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`·1· · · · · · ·UNITED STATES PATENT AND TRADEMARK OFFICE
`·2· · · · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
`·3· ·___________________________________________________________
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`· · · PALO ALTO NETWORKS, INC.,· · · · · · · · · )
`·5· · · · · · · · · · · · · · · · · · · · · · · ·)
`· · · · · · · · · · · · · · · · · · · · · · · · ·)
`·6· · · · · · · · · ·Petitioner,· · · · · · · · ·) Case No.
`· · · · · · · · · · · · · · · · · · · · · · · · ·)
`·7· · · · · · ·vs.· · · · · · · · · · · · · · · ·) IPR2015-01979
`· · · · · · · · · · · · · · · · · · · · · · · · ·)
`·8· · FINJAN, INC.,· · · · · · · · · · · · · · · ) Patent
`· · · · · · · · · · · · · · · · · · · · · · · · ·) 8,141,154
`·9· · · · · · · · · · · · · · · · · · · · · · · ·)
`· · · · · · · · · · ·Patent Owner.· · · · · · · ·)
`10· · · · · · · · · · · · · · · · · · · · · · · ·)
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`· · ·___________________________________________________________
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`· · · · · · · · · · · ·DEPOSITION OF MEL DeSART
`14· · · · · · · · · · · · · June 21, 2016
`· · · · · · · · · · · · ·Seattle, Washington
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`· · ·Reported by:
`24· ·Kim Scheuerman
`· · ·CCR No. 2517
`25· ·Job No. J0379151
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`·1· · · · · · · · · · · · ·EXAMINATION INDEX
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`·3· ·EXAMINATION BY:· · · · · · · · · · · · · · · · · · · PAGE NO.
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`· · · MS. NGUYEN· · · · · · · · · · · · · · · · · · · · · · ·4
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`·5· · MR. ARMON· · · · · · · · · · · · · · · · · · · · · · · 31
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`· · · MS. NGUYEN· · · · · · · · · · · · · · · · · · · · · · ·36
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`·7· · · · · · · · · · · · · ·EXHIBIT INDEX
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`· · ·EXHIBIT NO.· DESCRIPTION· · · · · · · · · · · · · · ·PAGE NO.
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`10· · 1· · Declaration of Mel DeSart· · · · · · · · · · · · ·12
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`15· · · · · · · · ·WITNESS INSTRUCTED NOT TO ANSWER
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`16· · · · · · · · · · · · · · · (None)
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`17· · · · · · · · · · · ·INFORMATION REQUESTED
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`18· · · · · · · · · · · · · · · (None)
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`·1· · · · · · · · ·APPEARANCES
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`·3· ·For the Petitioner:
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`· · · · · · · · · ·ORION ARMON
`·5· · · · · · · · ·COOLEY, LLP
`· · · · · · · · · ·380 Interlocken Crescent
`·6· · · · · · · · ·Suite 900
`· · · · · · · · · ·Broomfield, CO 80021
`·7· · · · · · · · ·oarmon@cooley.com
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`· · ·For the Patent Owner:
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`10· · · · · · · · ·STEPHANIE NGUYEN
`· · · · · · · · · ·JAMES HANNAH
`11· · · · · · · · ·KRAMER LEVIN
`· · · · · · · · · ·990 Marsh Road
`12· · · · · · · · ·Menlo Park, CA 94025
`· · · · · · · · · ·snguyen@kramerlevin.com
`13· · · · · · · · ·jhannah@kramerlevin.com
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`·1· · · · · · · · · · · · · ·BE IT REMEMBERED that on Tuesday, June
`·2· · · ·21, 2016, at 3914 East Stevens Way, Seattle, Washington, at
`·3· · · ·9:30 a.m., before Kim Scheuerman, Notary Public in and for
`·4· · · ·the State of Washington, appeared MEL DeSART, the witness
`·5· · · ·herein;
`·6· · · · · · · · · · · · · ·WHEREUPON, the following proceedings were
`·7· · · ·had, to wit:
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`·9· · · · · · · · · · · · · · · <<<<<<· >>>>>>
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`11· · · ·MEL DeSART,· · · · · · · ·having been first duly sworn
`12· · · · · · · · · · · · · · · · ·by the Notary, deposed and
`13· · · · · · · · · · · · · · · · ·testified as follows:
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`15· · · · · · · · · · · · · · · · EXAMINATION
`16· · · ·BY MS. NGUYEN:
`17· ·Q.· Please state and spell your name for the record.
