RUDOVSKY et al v. WEST PUBLISHING CORPORATION et al

Filing 55

RESPONSE in Opposition re 52 MOTION for Summary Judgment filed by DAVID RUDOVSKY, LEONARD SOSNOV. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Noah Charlson, # 3 Exhibit A to Declaration, # 4 Exhibit B to Declaration, # 5 Exhibit C to Declaration, # 6 Exhibit D to Declaration, # 7 Exhibit E to Declaration, # 8 Exhibit F to Declaration, # 9 Exhibit G to Declaration, # 10 Exhibit H to Declaration, # 11 Exhibit I to Declaration, # 12 Exhibit J to Declaration, # 13 Exhibit K to Declaration, # 14 Exhibit L to Declaration, # 15 Exhibit M to Declaration, # 16 Exhibit N to Declaration, # 17 Exhibit O to Declaration, # 18 Exhibit P to Declaration)(CHARLSON, NOAH)

EXHIBIT A

VIDEOTAPED DEPOSITION OF KAREN A. EARLEY, 3/3/2010

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ------------------------DAVID RUDOVSKY and LEONARD SOSNOV, Plaintiffs, No. 09-CV-727 v.

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WEST PUBLISHING CORPORATION, WEST SERVICES INC., AND THOMSON LEGAL AND REGULATORY INC., t/a THOMSON WEST, Defendants. -------------------------

Video-recorded Deposition Upon Oral Examination of: Karen A. Earley Location: Thomson West .50 Broad Street East Rochester, New York 14614 Date: March 3, 2010 Time: 2:01 p.m. Reported By: LYNN A. MULLEN, RPR

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EXHIBITS Earley Exhibit Description . No. 1 Agreement between David Rudovsky and Leonard Sosnov, Authors, and West Group, Publisher, August 2000, Bates West-R 06297 through 06303 (PAGE-13) . No. 2 Agreement between David Rudovsky and Leonard Sosnov, Authors, and West Services, Inc., Publisher, June 2007, Bates West-R 06304 through 06309 (PAGE-13) . No. 3 E-mail, 8/23/07, to Karen Earley from Tanya Smith plus attachments, Bates West-R 00013 through 00149 (PAGE-18) . No. 4 Attorney Continuing Education, Philosophy of Publishability Review & Metrics, Bates West-R 06134 through 06187 (PAGE-64) .
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APPEARANCES Appearing on Behalf of Plaintiffs: Noah H. Charlson, Esq. Bazelon, Less & Feldman, P.C. .1515 Market Street, Suite 700 Philadelphia, Pennsylvania 19102-1907 [e-mail] . Appearing on Behalf of Defendants: Aaron M. Zeisler, Esq. Satterlee, Stephens, Burke & Burke, LLP .230 Park Avenue New York, New York 10169 [e-mail] . Also Present: John Wierzbicki Appearing as Videographer: David Parrotta WITNESS . Name Page Karen A. Earley By Mr. Charlson 8

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EXHIBIT INDEX CONTINUED . No. 5 Training Schedule, 6/24/08, Bates West-R 05911 through 05916 (PAGE-69) . No. 6 Printout of all the hits on the Westlaw PAPRAC database during a particular time frame, Bates West-R 00224 through 00225 (PAGE-73) EXHIBITS PREVIOUSLY MARKED Exhibit Description Redzic 4 Time Data Report, 1/1/07 through 12/31/09, Bates West-R 05866 through 05869 (PAGE-22) . Redzic 6 Publishability Review, Bates West-R 05980 through 06133 (PAGE-27) . Smith 2 E-mail string ending with an e-mail dated 1/18/08 to John Wierzbicki from Karen Earley, Bates West-R 00204 through 00205 (PAGE-51) .

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VIDEOTAPED DEPOSITION OF KAREN A. EARLEY, 3/3/2010

