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Page 1
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 HYPERLAW, INC.,
4 Plaintiff,
5 v 94 Civ. 589
6 WEST PUBLISHING COMPANY,
7 Defendant.
8 ------------------------------x
9 January 27, 1997
10 a.m.
10
Before:
11
HON. JOHN S. MARTIN,
12
District Judge
13
APPEARANCES
14
LAW OFFICES OF PAUL RUSKIN
15 Attorney for Plaintiff
BY: PAUL J. RUSKIN
16 CARL HARTMANN
17 - and -
18 LAW OFFICES OF LORENCE L. KESSLER
BY: LORENCE L. KESSLER
19
20
SATTERLEE, STEPHENS, BURKE & BURKE
21 Attorneys for Defendant
BY: JAMES F. RITTINGER
22 JOSHUA M. RUBINS
23 - and -
24 LOCKRIDGE, GRINDAL, NAUEN & HOLSTEIN
BY: JOSEPH M. MUSILEK
25
2
1
2
3 (Case called)
4 MR. HARTMANN: Your Honor, Carl Hartmann for
5 hyper law.
6 May I inquire?
7 THE COURT: Good.
8 MR. HARTMANN: May I examine from here, your
9 Honor?
10 THE COURT: Sure.
11 MR. HARTMANN: At this time, the plaintiff would
12 waive its opening argument.
13 MR. RITTINGER: I have a motion, your Honor. I
14 assume that plaintiff is now announced that he is ready for
15 trial.
16 THE COURT: Correct.
17 MR. RITTINGER: Your Honor, if I can take one
18 minute to set the motion up. I think we would save some
19 valuable time as a result of waiving the jury.
20 What West objects to in this case, and in other
21 cases, is piracy. It is always cheaper, as has been so many
22 times, to copy than to create.
23 Now, if your Honor looks at the Feist decision,
24 before the Feist decision I don't think there is any
25 question that the sweat-of-the-brow theory would give
3
1 copyright protection to the compilations at issue here
2 simply because of the sweat of the brow. But, of course,
3 the sweat of the brow is not mutually exclusive to
4 creativity and originality. But when you look at what the
5 Supreme Court said in Feist it's true that it really was a
6 false pretext that copyright could be based on sweat of the
7 brow.
8 But in doing that it said a couple of things that
9 are very important to the issues in this case. The first
10 thing that it said was it recognized that piracy and copying
11 was not a good thing and it talked about the modicum of
12 creativity that was necessary. And it said things like a
13 minimal amount, a slight amount, a modicum, a modicum no
14 matter how humble, how crude, how obvious, all of those
15 things that really have not been an issue in this case
16 before your Honor with respect to star pagination.
17 And it said something else and that is what
18 relates to our motion.
19 It also said that we are not even saying that
20 there isn't room for protection of what has happened even in
21 this case, under the Feist case, under circumstances that
22 will be called upon another day to decide, and that is
23 deciding on an unfair competition basis whether or not
24 someone can or cannot do wholesale copying. But of course,
25 your Honor, Mr. Sugarman and Hyperlaw have been very careful
4
1 throughout this entire case to always say that we do not
2 want to engage in wholesale copying except for star
3 pagination which, again, is not an issue before your Honor
4 right now.
5 Now, I don't know, and I don't really have to
6 know, whether this is a strategy designed to attempt to get
7 a decision on the compilations that are at issue in this
8 case and still not appear to be a pirate or if he really
9 means what he says and he doesn't really have any intention
10 of wholesale copying. But if you now take a look at the
11 Feist decision and you look at it in the context of the
12 fair-use defense, which is also an issue in this case, and
13 the Supreme Court in Feist, first of all, says, no sweat of
14 the brow. But it also says but the creativity doesn't have
15 to be much.
16 Well, how do you protect then in a situation
17 where the creativity isn't much? You turn to fair use. And
18 the fair-use factors are right there to protect the more
19 thin, if you will, copyright protection that a factual
20 compilation might be entitled to as opposed to a 750-page
21 novel. But the way you protect against an abuse of a
22 copyright is by the application of the fair-use defense once
23 you find that modicum of creativity.
24 Now, I now turn that to what I am talking about
25 today. Your Honor will recall that at the pretrial
5
1 conference on Wednesday at the end of the conference I
2 brought up the fact that at the justiciability hearing,
3 which was a justiciability hearing for purposes of deciding
4 whether or not there was a controversy sufficient for this
5 case to go forward.
6 We all know that the court is not in the business
7 of giving advisory opinions and we all know what the
8 requirements are for justiciability. I might not be able to
9 pronounce it well -- justiciability. And with respect to
10 star pagination, there was, based upon the product that
11 Mr. Sugarman was going to sell, a justiciability controversy
12 because he intended to star paginate his entire product. We
13 object to that. Your Honor found against us and we are
14 going to the Second Circuit and time will tell.
15 But what about what is left in this case? What
16 has he said about that? What he said at the justiciability
17 hearing, and what he has really said regularly and
18 consistently throughout this case, is that I only have a
19 present intention of doing two things. One is I want to be
20 able to make an intermediate copy and copy approximately 1
21 to 2 percent of the cases that I can't get or I have been
22 unable to get for whatever reason from the Circuit Courts of
23 Appeals that appear in your advance sheets. That is number
24 one.
25 And let's go back to Feist. It may very well be
6
1 an infringement of our copyright for him to copy even that 1
2 or 2 percent if it includes our protected compilations,
3 those four compilations that are at issue in this case.
4 THE COURT: Well, let me interrupt you for a
5 minute because I am not sure this is a compilation case.
6 MR. RITTINGER: I definitely think it's a
7 compilation case. It's both. We have four compilations.
8 THE COURT: Let me tell you what I think. I
9 think the compilation issue was raised in connection with
10 the star pagination but what we are getting to right now is
11 the copying of individual cases, cases authored by judges of
12 various courts, and it seems to me that is really what is at
13 issue in this part of the trial. All they are doing is
14 copying cases that were authored by some judge out of your
15 various reports.
16 MR. RITTINGER: What they want to copy, and it
17 depends on what you listen to and when, but the most they
18 want to copy is your decision with our enhancements in that
19 decision and our enhancements are a compilation. We have a
20 compilation, for example, of all of the cites, every single
21 case that has ever been cited by the Court of Appeals from
22 whenever this case begins until today.
23 We have taken those cases and we have looked at
24 them and we have made sure, number one, that those cases
25 conform with the digest title that we originally gave to
7
1 that case before it was cited in the case that we are
2 looking at.
3 Then, number 2, we look at it to see that it
4 conforms with the way we want it to be cited and if it's not
5 we change it.
6 Then, number 3, we make a judgment. We say is
7 that cite good enough for our readers? And we have
8 unfortunately, and I hope you don't have to find out because
9 I think it's moot, but we have boxes of guidelines that tell
10 the various attorney editors at West, which have been based
11 upon decisions over the years as to what should be cited,
12 what additional cites should be added to cites, what cites
13 should be deleted, what cites are more permanent than other
14 cites, so it will take one cite out and put another cite in.
