Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 1 of 56
`Case 4:18-cv-07229—YGR Document 192-2 Filed 04/19/21 Page 1 of 56
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`Case 4:18-cv-07229—YGR Document 192-2 Filed 04/19/21 Page 1 of 56
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 2 of 56
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE NORTHERN DISTRICT OF CALIFORNIA
` OAKLAND DIVISION
`---------------------------------x
`FINJAN, INC., a Delaware :
`Corporation, :
` Plaintiff, : Case No.:
`vs. : 4:18-CV-07229-YGR
`QUALYS, INC., a Delaware :
`Corporation, :
` Defendant. :
`---------------------------------x
`
` Videotaped Deposition of
` SYLVIA HALL-ELLIS, PH.D.
` Monday, March 1, 2021
` 9:01 a.m.
`
`Job No.: 313579
`Pages: 1 - 81
`Reporter: DEBRA BOLLMAN FARFAN, RDR-RMR-CRR
` CA CSR NO. 11648
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 3 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`13
`
` Q. What is your understanding of the term
`"publicly accessible"?
` A. My understanding is that material is in
`the public, in that a person can find the
`document in question with reasonable diligence.
` Q. If you'll turn to paragraph 13. In the
`second to last sentence, you say: I am further
`informed that an item is considered authentic
`if it is at least 20 years old, in a condition
`that creates no suspicious -- no suspicion of
`authenticity, and in a place where, if
`authentic, it would likely to be.
` Where did you get this standard?"
` A. I got it from an attorney many years
`ago.
` Q. What sort of things would raise a
`suspicion of authenticity to you?
` A. A website that is brand new, a document
`that is damaged in some way or incomplete, a
`document that is flawed in some way when
`published.
` Q. Anything else?
` A. Off the top of my head, no.
` Q. In paragraph 14, you indicate "that a
`printed publication qualifies as publicly
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 4 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`14
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`accessible as of the date it disseminated."
` Do you see that?
` A. I do. Can you make the screen bigger?
`Thank you. Okay.
` Q. How do you determine the date the
`reference is -- strike that.
` How do you determine the date a
`reference was disseminated?
` A. That's a very interesting question. It
`depends on the type of document, its
`characteristics, and the way in which it was
`disseminated and in the form and by what
`agency, body, or organization.
` Q. And did you also determine the date on
`which a person of ordinary skill in the art and
`the relevant subject matter could have located
`the references?
` A. Yes.
` Q. And how did you do that?
` A. There is a process of examining each and
`every document. It is a pretty straightforward
`research methodology that I use, and I use it
`on every document.
` Q. And what is that methodology?
` A. It's called content analysis. It is
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 5 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`15
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`very common in some disciplines, and it is used
`to examine documents which exist and are not
`gathered at the time of examination. They
`exist prior to that time.
` Q. Why is it called content analysis?
` A. Because the content is dissected to the
`smallest identifiable piece, parsed to either
`the word or the clause level, and is examined
`at that point.
` Q. What does the content of that document
`tell you about the date it was disseminated?
` A. It depends on what you're looking at,
`but it may appear on the document. It
`certainly appears in documents which are
`surrogates to the actual document itself.
` Q. What do you mean by a document that's a
`surrogate?
` A. A MARC record that's used in libraries
`to catalog and index materials are called
`surrogate records, and they have such
`information in there.
` Q. So other than MARC records, I think you
`identified another type of record too. What
`was the other type of record you identified in
`your report?
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 6 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`16
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` A. There is a website in there, and I
`believe there is another technical report.
` Q. I'm sorry, I didn't follow your answer.
`You relied on more than just MARC records in
`preparing your --
` A. Yes.
` Q. -- report?
` A. Yes.
` Q. What is an OCLC record?
` A. OCLC record doesn't exist. OCLC is a
`corporate body that houses bibliographic
`descriptions and records in MARC and other
`types of formats from libraries around the
`world.
` Q. And you also relied on records from
`OCLC, is that fair?
` A. That is fair.
` Q. In paragraph 16, you refer to "general
`library cataloging and indexing practices." Do
`you see that?