`18· ·A.· Full version?
`19· ·Q.· Yes.
`20· ·A.· Melvin Glenn DeSart, D-e-S-a-r-t.· And if you want to know,
`21· · · ·Glenn has two Ns, instead of one.
`22· ·Q.· Please state your address.
`23· ·A.· Home address?
`24· ·Q.· Yes.
`25· ·A.· 7024 16th Avenue Northeast, Seattle.
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`·1· ·Q.· Do you understand --
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`·2· ·A.· 98115.
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`·3· ·Q.· Do you understand why you're here today?
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`·4· ·A.· Yes.
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`·5· ·Q.· And why is that?
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`·6· ·A.· To give a deposition over -- in particular, when a particular
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`·7· · · ·item was received and made available to users within the
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`·8· · · ·engineering library.
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`·9· ·Q.· Have you ever been deposed before?
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`10· ·A.· Yes.
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`11· ·Q.· How many?
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`12· ·A.· Once like this.· Many times for a written deposition, like
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`13· · · ·what I submitted earlier.
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`14· ·Q.· Like "this," do you mean in person or?
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`15· ·A.· Once in person.· Once before in person.
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`16· ·Q.· So I'm going to ask you some questions today, and if you
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`17· · · ·don't understand my question, please let me know, and I'll do
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`18· · · ·my best to rephrase it.· Otherwise, I'm going to assume that
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`19· · · ·you understand it.· Okay?
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`20· ·A.· Yeah.
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`21· ·Q.· And your attorney will object from time to time for the
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`22· · · ·record, but please provide me with a response, unless he
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`23· · · ·gives you some instruction not to.· Okay?
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`24· ·A.· Okay.
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`25· ·Q.· And is there any reason why you cannot provide your best and
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`·1· · · ·most accurate testimony today?
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`·2· ·A.· None that I know of.
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`·3· ·Q.· And who asked you to work on this matter?
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`·4· ·A.· Who asked me to work on it?
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`·5· ·Q.· Yes.
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`·6· ·A.· Orion.
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`·7· ·Q.· And when was that?
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`·8· ·A.· Oh, Lord, I honestly don't know.· I don't remember how long
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`·9· · · ·it was.· It was months ago at this point.
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`10· ·Q.· And are you represented by counsel today?
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`11· ·A.· No.
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`12· ·Q.· What did they ask you to do when they contacted you?
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`13· ·A.· They asked me if I could look at a copy of the document that
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`14· · · ·was -- that came from our collection and verify what certain
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`15· · · ·date information that was on the cover of that document
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`16· · · ·meant.
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`17· ·Q.· Did they provide you with a document or did they ask you to
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`18· · · ·look it up in the library?
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`19· ·A.· They provided a copy, an electronic copy of the document, but
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`20· · · ·I always -- and I've done these, like I said, not an
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`21· · · ·in-person deposition like this, but I've done written
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`22· · · ·depositions a number of times, probably close to 20 times in
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`23· · · ·the past over the years.· And I always go and get the
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`24· · · ·original and look it up anyway.
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`25· ·Q.· Was the context of those to determine whether something was
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`·1· · · ·available in your library?
`·2· ·A.· To determine what I -- I knew that it was visible.· I knew it
`·3· · · ·was in our library based on nothing more than the electronic
`·4· · · ·copy that I received because it has the University of
`·5· · · ·Washington Library's date stamp on it.· So I knew that was
`·6· · · ·from our collection, but, like I said, I went and pulled off
`·7· · · ·the original anyway.· I always like to look at the print
`·8· · · ·myself.
`·9· ·Q.· And was this for litigation or was this for Inter Partes
`10· · · ·Review, do you know?
`11· ·A.· I think it's that Inter Partes Review thing.· All I do is
`12· · · ·verify.· I have no idea about the legalese involved.
`13· ·Q.· And what's your educational background?
`14· ·A.· I have Bachelor of Arts degree from University of Illinois
`15· · · ·from 1982, and a Master of Science degree in library and
`16· · · ·information science also from the University of Illinois from
`17· · · ·1987.
`18· ·Q.· Where do you currently work?
`19· ·A.· In the engineering library at the University of Washington.
`20· ·Q.· What's your position there?
`21· ·A.· I'm the head of the engineering library.
`22· ·Q.· How long have you been working there?
