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)

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EXHIBIT G IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DAVID RUDOVSKY and LEONARD SOSNOV : CIVIL ACTION : : vs. : : WEST PUBLISHING CORPORATION: WEST SERVICES, INC., and : THOMSON LEGAL AND : REGULATORY, INC., t/a : THOMSON WEST : NO. 09-CV-727 Philadelphia, Pennsylvania February 22, 2010 Pretrial examination of LEONARD SOSNOV, taken on behalf of the Defendants at the offices of Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 1835 Market Street, Philadelphia, Pennsylvania, on the above date, commencing at 11:00 a.m., before Linda A. Ricciardi, Certified Court Reporter. 419d20f1-1c14-4658-9ed1-2550ca3662c3 5 (Pages 14 to 17) Page 14 Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 directing him not to answer, but I am objecting to the improper question. BY MR. RITTINGER: Q. Is this the pocket part that is primarily the subject of your complaint in this action? A. Primarily subject to the complaint, yes, I would say it is primarily subject to the complaint, and the 2009 one is relevant also to the lawsuit probably. Q. Let me mark as West Exhibit 3 the pocket part that I started to mark before that is also entitled West Pennsylvania Practice Series, and it has both your names on it as read before. MR. CHARLSON: That is interesting. MR. RITTINGER: What do you mean? MR. CHARLSON: May I see it, Jim? MR. RITTINGER: Yeah, that is it. I was looking the prepared by Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I think your understanding from what you said at the preliminary injunction hearing it is relevant to the lawsuit, and, yes, I do complain about it, whatever relevance it has to the lawsuit and otherwise I do complain about it, yes. Q. What do you complain about it? A. What do I complain about it? Q. Yeah. MR. CHARLSON: Let me just object for a second. I object to the extent you are calling for a legal conclusion, and to the extent that you are asking him as a plaintiff and what his understanding of what the lawsuit is about obviously that is fine, but in terms of what the actual grounds of the lawsuit are in terms of, you know, the legal implications, he is here not as a lawyer but simply a client. MR. RITTINGER: I think I understand that and I accept that Page 17 publishers staff, but it is up above. I knew it was on there, but I didn't know where. MR. CHARLSON: That is the one. BY MR. RITTINGER: Q. Now, this also has on the top before your names prepared by publishers editorial staff, and I would like to have this marked as defendant West Exhibit 3. (Whereupon pocket part was marked for identification as West-3.) BY MR. RITTINGER: Q. For the record because I don't remember, can you identify this once again? A. I don't think so. This is the 2009 pocket part to our book that was issued by West. Q. Did you complain about this work at all in this lawsuit according to your understanding? A. According to my understanding, and adaption although I think it was implicit in the question. BY MR. RITTINGER: Q. What is your understanding of what you are complaining about, West Exhibit 3? A. My understanding when I look at that and compared to what a competent pocket part would be, that is an incompetent work. It is not a complete fraud on the consumers like the 2008-2009 Exhibit 2. Q. We can refer to them as West-2 and West-3, I think that would be easier. A. It is not a complete fraud like that one except it is an incompetent effort. Besides the fact it is an incompetent effort there is still a harm to me and Mr. Rudovsky, the fact that many users are not going to know that this wasn't prepared by us when they use this volume, and, therefore, we can be associated with this incompetent effort of a pocket part. 419d20f1-1c14-4658-9ed1-2550ca3662c3 11 (Pages 38 to 41) Page 38 Page 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 your co-plaintiff, how did you get to that point and how long did it take you to get there as best as you can recall? A. As best as I can recall I realized early on it was really bad. Q. Let me just stop you there. I am trying to get through this quickly, I really am. Did you reach that by yourself or had you had a discussion with your co-plaintiff at that time? A. I think, again, I can't remember the timing of this exactly what happened, but I think what happened is I first realized myself looking at it, and then I talked with him, and I believe, though I am not certain, that he was the first one to realize, and he told me that there only appeared three new cases in the supplement. So I believe that came from him rather than me, but I am not positive at this point. Q. Can you place that in any kind of context in terms of time? I could be