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 B

VIDEOTAPED DEPOSITION OF CATHERINE SMITH, 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: Catherine J. Smith Location: Thomson West .50 Broad Street East Rochester, New York 14614 Date: March 3, 2010 Time: 11:44 a.m. Reported By: LYNN A. MULLEN, RPR

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EXHIBITS Smith No. 1 Rochester Content Center organizational chart, Bates West-R 05934 through 05941 (PAGE-9) . No. 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-31) . No. 3 E-mail string ending with an e-mail dated 2/11/08 to Catherine Smith from Teri Kruk, Bates West-R 04728 through 04730 (PAGE-32) . No. 4 E-mail string ending with an e-mail dated 5/21/07 to Teri Kruk from Catherine Smith, Bates West-R 00004 through 00006 (PAGE-55) . . . .
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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 Catherine J. Smith By Mr. Charlson 7

EXHIBIT INDEX CONTINUED No. 5 E-mail string ending with an e-mail dated 2/13/09 to Betty Walker and others from Amber Becker, Bates West-R .00216 through 00217 (PAGE-62) . No. 6 E-mail string, 2/11/09, between Sarah Redzic and Catherine Smith, Bates West-R 00214 (PAGE-64) . EXHIBITS PREVIOUSLY MARKED Redzic Exhibit Description No. 4 Time Data Report, 1/1/07 through 12/31/09, Bates West-R 05866 through 05869 (PAGE-28) . DOCUMENT REQUESTS Request Copy of contract with Ms. Gimeno (By Mr. Charlson) (PAGE-60) E-mail communications with Ms. Gimeno that Ms. Smith was copied in on (By Mr. Charlson) (PAGE-61)

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State Practice Group? A. For the State Practice Group, just a few months. Q. And roughly -- generally speaking, what products are contained within the State Practice Group? A. State Practice series, analytical publications for -- well, state by state for each jurisdiction. Q. Are all states covered in that Practice Group? A. At that time, no. Q. That's changed? A. (The witness indicated nonverbally.) COURT REPORTER: Your answer? THE WITNESS: Yes. MR. ZEISLER: You have to say it audibly. THE WITNESS: Sorry. Q. So, in February 2008, was Pennsylvania Criminal Procedure one of the titles that was part of your group? A. Yes, it was.
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Q. Do you remember what the outcome of that meeting was? A. We made a counteroffer to the authors for a sum approximately half of what they had requested, and they did not accept the offer. Q. Was there discussion at that time of what steps were going to be taken with respect to that title? Other than what you've already testified to. MR. ZEISLER: Objection. A. Not specifically. Q. Do you recall discussing whether the title should be terminated? A. Yes. Q. And what is -- what does it mean to terminate a title? A. To stop publishing it, essentially. Q. And what do you recall about that discussion? A. My recollection is that that discussion took place in the fall of the year at a jurisdictional meeting to review
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Q. And what was the first experience you had with that title? A. It was a meeting that Attorney Editor Karen Earley called about the authors' contract, the authors' arrangements. Q. And what do you remember about that meeting? A. I remember that we talked about the 2008-2009 pocket part, and the authors requested a certain flat fee to do their work on that publication, and we rejected it. Q. What was the reason for rejecting it? A. We thought it was too high. Q. And were you aware at the time that it was the fee that they had been paid for this -- the same fee that they had been paid for their prior updates? MR. ZEISLER: Objection. Lacks foundation. Q. You can answer the question. A. I can't remember.

a number of our Pennsylvania titles. Q. Well, let's talk about that fall jurisdictional meeting. Who was present? A. The people I remember by name would be John Levine, who was a Director of Print Strategy; Sarah Redzic, the Attorney Editor in charge of the Pennsylvania Practice line; and myself, the State Practice Team Coordinator. There were representatives of New Product Development, Sales, Marketing and other organizations. Q. Were Ms. Kruk or Ms. Gang at that meeting? A. No, they were not. Q. How about Ms. Earley? A. No, she was not. Q. And what was the substance of the discussion at the fall jurisdictional meeting? And this was 2008, correct? A. Correct. Q. About the future of the Pennsylvania Criminal Procedure title?