15 All of these things, your Honor, and let me just
16 jump ahead to something that I think was said at the
17 November 22 summary judgment motion. Your Honor said, and
18 this subject really only came up very briefly at that
19 argument, but your Honor said that you didn't think cleaning
20 up the cites added much of substantial value to your
21 decision. And I say two things to that, your Honor.
22 First of all, I think factually if we get to it
23 you will see that we do much more than just clean up a cite.
24 But even probably cleaning up a cite may very well be a
25 modicum. It may be humble. It may be crude, and it may be
8
1 obvious, but that is all we have to do. But even more
2 important for purposes of what we are talking about when we
3 talk about copying the cases, it doesn't matter whether we
4 have added anything substantial to your opinion. I am sure
5 that you don't think that because we had a paralegal cite or
6 an alternative cite or we make a correction because you
7 miscited a statute that you think we have changed the
8 substance of an opinion that we spent days working on. But
9 that is not the test.
10 I don't think Shakespeare would think that
11 whoever wrote West Side Story really added a lot of
12 creativity too. It's a different degree. But you don't
13 look at it on the basis of the final product. You look at
14 it on the basis --
15 THE COURT: I never heard anybody sing one of my
16 opinions.
17 MR. RITTINGER: Well, it may be a bad example and
18 I am hoisted on my own petard on that. The point is this:
19 It's not looking as to whether or not we make any
20 substantial contribution to the previous public domain work,
21 it's looked at on the other end as to whether or not there
22 is any modicum, humble, crude, obvious, slight, minimal
23 creativity or judgment and it is beyond per adventure, we
24 submit, although we are jumping ahead at where the motion
25 is, it's beyond peradventure --
9
1 THE COURT: Let's get back to where the motion
2 is.
3 MR. RITTINGER: Where the motion is, your Honor,
4 that is what this case is about. This case is about whether
5 or not that is or is not sufficient under the Feist
6 standards, and I might say not only the Feist standards but
7 because equity does really follow the law, I really believe
8 that, what the Second Circuit has done regularly and
9 consistently since Feist and that is find that modicum of
10 creativity.
11 It's very easy for somebody to stand up and say
12 that is crude, that is humble. But we thought of it first.
13 And somebody had to do it and it wasn't just saying, okay,
14 every single name in town in alphabetical order. It's more
15 than that. It's more than that on the file lines.
16 I will get back to my motion.
17 THE COURT: We are going to have a trial. You
18 are summing up. Let's move on.
19 MR. RITTINGER: I am summing up for this reason,
20 your Honor: Because there really is no need to sum up. If
21 all he is going to do is take 1 or 2 percent, which is all
22 he said he is going to do, or all he is going to do is use
23 our Court of Appeals' decisions for purposes of getting the
24 names of counsel that he cannot get out of two circuits,
25 then, as I said on Wednesday, I say again, we deem that to
10
1 be a fair use because we understand that we are not dealing
2 with West Side Story here. We are dealing with something
3 that has a thinner copyright than a West Side Story has.
4 But if he gets on the stand and he tries to say
5 that he is going to do something in the form of wholesale
6 copying, then we do object to that and we don't want him to
7 do that. But that is not a justiciable controversy in this
8 case.
9 So I submit, your Honor, and we have a brief and
10 a motion that we would like to file, that there is no longer
11 a justiciable controversy, and I would point out going back
12 to the conference, when we raised this at the conference,
13 you could see the scrambling start.
14 I don't think you have to have 20-20 vision or be
15 a rocket scientist to see what is going on here. I believe
16 what they want to do is they want to come into this
17 courtroom, act like they are not going to copy much, get a
18 declaration which they think they are going to get from your
19 Honor, but which we think they won't, and once they get the
20 declaration to go out and do the wholesale copying. That is
21 what I think they are trying to do. But they are not
22 entitled to do that. They are only entitled to do what they
23 have testified regularly and consistently under oath that
24 they have a present intention of doing and that is two
25 things that I now, on behalf of West, say go ahead and do
11
1 it.
2 May I hand up the brief and the motion papers,
3 your Honor?
4 THE COURT: Surely.
5 MR. RITTINGER: Your Honor, there is attached to
6 the motion papers Mr. Sugarman's testimony at the
7 justiciability hearing, as well as a letter that I received
8 from I think Mr. Ruskin which after said, "remember, your
9 Honor said go out and try to stipulate," and he said, "I am
10 not interested in trying to stipulate any settlement with
11 you but I will take admissions." I think that shows what is
12 really involved in this case, your Honor.
13 THE COURT: I will reserve decision on that
14 motion and allow Hyperlaw's counsel to respond in connection
15 with any post trial briefing.
16 MR. HARTMANN: Your Honor, before we begin, may I
17 make one response? I just simply --
18 THE COURT: Do you want me to rule now?
19 MR. HARTMANN: No.
20 THE COURT: Let's proceed.
21 MR. RITTINGER: We have a pretrial brief we would
22 like to hand up as well, your Honor.
23 THE COURT: Sure. Actually it's a mid-trial
24 brief.
25 MR. RITTINGER: You are thinking a lot faster.
12
1 THE COURT: Proceed.
2 MR. RITTINGER: I can deem that as an opening,
3 your Honor.
4 THE COURT: It sounded more like a summation but
5 I will take it as an opening.
6 MR. HARTMANN: Your Honor, I would like to call
7 Ms. Donna Bergsgaard as our first witness please.
8 DONNA BERGSGAARD,
9 called as a witness by the Plaintiff,
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. HARTMANN:
13 Q. What is your position at West?
14 A. I am the manager of the manuscript department.
15 Q. Are you an attorney?
16 A. Yes, I am.
17 MR. HARTMANN: Your Honor, we prepared binders of
18 exhibits which your Honor has.
19 May I approach the witness?
20 THE COURT: Sure.
21 Q. Ms. Bergsgaard, I am providing you with two
22 binders, one of them labeled Plaintiff Hyperlaw's Trial
23 Exhibits 1 through 7 and the second is --
24 THE COURT: It looks like another case in which I
25 should have required the filing of an environmental impact
13
1 statement.
2 MR. HARTMANN: That is all our exhibits, your
3 Honor.
4 Q. Ms. Bergsgaard, if you would please in the
5 exhibits turn to Exhibit number 41. Would you look at the
6 exhibit please, particularly the first two or three pages.
7 Do you recognize this as the redacted version of
8 Feist versus Real Telephone that you were examined on in
9 your deposition?
10 A. It appears to be.
11 Q. Now, when West received the Feist decision from
12 the Supreme Court, in what ways could West have gotten that
13 from the Supreme Court?
14 A. West receives the slip copy as it was filed by
15 the court. We would have received it in electronic form and
16 also in the journal copy, which is the slip copy of the
17 Supreme Court.
18 Q. And when you say you received it in electronic
19 form, does that mean you downloaded from the Supreme Court's
20 Hermes' system?
21 A. That is correct.
22 Q. And the Supreme Court Hermes' system is just
23 briefly what?
24 A. That is a project that allows the court to
25 electronically transmit opinions to different courts and I
14
1 believe now that they have their own bulletin board or will
2 be having their own bulletin board very soon. But at this
3 point it was project Hermes.
4 Q. Whose employees provided that information up on
5 Hermes? Where did the information that was on Hermes come
6 from?