Page 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. CHARLSON: Object to form. I think the timing of the question, I am confused, you said before the first discussion I think. Can you rephrase it? BY MR. RITTINGER: Q. I want you to tell me all the discussions that you can recall you had about West Exhibit 2 up until the first time you discussed it with your lawyers? A. Well, I know, I do recall one discussion with Mr. Rudovsky when we realized how bad it was where I just said I can't believe they put out this piece of shit under our names, that it is unbelievable. I do remember I was really, I was really angry, I was very, very angry, and that I recall. And then he also was very upset and we talked about what, if anything, we were going to do about it. Q. What did you say, what did he say? A. Now, I can't recall everything, but I can tell you that at first I recall that Page 41 wrong, but I think the record reflects that that was received sometime in December of 2008. A. Yes, sometime in December. MR. CHARLSON: Right before the holidays I think is what came out of the hearing. THE WITNESS: I would say in January is my best estimate. BY MR. RITTINGER: Q. So it took you, whatever time you got it, it wasn't until January that you came to this recognition? A. Well, of how bad it was as far as only three new cases. If I got it a little before Christmas, again, I am not sure, but I am guessing that it was January. I just -- I don't recall. Q. Now, at some point in time you are going to have a discussion with Mr. Bazelon or somebody from his firm, correct, between when you realized this and you have your first discussion, correct? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 he said why don't we write a letter to West, and I was the one that said I think that is really a waste of time. If they have the arrogance to put out this piece of crap under our names then us writing a letter, that showed such disregard for us in the first place, a letter is not going to accomplish anything as far as corrective action. So it was -- I do remember it was my idea instead of just writing a letter to West that we consult with counsel. Q. So let me back up a little bit. First of all, other than this West enjoys an excellent reputation in the legal publishing community; isn't that correct? A. I can't answer that. I don't know the reputation of West in the publishing community. Q. Have you ever talked to Professor Rudovsky about it? A. About West's reputation in the community? Q. Yeah. 419d20f1-1c14-4658-9ed1-2550ca3662c3 14 (Pages 50 to 53) Page 50 Page 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 any of those matters that you can produce? A. Well, the only thing is reflected a little bit I think in some of the e-mails that were given to you, there wasn't a whole lot of e-mails, but there is one e-mail that refers to my ire, my anger, and I don't know whether there are other e-mails. There are a few e-mails maybe, but the rest of it would be verbal, verbal. Q. Do you recall what your ire was that that e-mail refers to? A. The particular one, I am not sure whether that was the referencing problem from the supplement to the book that a reader wouldn't be able to make the proper reference between that or maybe the lack of ability to edit or both, I don't recall at this time. Q. Do you have any other publications with West? A. No. Q. Professor Rudovsky does; is that correct? Page 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 position that we got to get a lawyer's letter out there, we can't go to our publisher of 20 years, did Mr. Rudovsky in any way attempt to dissuade you, say in words or substance look, I got another work I am publishing there, I deal with these people, I have been dealing with them for 20 years, I should go to them before we send a lawyer's letter? A. I don't recall him discussing the fact that he had another publication with West as far as, you know, our discussion about whether to contact a lawyer or not. Q. Did he in any fashion attempt to dissuade you and say let me go to them first and talk to them first? A. I wouldn't say dissuade because we discussed it. In other words, after I raised, you know, that, after I raised it I said I think we should talk to a lawyer, have a lawyer write a letter. Q. What did he say? A. I don't recall his initial response. I do recall that after we Page 53 A. Yes. Q. Have you discussed with Professor Rudovsky the other work or works that he has with West? A. No. Q. Has he ever told you one way or the other that he is very satisfied with the publication of the other work or works that he does with West? A. I don't believe so, I don't recall any conversations. Q. Do you know what the work is? A. Yes, it is the civil rights actions