in the matter of: stuarty silverstein penguinputman, inc. … · 2018. 1. 19. · in the matter of:...
TRANSCRIPT
In The Matter Of:
STUART Y SILVERSTEIN v
PENGUIN PUTMAN, INC.
July 17,2007
TRIAL
SOUTHERN DISTRICT REPORTERS
500 PEARL STREET
NEW YORK., NY 10007
212-805-0300
Original File 77H4SILF.txt, Pages 1-190
Word Index included with this Min-U-Script®
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC. July 17,2007
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[3] STUART Y. SILVERSTEIN,[4J evidence will show that after Penguin declined to purchase
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77H7SILIUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK------------------------------x
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podium?
THE COURT: From the podium, please.
MR. RABINOWITZ: Good morning, your Honor. The
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APPEARANCES
HON. JOHN F. KEENAN
violated Penguin's explicit written policies by failing to
pages onto paper, and then republished it as its own book. The
denied that it even copied Mr. Silverstein's work until its
editor admitted that she bought it and cut it and pasted it ..
publishing industry.
deliberately continued to issue new editions. Penguin at first
failing to seek permission from Mr. Silverstein to use his work
Mr. Silverstein's book, and since Mr. Silverstein published it
denied Mr. Silverstein attribution in order to "avoid directing
people to the competition" and it then misrepresented to the
or provide any attribution to Mr. Silverstein.
The evidence will show that Penguin's senior
management failed to remedy its misconduct and instead
The evidence will establish that Penguin deliberately
The evidence will show that senior Penguin employees
with Scribner, Penguin simply bought a copy, cut and pasted the
investigate the copyright status of Silverstein1s work, which
they admitted contained an explicit copyright notice, and
public that the items were faithfully reproduced from their
original publications.
evidence will show that such conduct is unheard of in the
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01 Civ. 309
July 17, 20079:30 a.m.
Plaintiff,
Defendant.
v.
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PENGUIN PUTMAN, INC.,
Before:
NEAL GERBER & EISENBERG LLPAttorneys for Plaintiff
BY: MARK A. RABINOWITZCHRISTOPHER D. MICKUS
COWAN LIEBOWITZ & LATMAN PCAttorneys for Defendant
BY: RICHARD DANNAYTHOMAS KJELLBERG
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District Judge
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(Case called; in open court)
THE COURT: Be seated. Good morning, everybody.
The first observation I would like to make before we
start the trial is that the animosity of counsel towards each
other in this case, as evidenced by the flock of letters that
my chambers has received from each side, the animosity is
beginning to border on hostility, and it should stop during the
trial of the case. That's number one.
This animosity has resulted in the fact that there is
no joint pretrial order, nothing has been agreed to. Proving
that no good deed goes unpunished, my efforts to supply a
proposed pretrial order were rebuffed by the defense, and then
I received· a self-serving and somewhat insulting letter
yesterday from Mr. Dannay, so we are proceeding without any
pretrial order.
Originally at a pretrial conference I was told that
the trial would last five to six days. Now I am told ten days.
If the case is not over by the close of business on July 27,
2007, which is a week from Friday, we will resume at 2:15 p.m.
on August 6, 2007 and complete the case by the close of
business Tuesday, August 7, 2007.
This Thursday our day will begin at 9 a.m. and end at
12 noon. You may open, Mr. Rabinowitz if you choose to.
MR. RABINOWITZ: Good morning, your Honor. Would you
prefer for me to address the court. -from here or from the
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Plaintiff will present the testimony of two of
Penguin's senior management executives who testified that in
their decades-long careers in the publishing industry they
never had heard of an instance in which a publisher published
material on which an author was asserting a copyright.
Your Honor, this is a very simple case at bottom.
Mr. Silverstein has a protectable right in his original
creative effort in selecting and compiling the items that are
contained in Not Much Fun, and penguin violated it.
The evidence will show that in selecting and compiling
the items for Not Much Fun, on dozens of occasions
Mr. Silverstein exercised personal subjective judgment, made
nonobvious choices from a large universe, and protected his
original creative efforts by at all times notifying others of
his copyright claim and registering a compilation copyright for
the book.
The evidence will show that Mr. Silverstein made
subjective judgments as to whether numerous items were either
~ritten by Dorothy Parker, whether they then constituted poems
or whether they constituted nonpoetic free versus.
The evidence will also show that Mr. Silverstein
decided that certain items were poems -- and he included them
in his work -- that other scholars had concluded were not
poems. The evidence will show that Mr. Silverstein decided
that numerous items that other scholars has classified as poems
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STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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in fact were not in his opinion poems and he then excluded
them.
The evidence will show that Mr. Silverstein decided
that certain items that scholars attributed to Dorothy Parker
in his opinion had not been written by her, and he excluded
them.
The evidence will show that Mr. Silverstein decided
that numerous items that other scholars had considered to be
poems, in his opinion were nonpoetic free verses, and he
included them in a separate section titled verses.
The evidence will show that there is in fact an active
scholarly dispute as to whether free verses are poems, and
contemporaneous documents will demonstrate that Silverstein
explicitly and repeatedly drew that distinction when he was
compiling That Much Fun.