`23· ·A.· How long have I been working here?
`24· ·Q.· Yes.
`25· ·A.· A little over 16 years.· Since March of 2000?
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`·1· ·Q.· When in March of 2000?
`·2· ·A.· When in March of -- March 20th, I believe.
`·3· ·Q.· And what was your position in March 20th of 2000?
`·4· ·A.· Head of the engineering library.
`·5· ·Q.· And so what are your responsibilities today as the head of
`·6· · · ·engineering library?
`·7· ·A.· I -- basically, I have overall responsibility for the
`·8· · · ·library, its contents and its staff.· That's short version.
`·9· · · ·All of the librarians here report to me.· There's an
`10· · · ·assistant head of the library that the support staff report
`11· · · ·to, but ultimately everybody reports up through me, at the
`12· · · ·very least.· Again, responsibility for the collections,
`13· · · ·responsibility to some extent for the facility.· That's -- I
`14· · · ·mean, I could -- there's lots and lots more, but that's kind
`15· · · ·of the nuts and bolts version.
`16· ·Q.· How have the -- are the responsibilities different than they
`17· · · ·were in 2000 when you first started?
`18· ·A.· Not really.· Not a lot.· I mean, little things, but the
`19· · · ·basics in terms of who reports to me, the responsibility for
`20· · · ·the facility, for the collection, that's all the same now
`21· · · ·that it was before.· I actually have an additional
`22· · · ·responsibility outside of this unit that I didn't have back
`23· · · ·in 2000, but --
`24· ·Q.· For the collections, how are those cataloged?
`25· ·A.· How are they cataloged?
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`·1· ·Q.· And shelved?
`·2· · · · · · · · · · · · · ·MR. ARMON:· Object to the form of that
`·3· · · ·question.
`·4· ·A.· I'm sorry?
`·5· · · · · · · · · · · · · ·MR. ARMON:· I'm just making an
`·6· · · ·evidentiary record.· Go ahead and answer.
`·7· ·A.· I didn't hear what you said.
`·8· · · · · · · · · · · · · ·MR. ARMON:· I said I object to the form
`·9· · · ·of that question.
`10· ·A.· Cataloging is a word that's specific to the library world,
`11· · · ·and I don't know necessarily what you mean by that phrase.
`12· · · ·Cataloging is actually done for something like a serial,
`13· · · ·which this is or a journal.· It's done once when the serial
`14· · · ·is first received, a record is created and added to the
`15· · · ·library's catalog.· And then that's it in terms of
`16· · · ·cataloging.
`17· · · · · · ·From there on, it's just a matter of adding each issue
`18· · · ·to that existing record as additional issues of that journal
`19· · · ·come in.· In terms of how it's shelved in here at the time in
`20· · · ·2000, this would have -- all of our journals were shelved in
`21· · · ·alphabetical order.· A couple years ago, something I had been
`22· · · ·wanting to do actually since I got here, we moved them all
`23· · · ·into call number order.
`24· ·Q.· I'm sorry, into what order?
`25· ·A.· Call number order.· Order by that.
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`·1· · · ·Operating Systems Review, and it would pop up a record
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`·2· · · ·saying, yes, we had that journal, where it was shelved, and
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`·3· · · ·then the person could go up and pull it off the shelf from
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`·4· · · ·there.
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`·5· ·Q.· And to be --
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`·6· ·A.· Or at least browse the volumes that were on the shelves.
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`·7· ·Q.· And to be clear, it was electronic in 2000?
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`·8· ·A.· The catalog was electronic in 2000, yes.
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`·9· ·Q.· Would you need the entire title of the journal?
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`10· ·A.· No.· You could find it -- you could find it from words in the
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`11· · · ·title.· It would be more difficult, but you wouldn't have to
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`12· · · ·have the entire title.
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`13· ·Q.· How would it be more difficult?
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`14· ·A.· You would find more hits.· You know, our collection now
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`15· · · ·numbers -- mind you, I don't know how many items we had in
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`16· · · ·the collection in 2000, because I don't remember back -- but
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`17· · · ·we have over eight million items in the collection now.
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`18· · · ·Those are almost all represented within the library's
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`19· · · ·electronic catalog.· Trying to find that searching on
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`20· · · ·something like the word "Systems" and "Review," you would get
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`21· · · ·dozens, if not hundreds of records that had those two words
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`22· · · ·in it.· So it would be a matter of having to sift through to
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`23· · · ·find this particular title.
