Cross-posted to Tap-juris, Law-lib, cni-copyright
Previously Sealed Deposition Testimony in HyperLaw Bender litigation
against West made available to Wisconsin Supreme Court
Concerns different versions of West claims to copyright in pagination.
March 28, 1995
HyperLaw, Inc.
P.O. Box 1176
New York, New York 10023
212-787-2812
212-496-4138 (fax)
The Honorable Chief Justice Nathan Heffernan
c/o Marilyn Graves, Clerk of the Court
Wisconsin Supreme Court
State Capitol Building
Madison, WI 53702
Dear Judge Heffernan:
On March 21, 1995, at a the hearing before the Court concerning the citation
proposal, Brady C. Williamson, Esq., counsel for West Publishing Company,
represented to the Court that, "The volume and first page number of every case
report published by West is in the public domain ..." and "... the fact remains that
even West volume and initial page number are matters of public domain ..."
Upon our learning of the foregoing representations, we then advised West
Publishing Company that we wished to bring to the attention of the Wisconsin
Supreme Court certain deposition testimony in Matthew Bender & Co. and
HyperLaw, Inc. v. West Publishing Company, an action pending presently in the
United States District Court, Southern District of New York.
The deposition testimony was that of Vance Opperman, President of West
Publishing Company. One deposition was held on August 17, 1994 and the other
deposition on March 17, 1995, only days before the hearing before your Court.
The testimony had been marked as Confidential or Confidential - Attorney's
Eye's Only, over the objections of HyperLaw. Because HyperLaw's counsel
believed the deposition testimony to be inconsistent with the representations made
by Mr. Williamson in the presence of Dwight Opperman, Chairman of West
Publishing Company, HyperLaw's counsel advised West that HyperLaw intended
to make an emergency motion before United States District Judge Loretta Preska
to unseal this testimony so as to provide the deposition testimony to the
Wisconsin Supreme Court. Last night, at 11:57 P.M., EST, West faxed to
HyperLaw's counsel West's consent to the unsealing of portions of the testimony
of Vance Opperman, which we enclose.
We wish for the written record in the Wisconsin proceeding to reflect that these
statements were indeed made by Mr. Williamson, Counsel for West, and were
made in the presence of Dwight Opperman, Chairman of West, who attended the
hearing.
Mr. Williamson did not qualify his statements and his statements were not
restricted to the Northwestern Reporter nor to Wisconsin cases appearing in the
Northwestern Reporter. As Mr. Williamson and West were aware, interested
parties from around the country were present at the hearing and heard his
statements.
We will address these statements in another submission later this week in which
we will also clarify statements attributed to me in West's brief. But we wished to
bring this information to the immediate attention of the Court as well as to West
and the other parties should they wish to address in their responses later this week
these apparently inconsistent statements.
Moreover, despite the implications in Vance Opperman's testimony to the
contrary, HyperLaw's CD-ROM does exist. HyperLaw CD-ROM product,
Federal Appeals on Disc, TM and has been on the market since the summer of
1993 and presently contains over 21,000 opinions from the U.S Courts of
Appeals, as well as U.S. Supreme Court opinions and the United States Code. A
HyperLaw CD-ROM was attached to its complaint, and subsequent releases were
provided to counsel for West.
Attached is our transcription of a portion of Mr. Williamson's presentation and
excerpts from the deposition testimony.
Sincerely,
Alan D. Sugarman
President
cc: Brady C. Williamson, Esq. (facsimile 608-257-3911)
Joseph Musilek, Esq., Schatz Paquin et al
(Counsel for West Publishing Company)
Morgan Chu, Esq., Irell & Manella
(Counsel for Matthew Bender & Company) ( fax 310-203-7199)
William Mulligan, Esq.
(Counsel for Wisconsin State Bar) (fax 414-276-9369)
Paul J. Ruskin, Esq.
(Counsel for HyperLaw)
Carl J. Hartmann, Esq.
(Counsel for HyperLaw)
Attachment 1 to HyperLaw Letter of March 28, 1995
Excerpts from Statement of:
Brady C. Williamson
La Follete & Sinykin
Madison, Wisconsin
Counsel for West Publishing Company
Public Hearing before the Wisconsin Supreme Court
March 21, 1995
[Note: Dwight Opperman, Chairman and major shareholder of West was in
attendance at the hearing.]