7 A. The clerk of the Supreme Court I believe loads it
8 to the computer in the program called Project Hermes for
9 distribution.
10 Q. If you look, certain materials are redacted out
11 of West case report, is that correct?
12 A. Yes.
13 Q. And, for instance, the headnotes don't appear.
14 A. That is correct.
15 Q. No West topic numbers or cross references, is
16 that correct?
17 A. That is correct.
18 Q. Now, with regard to just the document that sits
19 in front of you, in other words, leaving out West's
20 headnotes and its top key numbered topics, is there anything
21 in this decision as it sits here that West says that it has
22 authored?
23 A. Well --
24 MR. RITTINGER: I object to the form of the
25 question, your Honor.
15
1 THE COURT: Overruled.
2 Q. You may answer, ma'am.
3 A. When we receive the opinion from the slip opinion
4 as it was filed by the Supreme Court, we do quite a bit of
5 changing, adding, modifying and deleting information from
6 the slip opinion to create our case report. And we have
7 done that in this situation.
8 Q. Let me ask the question again just so we are
9 clear.
10 Is there anything in here that West has authored?
11 MR. RITTINGER: Asked and answered, your Honor.
12 THE COURT: Overruled.
13 A. Well, we can take a look at the dead copy which
14 speaks for itself, but we would be the author of expanding
15 citations. We look at every citation that is in the opinion
16 and we expand upon those citations. We create the caption
17 of the case and indicate how that is going to be cited. We
18 have authored or I should say we have compiled the attorney
19 summary in this particular case. The attorneys come in on a
20 different listing. They are not available on the slip
21 opinion. And we compile that attorney summary and get
22 information from other sources to add to our summary.
23 Q. Do you author the attorneys names?
24 A. No, we don't author it but we do compile the
25 attorney information and add information to it from other
16
1 sources.
2 Q. Well, when you say you compiled information,
3 where do the attorneys' names come from that you compile?
4 A. Well, for the Supreme Court the attorneys are
5 listed on what the court calls a docket sheet or the order
6 list that lists all of the cases that are going to be argued
7 before the Supreme Court on that particular day. And what
8 we do then is use that as the basis for our attorneys'
9 summary. It may be a year or two later before the Supreme
10 Court comes out with its decision but yet we take it from
11 that order list. We save it and then we begin to merge it
12 in with our case report when the case has been decided. So
13 from that we have to delete information that was on the
14 docket sheet and we look up and add the city names. We
15 remove some of the language that the court had in the docket
16 sheet as far as those attorneys go. So we do --
17 THE COURT: Such as?
18 THE WITNESS: They have argued. They have the
19 caption of the case. They have the docket number of the
20 case so we do some changes. And I have exhibits of those
21 available that I could talk about.
22 Q. My question again, so we are clear, is whether
23 you received that text from the court, the names of the
24 attorneys. Did you receive it in a document from the court?
25 A. Yes, it comes on a docket sheet.
17
1 Q. And you physically cut up that sheet and paste
2 the attorneys' names on another sheet, isn't that correct?
3 A. That is correct.
4 Q. And there is no question that those names that
5 you are cutting up and pasting onto a sheet is prepared by
6 the U.S. government, is there, the names themselves?
7 A. The names come from the docket sheet.
8 Q. And you never add attorneys that aren't listed on
9 the court docket sheet, do you?
10 A. Yes, we do.
11 Q. When do you do that?
12 A. We would do that when we receive a call from an
13 attorney and they would indicate that they had been party to
14 the case. Maybe their name was not on a docket sheet or it
15 wasn't listed in a card so we do get information for our
16 attorney summaries from the attorneys themselves.
17 Q. And when that information comes from the
18 attorneys, would you put that into the published case
19 without checking with the court?
20 A. We do in certain circuits, yes.
21 Q. I am talking about the Supreme Court.
22 A. The Supreme Court, yes, we would. I think for
23 the Supreme Court we would do that. They also have
24 additional listings that we choose not it put into our case
25 report and those are all the attorneys on the brief. They
18
1 are available in the U.S. reports and also we put them on
2 our Westlaw but we don't choose to compile them in our
3 attorney summaries for print. So there are other names.
4 Q. And those names are called in to you by the
5 attorneys?
6 A. The attorney brief names are on the briefs.
7 Q. So you get the attorney brief names from there.
8 You get the attorney names from the court and sometimes
9 other attorneys call --
10 THE COURT: Let's not sum up.
11 MR. HARTMANN: I am sorry.
12 Q. When you get these attorney names, do you ever
13 delete names of parties that were put there by the court?
14 A. We are just going to talk about the Supreme Court
15 in this instance?
16 Q. Yes.
17 A. These would be the attorneys that argued the
18 case. I don't recall offhand whether we have deleted it.
19 It happens quite frequently in the Court of Appeals. I
20 don't recall instances where somebody maybe was deleted
21 because perhaps they don't do the argument. That could
22 happen but the dead copy would show that.
23 Q. Can you tell which things West did or didn't do
24 to the attorney names by looking at this copy?
25 A. I can, yes.
19
1 Q. Well, could a reasonable person, someone who
2 hadn't prepared this?
3 MR. RITTINGER: Your Honor --
4 THE COURT: Sustained.
5 Q. How can you tell, ma'am?
6 A. We add in the city and the state for the
7 attorneys that does not appear in the copy.
8 Q. Can you tell whether these names have been
9 changed since they were given to you by the court by looking
10 at it?
11 A. You would look at the dead copy.
12 THE COURT: Where do you get the city and state
13 from?
14 THE WITNESS: We look it up on the West Legal
15 Directory or in other Bar Association journals, Bar journals
16 and telephone directories.
17 Q. Do you look it up in Martindale-Hubbell?
18 A. No.
19 Q. Did you used to?
20 A. We used to use Martindale-Hubbell, yes.
21 Q. When did you stop using them?
22 A. It was a few years ago when West Legal Directory
23 was made more complete and we decided to use our own
24 product.
25 Q. At the time you testified in your deposition were
20
1 you still using Martindale-Hubbell?
2 A. I don't believe we were at that point. We had
3 still some old sets around in the building. We hadn't been
4 updating them, and we may still have some of our older
5 Martindale-Hubbell sets around. But generally we use West
6 Legal Directory to find the source of attorneys.
7 Q. Now, if you look back at Exhibit 41 for a second,
8 in the first page of it, which is page 1282, and I would
9 like to go through these things one by one and ask you about
10 authorship. In the part that says "Feist Publications" down
11 to the word "Inc.," "Company, Inc.," does West author the
12 names of the parties in the case, a Supreme Court case?
13 A. In this instance we didn't do editing. Sometimes
14 we do editing of captions. In this case we didn't. But our
15 capitalization is unique to West and the capitalization to
16 us indicates to our readers what we believe the title of the
17 case will be for citing and the capitalization here would be
18 something that West chose to put in and how we are going to
19 caption this case.
20 THE COURT: What do you mean the capitalization?
21 THE WITNESS: This is not a very good example,
22 your Honor, but in long captions West chooses what will be
23 in capital letters and that will be what the case is going
24 to be. This one isn't a very good example but I have others
25 that I can show you later.