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`24· ·Q.· And would you be able to search for an article within a
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`25· · · ·journal?
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`·1· ·Q.· Okay.
`·2· ·A.· And what it does is in particular for undergraduates for
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`·1· ·A.· Within the library's catalog, no, not in 2000.
`·2· ·Q.· Would you be able to search for it in any other way back in
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`·3· · · ·students it collocates material in a common subject area
`·4· · · ·together, which like this book, this journal Operating
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`·3· · · ·2000?
`·4· ·A.· Yes.
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`·5· · · ·Systems Review, if this journal had changed title to the ACM
`·6· · · ·Journal or the ACM Operating Systems Review, when we had
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`·5· ·Q.· How would that be?
`·6· ·A.· There are a number of Sci-tech engineering computer science
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`·7· · · ·these shelved by -- had them shelved alphabetically, the A
`·8· · · ·title would have been way back at the beginning of the floor.
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`·7· · · ·databases that that's what those products do is index at a
`·8· · · ·finer level content in those kinds of subject areas.· I know
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`·9· · · ·The O title would have been two thirds of the way around the
`10· · · ·collection.· By shelving by call number, it puts both -- all
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`·9· · · ·of one in particular called Inspec, I-n-s-p-e-c.· That
`10· · · ·indexes computer science material and indexes ACM
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`11· · · ·of the titles that have to do with operating systems in the
`12· · · ·same place.
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`11· · · ·publications.
`12· · · · · · ·I did not look for this particular article in Inspec,
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`13· ·Q.· So to be clear, in 2000, these were organized by alphabetical
`14· · · ·order?
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`13· · · ·but in general, Inspec index ACM publications.· So it should
`14· · · ·have a record of all of the articles that appear in this
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`15· ·A.· Yes.· Alphabetic by title, by title of journal.
`16· ·Q.· How else would someone be able to locate the journal that
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`15· · · ·journal.
`16· ·Q.· And when you're referring to Inspec, are you referring to
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`17· · · ·they're looking for?
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`17· · · ·what you can search for today or in 2000?
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`18· ·A.· Looking in the library's catalog would be the easiest way.
`19· · · ·They could also come up and browse the shelves, if they
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`18· ·A.· In 2000.
`19· ·Q.· I would like to introduce Exhibit 1.
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`20· · · ·wanted to, but that's a lot of real estate to cover.
`21· ·Q.· And was the library's catalog also in alphabetical order or
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`20· · · · · · · · · · · · · · · · ·(Exhibit No. 1 marked
`21· · · · · · · · · · · · · · · · · for identification.)
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`22· · · ·how was that arranged?
`23· ·A.· The library's catalog is electronic.· And you basically sit
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`22· ·Q.· Do you recognize this document?
`23· ·A.· Yes.
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`24· · · ·down and type in whatever title you're interested in
`25· · · ·searching for, like the title of the journal like this,
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`24· ·Q.· What is it?
`25· ·A.· It's a declaration that I submitted April 15th.· The date, by
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`·1· · · ·the way, the year was a typo.· It says it was April 15, 2015.
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`·2· · · ·It was April 15, 2016.· I noticed that actually whenever I
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`·3· · · ·pulled it back up a couple weeks ago.
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`·4· ·Q.· And was this about the time that counsel contacted you to
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`·5· · · ·write this declaration?
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`·6· ·A.· It would have been some time before that when I first got
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`·7· · · ·contacted.· I don't know, like I said, the exact date.· We
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`·8· · · ·went through a little exchange back and forth over E-mail
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`·9· · · ·about the specific wording because there was I think some
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`10· · · ·misinterpretation about what some of the dates on the cover
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`11· · · ·of the journal issue in question, what they actually meant.
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`12· · · ·I think I was able to clarify those and then reworded the
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`13· · · ·declaration to show what it -- what those dates really were,
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`14· · · ·what they really meant.
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`15· ·Q.· Did you write this declaration?
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`16· ·A.· I edited this declaration, yes.
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`17· ·Q.· Could you point to what you edited specifically?
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`18· ·A.· Oh, a significant chunk of item 3.· A significant portion of
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`19· · · ·item 3 was stuff that was written by me.· I know I also
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`20· · · ·changed some -- most of probably -- most of item 2.· Not much
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`21· · · ·of anything, I don't think, maybe a word or two here or
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`22· · · ·there.· Without having the original version, the draft that I
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`23· · · ·was sent, it's -- I don't know exactly what I changed from
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`24· · · ·one to the other.