The, evidence will demonstrate that Penguin possessed
actual knowledge that Mr.~ilverstein was employing his own
subjective judgment in selecting items for his book when
Penguin in effect reviewed a Not Much Fun manuscript that he
submitted to a senior Penguin editor in 1994, and that was two
years before Not Much Fun in fact was published.
The evidence will also show that Mr. Silverstein
identified and selected several items that buried in book
reviews, a personal letter and a magazine ad.
Mr. Silverstein will prove by a preponderance of the
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evidence that in selecting and compiling the items in That Much
Fun he exercised personal subjective judgment and that another
scholar engaging in the same exercise would not necessarily
select the same literary works. He will establish that Not
Much Fun is protectable as an original compilation because he
exercised vastly more than the minimal or slight amount of
creativity that the U.S. Supreme Court Freist case requires to
find originality and selection.
Mr. Silverstein also satisfies the Second Circuit's
test annunciated in the Matthew Bender opinion because he will
e$tablish that another scholar· making the same selection would
not come up with the same compilation.
The evidence also will show that Penguin violated
Mr. Silverstein's copyright. It is undisputed that he
submitted his manuscript to Penguin to a senior editor for
consideration in 1994 for publication as a separate volume. It
is undisputed that af,ter Penguin offered to purchase merely the
works that were in it for $2,000, Mr. Silverstein declined and
had his book published separately by Scribner.
It is undisputed that every copy, every edition of Not
Much Fun, contained an explicit compilation copyright notice,
and the evidence will show that after seeing Mr. Silverstein's
manuscript PengUin decided to publish its own collection and
that it also decided to include everyone of the items that
were in Mr. Silverstein's book.
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The evidence will show that Penguin had hired an
outside editor, Coleen Breeze, and told her to use Not Much Fun
as the source of the material for Complete Poems. Breeze did
exactly that. She obtained a copy of Not Much Fun herself, she
photocopied the pages, the poems and verses that were in it,
she then cut and pasted those photocopies onto new sheets of
paper, and then that was published as Penguin's Complete Poems.
She did it the old way, she testified.
Ms. Breeze did not check the accuracy of the items in
Not Much Fun against the original publications, and we know
that certainly because Not Much Fun contained hundreds of
punctuations, edits, titles and errors.
THE COURT: I thought the Second Circuit said that had
nothing to do with the case.
MR. RABINOWITZ: The Second Circuit said, your Honor,
that Mr. Silverstein was not entitled to protect those edits,
and Mr. Silverstein is not contending that he has any right
to
THE COURT: As long as I understand you are abiding by
the Second Circuit ruling. Go ahead.
MR. RABINOWITZ: Exactly, your Honor.
Mr. Silverstein is showing only that they copied
they didn't make the same selection themselves. They copied
his, because it has all of his edits. That's the only purpose
we are using that for.
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Penguin deliberately omitted from Complete Poems any
credit or attribution either to Silverstein or Not Much Fun and
actively concealed the existence of his book because Penguin
did not want to "direct people to the competition". Penguin
then affirmatively misled the public by misrepresenting that
the poems and verses contained in Complete Poems were
faithfUlly reproduced from Dorothy Parker's original poems and
verses when it actually knew they had been copied from Not Much
Fun.
Not Much Fun and Complete Poems were placed in book
stores in the same poetry' section across the country.
Mr. Silverstein, upon discovering that his work had been
copied, retained an attorney who sent a letter to Penguin,
demanding that they cease and desist. Instead he got a letter
back trying to defend their conduct.
Penguin must be held to account for what it now admits
is a deliberate act of copying Mr. Silverstein's work. Itls in
violation of its own policies. They withheld attribution to
Mr. Silverstein in order to avoid directing customers to the
competition, and then they passed off Mr. Silverstein's work as
their own.
Penguin has made strenuous efforts to obfuscate and
confuse, but it's a very simple case, and penguin wants to
complicate it.
Much of Penguin's defense is an attempt to confuse the
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evidence by setting up and defeating fictional claims that
Mr. Silverstein never made. The court will hear that
Mr. Silverstein has no right to copyright Dorothy Parker's
poems themselves, but Mr. Silverstein never has asserted such a
claim.
The court will hear that Mr. Silverstein is not
entitled to compensation for his sweat-of-the-brow effort and
time in searching for the Dorothy Parker works, but
Mr. Silverstein has never asserted such a claim.
The court will hear that whether Penguin copied Not
Much Fun verbatim is irrelevant, because Mr. Silverstein is not
entitled to any rights in Dorothy Parker's word themselves, and
Mr. Silverstein has never claimed any right in her words. He
was merely explaining that Penguin copied his entire personal
selection of poems and free verses including his edits, titles
and inadvertent errors. Silverstein's real claim is that in
selecting and compili;g the items for Not Much Fun Silverstein
exercised personal subjective judgment, made nonobvious choices
from a larger universe, and protected his original creative
efforts by registering a compilation copyright for Not Much
Fun, and Penguin knew all of this when it copied his work.
None of Penguin's misdirection changes the fact that
Mr. Silverstein exercised subjective creative judgment by
selecting 121 items, inclUding several items in a form that are
not generally recognizable as poems.