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included. Q. When you say "check them," check them how? A. I would look them up on Westlaw. I would see if they were still accurate and valid, and I'd see the point of law that they were using the case for in regard to the text that was in the main volume, and to see if it was on point as they had summarized it. Q. And in your experience with Mr. Rudovsky and Mr. Sosnov, was their manuscript generally accurate? MR. ZEISLER: Objection. Lacks foundation. A. I recall that it was publishable. I don't recall specifics about any individual case that I checked two years ago. Q. It didn't have to be returned to them to be reworked? A. It did not. Q. In fact, you performed something called a publishability review
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Criminal Procedures 2nd Edition. That's Pennsylvania Criminal Procedure, correct? A. Yes, correct. Q. And the code is "Activity Code 375," "AE Publishability Review"? A. Correct. Q. So is that -- would that have been the time you spent doing a publishability review for the supplement? MR. ZEISLER: Objection. Vague. What's "that"? Q. Would this time entry -- did this time entry reflect the time you spent doing a publishability review? A. It may not reflect all of the time I spent doing the publishability review because I only -- I only entered time for a 40-hour workweek, and often it was over that. And if it wasn't -- if I was working on it in a time that wasn't in that 40 hours, then it wouldn't be reflected here. Q. Is it fair to say, though, that your publishability review was conducted
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for this 2007 supplement? MR. ZEISLER: Objection. Lacks foundation. Q. Isn't that correct? A. I -- I don't recall exactly when I would have performed a publishability review. (The following exhibit was marked at a previous deposition: Redzic 4.) Q. Let me show you what was previously marked as Exhibit 4 at the deposition of Sarah Redzic. A. This document? Q. Yes. And have you seen this document before or documents like it? A. I recognize this type of report from our time system, yes. Q. Okay. And if you look at the -- on the second page -- I'm sorry. If you look at the last page of this document, the one, two, three four -- fifth entry is for Karen Earley, September 14, 2007, PA PR Volume 2,

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around September 14, 2007? A. Correct. Q. What exactly is a publishability review? A. You mean specifically -- I'm sorry, could you clarify what you mean? In general when we do a publishability review or tasks or what -- Q. Well, there is something at West called a publishability review, correct? A. Correct. Q. And that's an actual process with its own activity code, correct? A. Correct. Q. And there's guidelines for that? A. Correct. Q. So I'm asking for your own understanding of what the Attorney Editors' publishability review is. MR. ZEISLER: Objection. Overbroad. Q. You can answer the question. A. Okay. My understanding of what a publishability review is, is to check

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VIDEOTAPED DEPOSITION OF KAREN A. EARLEY, 3/3/2010

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understanding is that an Attorney Editor is trained. I'm not aware of -- that's my understanding, is an Attorney Editor is trained. Q. And how long does the training process last? A. It could vary from one Attorney Editor to the other. I'm not aware of any set time frame for the training process. Q. When Sarah Redzic started at West, she shadowed you, correct? A. I don't recall her shadowing me specifically, no. I don't recall her shadowing me. Q. Were you responsible for her training? A. I was not responsible for her training. Q. Who was? A. I believe Andrea Nadel. I don't recall specifically. Q. Do you have any idea if Sarah Redzic was ever certified as trained?
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Overbroad. Q. In the 2007 and 2008 time frame. A. Low margin depends on what you're comparing it to, which other products you're comparing it to. Q. Well -A. So it's relevant to what you're comparing it to individually. Q. What would you have compared the Pennsylvania Criminal Procedure to in terms of its margin? A. What would I have compared it to? Q. Yes. A. I'd be -- I'm kind of speculating as to what I'm going to compare it to. If I'm comparing it in my mind to another product right now is -- if I compared it to another product, I would look at the other product's revenue, another product on a similar topic, similar coverage. Q. Well, let me ask you a
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A. I don't have any knowledge regarding that. Q. Can you turn to page West-R .06003? Are you there? A. Yes, I'm there. Q. If you look at the last bolded question, it reads, "Do I conduct a publishability review on a product with a low margin?" Do you see that? A. Yes, I do see it. Q. It reads, "You must use your best business judgment in determining the appropriate level of review of a submission on a product with a low margin." I'm just going to stop there. Having -- having read this document before, what's your understanding of what a product with a low margin is? A. It relates to the amount of revenue that we make on the product. Q. Was Pennsylvania Criminal Procedure considered a low margin product? MR. ZEISLER: Objection.

different question. Do you recall having concerns after you took over the Pennsylvania Criminal Procedure from Doug Booth that the title was a low revenue project -- product? MR. ZEISLER: Can you read back the question? MR. CHARLSON: Yeah, Aaron, please pay attention to my questions, because you're asking to have a lot of questions read back, and I'm really trying hard to -- I'm asking -MR. ZEISLER: No, it's my right. And actually your question was -MR. CHARLSON: It is your right. MR. ZEISLER: Your question was confusing, actually, because it said -it was confusing as to your use of "from Doug Booth," and I couldn't tell whether your question was did she have concerns stated to her from Doug Booth or on the product received from Doug Booth.