book, I don't remember the title of it, but I know of the book. Q. Are you familiar with it at all? A. The best answer is probably not really. I have looked at it a few times, but I am not really a civil rights action lawyer so it is -- I have only been involved with a couple of cases over the years, a few cases so. Q. In your discussions or discussion with Professor Rudovsky where you took the discussed it, you know, we were in agreement, but I don't recall what was said back and forth after I proposed it. Q. Now, up to the point of speaking to your lawyers did you have any discussions with anyone else prior to the discussions with your lawyers about the quality of West Exhibit 2? A. With anybody else? Q. Anybody else. A. What springs to mind my wife. Q. That is fine, I think that is privileged so I won't ask you about it, but I assume you expressed your view, but anyone other than your wife? A. What was the question again, expressed my view about what? Q. Did you talk about your position on the quality of West Exhibit 2 with anyone other than we now know you talked about it with Professor Rudovsky and your wife, prior to going and discussing it with your lawyers? A. I would think that I mentioned it 419d20f1-1c14-4658-9ed1-2550ca3662c3 15 (Pages 54 to 57) Page 54 Page 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to some friends; in other words, not discussing about going to a lawyer, but just discussing about how I felt about what had been done, but I can't recall specifically when and, you know, which friends I discussed it with, but I am sure that I mentioned it to some friends because I was pretty upset about it so if somebody asks me how are you doing and I see a friend I am sure it came up in conversation with someone, but I can't tell you specifically who I talked to. Q. So your next specific recollection other than your discussion with Professor Rudovsky and your discussion which you testified about, and your discussion with your wife which I am not going to ask you about, actually I am not sure if it is privileged, but I am not going to ask you about it anyway, your next recollection of any discussion about the quality is with your lawyers; is that correct, that you can specifically recall? A. Specifically identify a person, Page 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Can you identify that document? A. This is the agreement that we signed in 1987 with West Publishing Company. Q. Did you have this document in your files? A. When? Q. Well, at any time after the commencement of this lawsuit. No, let me take that back. At the time that you first consulted with your attorneys in the matter. A. I don't recall now which agreements I personally had. I don't recall which agreements I personally had. Q. When is the last time you saw that document before today, if you recall? A. Last night. Q. Before last night when is the last time you saw it, if you recall? A. At some point after the action was filed. The reason I can't recall now is because I have copies, there was a 1987, a 2000 and 2007, three agreements, which Page 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 yeah. The only reason I am hesitating is I am thinking of one friend I am pretty sure I mentioned it to him, he is a lawyer, so I can't specifically identify individuals. Q. The lawyer that you do recall discussing it with is either Mr. Bazelon or someone at Mr. Bazelon's firm; is that correct? A. Yes. I didn't talk to any lawyers before I talked to -- and the first person I talked to at some point was Mr. Bazelon, at some point. Q. I just want your best recollection of anybody you talked to before that, I think you have given it to me? A. Okay. Q. Let me have marked as West Exhibit 4 a document entitled publishing agreement, and it is dated July 31, 1987. (Whereupon agreement was marked for identification as West-4.) BY MR. RITTINGER: ones I personally had at home I can't recall right now. I know I had at least one of them; in other words, before we went to a lawyer I think we collectively talked about, you know, what we had, and I can't recall because I didn't have the -- I should have, it would have been a good idea, I didn't have a folder that just had everything ever existed with West. So the answer is I do not recall whether I had this personally prior to the lawsuit. Q. Well, let me try to do it this way, you mentioned three agreements? A. Right. Q. The '87 agreement? A. Right. Q. We will call it the 2000 agreement? A. Right. Q. And the 2007, the '07 agreement? A. Right. Q. Did you have any of those in your files? A. My best recollection I think I had 419d20f1-1c14-4658-9ed1-2550ca3662c3 32 (Pages 122 to 125) Page 122 Page 124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 material so