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`25· · · · · · ·Like I said, my goal is always to make sure that
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`·1· · · ·and they would take all of those issues that were received
`·2· · · ·from the main library and would go into our records on this
`·3· · · ·end and verify, yes, we now have received this; they would
`·4· · · ·add a little notation to it.
`·5· · · · · · ·And then depending on where it ultimately got shelved,
`·6· · · ·and different titles would get shelved in different places;
`·7· · · ·it doesn't work that way that much anymore but it did at the
`·8· · · ·time, would affix -- for items that were shelved in a
`·9· · · ·particular location, which in this case was our current
`10· · · ·periodicals area or browsing collection would have a sticker
`11· · · ·affixed it to it.
`12· · · · · · ·And that sticker would then be stamped with a date one
`13· · · ·month ahead on the calendar.· And then it would be put up in
`14· · · ·the current periodical area, so that users could then access
`15· · · ·it from that point.· And the reason that date was on there
`16· · · ·dated one month ahead is that's how long we would leave
`17· · · ·current issues, newly received issues of any given title in
`18· · · ·that area would be for a month, and then they would get
`19· · · ·pulled and collocated with the older issues of the same
`20· · · ·journal.
`21· ·Q.· So earlier you said that different titles are shelved in
`22· · · ·different places?
`23· ·A.· Uh-huh.
`24· ·Q.· What do you mean by that?
`25· ·A.· Well, back in 2000 when we were still receiving hundreds of
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`·1· · · ·whatever I'm submitting is accurate.· Beyond that, I have no
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`·1· · · ·different journals in print, the area that we had available
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`·2· · · ·vested interest one way or the other.
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`·2· · · ·to display current periodicals was not large enough to house
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`·3· ·Q.· Is that your signature at the bottom of the page?
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`·3· · · ·a single issue of all of those titles all at the same time.
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`·4· ·A.· Yes, it is.
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`·4· · · ·There just wasn't enough space.· So we picked and chose which
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`·5· ·Q.· Okay.· So if you could refer to paragraph 1, what do you mean
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`·5· · · ·titles would go into that display periodical area.· This
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`·6· · · ·when you say "normal business practices"?
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`·6· · · ·happened to be one that did go to that area.
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`·7· ·A.· How we go about -- well, in this context, it was meant to
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`·7· · · · · · ·Others would go directly on to -- well, the shelves
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`·8· · · ·describe how we process materials, since that's what's
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`·8· · · ·like the ones immediately behind you, where you've got the
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`·9· · · ·important in terms of what was being -- what I was being
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`·9· · · ·bound volumes, and there would be a box where the loose
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`10· · · ·asked to verify in the declaration.· So knowing what -- how
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`10· · · ·issues would be added to the -- into the boxes they were
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`11· · · ·we within the engineering library as opposed to within any of
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`11· · · ·received and just -- they would sit there next to the other
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`12· · · ·the other units on campus, how we process material when it
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`12· · · ·bound volumes until we got enough that we would then take
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`13· · · ·comes in the door.
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`13· · · ·those, ship them off to a commercial bindery.· They would
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`14· ·Q.· How do you process material when it comes in the door?
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`14· · · ·bind either half a year or a year's worth, and they would
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`15· ·A.· Journal issues?
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`16· ·Q.· Yes.
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`15· · · ·come back.
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`16· ·Q.· So in that period of March, how many journals were in the
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`17· ·A.· Okay.· We would -- it would come to us in the vast majority
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`17· · · ·display area?
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`18· · · ·of cases from the main library.· So everything would be
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`18· ·A.· Oh, Lord, I -- the best I could tell you is hundreds.· And by
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`19· · · ·received in a central receiving unit within the main library
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`19· · · ·that, I don't mean low hundreds.· It's been so long ago and
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`20· · · ·first, and then for any of the material that actually belongs
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`20· · · ·we have changed the size of that area so much over the last
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`21· · · ·and who has a shelving location, other than somewhere within
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`21· · · ·16, 15 years, I really don't know how many different titles
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`22· · · ·the main library, it would be sent down to a mail room and
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`22· · · ·were represented in that area at that time.
`
`23· · · ·then shipped over here.
`
`23· ·Q.· Could you give a ball park?