` A. Not yet. No, I don't. What paragraph?
` Q. 16.
` A. Okay, I do see that, thank you.
` Q. What libraries fall under these
`practices?
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 7 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`17
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` A. Virtually 99 percent of the libraries in
`the world.
` Q. Does CiteSeer fall under the general
`library cataloging and indexing practices?
` A. No. CiteSeer is a digital repository at
`Pennsylvania State University in State College,
`Pennsylvania.
` Q. Does the IEEE Xplore fall under that
`same cataloging and indexing practices?
` A. It does not. It's a digital database
`established by IEEE some years ago. It has a
`lot in it, but it is not full of any MARC
`records.
` Q. What about ResearchGate? Does it also
`fall under the general library cataloging and
`indexing practices?
` A. ResearchGate is a repository for those
`of us who do research to give evidence of what
`we've done and what we're working on to our
`colleagues. It is not full of or does not
`contain MARC records.
` Q. What about Semantic Scholar?
` A. Very similar. It's very similar to
`ResearchGate. It has the same provisions and
`the same types of content.
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 8 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`18
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` Q. And is Google Scholar the same?
` A. No. Google Scholar is a Google product.
`It doesn't have MARC records in it either.
`It's free text. People want to look at it, it
`works very much like Google or any kind of
`search algorithm or web crawler.
` Q. Do you have personal knowledge of the
`library cataloging practices at CiteSeer?
` A. CiteSeer doesn't have library cataloging
`procedures, so, no.
` Q. Are you -- do you have personal
`knowledge of the library cataloging practices
`at ResearchGate?
` A. They don't have library cataloging
`practices, so, no.
` Q. Do you have personal knowledge of the
`library cataloging practices at Semantic
`Scholar?
` A. There are no library cataloging
`practices at Semantic Scholar, so, no.
` Q. And do you have personal knowledge of
`the library cataloging practices at Google
`Scholar?
` A. There are no library cataloging
`practices at Google Scholar, so, no.
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 9 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`19
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` Q. Do you have personal knowledge of the
`library cataloging practices of IEEE Xplore?
` A. There are no MARC records or library
`cataloging in IEEE Xplore either.
` Q. Could you turn to paragraph 20 of your
`report. It's where you refer to CiteSeerX.
` A. Yes.
` Q. How did you learn what you wrote in
`paragraph 20?
` A. I've been around a very long time, and I
`have used these resources in different
`capacities over the years. Watched them
`develop. I started using the internet before
`it was called that and before it worked the way
`it currently works.
` So these kinds of repositories and other
`search libraries I have seen develop. And this
`is a description based on what they say on
`their own site.
` Q. What is the difference between CiteSeer
`and CiteSeerX?
` A. CiteSeerX is a little more sophisticated
`than CiteSeer. It's a further development of
`that particular digital repository.
` Q. How does it differ?
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 10 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`23
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`from any of the documents from CiteSeer?
` A. No.
` Q. In paragraph 22, if you could turn
`there, you refer to ResearchGate.
` A. Uh-huh.
` Q. How long have you been using
`ResearchGate?
` A. I've been using it a number of years.
`Maybe six, seven years maybe.
` Q. How did you learn what you wrote in
`paragraph 22?
` A. This, again, is a general description of
`ResearchGate, and I have publications in
`ResearchGate that I've written. So I -- I have
`familiarity with this, both as a searcher and
`as a contributor.
` Q. And you said you've been using it for
`six to seven years?
` A. I think so. I think that would be fair.
` Q. And how did you first start using
`ResearchGate?
` A. I believe I was asked to contribute.
` Q. And so whatever the date is of your
`first publication in ResearchGate is how long
`you've been using it, is that fair?
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 11 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`24
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` A. Maybe. I don't put my articles in
`there. There's only citations from me. If you
`want something from me, you need to ask me for
`it. I don't put them in there.
` Q. How can you tell when an article from
`ResearchGate was publicly accessible?
` A. I don't know that you can. Even though
`they have a history and version of designation,
`there isn't always much in there.