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[1] MR. DANNAY: None is intended.[2) THE COURT: Then you ought to watch what you say and[3) speak what you mean.[4] MR. DANNAY: Your Honor, there is only one arguable[5] basis on left on which the validity ofMr. Silverstein's[6] compilation copyright claim can be sustained, and that is[7) whether he has a protectable selection. His arrangement and[8) copy editing claims have been dismissed from the case.[9] Injunctive relief is also out of the case because his asserted
[10] right to a selection is in any event, as the Court of Appeals[11) said, too slight to support an injunction.[12) It's Penguin's view that that is a very important[13] context, that the selection right -- which is the only claim[14J left in the case as far as copyright is concerned -- is too[15) slight, and that's the context in which his claims in this[16) trial have to be evaluated.[17) First, he has to establish that he even made a[18] selection. The Second Circuit found that he has no rights in[19) this selection principle, the uncollected poems, because Parker[20] herselfmade the selection or created the category by excluding[21] these works from her own collections. So Parker herself[22J created the uncollected category. That's a very important[23) factor, because the selection principle does not belong.[24] THE COURT: So the Second Circuit pointed out.[25] MR. DANNAY: Yes. Moreover, if Not Much Fun,
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[1) THE COURT: He selected 122; only 121 had not been[2] collected before.[3] MR. RABINOWITZ: Correct. Accordingly, this court[4) should enter judgment against Penguin based on its clear and[5] indefensible misconduct, and award damages in favor of[6) Silverstein on his claims for copyright infringement, violation[7] of Section 43(a) of the Lanham Act, and unfair competition and[8) unfair or immoral business practices under New York law.[9) Silverstein is not seeking to enforce rights in
[10] Dorothy Patker's word orpoems. Mr. Silverstein is not[11) requestingcoinpe:nsation for the sweat ofhis brow in searching[12) for the Parker items. Mr. Silverstein is seeking redress for[13) Penguin's knowing and deliberate theft ofhis original creative[14) work. Mi. Silverstein is seeking poetic justice.[15) THE COURT: Thank you. Mr. Dannay, do you wish to[16J open?'[17) MR. DANNAY:Thahk you, your Honor. Good morning.[18] Before I start, your Honor, I would like to say that I regret[19) very much ifyour Honor intcrpreted my letter from yesterday as[20] being offensive. No offense was intended. I must say though I[21) was and am troubled by the fact that I think after all these[22) years our case, Penguin's case, is not well understood, and he[23J hope to remedy that situation not only at the trial but in my[24) opening remarks.[25] THE COURT: That's also insulting. Go ahead.
[1) Mr. Silverstein's book, included all of the works that[2] Mr. Silverstein found that he regarded to be uncollected poems[3) and verses by Dorothy Parker, then too there is no selection[4) because as the Second Circuit held all is not a selection. And[5) we think he did just that.[6] In fact, we think Mr. Silverstein told his readers,[7) told his publisher, and told the NAACP -- his licensor and the[8) principle Dorothy Parker copyright owner - that his collection(9) was indeed all and complete. And I can put quotation marks
[10) around aU and complete. To his publisher he said, and I(11) quote, "The collection was as complete as I could make it,[12J though there is always the haunting possibility that I missed[13) some source somewhere. And he also told his publisher, "No[14) one, no one has cataloged the full inventory ofMrs. Parker's[15] uncollected poetry and verse, or considered compiling and[16) editing it to form a comprehensive and cohesive whole until[17) now. And that is what Not Much Fun, the lost poems of Dorothy[18) Parker is, the fourth and final and largest volume of Dorothy[19] Parker collected poetry."[20) And he told his readers essentially the same thing,[21) because the book's final section is called "The Complete[22] Chronology." The first sentence, as we know, explains without[23) any qualification whatsoever that "This is a chronological list[24) of all of Dorothy Parker's poems and verses."[25] And the book's cover itself announce that is Dorothy
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[lJ Parker collected most ofher poems and verses in three volumes [1] protectable creativity to support a selection copyright. To do[2J ofpoetry, as we know, and "the remaining poems and verses" [2J that, Mr. Silverstein undertook to prove a scholarly dispute '<")
from Parker "make up this volume." with professor Randall Calhoun. Professor Calhoun is I[3] [3J /
[4 J The Second Circuit understood very well what this [4J identified by the Second Circuit as we all know now as a[5] message was intended to communicate when they said, "The clear [5] foremost Parker scholar, and it was remanded in part for that[6] impression conveyed by Not Much Fun is that there was no [6] issue to be explored.[7] principle of selection at work other than all or completeness." 17J Mr. Silverstein claimed that he and Professor Calhoun[8] The court weIit on to say, "Thus, anyone wishing to [8J disagreed significantly about what were poems by Parker and[9] compile a complete collection of the poems could conclude that [9J that those disagreements supported Mr. Silverstein's claim of