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A. We suggested terminating it because we had duplicate coverage in that area of the law. Q. And who suggested terminating the title? A. Sarah Redzic. Q. And yourself? A. I supported it. Q. And who was that suggestion made to? A. To Director of Print Strategy John Levine. Q. And did Mr. Levine have a reaction that he expressed to you at that meeting? A. He agreed with us. Q. Okay. And was that decision executed? A. No, it was not. Q. Why not? MR. ZEISLER: Objection. Q. You can answer. A. It was close to the end of the year.
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title? A. Yes, it's a department. Q. Anybody else? Is that because Mr. Rudovsky was considered a Key Author? MR. ZEISLER: Objection. Calls for speculation. Q. Well, what is a West Key Author? A. It's -- it's a group that oversees author relations and management of titles. Q. Is it -- do they oversee all authors or particular authors who have -A. All authors. Q. Okay. So does the "key" in that title, to your understanding, refer to the West key system rather than the particular authors? MR. ZEISLER: Objection. A. No. Q. Okay. But somebody from that department had to approve the decision? A. Correct. Q. Anybody else whose approval was
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Q. Can you elaborate? A. Generally, to terminate a product takes research and an investment of time, and we had to make a publishing decision as to whether or not to -- to publish a supplement to this title by the end of the year. Q. And just so I'm clear -- and please correct me if I misstate something -- although the team decided that termination was the plan, there simply wasn't enough time to go through all the work that was necessary to do that before the end of the year? MR. ZEISLER: Objection. A. That was not the only reason. There was also not approval to terminate by the end of the year. Q. Whose approval was required? A. Polly Gang and others in the organization. Q. Who besides Polly Gang? A. West Key Author. Q. Is that a department or a

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required? A. New Product Development, Print Strategy, probably -- there may have been other people. I'm sorry. Q. No, no. Please finish. A. People at higher levels may have needed to approve that. Q. But you don't know specifically? A. I don't know specifically. Q. New Product Development and Print Strategy were both at the jurisdictional meeting, correct? A. That's correct. Q. Were the representatives there, did they have the authority to make -- to make that decision? A. No. Q. Now, you say that approval from all these various people or departments was required. Was it the case that any of them disagreed with the decision, or was it that there simply wasn't enough time to get the approval before the publishing decision had to be made?

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MR. ZEISLER: Objection. Lacks foundation. Ambiguous. Q. You can answer the question. A. To my knowledge, no one disagreed with the decision. Q. Was the termination decision -was the termination recommendation presented to any of these people: Polly Gang, the West Key Author Group, New Product Development, et cetera? A. Not formally. Q. Was it discussed informally? A. Yes. Q. And did anybody register any disagreement? MR. ZEISLER: Objection. A. No. Q. So at about that time in the fall of 2008, was it your understanding that the product was going -- the title, Pennsylvania Criminal Procedure, was going to be terminated? A. Yes. Q. And was that something that you
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been prepared at that point? MR. ZEISLER: Objection. It's vague. Ambiguous with respect to "prepared." Q. I'll rephrase. Ms. Smith, you're aware that a fall 2008 supplement was prepared by Sarah Redzic, correct? A. I am aware. Q. And you understand what I mean when I say "prepared," right? MR. ZEISLER: Objection. A. Yes. Q. At the time of the fall jurisdictional meeting, had Sarah done that work? A. I do not know. Q. Well, was the decision to terminate -- the informal decision to terminate made before or after the fall .2008 supplement was prepared? MR. ZEISLER: Objection. Misstates prior testimony. A. I don't quite understand. (The following exhibit was
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anticipated happening in calendar year 2009? A. Yes. Q. But it wasn't terminated, correct? MR. ZEISLER: Objection. A. Right. Q. Because there was a publishing deadline, you and Sarah Redzic decided to publish -- prepare a supplement, correct? MR. ZEISLER: Objection. Misstates prior testimony. But you can answer. A. We had a commitment to publish a supplement that year. It was in our publishing plan, so, yes. Q. Approximately -- approximately when was the fall jurisdictional meeting? A. Early November. Q. At the time of the fall jurisdictional meeting, had anybody prepared the fall 2008 supplement? MR. ZEISLER: Objection. Q. Had the fall 2008 supplement