` So I don't see that that as a source of
`public availability is as reliable as other
`means. And I think you're overestimating its
`importance.
` Q. Why -- why do you think that --
` A. Because its purpose is not to provide to
`the public. It is for providing information
`and papers to researchers, not to the public,
`and it's different in the research community as
`opposed to the public at large.
` Q. Do you know how the upload or indexing
`capabilities are performed at ResearchGate?
` A. That is outside the scope of my report.
`No.
` Q. Do you know when ResearchGate was
`launched?
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`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
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`25
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` A. That's outside the scope of my report,
`no.
` Q. Could you turn to the next page,
`paragraph 23, where you discuss Semantic
`Scholar?
` A. Uh-huh.
` Q. How long have you been using Semantic
`Scholar?
` A. Probably about five years only. It's a
`bit newer.
` Q. How did you learn what you wrote in
`paragraph 23?
` A. This is a basic description of Semantic
`Scholar from their website, and I have articles
`in Semantic Scholar as well.
` Q. How can you tell when an article from
`Semantic Scholar was published and publicly
`accessible?
` A. Again, you're ascribing a purpose that
`is not the purpose of this digital repository.
`So that is not its purpose, and I don't call on
`that to provide that information.
` If it is there, it's serendipitous.
`It's nice to have. It is not what I would
`consider to be a reliable and concrete source
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 13 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`26
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`of public availability dates.
` Q. Did you offer an opinion on the public
`availability of materials from Semantic
`Scholar?
` A. Only thing I will do is tell in my
`report if something is in this particular
`repository. I will give a URL and indicate
`that one could proceed in that way to get
`information about an article.
` But the dates, no. They don't come from
`this.
` Q. What do the dates come from?
` A. The dates come from something much more
`reliable than a digital repository that is not
`designed to provide that information.
` Q. What is it that you would ordinarily
`rely on if you found an article in Semantic
`Scholar?
` A. I would want to know when and where it
`was originally published, by whom, on what
`date. More reliable than these digital
`repositories.
` Q. So what's the issue with the digital
`repositories that makes them less reliable?
` A. It's not their purpose.
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`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
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`27
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` Q. Do you know when Semantic Scholar was
`launched?
` A. November of 2015, apparently. That's
`what I've said in my report.
` Q. How did you find that out?
` A. From their website, which I also cite in
`my report.
` Q. In paragraph 24, you refer to Google
`Scholar. How long have you been using Google
`Scholar?
` A. Pretty much since it came out. It's
`about 15 years old.
` Q. How are articles loaded into Google
`Scholar?
` A. I believe they go out and search the web
`for articles. It's another Google product.
` Q. How can you tell when an article from
`Google Scholar was publicly accessible?
` A. I don't know that you can from Google
`Scholar. I don't think it's any more reliable
`than any of the others we just talked about.
` Q. And when you talk about the
`unavailability of indexing entries --
` A. Uh-huh.
` Q. -- that's especially true for online
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 15 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
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`28
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`indices, correct?
` A. No, I wouldn't say that. I would say
`it's true of the internet, which has no control
`vocabulary, no taxonomy, no consistency. It is
`what it is. But to call on that as a reliable
`source, not so much.
` Q. Can I have you turn to paragraph 26 of
`your report, and I want to refer you to the
`last three sentences that begin on the -- it
`begins on the bottom of page 10, and then
`continues --
` A. Okay.
` Q. -- to the next page.
` Could you read that, and let me know
`when you're finished.
` A. Okay.
` Q. How do you determine the date
`information for online indices?
` A. I don't care about the date of an index.
`I'm looking for a date of a document, and that
`is quite different than a date of an index.
` Q. What's the difference?
` A. An index, it -- the date of an index is
`not terribly important. What is important in
`an online index is the period of documents that
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 16 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`35
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`report?
` A. I'm sorry. I don't understand. What
`are you asking me? Did I check this against
`what?
` Q. The OCLC database.
` A. It is from the OCLC database.
` Q. All right. And I'm asking if you got
`this or somebody else provided it to you?
` A. I get them myself. It says that in my
`report for every single record.