[10J Silverstein's selection of all was unprotected because all is [10J creativity and his own designations. But the video of[l1J not a selection." [l1J Professor Calhoun's deposition will show that there is no[12] And he told the NAACP -- the copyright owner, the [12J meaningful scholarly dispute at all between the two of them.[13] principal Parker copyright owner, which gave Mr. Silverstein a [13J Their disagreements, it turned out -- it's on the tape -- were[l4] nonexclusive license for.a mere $275 flat one-time payment, no [14] trivial, if any. Moreover, Professor Calhoun provided vivid[15J royalty -- he told the NAACP the very same thing. His contract [15J judgments on dispositive matters that Mr. Silverstein never[16J with the NAACP obligated Mr. Silverstein to deliver as a [16J asked Calhoun in the phase when the parties obtained their[17J condition of that license "~omplete list of Dorothy Parker's [17J separate declarations before the deposition, and that is[18] poems," and Mr. Silverstein fulfilled that obligation by [18] that -- and this is critical -- that Calhoun concluded that[19] delivering to the NAACP what he called "my chronological and [19J all, all of the poems reprinted in Not Much Fun were originally[20] alphabetical lists ofDorothy Parker's poems and verses." [20J published in newspapers and magazinesin a form that makes them[21J And the complete -- that's right, the complete -- list [21J objectively recognizable as poems.[22J that he delivered to the NAACP is identical, identical to the [22] And all of the poems that were reprinted in Not Much[23] complete chronology that appears in Not Much Fun. And the [23J Fun are by Dorothy Parker, testified Professor Calhoun. And[24] NAACP in fact relied on the completeness of that list when it [24J the Second Circuit agreed that little judgment inheres in[25] authorized Penguin to published Complete Poems full circle. [25] classifYing works as poems by Parker in thes.e circumstances,
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[1 J And all it is, your Honor, as we will show, [lJ and plaintiffs own exhibit in this case of the Not Much Fun[2J Mr. Silverstein has not been able to name in seven years of [2J poems in their original published form, in magazines,[3] litigation, so far as I can tell, even one work that he [3] newspapers, etc., shows that each is objectively recognizable[4] regarded to be an uncollected poem or verse by Dorothy Parker [4J as a poem and each is signed by Dorothy Parker in her name or[5] that he left out ofNot Much Fun, seven years oflitigation, [5J under one of her well known pseudonyms. Their assembly could[6] and despite the claim -- which we think is an extravagant [6J not thus entail any copyrightable creativity.[7J claim -- of a vast universe ofpossible candidates from which [7] But Professor Calhoun also concluded that all of the[8J he selected his 122 or 121 Not Much Fun poems. [8J poems reprinted in Not Much Fun, all of them should be included[9] And Mr. Silversteinis not alone in this, because as [9J in.any proper Dorothy Parker complete poems collection, and he
[1 OJ you will see on theyi~e9sthat will be played later this week, [10J testified that he did not know of any uncollected poem by[l1J ndtherProfessor Calhoun nor Coleen Breeze has found or knows [l1J Parker that is not included in Not Much Fun and is not included[12J ofany uncollected poem 01" verSe by Dorothy Parker that Not [12J in Complete Poems, with one possible exception of an item[13J Much Fun omitted. [13J questionably attributed to Parker and which Parker herself[14J Mr. Silverstein, like any normal researcher would do, [14J strongly denied writing as Not Much Fun, and other books[15J left out only what he concluded did not belong, works he did [15J report.[16J not consider to be poems or verses by Dorothy Parker. He told [16J Calhoun's deposition testimony refutes completely,[17] his readers, he told his publisher, and he told the NAACP that [171 completely, Mr. Silverstein's claim of a scholarly dispute.[18J Not Much Fun was complete, and he was right. He intended to [18J And his testimony, together with many published works in the[19J include all, he did include all, and he represented to the [19J field, show that Not Much Fun does not creatively designate any[20] world that he included all, and he would at a minimum, as we [20J work as poetry that might otherwise be deemed something else --[21J contend, be barred by the fact estoppel doctrine from claiming [21J to borrow language from the Second Circuit.'22J otherwise for litigation purposes. [22J In fact, Mr. Silverstein's bold faced four works --:23] But even if we ignore all of this overwhehning [23J two verses in two book reviews, and two letters in the form of ":24J evidence which I just sketched for the court, Mr. Silverstein [24J poems, one of them published in an ad -- are recognizable as )
:25] cannot overcome the second hurdle of showing that there is [25J poems on their own terms and have been so recognized by others,
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[lJ including Calhoun before and after Not Much Fun. [1 J;,',
[2J In fact, Professor Calhoun, recognized virtually all [2J
[3] of the works as poems in his Biobibliography that preceded Not [3J
[4] Much Fun. [4]
[5] But even apart from the protectable selection issue, [SJ
[6J your Honor -- and this is very critical to our case -- there [6J
[7J could be no finding of infringement in this case for anoth~r [7]
[8J reason. Mr. Silverstein's selection principle of uncollected [8J
[9J poems, which we know from the Second Circuit belongs to Parker [9J
(10) and not to Mr. Silverstein, is entirely different from [10]
[11] Penguin's selection principle of Complete Poems, which as the [Ill
[12] Second Circuit said owes nothing to Mr. Silverstein. [121
[13J The different selection principles present questions [13]
[14J that we submit are absolutely unanswerable in this litigation, [14J
[lSJ namely how can you tell a publisher that has the indisputable [lSJ
[16J right to publish each and every poem in its complete poems [16]
[17J volume that it cannOl'do so in a single complete volume, and [17]
[18J how can a publisher, any publisher, not just Penguin, but any [18J
[19] publisher, do a complete poems volume without including the [19]
[20J lesser category ofuncollected poems? Such results would be [20J
[21J bizarre legally in my view and in the publishing world; and a [21J
[22] finding against Penguin here would lead to another extremely [22]
[23J bizarre result, equally ifnot more unacceptable. [23]
[24J If Penguin's Complete Poems volume infringes [24]
[25] Mr. Silverstein's selection copyright, then indeed Penguin's [2SJ
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THE COURT: Well, that's fine, but you are still notpermitted to make legal argument in an opening statement.