21
1 THE COURT: This is --
2 THE WITNESS: Both the titles here happen to be
3 capitalized by West and that will be its title. I don't
4 know if there is a better example to show you what I am
5 talking about but I do have it.
6 THE COURT: That will do.
7 MR. RITTINGER: Your Honor, the only thing I am
8 thinking is it's going to be very painful to have to go over
9 this in direct testimony in our case. If you want we can
10 try to pull out exhibits now to show you those.
11 THE COURT: Let's let counsel conduct his own
12 examination.
13 Q. So is there anything else that West does to the
14 names of the parties in Supreme Court decisions that you
15 would consider authorship by West?
16 MR. RITTINGER: I object to the form of the
17 question, your Honor.
18 THE COURT: Overruled.
19 A. Well, we would have to look at all the dead copy.
20 We do some editing to the court captions as you will see
21 later on. In this particular case we could look at dead
22 copy, but I believe that we probably did not do any further
23 editing to this other than our characterization of the
24 caption.
25 Q. How about to other cases, just generally to the
22
1 Supreme Court, what other things do you do to the names of
2 parties?
3 A. Well, I would have to take a look at all of the
4 examples but, as I said, we characterize the parties. We
5 actually use a compilation of titles. There is a title that
6 appears on the order list. There is a title that appears
7 for the case on the syllabus that comes from the court and
8 one that comes from the slip opinion. They are all slightly
9 different, and we use a compilation of those titles to get
10 the full names of the parties, as well as their position
11 like petitioner or appellant. So it's more of a compilation
12 of the titling.
13 Q. Alright.
14 Now, is there anything else you would do to the
15 names of parties?
16 A. If we are limiting it just to the Supreme Court
17 case, there may be other things that I can't think of right
18 now, but I think I have answered your question.
19 Q. Take a second. If there is anything else that
20 you do to the names of parties we would like to know it.
21 A. Well, if I can speak generally --
22 Q. About Supreme Court cases, certainly.
23 A. I think we do more titling to federal circuit --
24 THE COURT: Talk about the Supreme Court please.
25 THE WITNESS: I can't think of anything else.
23
1 There might be, but right here on the stand I can't think of
2 anything else.
3 Q. If you take a moment, do you think that you can
4 remember anything else?
5 A. Well, we publish more than 65,000 cases a year,
6 so I think I have answered your question. I have nothing
7 more to add.
8 THE COURT: Let's move on.
9 MR. HARTMANN: Certainly, your Honor.
10 Q. If you now look at the line below Rule Telephone
11 Service Company, Inc., where it says No. 89-1809, can you
12 tell me what that is?
13 A. That is the court's docket number.
14 Q. Where does West get that?
15 A. We get that from the slip copy.
16 Q. And that is prepared by the court and sent to
17 you?
18 A. It appears on the slip copy, yes.
19 Q. And how does West get that out of the slip copy?
20 A. We cut and paste it from the slip copy and we
21 style it. We put "NO" period, that is our style, and we put
22 a period at the end and we rearrange it. The caption
23 portion is all rearranged according to West's style and we
24 place that directly below our caption of the case.
25 Q. Does West claim that doing that to the docket
24
1 number reflects originality or authorship?
2 THE COURT: Let's let her answer factual
3 questions. Mr. Rittinger will tell you what the arguments
4 are.
5 Q. If you look down below that to the two lines that
6 start with "argued and decided," argued January 9, 1981 --
7 '91, excuse me, Cite decided March 27, '91, where does West
8 get these?
9 A. The dates appear on the slip opinion but not in
10 this exact form. West has chosen to publish both the
11 "argued" and the "decided" date and we put them in the style
12 and the format with the abbreviations that we have chosen to
13 use.
14 THE COURT: Does the "argued" and "decided" date
15 appear on the Supreme Court slip opinion?
16 THE WITNESS: Yes, it does, your Honor.
17 THE COURT: You have chosen to do exactly what
18 the Supreme Court does.
19 THE WITNESS: In this instance we have. Not all
20 of the dates appear on slip copy.
21 Q. Now, if you would turn over two pages please to
22 1284 and you see a section that says "syllabus."
23 A. Yes.
24 Q. Can you tell me where West publishing obtains the
25 syllabus of a case?
25
1 A. The syllabus is prepared by the Reporter
2 Decisions Office for the Supreme Court and is attached as
3 kind of a front matter to the slip opinion.
4 Q. Once again has West decided to arrange it in the
5 same manner by putting it at the front of theirs as an
6 editorial decision of West?
7 MR. RITTINGER: Objection to the form of the
8 question.
9 THE COURT: Sustained.
10 Q. Does West ever make any changes to the syllabus
11 of the court?
12 A. We do make one change, yes.
13 Q. What is that?
14 A. Actually we make two changes. We add the
15 footnote to the syllabus, as you see the star from the
16 syllabus dropping down to the footnote. That is not the way
17 it appears in the slip copy and we remove a portion --
18 THE COURT: How does it appear in the slip copy?
19 THE WITNESS: In the slip copy it appears as a
20 note that comes before the syllabus and before the Supreme
21 Court caption and, again, I would have an example of that.
22 The footnote has other information in it that we do not
23 believe that is of value to our readers so we remove a
24 couple of sentences from the footnote.
25 Q. But the language that is in the footnote is
26
1 exactly as it appears in the Supreme Court Reporter or in
2 the slip opinion from the court rather?
3 A. It is not exactly the same. We have modified the
4 note.
5 Q. I am not asking that. I am sorry.
6 The language there, is it taken verbatim from the
7 government?
8 A. No, it is not.
9 Q. So the phrase "The syllabus constitutes no part
10 of the opinion of the court" doesn't appear on the Supreme
11 Court version?
12 A. That does but you asked me whether it was
13 verbatim.
14 THE COURT: What has been changed?
15 THE WITNESS: We have deleted a sentence and we
16 have also added parallel citations to that cite. We
17 expanded the citation.
18 Q. Except for the citation is the language there
19 taken out of the Supreme Court docket?
20 A. Yes, after we have modified and added, expanded
21 it, yes.
22 Q. Now, the actual syllabus itself, the text that
23 occurs in the syllabus, are there any changes made to that
24 by West?
25 A. Yes.
27
1 Q. What would that be please?
2 A. Well, we add the cross references. If you notice
3 on page 1285 under the word held we have added pages 1287 to
4 1297 so our readers will be able to find the holding of the
5 court, and we have done that throughout the syllabus. We
6 also verify the syllabus for the citations and we would add
7 any parallel citations to that as we determined to.
8 Q. Where you say you have added that parallel
9 reference to parallel citation, is there any way that a
10 reader is informed that that is an addition of West?
11 MR. RITTINGER: Objection.
12 THE COURT: Sustained.
13 Q. Does West do anything else to the syllabus of the
14 opinion?
15 A. No, I think that is probably all we do to it.
16 Q. And at the end of the syllabus it says, "916 F.2d
17 718, see 8/10/1980 reversed." Where does that come from?
18 A. That generally the Court Report of Decisions has
19 included that as the lower court reference. Sometimes it's
20 not complete or the cite isn't available. We will add
21 parallels to that and check that cite but generally that is
22 coming right on the copy.
23 Q. Does West do anything either in the text or
24 anywhere else in the book to identify what changes it makes?