[Transcribed by HyperLaw from tape recording provided by the Clerk of the
Court.]
"Thank you Chief Justice. My name is Brady Williamson with the
Madison law firm of LaFollette & Sinykin and I represent West
Publishing Company."
* * *
"The volume and first page number of every case report published by
West is in the public domain. I do not speak obviously for Lawyer's
Cooperative. They have a representative here. They can speak for
themselves. But, if the Court will review the RFP -- Request for Proposal
-- that is contained in the Appendix -- it will find, we believe, language
which makes if very clear that all of Callaghan's Reports are in the public
domain. So that if a publisher simply entering the market for the first time
wanted to take Callaghan's and literally scan it into a computer, put it on a
CD-ROM that could be done. West does assert a copyright in the internal
pagination of its reports."
* * *
"the fact remains that even West volume and initial page number are
matters of public domaain ..."
Attachment 2 to HyperLaw letter of March 28, 1995
[Excerpts from Depositions Of Vance Opperman, President, West Publishing
Company, August 17, 1994 and March 17, 1995. These depositions had been
marked Confidential or Confidential Attorney's Eyes only until March 17, 1995.]
[NOTE: Counsel for West had received numerous releases of HyperLaw's CD-
ROM prior to these depositions. Moreover, in testimony before Congress, May
14, 1992, Hearing, page 162, the Witness had referred to HyperLaw as an
example of competition against West.]
****************************************
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------
MATTHEW BENDER & COMPANY, INC.
Plaintiff,
VS. CASE NUMBER 94 Civ. 0589(LAP)
WEST PUBLISHING COMPANY,
Defendant.
----------------------------------------
HYPERLAW, INC.,
Plaintiff-Intervenor,
VS.
WEST PUBLISHING COMPANY,
Defendant.
---------------------------------------------------------
DEPOSITION OF VANCE K. OPPERMAN taken on the 17th day of August
1994, commencing at 1:10 p.m. at the offices of Schatz, Paquin, Lockridge,
Grindal & Holstein, 100 Washington Avenue South, Minneapolis, MN 55401,
before Janice L. Young, a Notary Public.
APPEARANCES
For the Plaintiff-Intervenor: HyperLaw, Inc.
CARL J. HARTMANN, Attorney at Law
Lawrence & Schoenbach
111 Broadway, Suite 1200
New York, New York 10008
For the Defendant: West Publishing Company
JOSEPH M. MUSILEK, Attorney at Law
Schatz, Paquin, Lockridge, Grindal & Holstein
100 Washington Avenue South
Minneapolis, Minnesota 55401
190
16 MR. HARTMANN: Okay, I'm sorry.
17 BY MR. HARTMANN:
18 Q So are you claiming that West claimed a copyright,
19 but does not object to Bender using the first page
20 citation? Is that what was being said?
21 A No, that was not what was being said, and that was
22 not the subject of those three requests as you read
23 them to me. My suggestion to you is you go back and
24 read those and take a look at the testimony.
25 Q But is that West's position?
191
1 A Is what West's position?
2 Q Can -- wait a second. That Bender can use the first
3 page citations on its CD-ROM?
4 A Mr. Hartmann, incorporating the other three answers
5 I've given to that question, I will add this by way
6 of repetition.
7 Q Okay.
8 A If a publisher or someone attempts to take, for
9 commercial purposes, all of our arrangement or
10 compilation or selection, that is a violation of
11 copyright.
12 The earlier questions you asked with regard
13 to Matthew Bender were specific to request for
14 admissions, you read one of them and then jumped
15 back and read 1 and 3, and then read what the
16 responses had been, and I told you that yes, that
17 comported with my understanding and I agreed with
18 those admissions, and I repeat that now, if you're
19 going to go back over that same ground.
20 Q I'm just asking you about the use of the first page
21 citation by Bender on CD-ROM?
22 A What's your question with regard to Bender on
23 CD-ROM?
24 Q I guess I'm asking you to distinguish between the
25 copyright by West and whether West will let someone
192
1 use it.
2 A Well, Mr. Hartmann, we've gone over this now four
3 times, and I've cited you to the relevant opinions,
4 and let me just, incorporating all of those answers
5 to the same question, let me also try to say the
6 same thing in a different way.