marked at a previous deposition Redzic 4.) Q. Can you take a look at what we previously marked as Redzic Exhibit 4 at the deposition of Sarah Redzic? And do you recognize this document or documents like it? A. Documents like it, yes. Q. And you understand it to be a printout of West employee time records with respect to Pennsylvania Criminal Procedure? A. Yes. Q. If you look at the second page, Ms. Smith, you'll see that Sarah Redzic has entries for "Other Production" for about ten and a half hours on October .29th and November 3rd. Do you see that? A. Yes. Q. And do you know, Ms. Smith, whether that was -- that work that Sarah did was before or after the fall jurisdictional meeting? MR. ZEISLER: Can you read back the question, please? (The

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reporter read the requested material.) MR. ZEISLER: Okay. Thank you. A. I don't remember the exact date of the jurisdictional meeting. It looks like before. Q. Prior to the jurisdictional meeting, had you and Sarah discussed whether or not Pennsylvania Criminal Procedure should be terminated? A. I really don't remember it very clearly. Q. Do you remember that -discussing that question in February in connection with Ms. Earley and Ms. Redzic? MR. ZEISLER: Objection. Vague. February what? MR. CHARLSON: February 2008. MR. ZEISLER: Okay. Thank you. A. I don't remember it. Q. Since we're looking at Redzic 4, if you look at the first page, Ms. Smith, there's some time entries for yourself, only one of which is in November 2008. Do you see that? I'm
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West-R 00204 and 205. (The following exhibit was marked for identification: Smith 2.) Q. Ms. Smith, do you recall this e-mail? A. Yes, now that I see it. Q. And so does this refresh your recollection that the topic of whether or not to terminate Pennsylvania Criminal Procedure was discussed in February -- or as early as January of 2008? A. Yes. Q. And was it the recommendation in January 2008 of Karen Earley that the title be terminated? Was it Karen Earley's recommendation that the title be terminated? MR. ZEISLER: Objection. Are you asking for her recollection? You're pointing her to the document. I was just confused. MR. CHARLSON: I'm asking for her knowledge. MR. ZEISLER: Okay. Thank you.
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sorry, only one of which is in 2008 at all. On November 12th, 2008, you have a "Business Planning Meeting" which you coded an hour of time to. Do you have a recollection of what that was for? A. I'm not sure. Q. Could it have been the fall jurisdictional meeting? A. No. Q. Now, as a Team Coordinator, are you required to record your time? A. Yes. Q. So any time that you spent devoted to Pennsylvania Criminal Procedure you would have accurately recorded, correct? MR. ZEISLER: Objection. Q. I'm sorry, I didn't hear your answer. A. Yes. Q. Thank you. MR. CHARLSON: I'm going to ask the court reporter to mark as Smith Exhibit 2 document Bates- numbered

A. Seems to be her recommendation, based on this. Q. And do you recall specific discussions now with Ms. Earley or anybody else in the period of time January or February of 2008 about whether to terminate the title? A. I don't specifically recall. Q. Do you know if a decision was made at that time whether to terminate? A. No. (The following exhibit was marked for identification: Smith 3.) Q. Showing you what's marked as Smith Exhibit 3 bearing Bates numbers West-R 4728 through 4730, it's an e-mail string that begins at the very end earliest in time with a January 18th e-mail from Karen Earley, and it goes up through February 11th, 2008, with an e-mail exchange between yourself and Teri Kruk. Do you see that? A. Yes. Q. Do you recall these e-mails?