25 MR. RITTINGER: Objection.
28
1 THE COURT: Sustained.
2 Q. Down below that you will see that on 1285 at the
3 bottom you see something O'Connor J. delivered the opinion
4 of the court in which Rehnquist, White, Marshal, so on,
5 concurred in the judgment. Could you tell me where that
6 text came from?
7 A. The judge's listing is on the slip opinion and we
8 do style it, however, into our own style with the
9 abbreviations and the capitalization.
10 Q. What kind of changes does West make?
11 A. I would have to look at the dead copy of it. In
12 the listing in the Supreme Court they have their judges
13 listed in a couple of different places. It is our style to
14 indicate that the Chief Judge is a capital C period, capital
15 J period always listed first, and the other judges have the
16 abbreviation JJ after them.
17 Q. Does West make any other changes to the name of
18 the judges?
19 A. Other than the styling of it and the
20 capitalization, that would be our normal procedure.
21 Q. And, again, is the way that West does this is
22 that they receive a document from the court and they
23 physically cut it out and they paste it onto their own copy
24 sheet?
25 A. Well, that is only one of the things we do but,
29
1 sure, we do rearrange it in the order that we want the
2 attorneys to appear or the judge line to appear in. It
3 doesn't appear in this exact format in the slip opinion.
4 So, yes, we do have to cut it out and put it and rearrange
5 it in the order and then we have our preparers going through
6 preparing and styling the information, compiling it
7 according to our editorial instructions. And the dead copy
8 would show you that very clearly.
9 Q. And do you ever add names of judges or take any
10 judges names out?
11 A. No, we wouldn't.
12 Q. How about the phrase "concurred in the judgment,"
13 is that taken out of the Supreme Court's original document?
14 A. I believe that it is. I would have to look at
15 dead copy on that one. There are some instances where we do
16 characterize and add in whether it was concurred or
17 dissenting. I don't remember in this particular case. We
18 would have to look at the dead copy.
19 Q. Now, down below that on 1286, you have the names
20 of the attorneys, is that correct?
21 A. That is correct.
22 Q. And although we have touched on it, once again,
23 West gets those --
24 THE COURT: We have had that.
25 Let's move on.
30
1 Q. Now starting from the phrase "Justice O'Connor",
2 from there to the end of this case, which would be at page
3 1297, can you tell me whether West changes the text?
4 A. Yes.
5 Q. Could you tell me any ways that West changes the
6 text of Supreme Court opinions?
7 MR. RITTINGER: Your Honor, it would be much more
8 probative if he just showed her the dead copy which he has.
9 THE COURT: Objection overruled.
10 A. I am sorry, could you ask the question again?
11 Q. Sure.
12 Could you tell me from the words Justice O'Connor
13 through to the end of the case what changes West has made?
14 A. The dead copy would definitely be of help and
15 speak for itself, but I can tell you generally what we have
16 done.
17 Q. Can you tell me what all the changes are that
18 were made?
19 A. I can try. Do you want me to do that and tell
20 you what we have done here in this case?
21 THE COURT: Yes.
22 Q. Certainly.
23 A. We would have, first of all, checked every
24 citation, the court citation that the court referred to, and
25 we have added or chosen to add in and expand the court cite
31
1 with parallel citations to the Supreme Court Reporter and to
2 the Lawyers Co-op Edition. We would also have checked the
3 statute citations and called -- well, we would have either
4 changed them or called the court and notified them of the
5 change.
6 Q. Any other change?
7 A. We may have added in some alternative citations.
8 I am just going to scan through here. Alternative citations
9 would be something where the court had used a slip opinion
10 number and we would have deleted that and added in a full
11 citation of a case. So there might be an alternative cite.
12 There would be parallel cites we would have added.
13 Q. When you say you add parallel cites, where do you
14 get those from?
15 A. We have decided what parallels we think would be
16 best for our readers to use and we do that based on the
17 National Reporter System is a comprehensive set and we want
18 the people to be able to use one unit and go freely into the
19 other unit so we do want to have the National Reporter
20 System cite used as a parallel. But there are other
21 parallels, as well as in the Supreme Court we have chosen to
22 use the Lawyers Co-op edition.
23 THE COURT: Is that also called for in the
24 uniform system of citations that are generally used by
25 lawyers, those two parallel cites?
32
1 THE WITNESS: In the blue book, your Honor, I
2 don't know.
3 There are perhaps more than 20 different
4 locations of a Supreme Court case now so there would be many
5 different choices that we could make when we select what
6 parallels we want to put in. We have chosen those two
7 because we think it would help the reader.
8 Now, as far as where we get those from, we have a
9 library at West, as well as using our Insta-Cite system, the
10 in-house version of the system.
11 Q. So you look them up somewhere?
12 A. Yes, we do.
13 Q. Go ahead. Any other changes you made?
14 A. Well, we also add the extension pages again to
15 help. When the court is referring to a particular point at
16 471 U.S. at 556, for example, we do add the extension page
17 where that issue can be found in the Supreme Court Reporter
18 to help our readers again find or quickly locate that issue
19 of law. And we do that because we want to have an
20 integrated comprehensive research system.
21 Q. And where do you get that information?
22 A. We either look it up if it's not available. We
23 have attorney editors reading the point of law and finding
24 out what that extension page should be.
25 Q. When you say "look it up," where do you look it
33
1 up?
2 A. You have to read the case and then read the
3 source and find out where it's being cited, what the
4 proposition of law that is being cited is and then add that
5 page to the citation.
6 Q. But you are going to look it up in another set of
7 books or on a computer program?
8 A. You would look it up at the source, yes.
9 Q. And talking about adding and taking out cites, is
10 another change that West makes to remove cites of certain
11 competitors, for instance, LEXIS cites or U.S. Law Week
12 cites?
13 A. We do choose to delete citations from court
14 decisions, yes. When we view that the citation is a
15 temporary cite or just simply a cite or a slip opinion cite
16 or a cite that is not widely known or available to our
17 readers we will use an alternative cite. So we will delete
18 the cite that the court used in the opinion and add in a
19 citation that we believe would be of more use to our
20 readers.
21 Q. And you always remove LEXIS and you always remove
22 U.S. Law Week, is that correct?
23 A. No.
24 Q. When do you not?
25 A. There are situations where we leave a LEXIS cite
34
1 in.
2 Q. What would such a situation be?
3 A. Well, one offhand would be where LEXIS was the
4 only source or LEXIS is referring to something that there
5 was no other parallel cite to or another instance, we leave
6 LEXIS in and add a Westlaw cite when there is no printed
7 source for it.
8 Q. And are there any other changes that you make to
9 the text of the Supreme Court decision?
10 A. With regard to the citations we change, we add,
11 we modify, delete, and we can talk about that more later on
12 with more examples, but that is basically what we do.
13 Q. And sometimes when you change cites, do you call
14 and check with the court?
15 A. Yes. Once in a while we will certainly. It may
16 be that the judge has a volume and a page number that
17 doesn't go at all with the title and we read both opinions
18 and it's clear to us that the court is missing a line.
19 Maybe the court intended to cite both cases. And then we
20 would contact the court out of a matter of professional
21 courtesy.