MR. DANNAY: It's what we're going to show.THE COURT: Excuse me. The purpose of an opening
statement is to show me and to tell me what you are going toprove. Go ahead.
MR. DANNAY: Your Honor, I have not repeated "what theevidence will show" before each of my statements.
THE COURT: You don't have to repeat that the evidencewill show. All I'm saying is you are giving me legal argument.Are you not telling me what the facts will prove. Go ahead.
MR. DANNAY: The facts will show that if indeed thecopyright is sustained in this case it would be in effecttelling the NAACP that it too could be a copyright infringer ifit published the Complete Poem volume, that it licensed toPenguin to publish, containing poems the NAACP owns thecopyrights in and in which Mr. Silverstein has no copyrightinterest or exclusive right as the evidence will show.
Indeed, under Mr. Silverstein's theory, the NAACP, Ithink the evidence will show, would be a copyright infringermerely by having authorized Penguin to publish Complete Poems.This we think would be nonsense and would make a mockery ofcopyright law.
Let me tum finally to what I think are the stridentslogans we have heard in this case: Cutting and pasting and.
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[lJ licensor, the NAACP, the owner of the Parker copyrights, would[2] infringe as well ifit decided to publish Complete Poems[3) itself, which it could well do.[4] Having given Mr. Silverstein only nonexclusive rights,[5] no copyright right, and for the nominal flat sum payment of[6J $275 the NAACP would be a copyright infringer ifit published[7J its own complete poems that included the uncollected poems.[8J That would be indeed a strange and unacceptable result, in our[9J view; amounting in effect towhat would be Mr. Silverstein's
[10J adversepossessionoftheNAACP'scopynghts -- if I can borrow[11) a term from another area of the law ~-andit won't do to say[12J that the NAACP is, asl'msitre we will hear, free to assemble[13] its own selection ofuncollected poems.114J There is no other selection, because it is, as[15] Mr. Silverstein said candidly to his publisher long before any[16J litigation was around, his collection was "as complete as I117] could make it," a conclusion that Professor Calhoun and Coleen[18J Breeze agreed with completely.[19J ArJd if this court [mds that Mr. Silverstein has a[20J valid selection copyright that Penguin infringed, it would be[21] telling in our view the NAACP, the copyright owner of Dorothy[22J Parker's poems --[23] THE COURT: You are arguing now legally. You are not[24J making an opening statement now.[25] MR. DANNAY: Well, I'm almost done.
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[lJ verbatim copying. The only cutting and pasting, as the[2] evidence will show, was done to put the uncollected Parker[3] poems in a noninfringing chronological arrangement. That all[4J comes from one letter of Coleen Breeze, and the purpose of the[5] cutting and pasting was to rearrange the poems that Penguin had[6J a right to publish in a chronological arrangement, which is[7J unquestionably noninfringing and which the Second Circuit has[8] found to be noninfringing.19J The only words that were copied, as the evidence will
[10J show, the only words copied verbatim were Parker's own word,Ill] which Penguin had the right to publish.[12J Earlier in the case, as we all know, Mr. Silverstein[13] claimed that Penguin also copied his punctuation which was a[14 J gloss on the words. And that's a claim, as we know, the Second[15J Circuit dismissed.[16J ArJd, finally, having acquired ownership of the[17J physical book Penguin could dispose of the physical book its118] pages as it saw fit.[19J Penguin put together its collection the very same way,[20J the evidence will show, that other publishers put together[21J their anthologies, using pages as text source and as[22J typesetting copy, where they have the rights as here in the[23] material on those pages.[24J Based on the Second Circuit rulings, Penguin hasn't[25] used a single word for which it can be liable. As Judge Winter
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said in oral argument, the only thing Penguin copied verbatimis was what Dorothy Parker wrote.
And I will close, your Honor, by saying this: Justconsider the pages ofNot Much Fun, individual pages. Threethings appear on those pages or as part of those pages, threethings. There are words. All of those words were DorothyParker's, all ofthose words both sides had a right to reprint.
There was punctuation. That punctuation has beenthrown out of the case. It's not a factor in this case.
And the third thing on that page is just the page,it's the physical page, it's the pulp that was turned intopaper. And we had a perfect right to use that.
There is nothing on the pages ofNot Much Fun thatPenguin made use of for which it can be held liable. Thankyou, your Honor.