` Q. What does the "Replaced" field indicate
`in the top right side of Exhibit 2?
` A. As I explained in my report, "replaced"
`is a broad term used for any major enhancement,
`addition, or correction in a bibliographic
`record.
` Q. Do you see the field 300, about the
`middle of the page?
` A. I do.
` Q. What is that field?
` A. That field is called the extent of the
`item field.
` Q. And what does the extent of the item
`field convey to you?
` A. It tells me how big this is. It tells
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 17 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
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`36
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`me if it has illustrative material and, in this
`case, tells me how tall it is.
` Q. Do you see field 500?
` A. Yes.
` Q. What does field 500 convey to you?
` A. 500 is a general note field.
` Q. Does this indicate what information you
`would see on the cover of this publication?
` A. In this case. 500 is so general that it
`is not possible to say it is used only for the
`purpose that you see here.
` Q. But for this particular record, which is
`Exhibit 2, should the cover of this document
`indicate the information that's conveyed in
`field 500?
` A. The short answer is yes. The real
`answer is it is important to remember that
`there are approximately 1,000 pages of
`instructions for how bibliographic data are to
`be transcribed into the MARC framework.
` Therefore, it's incumbent upon the
`person constructing the record or accepting the
`record for use to verify the data are correctly
`transcribed into the proper field and subfield
`with the appropriate use of indicators.
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 18 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`37
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` Q. And is an indicator something like
`cover?
` A. No.
` Q. What is it?
` A. An indicator are those funny little
`numbers that you see starting up in field
`"050 _4." "_4" are two independent but
`potentially related indicators.
` Q. What do they relate to?
` A. It depends.
` Q. It depends on what is this?
` A. It depends on the field. They are
`different for every field in the document.
`They don't mean the same thing, and it is
`necessary to look at what are the -- what is
`the field and what are the indicators and what
`are the potential values.
` So you cannot make a unilateral
`statement that they always mean the same thing
`in the same place. That may or may not be
`true.
` (Deposition Exhibit 3 was marked for
`identification.)
` Q. Can I have the reporter mark as
`Exhibit 3 the document prefix Tab 5.
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 19 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`39
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` A. I told you before, I have seen errors
`infrequently.
` (Deposition Exhibit 4 was marked for
`identification.)
` Q. Could I have the reporter mark as
`Exhibit 4 the document with the prefix Tab 29.
` Do you recognize what's been marked as
`Exhibit 4?
` A. This is a book, yes.
` Q. This is a book you refer to as
`Document 2 in your report; is that correct?
` A. I believe so.
` Q. If you want to go in your report, which
`is Exhibit 1, you can turn to page 24, I
`believe.
` A. I have a printed-out copy of my report
`here. I could look at that.
` Q. Ideally, it would be the same as what
`you see on the screen.
` A. Right, I see that.
` Q. If you would rather refer to the paper
`version, I would totally understand.
` A. It would be a little easier for me
`because I have it right here.
` Q. That's fine with me if you refer to that
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 20 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`40
`
`version.
` A. Okay. So let me look at that, and that
`is -- okay. I'm on page 24, and it starts
`Document 2 with the title of the book and the
`name of the author, right?
` Q. Correct.
` A. Okay, great.
` Q. So Exhibit 4 is the same thing that you
`refer to as Document 2?
` A. Yes.
` Q. Do you have any personal knowledge of
`the authenticity of Document 2?
` A. I believe it to be what it purports to
`be.
` Q. And your opinion is based on your
`inspection of the electronic record attached to
`your report; is that correct?
` A. Electronic scan, yes.
` Q. Where did you obtain Document 2?
` A. I got this one from counsel because,
`remember, this report was done during our COVID
`experience. And while there are copies of this
`book available near me, I can't go and get
`them. We have had to make some accommodation
`because of the fact that libraries are
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 21 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`41
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`basically still quite restricted in services
`and definitely at this time were closed.
` Q. So you did not go to obtain or check a
`copy at a local library as you did before,
`correct?
` A. No, I could not do that, nor could
`anyone else.
` Q. You couldn't request the book on loan or
`anything?