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answer? (The reporter read the requested material.) Q. Did you personally ever have any interaction with Mr. Rudovsky or Mr. Sosnov? A. No, I did not. Q. Now, before you came into this room, Ms. Smith, Sarah Redzic was here testifying, and she testified that she had a meeting with you sometime towards the end of 2008 about the status of Pennsylvania Criminal Procedure. Do you recall that meeting? MR. ZEISLER: Objection. I'm going to object to counsel's characterization of her testimony. What he's saying to you is his interpretation of her testimony. But you can answer his question. A. I don't recall a one-on-one meeting, but I do recall an Attorney Editor meeting where it came up. Q. Do you recall when that meeting was held?
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Q. After those meetings, do you prepare any sort of report or memo to file about what's discussed? A. No. Q. Do you keep handwritten notes of your meetings? A. Sometimes. Q. Any kind of -- do you make any kind of recording of those meetings as -on a regular basis? A. No. Q. Have you searched your files to see if you have notes of that particular meeting? A. Yes, I have searched. No, I could find no notes on that particular meeting. Q. Did you find notes about any meeting regarding Pennsylvania Criminal Procedure? A. I don't think so. Q. What's your recollection of what discussion you had with Sarah Redzic at that Attorney Editor meeting that you
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A. No, I don't. Q. So you're talking about a meeting with multiple Attorney Editors? A. Correct. Q. And do you have regular meetings with the Attorney Editors who report to you? A. Absolutely. Q. And during those meetings, do you talk about the status of various titles? A. Yes, we do. Q. And what needs to be done with some of them? A. Sometimes, yes. Q. Are those held monthly? A. Or more frequently. I believe we were meeting weekly at that time. Q. Is that because it was getting to the end of the year? A. Yes. Q. And is the end of the year crunch time at West? A. Yes, it is.

referred to? A. I told the Attorney Editors as a group that we needed to make all our shipments for the rest of the year; that we needed to deliver everything that we had committed to. Q. And am I correct that the .2008-2009 supplement was part of your publication schedule for that year? A. Yes. Q. And so you felt that that was something that was an obligation that your team had to meet? A. Yes. Q. At the time that you had this meeting, was the -- was the supplement for Pennsylvania Criminal Procedure already overdue? MR. ZEISLER: Objection. Vague with respect to "overdue." A. I really don't know. Q. Would you be surprised if Sarah Redzic had testified that it was overdue? MR. ZEISLER: Objection.

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Mischaracterizes prior testimony. A. No. Q. "No," you wouldn't be surprised? A. No. Q. With respect to Pennsylvania Criminal Procedure, what specifically did you discuss with Sarah Redzic at that meeting? A. My recollection is that Sarah identified that supplement as a supplement that we had no manuscript for, and she volunteered to produce a supplement. Q. And what was your reaction to that? MR. ZEISLER: Objection. Lacks foundation. Q. Did you have a reaction to that? A. Yes. Q. And what was your reaction? A. That we should do it if we could. Q. At that time, how long had Sarah Redzic been a member of the West -Page 42

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A. That's correct. Q. Did you give Sarah any specific direction as to what she should do or how she should go about preparing a supplement on her own, given that she had never done it before? MR. ZEISLER: Objection. Vague as to time frame. A. No, I personally did not. Q. Did you make any suggestions to her about talking with other Attorney Editors or getting some guidance from anybody who had done one? A. I do not recall. Q. Did you make any suggestions for what source material she should review? A. No, I did not. Q. Did you provide her with anything? A. At that time, no. Q. At any time? MR. ZEISLER: Objection. A. Personally, no.
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how long had she been a member of your team? A. Approximately one year. Q. Did you have any concerns about Sarah Redzic's ability to produce a supplement to Pennsylvania Criminal Procedure? A. No, I did not. Q. Were you aware of whether she had ever prepared a supplement on her own before? MR. ZEISLER: Objection with respect to -- vague with respect to "prepared." A. I don't think she had. Q. What kind of time frame did Sarah have to prepare this update from the time of your meeting to the date that a manuscript was required? A. Exactly, I don't know. Less than a month, I would expect. Q. And am I correct that this would not have been Sarah's only task during that period; is that correct?