`
`24· · · · · · ·We would get it, we would have -- we have one person in
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`24· ·A.· And this is a best guess, I would say 800 to a thousand.
`
`25· · · ·particular that normally does what we call serial check-in,
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`25· ·Q.· If you could turn to paragraph 2 of your declaration, who
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`·1· · · ·would send periodicals to the library?
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`·2· ·A.· Who would what?
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`·3· ·Q.· Send periodicals to the library?
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`·4· · · · · · · · · · · · · ·MR. ARMON:· Object to the form of that
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`·5· · · ·question.
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`·6· ·Q.· Who would send the, I guess, the journals to the library, the
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`·7· · · ·main library, which would then be received here?
`
`·8· ·A.· Oh, okay.· In general, the individual publishers.· Whoever we
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`·9· · · ·were arranging to receive a subscription from.· And in most
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`10· · · ·cases, we actually went through a journal vendor who would
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`11· · · ·arrange for the subscription.· And that's pretty common
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`Page 17
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`·1· ·A.· Want a name or a position or?
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`Page 19
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`·2· ·Q.· Both.
`·3· ·A.· Okay.· The question is can I remember her last name because
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`·4· · · ·she hasn't worked here in 12 or 13 years.· She was a serials
`·5· · · ·technician.· Oh, shoot, what is her last name?· I don't
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`·6· · · ·remember now off the top of my head.· Like I said, she only
`·7· · · ·worked here for a couple years after I started.· First name
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`·8· · · ·was Shelby, but I don't remember off the top of my head her
`·9· · · ·last name.
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`10· ·Q.· Is she the same person who would put the stamps on the
`11· · · ·journals?
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`12· · · ·practice that rather than have to go to every individual
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`12· ·A.· Yes.· Basically, she was responsible for the entirety of the
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`13· · · ·publisher for every individual title, you pay a serial vendor
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`14· · · ·who manages your subscriptions.· The content, whenever it's
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`15· · · ·shipped, comes from the publisher, so in this case, ACM.
`
`16· ·Q.· And how many did you receive in January?
`
`17· ·A.· How many?
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`18· ·Q.· Journals did you receive in January?
`
`19· ·A.· Journal issues?
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`20· ·Q.· Yes.
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`13· · · ·individual journal issue processing from the time an issue
`14· · · ·came in the door all the way up through the point at which
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`15· · · ·individual issues of a particular journal, once you're at a
`16· · · ·mass, half a year or year's worth, would have been sent off
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`17· · · ·to binding.
`18· ·Q.· And did you see her put these stamps on Exhibit A of your
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`19· · · ·declaration?
`20· ·A.· No.
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`21· ·A.· I have no idea.· And it's partly because some journals are
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`22· · · ·monthly, some are bi-monthly, some are quarterly.· In fact,
`
`21· ·Q.· Did you personally review any of the stamps as they came in
`22· · · ·from --
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`23· · · ·there are a few that were even more than -- where issues come
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`24· · · ·out more than once a month.· What we actually receive, the
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`23· ·A.· Personally review any of the what?
`24· ·Q.· The stamps and when they came in?
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`25· · · ·number of issues that we receive in any given month, I didn't
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`25· ·A.· No.· Those stamps were applied after the issues got here.
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`·1· · · ·know then, and to be honest, I don't know now.
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`Page 18
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`·2· ·Q.· And for the record, I'm referring to January of 2000.· And in
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`·3· · · ·January of 2000, how many staff members were responsible for
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`·4· · · ·processing these journal issues or whatever came into the
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`·5· · · ·engineering library?
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`·6· ·A.· As standard practice, one.
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`·7· ·Q.· And who would choose which periodicals would be displayed?
`
`·8· ·A.· Largely that was the librarians based on what our perception
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`·9· · · ·was of which titles were the most -- either the most used or
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`10· · · ·of the most interest to our user population.· But it's not
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`11· · · ·like it's something that changed a lot.· It's not like we
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`12· · · ·would put one title in that current -- in that browsing
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`13· · · ·collection display periodical area and leave it there for a
`
`14· · · ·year, and then turn around and yank it back out and put a
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`15· · · ·different one in its place.
`
`16· · · · · · ·It tended to be fairly static.· Once the decision was
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`17· · · ·made for something to go in there, it was pretty unusual for
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`18· · · ·it then to get pulled out.· Now, if we cancelled a
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`19· · · ·subscription, that would pull it out, that would create room
`
`20· · · ·to turn around and add other titles in.