that the consumers wouldn't be in effect ripped off by paying separately for two things that were essentially the same. I do remember there was some concern about that so the purchasers would know and only purchase one if, in fact, the form book was going to contain the forms that were already in what has been marked as Exhibit 1. So there was a concern for people that would buy the book that there were two volumes that they would be alerted not to pay for two of them. Q. You specifically recall having those discussions and that concern at that time? A. This refreshes my recollection, this Exhibit 12, that we did have a discussion along those lines. Q. Why don't we take a half hour. (Whereupon a lunch recess was taken.) MR. RITTINGER: We had a Page 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 for 2006, 2007 and 2008? A. 2006 I don't recall, but the last three years probably in the range of total income is probably in the range of 155, 160, something like that. Q. Of that 155 to 160 I am not interested in any unearned income, so if we put that aside, can you tell me how much of the 155 to 160 is earned income? A. It is all earned almost entirely from my teaching, and it might be less than 155. My teaching I get 130,000 plus basic salary, usually teach during the summer, it is about another 12, so we are talking 145, 150 total, around there, and my outside income the last, at least I know the last two, three years has been 5 to $10,000, it has been very low the last two, three years. I have had other years where it is more, but, again, I don't know 2006 offhand, but I would say probably 2007 and 2008 less than $10,000 outside income. Q. Is that just from private practice Page 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 discussion off the record, and in an attempt to limit questions about lost revenues as a result of any claim in here, correct me if I am wrong, it is my understanding that there will be no specific claim made with respect to any lost opportunity, revenue as a result of lost opportunity, lost jobs, lost teaching assignments, anything like that, there will be no specific evidence offered in that regard, however, you will be making a claim for presumed injury to reputation, and you are not waiving your claim with respect to a presumption that the jury should be able to presume that some income has been lost. MR. CHARLSON: I could not have said that better myself. BY MR. RITTINGER: Q. Let me just ask you this, can you tell me what your income was in general revenue? A. Yes, that would be from private practice income. Q. Just in general what kind of work do you do? A. I do mostly -- I do legal work on the side, but it is mostly pro bono. So the legal work that I am doing mostly generates no income and occasionally I will have somebody who is paying me a greatly reduced fee, what they can afford or once in a while a court appointment, so we are talking generally about a few thousand dollars except for unusual occasion when I accept a case that generates more money than that. People contact me, they want to hire me, and I don't take cases generally for money, I take cases that I believe in for whatever reason. Q. Is it fair to say that you are not attempting to generate income as a result of private practice? A. I think that would be fair. In 419d20f1-1c14-4658-9ed1-2550ca3662c3 40 (Pages 154 to 157) Page 154 Page 156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Are you aware of any other -MR. CHARLSON: He is the client not a lawyer. MR. RITTINGER: Off the record. (Whereupon a discussion was held off the record.) BY MR. RITTINGER: Q. Do you recall having any discussions with Mr. Rudovsky about the matter or matters conveyed in Mr. Wierzbicki's e-mail? A. About us possibly doing another supplement, yes, I did talk to him. Q. All right, tell me what was said there? MR. CHARLSON: I just caution you to the extent that the conversation involved counsel or reflected advice of counsel or discussions with counsel it is privileged. THE WITNESS: We did not want to enter into discussions about Page 155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. CHARLSON: I am objecting, I am realizing something that this discussion was after -MR. RITTINGER: Don't tell me that is a confidential settlement discussion. MR. CHARLSON: This discussion was after the lawsuit was filed, I believe. MR. RITTINGER: No, it is after the letter was written, it is before the lawsuit was filed, absolutely. MR. CHARLSON: All right, then I stand corrected. You can answer the question, if you are able to. THE WITNESS: I don't recall the exact words of the conversation or whether I was the main impetus, but we concluded we at least didn't want to work on this. So as far as him working with