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Q. Did you do it through somebody else indirectly? MR. ZEISLER: Just for clarity, you mean her personally? Not West; her? Q. Ms. Smith, you answered that you did not personally provide her with any information. My question is whether you're aware that anybody else provided her information at your direction indirectly, but that you did not provide to her personally. A. Are you asking specifically about this supplement? Q. Yes. A. No. Q. Do you recall a discussion with Ms. Redzic about an attempt to locate contractors to prepare the supplement? A. Yes. Q. Do you recall when that conversation took place? A. No. Q. Do you have a recollection of whether it was at the same meeting with

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-- same Attorney Editor meeting that we've been discussing? (Mr. Wierzbicki left the deposition room.) A. I don't remember. Q. And did Sarah -- did you follow up with Sarah or did Sarah follow up with you about her effort to identify a contractor? A. I do not recollect. Q. In fact, no contractor was located, correct? MR. ZEISLER: Objection. Q. You can answer. A. I don't think so. Q. Well, in fact, Sarah is the one who prepared the supplement, right? A. That's correct. Q. Did you give her any -- did you or anyone at West give her any guidance as to how much material -- new material should go into the 2008 supplement? MR. ZEISLER: Objection. Calls for speculation.
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Q. Now, you said that at this attorney meeting -- Attorney Editor meeting -- and this was in the fall, correct? A. Yes. Q. You told your team that all of your commitments had to be met, right? A. Correct. (Mr. Wierzbicki returned to the deposition room.) Q. And the commitments that are in your publishing schedule -- publishing plan; is that the phrase? A. Yes. Q. The commitments that are in your publishing plan, I assume that that is factored into revenue projections for your unit? MR. ZEISLER: Objection. A. Yes. Q. Okay. And meeting those revenue projections required that you meet your publishing commitments, correct? MR. ZEISLER: Objection. Lacks
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Q. I'm only asking for what you know. MR. ZEISLER: Okay. But my objection is your question as phrased is "you or anyone at West." Q. Let me rephrase the question. Did you or, to your knowledge, anyone else at West -- just so it's clear -ever make such a requirement? And just so it's clear, I'm always asking for your knowledge, what you know. If I'm asking about what somebody else at West may have done, I'm asking what you know. I certainly don't want you to guess unless you can tell me, based on your own experience, with some degree of accuracy, how you think something -- what you think happened. MR. ZEISLER: And I'm going to instruct the witness that I do not want her to guess or speculate. Q. You can answer the question. A. Regarding this specific supplement, I don't know.

foundation. A. Yes. Q. And that was part of the reason that it was important that you meet your publishing commitments, right, to generate the revenue that your unit was projected to generate, correct? MR. ZEISLER: Objection. A. Correct. Q. Because these pocket parts don't go out for free, right? The subscribers actually pay for them, correct? MR. ZEISLER: Objection. Q. That's a question. You can answer it. A. Correct. Q. And needless to say, if it doesn't get sent out, the customers don't pay for anything, correct? MR. ZEISLER: Objection. Can you read back the question, please? (The reporter read the requested material.) A. Correct.