7 The use of parallel citations within our
8 arrangement, such as, for example, the use of
9 people's parallel citation in briefs or by legal
10 professionals, is a use of our citation system. We
11 encourage that use within that context.
12 A commercial taking of the arrangement,
13 using our citation system to accomplish a commercial
14 taking of our selection or of our arrangement or of
15 our compilation is something we would take a look
16 at. We believe it violates the copyright laws. We
17 would, if that were to occur, we would take a look
18 at that for possible action. I can't tell you what
19 action we would take, maybe none, but it would
20 depend.
21 Now, I've given you that same answer four
22 different times.
23 Q I understand.
24 A I've told you also, Mr. Hartmann, because I want to
25 make sure that you get a complete answer, it takes
193
1 four times sometimes.
2 Q I understand. I'm trying to --
3 A I've also told you, Mr. Hartmann, that in addition
4 to that, I have previously twice, and now for the
5 third time in response to your question, I have
6 affirmed that I agree with and that accurately
7 states our position, the request for admissions and
8 those responses that you earlier read to me, and
9 once again, I will affirm for you once again, that
10 those are indeed our positions.
11 Q Okay. I'm trying to take it out of a hypothetical
12 and put it into a real-world case, and what I'm
13 saying to you is you would object -- I'm not trying
14 to put words in your mouth. Is it true, this is a
15 yes or no question, is it true you would object to
16 Bender using the first page citations on its CD-ROMs
17 at the beginning of every case?
18 MR. MUSILEK: Objection. That is a
19 hypothetical question, as opposed to putting it in
20 the real world. The statements in the request for
21 admission fully explain West's position, and I
22 object to your asking a hypothetical question to
23 which West has already responded it has no set
24 policy.
25 THE WITNESS: Mr. Hartmann, I'm a fact
194
1 witness here. I'm not being deposed for my legal
2 judgment, such as it is. I will give a response to
3 fact questions with facts. That's what I've been
4 doing. In earlier testimony, many times now, you've
5 read request for admissions, which I previously had
6 not seen, and asked me if I agreed to various
7 portions of them, and I affirmed that I did. Now,
8 if you have additional fact questions to put to me,
9 do so, and I will answer them.
10 BY MR. HARTMANN:
11 Q Okay, I will ask you a fact question. Does West
12 object to putting the first page numbers on the
13 first page of HyperLaw, of the cases in HyperLaw's
14 federal appeals on its CD-ROM disk?
15 A No.
DEPOSITION OF VANCE K. OPPERMAN taken on the 17th day of March
1994, commencing at 9:00 a.m. at the offices of Schatz, Paquin, Lockridge,
Grindal & Holstein, 100 Washington Avenue South, Minneapolis, MN 55401,
before Richard Hofarth.
APPEARANCES
For the Plaintiff: Matthew Bender
MORGAN CHU, Attorney-at-Law
Irell & Manella
For the Plaintiff-Intervenor: HyperLaw, Inc.
CARL J. HARTMANN, Attorney at Law
Lawrence & Schoenbach
For the Defendant: West Publishing Company
JOSEPH M. MUSILEK, Attorney at Law
Schatz, Paquin, Lockridge, Grindal & Holstein
Page 155
20 BY MR. CHU:
21 Q. Thank you very much.
22 I'm going to read to you some testimony that you
23 gave at an earlier session of your deposition at which
24 I was not present, this was on August 17, 1994 and
25 it's at page 194, line 11 through 15: Question, "Okay,
Page 156
1 I will ask you a fact question. Does West object to
2 putting the first page numbers on the first page of
3 HyperLaw, of the cases in HyperLaw's Federal Appeals
4 on its CD-ROM disk?".
5 Answer: "No." End quote.
6 Is that because in that context, Mr. Opperman,
7 West Publishing does not claim any copyright to the
8 first page numbers?
9 A. Mr. Chu, I haven't seen that -- that depo, but
10 assuming you read it correctly, we don't object
11 because -- not because of copyright, but because I
12 don't think that's a product, if it exists at all, I
13 don' t think it's a product that we care very much
14 about, the HyperLaw product. And we don't object if
15 they do. What was the predicate of that question.