THE COURT: Thank you, Mr. Dannay.Your first witness, Mr. Rabinowitz.MR. RABINOWITZ: Thank you, your Honor. The plaintiff
calls to the stand Stuart Silverstein.THE COURT: OK.MR. RABINOWITZ: We have, as you know, multiple
volumes of the exhibits. Can I place a set up by thewitness's --
THE COURT: Yes, you can.
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Q. What year was Not Much Fun published?A. 1996.Q. Which publisher published it?A. Scribner. It's an imprint of Simon Schuster, which is adivision of Viaeom.Q. Was it published in hardcover or paperback?A. It was originally published in hardcover.Q. And was it subsequently published in paperback?A. Yes, in 2001.Q. Could you pick up the volume of exhibits that you have thatwould be labeled volume 2 -- sorry. Volume 1.A. Yes.Q. And could you look at Exhibit 2, please.A. Yes.Q. Do you recognize that document?A. Yes, it's a photocopy ofNot Much Fun.Q. The hardcover or the paperback?A. The hardcover edition.Q. And this is a copy of the book that was published byScribner in 1996, is that right?A. Without looking at every single page, yes, it appears tobe.
MR. RABINOWITZ: The pJaintiffmoves for admission ofExhibit 2, your Honor.
MR. DANNAY: No objection.
Page 24
[1] STUARTY. SILVERSTEIN,[2] the plaintiff, having been duly sworn,[3] testified as follows:[4J THE COURT: All right. You may proceed.[5J DIRECT EXAMINATION[6J BY MR. RABINOWITZ:[7J Q. Good morning, Mr. Silverstein.[8) A. Good morning.[9) Q. Where do you reside?10) A. Los Angeles, Cfllifornia.11J Q..And from what college, what year and with what degree did12J you graduate?13) A.I got a Bachelor ofArts in history from UCLA 1976; Master14J ofJoumalismfrom Berkeley 1981; Juris Doctor from Loyola Law15] School, Loyola Marymount University in 1981.16] Q. And what is your occupation?17J A. A writer.18J Q. Have you had any works published?19] A. Several articles in National Law Review, Los Angeles Law20J Journal, The National Review, and Not Much Fun. Also, the21) Oxford English Dictionary Magazine.22) THE COURT: Move just a little closer to the23) microphone. Ifyou have any difficulty hearing, just raise24J your hand.25J MR.DANNAY: lwas before. Thank you for asking.
[lJ THE COURT: Received, Plaintiffs Exhibit 2 in[2J evidence.[3J (Plaintiffs Exhibit 2 received in evidence)[4J Q. Please look, Mr. Silverstein, at Exhibit 3. Do you[5] recognize that?[6) A. That appears to be a photostat of the soft cover, the[7] paperback edition of Not Much Fun.[8) Q. Is that in the form of which it was published by Scribner?[9] A. Well, besides being a photostat, yeah. Yes.
[10] MR. RABINOWITZ: Plaintiffmoves for admission of[11] Exhibit 3, your Honor.[12] MR. DANNAY: No objection.[13] THE COURT: Received.[14) (plaintiffs Exhibit 3 received in evidence)(15) Q. Are you working on any projects now, Mr. Silverstein?[16) A. Yes, I'm working on a book about baseball around the tum[17) of the 20th Century, and 1am still doing some ongoing work on[18] history of the Algonquin roundtable.[19) MR. DANNAY: I am now having a little trouble hearing[20] him.[21] THE COURT: Try to keep your voice up. It's very[22] important, because all that's going to happen if you don't keep[23) your voice up is you are going to be asked to repeat, and it's(24) just going to delay things and elongate things. So, keep your(25) voice up. Ifyou need water, I think we have water for you.
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[1] lust speak loud. Nobody is going to be mad at you because you[2] are speaking too loud. Go ahead.[3) Q. Mr. Silverstein, what is Not Much Fun?[4) A. Well, the term itself was a re-plus from Dorothy Parker to[5) a bartender who asked what she was having. What the book is a[6) compilation of my selection of items that I determined to be[7] poems and free verses written by Dorothy Parker that had not[8] been previously collected by Dorothy Parker.[9] Q. And who is Dorothy Parker?
[10) A. Dorothy Parker is a major literary figure from the first[11) half of the 20th Century. She is probably best known as a wit[12) and as a supplier of quotations. She also was a drama[l3) reviewer, a playwright, a film writer, a short story writer,[14] and she wrote poems, and she wrote free verses, and she wrote[15) other various items of indeterminate quality.[16) MR. DANNAY: I'm really sorry to interrupt, but some[17) of the words seemed to trail away, and I wonder if there is[18) just some way--[l9) THE COURT: Can we tum the microphone up?(20] MR. DANNAY: I am hearing some, but I'm not hearing(21) all. Sorry to interrupt.[22) THE COURT: You needn't apologize, because he does[23] drop his voice at some points.[24) So, keep the volume up, Mr. Ryan.[25] DEPUTY COURT CLERK: Yes, Judge.