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MR. ZEISLER: I repeat my objection to the question. Q. Did you review Sarah Redzic's -- well, let me withdraw that question. I want to make sure I have the right terminology here, Ms. Smith. The document that Sarah prepared, you consider that a manuscript? What terminology would you use to reflect that? MR. ZEISLER: Just for clarity, we're talking about the December '08 pocket part? MR. CHARLSON: Yep. MR. ZEISLER: Okay. A. "Manuscript" is... Q. So did you personally review Sarah Redzic's manuscript for the 2008 supplement? A. No, I did not. Q. Did you approve it? MR. ZEISLER: Objection. A. Yes. Q. And how did you -- how did you approve it?
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Q. -- regardless of how experienced that Attorney Editor is? MR. ZEISLER: Objection. A. Yes. Q. Are you familiar with the term "certified Attorney Editor"? A. No. Q. Are you involved at all in training Attorney Editors? A. No. Q. Are you familiar with the concept of a publishability review? A. Yes. Q. Is that something that you perform? A. No. Q. What is a publishability review? A. A publishability review is a review of the portion of the manuscript to ensure that it is accurate, complete, up-to-date. Q. And who conducts the publishability reviews? MR. ZEISLER: Objection.
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A. By directing her to submit the manuscript for publication. Q. So I'm clear, when you say "approval," that was the approval given to proceed with the project? MR. ZEISLER: Objection. A. Yes. Q. Did anybody review Sarah Redzic's manuscript for the 2008 supplement? MR. ZEISLER: Objection. Calls for speculation. A. I don't know. Q. Well, in the normal course, would you expect that anybody else at West would provide -- would conduct a substantive review of Sarah Redzic's manuscript? A. No. Q. So the Attorney Editor, after being tasked with preparing a supplement on their own, was the final -- had the final say in what went into it -A. Yes.

A. Attorney Editors. Q. Are they typically performed on work authored by an outside author? A. Yes. Q. What about when a work is authored by an internal author? A. No. Q. So West performs a publishability review for work submitted by experienced outside Attorney Authors but not for work performed by its own internal authors, regardless of their experience level? MR. ZEISLER: Objection. Vague with respect to the term "experienced outside Attorney Authors." Q. Are you familiar with David Rudovsky? A. I've heard his name. Q. Do you consider him an experienced outside Attorney Author? A. We would, yes. Q. When Mr. Rudovsky or Mr. Sosnov had submitted earlier drafts or if Mr.

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of the last update to the time of the 2008-2009 update? MR. ZEISLER: Objection. Could you read the question back, please? (The reporter read the requested material.) MR. ZEISLER: You're asking for her understanding, or what are you -Q. Yeah, I'm asking for what your understanding of West's obligation in publishing that 2008-2009 supplement was. MR. ZEISLER: Well, objection, then. If you're asking about West's obligation, it calls for a legal conclusion. Q. I'm asking for, Ms. Smith, your understanding of what West's obligations to its customers were; not in a legal sense, but in your own understanding as the Team Coordinator for this group, what you thought West was -- West standards require in the supplement, and that's a question you can answer. A. My understanding was that we
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MR. CHARLSON: No further questions. THE VIDEOGRAPHER: It's 1:12 p.m. The deposition is now completed. . . . . . . . . . . . . . . . . . . . .
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would update the law existing in the pocket part. Q. And did you understand that the readers of Pennsylvania Criminal Procedure used it as a guide to the most up-to-date -- or to the up-to-date status of criminal procedure law in Pennsylvania? MR. ZEISLER: Objection. Again, is this your representation or a question? MR. CHARLSON: I'm asking her her understanding. MR. ZEISLER: No, you were making a representation disguised as a question. MR. CHARLSON: I'll ask it again. Q. Did you have an understanding that the intended audience of Pennsylvania Criminal Procedure used the book for the purpose of educating themselves on the current status of Pennsylvania Criminal Procedure law? A. Yes.

WITNESS CERTIFICATION . I hereby certify that I have read the foregoing transcript of my deposition testimony, and that my answers to the questions propounded, with the attached corrections or changes, if any, are true and correct. . . _________ __________________ DATE CATHERINE SMITH . . . __________________ PRINTED NAME . . . . .

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