22 We have the greatest respect for the judiciary.
23 We want the opinions to be correct and we would call them
24 and bring that to their attention.
25 Q. And would they sometimes tell you in response to
35
1 such a call that it was okay to make the change that you are
2 asking about?
3 A. Yes, they may.
4 Q. Are there some times they might tell you not to
5 make the change you are asking about?
6 A. Once in a while on a statute citation we may have
7 misinterpreted the statute and we were wrong, so, yes, they
8 may tell us, no, you don't have that one correct.
9 I was going to add that there are many other
10 changes that we make to citations where we don't call the
11 court.
12 Q. And if you call the court and ask about a change
13 and they told you not to, you would never put it in, would
14 you?
15 A. We may add it in brackets, but I don't know that
16 that situation has come up. I don't recall a situation like
17 that. Our intent is to make a very accurate report and I
18 don't remember that situation coming up, but sometimes we do
19 add things in brackets if there is a difference.
20 Q. When you say your intent is to make a very
21 accurate report, what exactly do you mean?
22 A. We want our reporting to be accurate. We want it
23 to be very usable to all of our readers and we don't want
24 errors. We want it to be very easy to use.
25 Q. You just used accurate to redefine accurate.
36
1 When you say --
2 THE COURT: Let's move on.
3 MR. HARTMANN: Thank you, your Honor.
4 Q. Did you make any other changes?
5 A. Are we just talking about the Feist case?
6 Q. No, we can use the Feist case but also if you
7 know other changes.
8 THE COURT: Supreme Court cases.
9 Q. Supreme Court cases.
10 A. There are situations where there are dissents
11 that come in on separate slip opinions which we then have
12 combined with the opinion, and the reverse happens in the
13 Supreme Court where we choose to publish the dissents
14 separately if they go to two or more cases and then we will
15 publish them "precede" and "follow". So there is a
16 combination of putting the "concurs" and "dissents"
17 together. There may be some instances also where we would
18 add a file line if there had been a rehearing which is
19 not -- it's fairly rare, but there are occasionally
20 rehearings in the Supreme Court and we would add that
21 information as a file line.
22 Q. Where would you get that information?
23 A. That information would come on the order list
24 from the court.
25 Q. So you would take it directly off a document from
37
1 the court?
2 A. We would find it on the document. We would
3 research it to find out what case that was referring to and
4 then we would style it, write the file line and add it to
5 our court caption.
6 Q. Would you ever change the file line?
7 MR. RITTINGER: Objection.
8 THE COURT: Overruled.
9 A. The file line does not exist anywhere. It's
10 something that West creates. We are just getting
11 information off of an order sheet.
12 Q. Did you ever change that information?
13 A. Yes. I don't know what you mean by change it,
14 but we --
15 Q. I know you style it.
16 THE COURT: Please let her answer the question.
17 MR. HARTMANN: I am sorry, your Honor.
18 A. It may not say rehearing denied. It may say -- I
19 think in the Supreme Court what they usually do is on this
20 day, you know, these motions are denied, and then they list
21 all the cases. So we need to really create an accurate
22 representation of what was happening in that motion.
23 Q. I guess what I am saying is aside from styling
24 it, would you ever change the information you received from
25 the court?
38
1 MR. RITTINGER: Objection.
2 THE COURT: Sustained.
3 Q. Are there any other changes that -- let's go back
4 for a second.
5 You said that you might reorder where the
6 concurrences or dissents came. Did you say that?
7 THE COURT: She said they might where they have a
8 dissent or concurrence that applies in two cases.
9 Q. If that occurs, do you ever change the text of
10 the concurrence or the dissent?
11 A. I am not sure I understand what text means.
12 THE COURT: You do the same type of thing you do
13 to any opinion, I take it.
14 THE WITNESS: Yes.
15 THE COURT: But nothing more or less.
16 THE WITNESS: That is correct.
17 Q. Are there any other changes that you make to the
18 text, to Supreme Court decisions as you receive them from
19 the court?
20 A. Well, I think I have listed -- again, I don't
21 know that I have gone through every single change we have
22 ever made, but I think that you have an idea of the kind of
23 work that we generally do.
24 Q. I understand generally that is the case.
25 Are there any other specifics that you know of?
39
1 A. At this point I think I have answered the
2 question fully. To the best of my knowledge, this is the
3 kind of thing that we do.
4 Q. And are you the head of the department that does
5 this, by the way?
6 A. Yes.
7 Q. And have you testified about what this department
8 does in other proceedings, for instance, the 1988 Mead Data
9 case?
10 A. My testimony in the Mead Data case was very
11 limited actually to just the arrangement of cases that had
12 to do with one exhibit. That was all my testimony.
13 Q. But you testified as the head of that department
14 there also?
15 A. I testified as having been instrumental in
16 creating the exhibit that was introduced at that point.
17 Q. Now, are there any other changes in this specific
18 decision? Are there any other changes that West has made
19 that you haven't mentioned?
20 THE COURT: Sustained. Asked and answered.
21 Let's move on.
22 Q. If you now take a look at Exhibit 13, I am sorry.
23 And if you look at page 1 of Exhibit 14 or Exhibit 13,
24 excuse me.
25 Do you recall that Hyperlaw applied at your
40
1 deposition with a redacted version of the entire 1 F.3d, the
2 entire volume of 1 F.3d?
3 A. I don't remember that. I remember there were
4 some pages that were redacted. I don't remember that it was
5 the entire volume.
6 Q. Do you remember signing a set of interrogatories
7 which presented to you the redacted version of all of 1 F.3d
8 and asked what changes West made?
9 A. There were interrogatories, yes. I do remember
10 that.
11 Q. And you do --
12 A. I just don't remember if it was the entire volume
13 or not. I am sorry.
14 THE COURT: Is there any dispute about that?
15 MR. RITTINGER: I don't really know, your Honor,
16 to tell you the truth.
17 THE WITNESS: I don't think it matters.
18 MR. RITTINGER: I don't recall, your Honor. We
19 would have to look at it.
20 MR. HARTMANN: Would you like me to examine the
21 witness off the interrogatory?
22 THE COURT: You can examine the witness any way
23 you want.
24 Q. If you look at Exhibit 42 for a second. And if
25 you would look specifically at the interrogatory numbered H1
41
1 Int. 4, which is on page 6, and also H1 Int. 5. Do you now
2 recall that in answering these interrogatories you were
3 supplied with the complete set of 1 F.3d redacted?
4 A. Yes, it appears to be.
5 Q. And you signed these interrogatories?
6 A. Yes, I did.
7 Q. Now, when you were given or when you were asked
8 the question in your interrogatories what changes occurred
9 in 1 F.3d, did you inform Hyperlaw of that?
10 MR. RITTINGER: Your Honor, that is not the way
11 to ask the question.
12 THE COURT: Overruled.
13 A. Maybe you could repeat that question.
14 Q. Certainly.
15 When you were asked in the interrogatories that I
16 just pointed to whether you could identify what changes were
17 made in 1 F.3d, either in the full text version or in the
18 redacted version, did you do that?
19 A. Did we tell Hyperlaw?
20 Q. Yes.
21 A. The interrogatory will speak for itself. It's
22 very complicated. There are many pages here. I guess it
23 just speaks for itself.