July 17,2007
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[1) off near the end of the decade. It was a self-selecting group(2) of young people who were trying to get attention in the New[3) York literary journalistic and artistic and performing worlds,[4] and they used to meet irregularly at the Algonquin Hotel on[5) 44th Street for lunch: Various members would come various[6) days, and they would save up their favorite quips from the(1) previous days, and they would regale each other with each[8] other's quips, and those of them that were in the media would[9] take great care in publishing them, and they very soon became
[10) very famous as pretty much as symbolic of the flapper flaming[11) '20s youth from the literary scene.[12) Q. What types of works did Dorothy Parker write?[13J A. She wrote what she called verse. She wrote verses, she(141 wrote free verses, she wrote dramatic reviews, she wrote short(IS) prose, pieces she wrote. She wrote short stories. She[16) wrote --later on she wrote screenplays, she wrote a couple[17) plays.(18) Q. Did she write under any pseudonyms?[l9] A. She wrote under at least two, perhaps three. She wrote at(20] least one item under the pseudonym Henriette Russo. She wrote[21) several items for the Saturday Evening Post under the pseudonym[221 Helen Wells, which was probably a play on hell on wheels. And[23] she might have written several items for the New York World[24 J newspaper in the later '20s under the pseudonym Squidge. It's[25) unclear.
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[ll THE COURT: Thank you. [1]
[2) Do you want the last answer read back? [2]
(3) MR. DANNAY: I don't think I need that, your Honor, [3J
(4) but I wanted to anticipate other answers. [4)
[5) Q. Who are her contemporaries? [5]
[6) A. In poetry I would say probably Eleanor Wylie and Edna St. [6J
[7] Vincent Millay. In terms ofher friends and the people that (7]
[8) she dealt with, especially around the Algonquin roundtable you [8]
(9) have Franklin P. Adams, the colulIDlist; Robert Benchley, the [9]
[10) critic and humorist; MarcCortnelly, the playwright and also [10)
(11) journalist; George S. Kaufnian, joumalisfand dramatic critic [11)
[l2) and piaywright;Heywood Broun, columnist; Robert Sherwood, (12]
[13) critic and later a famous playwright and screenwriter; (13J
[l4) Alexander Woollcott, critic and later an actor. [14)
[15) MR. DANNAY: Sorry. I didn't hear the last. [15]
(16) THE WITNESS: AlexanderWoollcott. [16J
(17) THE COURT: 1 didn't hear it either. Later what? (17)
[18) THE WITNESS: Originally a dramatic critic, later an (18)
[19) actor. [19J
[20) MR. RABINOWITZ: Can I suggest that you lean into the [20)
[21) microphone. (21)
[22) THE WITNESS: I'm trying to. I'm sorry. [22]
[23) Q. You mentioned the Algonquin roundtable. What was that? [23J
[24] A. It was a literary coterie that formed around lune 1919 and [24]
[25) existed more or less for most of the '20s, although it trailed [25]
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Q. In what publications did her works occur?A. Her works probably appeared in dozens, but some of the morenotables of those would be the New York Tribune, Vanity Fair,Vogue, The New York World, The New Yorker, The New York HeraldTribune, the Saturday Evening Post.
THE COURT: What was the last one?THE WITNESS: The Saturday Evening Post.THE COURT: Thank you.
Q. In your opinion, Mr. Silverstein, what was she best knownfor?A. For her wit. 1 think she is best known for some veryfamous put downs and some very famous lines, more than any ofher individual works.Q. Why did you decide to compile Not Much Fun?A. It was sort of thrust upon me. In the course of doing theresearch for the Algonquin book I was going through theoriginal Life magazines and microfilms at the UCLA researchlibrary, looking for a series of capsule reviews written byRobert Benchley. He was the dramatic critic for the old Lifemagazine, and one of his duties was to write a short, you know,snippet, two or three lines, maybe one line, about each playthat was in production on Broadway, and one of the plays thatwas appearing at that time was called Abbie's Irish Rose, whichwas a dramatic comedy about a young Irish girl who falls inlove with a young lewish boys and how their families handle the
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whole thing. It's very stereotypical, and it's really a prettyhorrible piece of work, but it was extremely popular, and itwas breaking all the Broadway's records for the longevity ofits run. It ran year after year. I think it ran more thanfive years in the early '20S, and one of Benchley'sresponsibility was every week to write a one or two linesnippet about that play, and it had to be different every week,and he absolutely hated this play, and so he took some pleasureout of making these little snippets as funny as he could eachweek, and subsequently the biographers not only for Benchleybut many of the other Algonquin --
MR. DANNAY: I am now having trouble hearingagain.Could you just slow down a little bit?
THE COURT: Yeah. It would be better ifyou did speaka little slower.
MR. DANNAY: Thank you very much.THE COURT: And again, Mr. Ryan, see ifwe can get the
mike any louder.But just speak slowly.THE WITNESS: Sorry, your Honor.THE COURT: I'm not being critical. Just try. Go
ahead.I think we should get the last answer read back.(Record read)THE COURT: Your next question.
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any scholarly works about Dorothy Parker?A. I had read the basic biographees. I read, well, first theScholarly Biography by Arthur Kinney which appeared in 1978.He has since updated it with a new one in 1998, but that hadnot been released at that time.