`
`21· · · · · · ·But, in general, it was the librarians, based on --
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`22· · · ·mostly on use, what we saw as either getting used or things
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`23· · · ·that we would -- people would ask us about particular titles.
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`24· ·Q.· And who was the one person who was processing these journals
`
`25· · · ·as they came in in 2000?
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`Page 20
`·1· ·Q.· Did you review the stamps after they were applied after they
`·2· · · ·got here?
`·3· ·A.· No.
`·4· ·Q.· To this library?
`·5· ·A.· No.
`·6· ·Q.· And where is the display periodical in this library or the
`·7· · · ·display shelving area?
`·8· ·A.· It's a little bit moved from where it was in 2000, but it's
`·9· · · ·largely about 25 feet behind you.· It's actually on this
`10· · · ·floor right around the corner from where we're sitting now.
`11· ·Q.· And we're on the second floor; is that correct?
`12· ·A.· Yes, we're on the second floor.· And it was -- it has always
`13· · · ·been on the second floor since I have been here and at least
`14· · · ·a number of years before that.· It just took up a slightly
`15· · · ·different area of the second floor and was -- and at that
`16· · · ·time was much larger.
`17· ·Q.· And so this was -- the location you just described was near
`18· · · ·where it was in 2000?
`19· ·A.· Uh-huh.· Yeah, it was on the second floor.· It's on the
`20· · · ·second floor now and it was on the second floor in 2000.
`21· · · ·Just a little bit different portion of the second floor.· It
`22· · · ·actually overlaps with the area where those materials are
`23· · · ·now.· It's just -- it took up a much larger area in 2000.· So
`24· · · ·what's out there now is sort of a subset of -- or a sub area
`25· · · ·of the area that it encompassed in 2000.
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`Page 21
`·1· ·Q.· And how many periodicals were displayed during the month of
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`Page 23
`·1· · · ·never be pulled before that date, so that it would be there
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`·2· · · ·February in 2000?
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`·2· · · ·at least a month.
`
`·3· ·A.· That was similar to the question you asked me once before
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`·3· · · · · · ·Again, it could be, you know, a day or two longer.· If
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`·4· · · ·that I honestly don't know.· I was guessing between 800 and a
`
`·4· · · ·my serials tech was out sick or on vacation, it could even be
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`·5· · · ·thousand.
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`·5· · · ·a week, but it should never be less.
`
`·6· ·Q.· Would it be about the same number in March of 2000?
`
`·6· ·Q.· And how are the periodicals organized in the display area?
`
`·7· ·A.· Sure.· It wouldn't have been until we had to do some kind of
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`·7· ·A.· Alphabetically by title, by journal title.
`
`·8· · · ·a significant serials cancellation that that number would
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`·8· ·Q.· And when new periodicals were added to the display area, was
`
`·9· · · ·have changed appreciably -- or I take that back.· Well, I'll
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`·9· · · ·there some sort of alert or way for people to know that there
`
`10· · · ·modify that -- or over time we have moved more of our
`
`10· · · ·was something newly added?
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`11· · · ·subscription from print to electronic, so we stopped
`
`11· ·A.· No.· There's just -- there was no mechanism really for doing
`
`12· · · ·receiving the print for a lot of titles; that, of course,
`
`12· · · ·that.· We never knew exactly when the next issue of a journal
`
`13· · · ·they would reduce the number of those per issues that display
`
`13· · · ·was going to come in the door.· For something that comes out
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`14· · · ·because we weren't receiving print.
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`14· · · ·monthly, ideally, yes, the next issue will come out roughly a
`
`15· ·Q.· When was the first time you saw Exhibit A to your
`
`15· · · ·month after we got the previous one.· But it doesn't always
`
`16· · · ·declaration, the Sirer article?
`
`16· · · ·work that way.· But for something like this, the fact that
`
`17· ·A.· Some time -- without going back and looking at the E-mail
`
`17· · · ·this is volume 33, number 5, and it's December, if you go
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`18· · · ·trail, I don't know.· It would have been somewhere before
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`18· · · ·back and look at volume 33, number 1, it's January of the
`
`19· · · ·April 15.· If I had to guess, I would say a month or six
`
`19· · · ·same year.· So this is actually a rather odd journal in that
`
`20· · · ·weeks prior to that.· But without going back and looking at
`
`20· · · ·it produces five -- at this time produced five issues per
`
`21· · · ·the E-mail, I couldn't tell you exactly.