West on something else, I don't Page 157 the possible preparation of another supplement by myself and Mr. Rudovsky on behalf of West. BY MR. RITTINGER: Q. Did you say why you didn't want to do that? A. Yes, we agreed that we had lost faith. We were very angry about what happened and didn't have the time first of all because at that point to even consider doing another supplement, and we didn't want to work with West anymore. We were outraged at what had happened and we did not want to work with West. Q. Professor Rudovsky, he is still working with West? A. He might be. At least as far as this project, I didn't talk to him about his other book. Q. I know you didn't. I want to focus in on this. We don't want to work with West anymore but Rudovsky is working with West, does that in any way change your recollection as to what was discussed? remember that entering into our discussion about this. BY MR. RITTINGER: Q. So as far as you recall there were no words or substance to the effect, look, they are willing to talk to us to reconcile this, you know, we have been dealing with them for 20 years, I had some minor problems with them, but nothing like this, of course, but gee, I got this book out there that I have been doing for 20 years it is really successful, sells a lot better than the book at issue here that I wrote with you, maybe we ought to give them a second chance, nothing like that that you can recall? MR. CHARLSON: Objection to form. BY MR. RITTINGER: Q. You can answer. MR. CHARLSON: You are hypothesizing the conversation. MR. RITTINGER: I am not hypothesizing, I am asking if 419d20f1-1c14-4658-9ed1-2550ca3662c3 54 (Pages 210 to 213) Page 210 Page 212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 was your question, you said that is not my question. MR. RITTINGER: I already got an answer to that question. Now I want to know if anybody made that offer to him or made him aware that that offer had been made to him and his co-plaintiff other than in the content -- any time, anybody made it to him, if he doesn't remember it in this letter, in this interrogatory answer. I don't think there is anything privileged about it, and I think the answer is no, he doesn't know. MR. CHARLSON: My objection and instruction stands. You can answer the question subject to that. THE WITNESS: I don't recall whether or not I read this, which I told you before, and I don't Page 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. RITTINGER: I am talking about West Exhibit 2. BY MR. RITTINGER: Q. It is fair to say that you are the author of the majority, the overwhelming majority of the content of West Exhibit 2? MR. CHARLSON: Meaning Mr. Sosnov and Mr. Rudovsky. MR. RITTINGER: And Mr. Rudovsky. THE WITNESS: Yes. BY MR. RITTINGER: Q. Give me a second. Thank you very much, I have no further questions. (Witness excused.) (Deposition concluded at 4:10 p.m.) Page 213 CERTIFICATION I, Linda A. Ricciardi, hereby certify that the foregoing is a true and accurate transcript of the deposition of LEONARD SOSNOV, who was first sworn by me at the time, place and on the date herein before set forth. I further certify that I am neither attorney nor counsel for, not related to or employed by any of the parties to the action in which this deposition was taken; further, that I am not a relative or employee of any attorney or counsel employed in this case, nor am I financially interested in this action. recall reading it in any other document or somebody other than counsel talking about it, I don't even recall my counsel mentioning it to me at this time. BY MR. RITTINGER: Q. Thank you, we got it out exactly what I wanted. Let me ask you one more question about it. Do you recall discussing it with Mr. Rudovsky? A. I don't recall either way at this point. Q. If you don't recall either way then you don't recall discussing it with him. A. I don't recall whether or not I discussed it with him. Q. Let me just take a two minute break, I think I am done, let me check my notes. I did think of one thing I want to ask you. I am trying not to get into any kind of a contentious discussion about the contents of this, but it is fair to say -MR. CHARLSON: What is this, please identify? Linda A. Ricciardi Court Reporter and Notary Public 419d20f1-1c14-4658-9ed1-2550ca3662c3 55 (Page 214) Page 214 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CERTIFICATE I, the undersigned, LEONARD SOSNOV, do hereby certify that I have read the foregoing deposition, and that to the best of my knowledge, recollection and belief, said deposition is true and correct with the exception of the following corrections listed below. PAGE LINE REASON SIGNATURE DATE 419d20f1-1c14-4658-9ed1-2550ca3662c3

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