24 Q. Well, is there anywhere in this interrogatory, no
25 matter how complicated, that sets forth the changes West
42
1 made?
2 A. We did not go page by page with the dead copy to
3 show you all the changes that West made but I believe that
4 was available during discovery. And that was what the
5 answer said, was that the materials for having you find that
6 out were available and I believe that is part of the
7 interrogatory answer.
8 Q. Did West ever supply Hyperlaw with anything that
9 showed all the changes that West says it made to 1 F.3d?
10 A. We supplied the dead copy during discovery.
11 Q. Does the dead copy reveal all changes that West
12 makes between the time it receives it and what goes into 1
13 F.3d?
14 A. It has all of the corrections that West would
15 make up to the advance sheet and the plate correction
16 volumes would show what was made for bound volume and those
17 were all supplied during discovery.
18 Q. The plate corrections were supplied to Hyperlaw
19 during discovery?
20 A. Absolutely.
21 Q. Do you know where or when that was?
22 A. We sent over more than 300 boxes for discovery to
23 our law firm where the discovery took place. And our
24 records show the plate corrections and dead copy for these
25 were supplied.
43
1 Q. Are you aware of a letter between Mr. Musilek and
2 myself that said that that was not the case?
3 MR. RITTINGER: Objection, your Honor. This is
4 not the time to argue whether or not there was or was not
5 full compliance with discovery.
6 THE COURT: It has to do with her credibility
7 whether she knows what was done.
8 Overruled.
9 Q. You can answer the question, ma'am.
10 A. I lost track. What was the question?
11 Q. Are you aware of the letters back and forth
12 between Mr. Musilek and myself in which Mr. Musilek and
13 Mr. Tostrud state --
14 MR. RITTINGER: Objection. The letters speak for
15 themselves. They are not exhibits and it's totally
16 inappropriate to be cross examining this witness on an
17 exchange of correspondence three years ago between counsel.
18 MR. HARTMANN: It is an exhibit. It's Exhibit
19 47.
20 THE COURT: Show it to her.
21 MR. RITTINGER: It hasn't been admitted, your
22 Honor.
23 THE COURT: Overruled.
24 A. I can just --
25 Q. Ma'am, if you could look at Exhibit 48.
44
1 A. Yes.
2 Q. Have you ever seen the June 15 letter that was
3 sent to me by Schatz, Paquin signed by Eric Tostrud dated
4 June 15?
5 A. Yes.
6 Q. You have seen that?
7 A. Yes.
8 Q. If you will, I would like you to look back at
9 Exhibit 13 please.
10 I am sorry, one other question.
11 On the plate corrections that you said you
12 produced to us, did you ever in your entire deposition with
13 me mention the existence of plate corrections?
14 MR. RITTINGER: Objection.
15 THE COURT: Sustained.
16 Q. Have you ever testified under oath previously
17 about what changes West makes and not mentioned the
18 existence of these plate corrections?
19 THE COURT: Sustained.
20 MR. HARTMANN: Thank you, your Honor.
21 Q. If you look at 13, Exhibit 13, again please.
22 Do you recognize this as a copy of the full text
23 version, the published version of Sweet Home Chapter?
24 A. Yes.
25 Q. And this is a document you were examined about
45
1 previously in deposition, is that correct?
2 A. That is correct.
3 Q. What I would like to do is do what we did with
4 the Supreme Court, go through this and ask what kind of
5 changes West makes.
6 MR. RITTINGER: May I do a quick voir dire if he
7 is going to be asking the witness about this document? I
8 assume he is going to introduce it into evidence.
9 THE COURT: She already said she reviewed it
10 once. Let's have him ask his questions.
11 MR. HARTMANN: Your Honor, I would like to move
12 13 into evidence please.
13 MR. RITTINGER: I would like a short voir dire,
14 your Honor.
15 THE COURT: Sure, go ahead.
16 MR. RITTINGER: Or an offer of proof as to why
17 it's coming in.
18 I will do a voir dire quick, your Honor.
19 VOIR DIRE EXAMINATION
20 BY MR. RITTINGER:
21 Q. This is the first hundred pages of 1 F.3d, is
22 that correct, that you have before you?
23 A. Yes.
24 Q. How many pages are there in the entire F.3d, and
25 I will just show it to you. Do you know?
46
1 A. Over 1500, 1585.
2 Q. If you wanted to be able to identify changes,
3 deletions and additions that are made, would you go to the
4 first 100 pages or would you go to the dead copy?
5 A. I would go to the dead copy.
6 Q. Now, is this exhibit representative of all of the
7 types of cases you receive from the Court of Appeals?
8 A. No.
9 Q. How many circuits are represented by this first
10 hundred pages?
11 A. Only three, the District of Columbia, First
12 Circuit, Second Circuit.
13 Q. And there are 1500 pages in 1 F.3d.
14 Do you have any estimate as to how many pages
15 there are in the entire F.3d series?
16 THE COURT: Too many, next question.
17 Q. How about the second --
18 THE COURT: Let's move on.
19 MR. RITTINGER: Your Honor, I object.
20 THE COURT: Objection overruled.
21 DIRECT EXAMINATION (Continued)
22 BY MR. HARTMANN:
23 Q. Okay, ma'am, looking at this exhibit, the names
24 of the parties, for this set of books can you tell me the
25 types of changes that West makes to the names of parties?
47
1 A. Yes if we are going to start at the caption of
2 the case, is that what you would like me to do?
3 Q. Names and parties.
4 A. The appellants and appellees, the names of the
5 parties?
6 Q. Sure.
7 A. West would receive the slip opinion and we would
8 again characterize the parties by how we are going to be
9 citing to them so we use the underscoring of the party name,
10 and in this case it was Sweet Home Chapter of Communities
11 For A Great Oregon versus Babbitt. We don't cap the first
12 name or his title.
13 I will be talking only about this case and not
14 all examples of things that we do.
15 Q. I am sorry, ma'am, you can expand it if you would
16 like.
17 A. In some instances if the title is very long we
18 may shorten it with an "et al." If there are many, many
19 titles, I have seen one case where we have put the titles
20 into an appendix or put them into a footnote. In some
21 instances we will delete duplicate names from a title.
22 Maybe there are two titles and we will combine them and put
23 two cases after it. So we do some editing to the title work
24 to make it readable and concise and, again, underscoring, so
25 it's very quick to read how we believe the title should be
48
1 characterized.
2 Then we prepare the docket number for the court.
3 Q. I am sorry, ma'am, I would like to stop here.
4 And the names of the parties, where do you get
5 those?
6 A. They are on the slip opinion.
7 Q. Where do you get the slip opinion?
8 A. That comes from the court.
9 Q. In the case of a District of Columbia circuit
10 case, where do you get the slip opinion?
11 A. The slip opinion, again, comes from the court.
12 We happen to be the slip printer for the District Court of
13 Columbia. We create the slip opinion, but it comes from the
14 court.
15 THE COURT: Now, the cases or the slip opinions
16 that you create for the District of Columbia, are all the
17 captions done therefore in the same form and you would then
18 publish them in your Fed. 3d now?