`
`21· · · ·year.· That's pretty unusual.
`
`22· ·Q.· And can you explain to me how you know that the Sirer article
`
`22· · · · · · ·And it's partly because what ACM -- and that's what the
`
`23· · · ·was received on January 31st, 2000?
`
`23· · · ·case is with this particular title, if you notice the first
`
`24· ·A.· By received, because that's when it was stamped by the
`
`24· · · ·four issues are all relatively thin, something in the
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`25· · · ·receiving unit within the main library.· That is their
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`25· · · ·neighborhood of 100 pages or less, and then this one on the
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`Page 22
`·1· · · ·standard practice that whenever an item is -- once it comes
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`·2· · · ·in for them to process and add the fact that volume 33,
`·3· · · ·number 5 of Operating Systems Review, December 1999 was
`
`·4· · · ·received, they would -- and it's a little bulky mechanical
`·5· · · ·hand stamp that you can rotate the date information from day
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`·6· · · ·to day and just go, Kapow, and add that date to the cover.
`·7· · · ·And they do that with basically every issue of every journal
`
`·8· · · ·that they receive.
`
`·9· ·Q.· And these were displayed for one month exactly; is that
`10· · · ·correct?
`
`11· ·A.· It can be give or take a day or two.· You know, if a date
`12· · · ·would fall on a weekend or a holiday, and I didn't go back to
`
`13· · · ·look at the 2000 calendar to see when March the 8th would
`14· · · ·have fallen, it could be a -- it could be a title would stay
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`15· · · ·on there for an extra day or two, if that date happened to be
`16· · · ·a weekend.
`
`17· ·Q.· But it wouldn't be less than a month?
`18· ·A.· It would not be less than a month.· Because basically
`
`19· · · ·whenever they stamp -- whenever this sticker is added to each
`20· · · ·journal issue or at least for the journals, again, the
`
`21· · · ·journals that go into the display periodical area, which is
`22· · · ·not every title that we receive, for every item that's
`
`23· · · ·received, it is stamped one month in advance.· And standard
`24· · · ·practice -- I can't say that this never happened, but
`
`25· · · ·standard practice was that the title, that that issue should
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`Page 24
`·1· · · ·other hand is almost 300, ACM had a history with some of
`·2· · · ·their titles, not all, of making one issue of different
`·3· · · ·journals, the conference proceedings of a conference
`·4· · · ·associated with that journal.
`·5· · · · · · ·I could get into the whole history of ACM and how
`·6· · · ·they're structured, and you don't want to know that.· But
`·7· · · ·this is not an unusual arrangement with these particular
`·8· · · ·kinds of journals from ACM that you would get sort of four
`·9· · · ·normal-sized issues and then one big issue that was a
`10· · · ·proceedings of a related conference.
`11· · · · · · ·Rather than -- and they also would produce this as a
`12· · · ·standalone conference proceedings and sell it by itself.· But
`13· · · ·for people who were buying this journal, they would also
`14· · · ·include it as an issue as a giant economy-sized issue of that
`15· · · ·particular journal.
`16· ·Q.· What happens to a journal after its taken off the display
`17· · · ·shelf?
`18· ·A.· At -- I don't know how to explain this.· You have to
`19· · · ·understand what these display shelves looked like at the
`20· · · ·time.· There was a display where we would -- the display area
`21· · · ·would actually usually have more -- can have more than one
`22· · · ·issue on it at any one time.· These with the sticker didn't.
`23· · · ·These would get pulled and go -- I mentioned this earlier,
`24· · · ·there would be a box, usually a little -- they're called
`25· · · ·Princeton boxes.
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`Page 25
`·1· · · · · · ·I was hoping there was an example of one out there
`·2· · · ·where I could show you, but I don't see one in eyeshot, where
`·3· · · ·the individual issues would be put into this box until we got
`·4· · · ·enough to turn around and send them off to be bound.· And for
`·5· · · ·a journal, like this, as you can see, it's a year.· With some
`·6· · · ·journals that produce more content in a given year, we might
`·7· · · ·bind two volumes per year.
`·8· · · · · · ·A lot of it has to do with the amount of content that's
`·9· · · ·produced by a journal in a given year because there are rules
`10· · · ·that we're supposed to follow in terms of how thick a volume
`11· · · ·can be when we send it o