` A. No, people were not loaning. In fact,
`in our state they are still not loaning.
` Q. Do you have any personal knowledge of
`when Document 2 was publicly accessible?
` A. Well, I do, because it's in my report.
` And if you look in my report, you will
`see in paragraph 59, on page 26, based on the
`examination of MARC records for this item,
`April 3rd, 1996.
` Q. I'm sorry, I asked if you had personal
`knowledge.
` A. That is the only knowledge I have, is to
`look at surrogate records for this item.
` (Deposition Exhibit 5 was marked for
`identification.)
` Q. Could I have marked as Exhibit 5 the
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 22 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`42
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`document with the prefix Tab 7.
` What is Exhibit 5?
` A. Oh, my goodness. This is the MARC
`record, bibliographic record, from the OCLC
`bibliographic database for the book we just
`examined.
` Q. And the printout that we see in
`Exhibit 5, that's something you captured on
`your computer?
` A. Yes.
` Q. From logging into the OCLC database; is
`that right?
` A. Yes.
` Q. What is the title of the book, according
`to Exhibit 5?
` A. It's called Dr. Solomon's Anti-Virus
`Toolkit for Windows and DOS.
` Q. Can you tell a version number?
` A. From this, no.
` Q. And your report concludes that Exhibit 5
`is the information that tells you when
`Exhibit 4, which was Document 2, was publicly
`accessible; is that right?
` A. Right.
` Q. How many pages should be in Exhibit 4?
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 23 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`43
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` A. At least 242, if the whole item were
`there.
` Q. What do you mean "if the whole item were
`there"?
` A. Just what I said. It may or -- if it's
`the entire book, that is the number of pages
`that we are identifying. But that doesn't
`count the cover, that doesn't count the half
`title page. It doesn't count other things that
`publishers put on books when they publish them.
` So it depends. But that would be
`relatively close to the number.
` Q. So you get 242 by adding the xx and the
`222?
` A. Uh-huh.
` Q. And the other information after the
`second semicolon tells us that the book is
`23 centimeters; is that right?
` A. Right.
` Q. And on the cover, should it say
`"Complete Virus Protection: Prevention,
`Detection and Repair"?
` A. It could.
` Q. What do you mean it could?
` A. Well, remember, this was published in
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 24 of 56
`
`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`44
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`England, and there's no a hundred percent
`guarantee that the cover always looks the same.
` But, yes, it should be on there. It
`could be on there.
` Q. So how do you know that Exhibit 5 is the
`record for what you referred to as Document 2?
` A. It matches. I mean, you look at the
`cover, you look at the imprint, you look at
`what you got, and it matches. So it's the one.
` Q. How do you know it matches?
` A. Libraries have ways that they match
`material. And this, I will say, is not a
`particularly complete bibliographic record.
`It's rather scant.
` But it is one, and we look at author,
`which there isn't one, and title, which there
`is one. We look at imprint. We look at
`length.
` And in this case, there's not much else
`to look at because this record is brief.
` Q. Would it be normal to identify the
`edition information in the bibliographic
`record?
` A. That's a very interesting question.
`Editions are noted if they appear on the
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`Case 4:18-cv-07229-YGR Document 192-2 Filed 04/19/21 Page 25 of 56
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`Transcript of Sylvia Hall-Ellis, Ph.D.
`Conducted on March 1, 2021
`
`45
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`resource itself. And there is a rule against
`presuming an edition or version if it does not
`appear on the work.
` Q. So if I went -- did you compare the
`information from Exhibit 5 against the
`Document 2?
` A. Yeah.
` Q. And so if I go to the preface of the
`book, would I be able to match the number of
`pages of the preface 2 from the Exhibit 5 from
`the MARC record to the information in
`Exhibit 4?
` A. The preface has nothing to do with
`cataloging. So I would say, the way your
`question is phrased, the answer is no.
` Q. So what does the xx refer to in field
`300 of Exhibit 5?
` A. Those are pages that are numbered by the
`publisher with lowercase Roman Numerals for
`whatever reason.
` Q. Okay. So I wan
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