19 THE WITNESS: No, not for the District of
20 Columbia. They own their own form of slip opinion.
21 Q. How about in the Fifth Circuit?
22 A. The Fifth Circuit, we do style the caption
23 according to the West style and that becomes part of the
24 contract. That is what we are supposed to do under that
25 contract.
49
1 Q. But the style you use in the Fifth Circuit is
2 identical to what the court uses?
3 A. We are the slip printer for the Fifth Circuit and
4 part of our contract is to style the caption and create the
5 front matter in the West style, so to speak, so that --
6 THE COURT: Let's get to the bottom line.
7 Does the caption that appears in the Fifth
8 Circuit cases slip opinions, is that the exact same caption
9 that you find in Fed. 3d?
10 THE WITNESS: Yes, it would, your Honor.
11 Q. How about the Eleventh Circuit?
12 A. The same is true for the Eleventh Circuit. That
13 is treated like the Fifth Circuit, yes.
14 Q. And at the bottom of the fifth and Eleventh
15 Circuit opinions as they are put out by the court, isn't
16 there a West copyright notice that says that you claim a
17 copyright in the syllabi, the headnotes?
18 A. Yes, there is.
19 MR. RITTINGER: Objection.
20 THE COURT: Overruled.
21 Q. Does that copyright notice list the names of the
22 parties as one of the things you claim a copyright in?
23 MR. RITTINGER: Objection, your Honor.
24 THE COURT: Overruled.
25 A. No, it does not.
50
1 Q. Thank you.
2 Let's move on to the docket number.
3 I am sorry, are there any other types of changes
4 that West makes to the names of parties in Federal Reporter
5 series decisions, Fed. 2d, Fed. 3d?
6 A. In some instances we style or we add language to
7 the caption, such as "appeal of," "in the matter of" to make
8 it clear. So we do add, we modify, we change, we delete
9 language to make a concise samples, and we have examples
10 that better illustrate that.
11 Q. Does that language "in the matter of" come from
12 courts?
13 A. Yes.
14 Q. Can the reader distinguish when it came from the
15 court and when West did it?
16 MR. RITTINGER: Objection.
17 THE COURT: Sustained.
18 Q. Let's move on for a second to the docket number.
19 Where does West get the docket number in cases
20 from the Courts of Appeals?
21 A. The docket number comes from the court documents.
22 I believe generally it's on the slip opinion. There might
23 be some instances where it's not. It generally is not
24 located in the exact position where West has chosen to
25 organize it.
51
1 Q. But you always get it from the court, isn't that
2 correct?
3 A. Yes. It's a court record.
4 Q. Do you ever assign a different docket number than
5 the court assigns it?
6 A. No.
7 Q. If you discovered an error in a docket number on
8 a document, would you call the court to check about the
9 change?
10 A. Yes, we would.
11 Q. And if the court told you not to change it, would
12 you change it?
13 A. Well, the docket number represents what the file
14 of the court is so, no, we can't make up the docket number
15 for the court.
16 Q. Thank you.
17 Now, are there any other changes that West ever
18 makes to the docket numbers of Courts of Appeals decisions
19 that appear in F.3d?
20 A. Yes.
21 Q. What else?
22 A. Sometimes the language will come in and it will
23 say docket number, docket, file number, and we will delete
24 that language or we add a number if there isn't one. Our
25 style is always to include the capital "NO" period. And the
52
1 other thing we will do there is we will combine docket
2 numbers. If there is a large case that maybe has ten
3 different docket numbers, we will combine those and put a
4 dash through there to show a combination, a consolidation,
5 or we may expand the number if the court has truncated it.
6 Q. Any other changes to the docket numbers?
7 A. That is generally it.
8 Q. Now, moving down to the next line where it says
9 United States Court of Appeals, what would that line be
10 called?
11 A. That is our court line.
12 Q. And where does that information come from?
13 A. The court line comes from the slip opinion. They
14 generally identify the court. And it doesn't appear in the
15 location in the slip opinion nor does it appear on that
16 form. West has chosen to have its own court line language
17 for each of the circuits and each of the courts that it
18 reports and we put it into that style.
19 Q. In some courts does it appear there in that form,
20 for instance, the Fifth and the Eleventh Circuits?
21 A. Yes, in the Fifth and Eleventh Circuits it would
22 because we would have styled it.
23 Q. How about other circuits?
24 A. Generally it does not read the same from the slip
25 opinion to the West court line.
53
1 Q. Does it sometimes in the Third Circuit?
2 A. I would have to look at the dead copy.
3 Q. But I am not asking for just this case. I am
4 asking for all cases. Does it sometimes appear in this form
5 and in this location in Circuit Court opinions?
6 MR. RITTINGER: Your Honor, I don't know what
7 case he is referring to when he says in this case.
8 MR. HARTMANN: She is the head of this
9 department.
10 THE COURT: Overruled.
11 MR. RITTINGER: She has --
12 THE COURT: Overruled.
13 A. Every slip opinion that comes in from the court
14 is a little bit different. As you can see from looking at
15 the dead copy, sometimes the court line is at the top of the
16 case, sometimes it is after captions, sometimes it's after
17 attorneys. It can be all over the place and generally the
18 court language would be "In The United States District Court
19 For The District of Columbia" and it may have different
20 language and we always take out the extraneous language and
21 put it into our style.
22 Q. You take out the words "in the" and "for the?"
23 A. Yes, we do that.
24 Q. Sometimes does it appear as it appears here?
25 Sometimes when it comes from the court, does it appear as it
54
1 appears here?
2 MR. RITTINGER: Objection.
3 THE COURT: Overruled.
4 A. The dead copy would speak for itself.
5 Q. Do you know?
6 A. Generally there are some changes that are made to
7 it.
8 Q. But sometimes there are not changes?
9 THE COURT: She doesn't recall.
10 Let's move on.
11 Q. Now, the next section after that which says
12 "argued and decided," what would those lines be called?
13 A. Those would be called the date lines.
14 Q. And where does that information come from?
15 A. It does depend on the circuit again. Some
16 circuits include both dates on the slip opinion. Other
17 circuits do not. And it comes from other court documents.
18 Generally the court will say that their opinion was filed on
19 the particular day, filed in this case it would be July
20 23rd. We would change the word "filed" to be "decided"
21 whenever we have two dates, the argue date and a decided
22 date. We change the word "filed" so people don't think the
23 appeal was filed on a particular date. So that would be a
24 change we make. And then we may have to compile the dates
25 from other sources if they are not readily available on the
55
1 slip opinion. Again, like I said, it may come from a
2 different source.
3 Q. Is there ever a time when the court doesn't have
4 the "decided" date on an opinion?
5 A. Well, actually it does happen in the electronic
6 transmission world where they don't have the dates on it.
7 Generally they do have a date. They don't always have their
8 "argue" dates.
9 Q. For the information we talked about, the names of
10 the parties, the name of the court and the date lines, is
11 the way that West does this is they take the copy from the
12 court, cut it up and actually paste it onto their documents?
13 A. Yes, we do rearrange it. We take it from --
14 THE COURT: But it is a cut-and-paste job?
15 THE WITNESS: That part of it is. The
16 reorganization is a cut-and-paste job, yes, your Honor.
17 Then there is editing beyond that.
18 THE COURT: Let's move on.
19 Q. One last question.
20 You made a distinction b