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VIDEOTAPED DEPOSITION OF KAREN A. EARLEY, 3/3/2010

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Q. Were you opposed to -- did you write back to Ms. Smith here and say, "Catherine, that's not what I said. That's not my recommendation. I disagree with you"? MR. ZEISLER: Objection. Compound. A. Could you repeat that question? Q. You received this e-mail, correct? A. I was copied on this e-mail, yes. Correct. Q. And you presumably read it, correct? A. Correct. Q. This was a topic that had been in discussion -A. Yes. Q. -- at that time? A. Yes. Q. And it was an important matter, correct? MR. ZEISLER: Objection. A. Important relevant to -- it was
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when Sarah and I called them. Q. And that was $2,500 a piece? A. That's correct. Q. And you were aware that that was half of what they had been getting previously, correct? MR. ZEISLER: Objection. A. I was aware that that was half of what I paid them in 2007. Q. Did you expect them to agree to have their fee cut in half to do the same work? A. I had -- I had no expectation of what they would say or what they would not say. Q. At that meeting with Teri Kruk, did you discuss what you would -- what you would do with the title if Rudovsky and Sosnov rejected the offer? A. I don't recall any specific discussions regarding that. Q. Was there any discussion at that meeting about whether you expected Mr. Rudovsky and Mr. Sosnov would accept
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one of the items that I was involved in. Q. Right. And so when you saw Ms. Smith recommending to Teri Kruk, who was her superior, that "we" - and you're the only other person copied on this e-mail -- that "we would like to terminate this title," did you go to Catherine Smith and say, "Catherine, I disagree with you"? A. No. I -- I don't recall any specific discussions following this particular e-mail that relate to this particular e-mail. Q. But you did have a discussion at some point in the future after this with Teri Kruk, right? A. Yes, we did discuss the title. Q. And what decision was reached at that meeting? MR. ZEISLER: Objection. A. Decision regarding the title? Q. How to proceed. A. I was instructed how much to offer the authors for the next update

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the offer to have their compensation cut in half for the same amount of work? MR. ZEISLER: Objection. A. I don't recall expecting them to have a particular response. Q. Well, let me ask you this: When you made the offer to Mr. Rudovsky and Mr. Sosnov to do the 2008-2009 supplement for half of their prior fee, did you expect them to do half the work? A. I did not have an expectation for how much they would do of their work. Q. Did you have an expectation that they would provide you with half of the material that they had done -- that they had provided in the past? A. I didn't have any expectation of them at that point, no. Q. After Mr. Rudovsky and Mr. Sosnov rejected your offer to cut their compensation in half, what -- what steps did you take with respect to Pennsylvania Criminal Procedure?

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VIDEOTAPED DEPOSITION OF KAREN A. EARLEY, 3/3/2010

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A. After that meeting, I didn't have any further involvement with the title. Q. Is that because you handed it off to Sarah Redzic? A. Yes, it transitioned to Sarah Redzic as the Attorney Editor. Q. Take a look at Smith Exhibit 3, same document. On the second page, there's a Friday January 18th e-mail dated 4:36 p.m. A. Okay. I'm there. Q. You say -- this is to John Wierzbicki, who's sitting next to Mr. Zeisler -- "There is extensive overlap of coverage in the existing PA Criminal Practice title." You write, "Rudovsky is rather sensitive, and his national title, 'Police Misconduct: Law and Litigation, 3rd edition, 2007-2008' brings in approximately $330,000 in revenue. He will not be happy if someone else revises." What did you mean when you said
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A. Maybe around ten. I'm not sure exactly. Q. Had you ever met him in person? A. No, I have not met him in person. Q. So you had approximately ten -maybe roughly -- I don't expect you to be totally accurate, but roughly ten phone conversations with him? A. That's possible, yes. I don't know the exact number, no. Q. And some e-mail communication as well? A. Yes. Q. And I'm just trying to get at what your interactions with -- what prior interactions with Mr. Rudovsky caused you to describe him as "rather sensitive." MR. ZEISLER: Objection. Asked and answered. A. I don't recall specific prior interactions that would have me write that in -- two years ago. I don't recall.
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to Mr. Wierzbicki that Mr. Rudovsky is rather sensitive? A. I don't recall exactly what I -- what I meant by that "he's rather sensitive." I -- I don't know exactly what that would revert -- would refer to. I don't recall specifically. Q. Are you the Attorney Editor for "Police Misconduct and the Law"? A. I am not. Q. Were you at any time? A. I was not. Q. Prior to January 18th, 2008, what dealings had you had with Mr. Rudovsky? A. Prior to January 18th, 2008? Q. Right. A. The 2007 supplementation process when they submitted the manuscript. Q. How many conversations had you had with him? A. I don't recall specifically how many. Q. More than ten? Less than ten?

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MR. CHARLSON: Let's go off the record and take a quick break. THE VIDEOGRAPHER: It's 3:06 p.m. Going off the record. (There was a pause in the proceeding.) (The following exhibit was marked for identification: Earley 4.) THE VIDEOGRAPHER: 3:21 p.m. We're back on the record. Q. I'm handing you what's been marked as Earley Exhibit 4. It's a document bearing Bates numbers West-R .06134 through 06187. I ask whether you had any involvement in preparing any portion of this document. A. I did not. Q. Have you seen this document before? A. I have. Q. What is it? A. It's the ACE training for Attorney Editors here at West on "Philosophy of Publishability Review."

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