your subject: Publisher is preparing a work for publication entitled, Pennsylvania Practice Criminal Procedure, 2007 Supplement, quote, The Work. Hm-hmm. That's the work that's referred to in this agreement, correct? THE COURT: Yes, it is. It doesn't refer to any other supplements or any other Yes, it is. updates, does it anyplace? A. Not there, but the agreement later says: This supersedes -- David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A. That's what it refers to there, there was no previous This -- this was -- this was the only agreement we A. Q. A. Q. Yeah. Now, where is work defined in this agreement? THE COURT: Yes, exactly. Q. A. A. Ah -THE COURT: We'll take your word for it. A. Q. A. Q. -- all previous agreements -All right. -- between the parties. All right. And -- and that's Paragraph H? 46 Can you tell me which page you -- you have there? Oh, yeah, yeah, that's right on Page 5 under 9H: This is the entire agreement of the parties, all prior negotiations and representations are merged into this agreement. This agreement supersedes all previous agreements regarding the work. Okay. Let me stop you there. It's defined in the first paragraph. Right. It only refers to the 2007 supplement, isn't that agreement. had. David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possibly. MR. RITTINGER: D, I'm sorry, D. correct? A. Q. It could. Okay. MR. RITTINGER: Your Honor, could I have a minute or Q. A. Were there -- were there oral discussions beforehand? I don't recall if there were or there were not at that 47 point. Q. In your vast experience, have you ever seen an agreement have a similar provision when there was not a written agreement preceding it? A. Q. I've seen standard language like this, sure. Right. It can apply to oral discussions and agreements, two to look through something? THE COURT: You may have up to seven. I'm sorry? MR. RITTINGER: THE COURT: You may have as many as seven, go ahead. (Pause at 3:14 p.m.) (Discussion held off the record.) MR. RITTINGER: Your Honor, I only have one copy of this document, but I'd like to mark it as Defendant's Exhibit 4. THE COURT: Sure, go ahead. I think you're going to mark it as a defense exhibit, David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BAZELON: MR. RITTINGER: THE COURT: MR. BAZELON: May I see it, please? Yeah. 48 What's it going to turn out to have been? Your Honor, this document is part of the settlement discussions that took place between counsel. Mr. Rittinger wrote me an e-mail and he said, I want it understood that everything that takes place in settlement discussions is privileged and confidential. Now, he is taking out a document that are part of those discussions and having it marked and wanting to use it at this hearing. THE COURT: No, he marked it himself. What's -- how do you get around that? MR. RITTINGER: Yes, your Honor. The witness testified that he wasn't satisfied with the last paragraph of the letter that went to the customers, because it didn't explicitly state a refund. And I asked him, if -- if his counsel had objected to that and he said, no. This is a letter that has counsel's markups on it that does not in any way reflect any changes in the -- in the penultimate paragraph -- well, it gets to the -- the paragraph that -THE COURT: What --- we referred to. MR. RITTINGER: David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. to know. THE COURT: 49 -- what do you do with the objection that it's part of the settlement discussions which are privileged and don't get into evidence? MR. RITTINGER: Well, your Honor, the door was opened by counsel when -- when he said that he objected to that paragraph. THE COURT: That's ridiculous. Are you objecting to this -MR. BAZELON: THE COURT: I certainly am. -- I don't know what it is, I don't want Let's get on to something The objection is sustained. that makes sense. (Long pause at 3:17 p.m.) BY MR. RITTINGER: Q. Professor, I take it that you have received no complaints or inquiries and no one has called you and said, you're associated with a bad publication or anything along those lines, isn't that correct? A. Q. I have not. All right. And as far as you know, neither has your co-author? That's correct. And it is true, is it not, that good practice when you're using a treatise of any sort and you're citing a case, that you either Shepardize it as his Honor suggested or as we like to at David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 West, suggest that you KeyCite it, that is good practice, is it not? A. Q. Absolutely. All right. And you would expect any lawyer who is using -- no matter what the work is, if it was your treatise, your supplement or anyone else's -- that they would -- they would either Shepardize or KeyCite a case? A. But -- but only after having looked at a pocket part and seeing that it covered a certain period of time, you would certainly -- there's always a lag time -- you would want to Shepardize or KeyCite for that reason. But the whole point of the book from the -- from the beginning from twenty years ago -- was to give readers something more than a list of cases that they can KeyCite. what we were asked to do, that's not what we did. We -- we did a book -- we did a treatise -- we did an analysis of the case law. Q. You don't get that by KeyCites. That's not No, I understand that. But it's true -- is it not -- as a professor, good practice -A. Q. A. Q. The -- the answer is, yes, you --- everybody knows that --- Shepardize. -- every treatise is always going to -- if it's in print -- David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. it's always going to be six to nine months behind -A. Q. A. Q. On that point --- am I correct? -- you're absolutely right. Right. And as far as when the treatise -- when the -- when the supplement was up on West cite -- on -- on West Law -- no 51 matter what was there, if someone clicked on to that case, they would get an update through KeyCite, isn't that correct? A. Q. I assume they would, that's right. Right. And good practice, again, anyone who was using even what you consider to be the sham supplement, if they clicked on to any case that you've complained about, they would have got the current history of that case, isn't that correct? A. And -- and they could do that without paying the fifty dollars for a product that gave them nothing. Q. A. Q. I -- I understand that, but they could do it -They could do it. -- couldn't they? Well, they -They could also go to another reference book, they could go to another treatise which was updated and -Q. A. But --- and was timely. David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. -- but even if they did that, they'd still have to go and 52 do a KeyCite -A. Q. A. Q. That's right. -- or a Shepardization -Absolutely. -- isn't that correct? All right. And just to -- to go back to your affidavit for a second and the 2007 agreement, the first -- I've already read the first sentence in Paragraph -- well, not the first sentence, I've read a sentence that started with the treatise and the pocket part were prepared by the authors. Let me go to the -(Pause at 3:21 p.m.) -- let me go to the last sentence: The 2007 pocket part was prepared pursuant to a stand-alone agreement. What did you mean by a stand-alone agreement, that it only related to the 2007 supplement? A. At that point, having only looked at the 2007 and not the 2000, I assumed it referred only to the 2007 supplement, that's correct. Q. Well, is it your position, the 2007 pocket part was prepared pursuant to the 2000 agreement? A. Q. No. Okay. It was prepared pursuant to the 2007 agreement. David Rudovsky - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. BY MR. BAZELON: Q. Professor Rudovsky, can I refer you please to West -- I Honor. THE COURT: MR. BAZELON: Everyone content? Very brief, your Honor. REDIRECT EXAMINATION A. Q. A. Q. A. And you called it a stand-alone agreement? That's right. What did you mean by a stand-alone agreement? 53 It governed the preparation that year of that pocket part. And only that? For that year, we -- I don't know what would happen in the future, but for that year, that's right. MR. RITTINGER: I have no further questions, your guess -- West Exhibit 1, which is the March, 2009 letter? A. Q. Exhibit A, yes. Yes. THE COURT: I have it. And I take it -MR. BAZELON: I'm sorry, your Honor. Exhibit A. -- I take it that this is a letter that has been identified by West as having been sent to the subscribers for the treatise some time in March of 2009? A. That's my understanding. David Rudovsky - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. 54 Now, what is your understanding, Professor Rudovsky, as to whether users of the treatise and the pocket part, that is, the people who actually have a book in hand and are using it, see this letter that's written to the subscribers? MR. RITTINGER: THE COURT: knowledge of that. MR. BAZELON: can, your Honor? THE COURT: BY MR. BAZELON: Q. You have worked -- on your curriculum vitae -- among other All right. Let me try and lay a foundation, if I Objection. I don't see how he would have any places, at the Philadelphia Defender's office? A. Q. I have. And are you -- do you have knowledge of how organizations -- let me ask -- and you are also presently associated with the University of Pennsylvania Law School? A. Q. I am. Do you have knowledge about how those organizations function with respect to what they include in their bound volumes and pocket parts? A. Q. I do. Based on your knowledge, Professor Rudovsky, does this kind of a letter find its way into the bound volume? A. It -- it would not find its way into a bound volume, for David Rudovsky - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 example, the Defender Associations has a couple of copies in the library, this letter would not be there. A law library at the University of Pennsylvania, if you'd put a sticker and said, put the sticker in instead of the supplement, it would go there, but this letter would not. Prison law libraries, the prison administration would get the letter, the inmates who use it, would have no idea that the pocket part they're dealing with has any deficiencies. Q. So, in your experience then, a user -- as opposed to whoever gets this letter -- is in all probability never going to see this letter? A. I think that's right, this is not -- this was not intended And for -- certainly, for users in to be put in the book. libraries, institutional places. And even in multi-person law firms, if three or four people do criminal law in that firm, the secretary/manager gets this, it's -- there's no instructions, put this in, advise people. It's a bookkeeping notice in a lot of ways. You'll get something later. -- will not know. People using it will not -- in my experience (Pause at 3:25 p.m.) BY MR. BAZELON: Q. Professor Rudovsky, you were asked to read one or two provisions that had to do with the preparation of pocket part going forward, that is, provisions in an agreement. David Rudovsky - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The question I want to ask you is this: What took place that led to you and Professor Sosnov not doing the pocket part beyond the pocket part that was used in 2007/2008? MR. RITTINGER: THE COURT: Objection. 56 Objection overruled. In 2007/2008, Mr. Sosnov and I kind of consulted on what we should be doing with the book and we both decided it was time for a new edition. You know, at some point the pocket part becomes the tail that wags the dog, the pocket part becomes too cumbersome, everything is in the pocket pa

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