16 Q. I'm sorry, are you asking me a question? Or your
17 counsel a question?
18 A. No. That was my answer.
19 Q. Okay. So just to clarify, in that context does West
20 claim to have a copyright to the first page numbers?
21 A Well, again, Mr. Chu, I think you're asking for a
22 legal conclusion and I'm not going to be able to give
23 you a legal conclusion. The question I was asked as
24 a fact witness on that August 17 depo was whether or
25 not West objected to that use in that context and I
Page 157
1 said no. And that would be the same answer I would
2 give today if you asked the same question.
3 Q. I'm asking a different question.
4 A. Oh, okay.
5 Q. Is West's lack of objection because West doesn't care
6 about the product while at the same time West believes
7 it has a copyright to the first page numbers?
8 A. I don't think that in -- as a fact portion I haven't
9 put that to any legal expert and if I were to
10 seriously consider enforcement or lawsuits of that
11 kind of a resolution I would have to do a legal
12 analysis, which I haven't done. What I can tell you
13 is the reason we don't object is we don't think it's a
14 product we don't think it's a very meaningful product
15 in the marketplace, and frankly our response to that
16 HyperLaw product, if it exists at all, would be a
17 marketplace response rather then a legal response.
18 Now, if you're going to go ahead and ask me then
19 to try to render an opinion on the copyrightability of
20 that, I will tell you that I'm here as a fact witness,
21 not a legal witness. And I would have to, if I wanted
22 to pursue that, I would have to get legal counsel,
23 legal advice on that legal issue, which I have not
24 done.
25 Q. So as a person who in the past has been a legal
Page 158
1 representative, a lawyer on behalf of West Publishing
2 as well as the president of West publishing today, is
3 it correct that you do not have an opinion, one way or
4 the other, on the question of whether West has a
5 copyright to the first page numbers that are included
6 in the HyperLaw product?
7 MR. MUSILEK: I object to that question
8 to the extent that it is asking him about anything
9 that he would have an opinion on based upon his
10 representation of West. He's here as the president of
11 West and so to that extent I find the question
12 objectionable.
13 A. Mr. Chu, I'm not here to answer questions as a former
14 lawyer or a legal expert, which I don't think I ever
15 claim to be, but I certainly don't claim to be that
16 today. But, again, as a fact witness, I will tell you
17 that my answer to that same question is the same now
18 as it would be then, it was then. And the reason for
19 that is I don't think it's a product. If it is a
20 product, I don't think it affects much of the
21 marketplace, I just don't have much interest in it.
22 BY MR. CHU:
23 Q. Mr. Opperman, I believe you were describing why West
24 doesn't object to the product.
25 A. That's what you asked.
Page 159
1 Q. Well, I'm asking a different question.
2 A. A different question. All right.
3 Q. As the president of West Publishing, do you believe
4 that West has a copyright to the first Page numbers
5 from West case reports as those numbers are inserted
6 into the HyperLaw product, about which you were
7 testifying on August 17, 1994?
8 A. Mr. Chu, as with so many other questions of
9 this kind, I have not done a legal analysis of that
10 issue. I would not be the person to do that legal
11 analysis. If I had a concern about that item, I would
12 seek expert legal advice and I would make a legal
13 determination after my expert counsel informed we with
14 regard to the status of the law, with regard to the
15 actual product, what the real product looked like. I
16 haven't done any of those things.
17 As a fact witness, my only response to you can be
18 that, as I understand the HyperLaw product, which I
19 believe I testified in August, I didn't think
20 existed. But as I understand it, we would not object,
21 as I testified. I haven't done the legal analysis. I
22 wouldn't be the person that would do the legal
23 analysis. To my knowledge, there are no analyses of
24 that kind that have been done. I haven't seen any if
25 there are. I haven't authorized any. I'm giving you
Page 160
1 my answer as a fact witness.
2 Q. And so you have no opinion, one way or the other as to
3 West has a copyright in the first page numbers in the
4 HyperLaw product?
5 A. Mr. Chu, I have no legal opinion on that issue. I'm
6 not here, however, to testify as a legal expert.
7 Q. And you have no factual opinion either on that
8 question, is that correct?
9 A. I've given you the entire fact basis I have for any
10 opinion. You've heard those facts.
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