I read Marion Meade's 1987 biography. I read thefirst major biography of her which was written by John Keats in1970. And 1had read the Leslie Fruen biography which appearedin the mid-80s.Q. And had you read Randall Calhoun's Biobibliography?A. Not at that time.Q. Who is Professor Calhoun?A. Professor Calhoun.
THE COURT: When you say now, I want to get somethingstraight in my mind. You said not at that time. What timethat you had not read Calhoun?
THE WITNESS: 1had not read Calhoun when I startedcollecting Dorothy Parker poems and verses.
THE COURT: OK. And what yearwas that?THE WITNESS: That was in 1994.THE COURT: Go ahead.
Q. When did you first become familiar with Professor Calhoun'sbook?A. I'm not sure if it was later in '94 or '95.
THE COURT: When he said "familiar with the book,"
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[1 ) Q. Mr. Silverstein, why was it you decided to compile That [1]
(2) Much Fun? [2)
[3] A. In the course oflooking up all of these Benchley snippets, [3]
[4) I was going through these original Life magazines, and 1found [4J
[5) several items written by Dorothy Parker which did not appear [5)
[6] familiar to me. I compared them to her -- I'm not sure if I [6)
(7) compared it to her first major compilation of compilations [7)
[8) which was titled Not So Deep As A Well, or whether I compared [8)
[9J it toone·ofthe earlier editions ofT:he Portable Dorothy [9)
:10) Parker. In either case I found that these items had not been [10J
:11) c;ollected, and at that point Ldecidedl:wouldstart to collect [Ill
:12J tlIem,andlstartedgoingthrough the Life magazines, which (12)
:13J were not indexed, page by page and issue by issue. [13J
"14J THE COURT: Next question. [14 )
:15J Q. Which anthologies did Dorothy Parker publish? [15)
:16) A. Well, her poetry compilations, her original compilations [16J
17]. were Enough ,Rope, which appeared in 1926, Sunset Gun, which [17J
18) appeared in 1928, Death and Taxes, which appeared in 1931. She [18J
19J compiled those compilations after subtracting a few of the [19]
20J items she no longer wanted to be remembered, 1assume, in 1936 [20)
21] in a book called Not So Deep as a Well. [21)
22J In 1944 the items contained in Not So Deep as a Well, [22J
23) as well as some ofher short stories and some ofher other work [23)
24J were compiled in the first Portable Dorothy Parker. [24)
25) Q. At the time that you compiled Not Much Fun, had you read [25J
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when you became familiar with the book, does that mean that youbecame aware of its existence and title, or does that mean thatyou read it, or what does it mean?
THE WITNESS: In this case it would be pretty much allof those simultaneously. I first became aware of it when Ifirst saw it at the library. I took it out, and I read it atthat time.
THE COURT: And that would be, you believe, late in1994 you are saying.
THE WITNESS: Either late 1994 or early 1995.MR. DANNAY: Sorry. Early 1995?THE WITNESS: Either late '94 or early 1995.
Q. What point in your compilation ofNot Much Fun did you dothose things?A. I virtually compiled everyiliingin That Much Fun by thetime I got to the Biobibliography.Q. But you read the Biobibliography before the publication ofthe not That Much Fun?A. Yes.
THE COURT: For record purposes, the Biobibliographyis the Calhoun work, is that correct?
THE WITNESS: Yes, that's correct.THE COURT: Go ahead.
Q. Who is Randall Calhoun?A. Randall Calhoun has been since 1986 an assistant professor
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[1) of English at Ball State University in Monsey, Indiana. [1 )
(2) Q. What type of work is the Biobibliography? [2)
[3] A. It's essentially a list oflists. It's a compilation of [3J
[4] citations by and about Dorothy Parker. It organizes her [4)
[5] citations that she wrote by publication, and in many of those [5)
[6] publications it characterizes various items as prose, or poems, [6]
[7] or short stories, or I think screenplays in some cases. He has. [7]
[B] different criteria for different publications. [B]
[9] Q. So it actually classifies her works in different [9)
[10] categories? [101
[l1J A. Explicitly. [11]
[12) Q. Were you ever asked to make any type of scholarly [12)
[13) presentation regarding Dorothy Parker? [13)
[14] A. Yes. The BBC contacted me. BBC Radio 4 contacted me in [14J
[15) late 1995 to appear on an arts show about Dorothy Parker. I [15)
[16) think it was a halfhour or hour show. It was hosted by one of [16)
[17] the leading BBC presenters, a woman named Francine Stock. [17)
[lBJ Q. What was discussed during the show? [lBJ
[19) A. It was pretty free ranging. They asked me about her work, [19)
[20) they asked me about her life. I think it was more about her [20)
[21) life than about what she had actually written, because I think [21)
[22) that that is what interests people more than the literary (22)
[23J examination. [23)
[24J Q. How long was the show? [24)
[25J A. As I said, I can't recall if it was a halfhoUf or an hour. [25)
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[lJ Q. What was the full title ofNot Much Fun? [1)
(2) A. The full title was Not Much Fun: The Lost Poems of Dorothy [2)
(3) Parker. [3)
[4] Q. What was your goal in compiling Not Much Fun? [4)
[5J A. My goal was to compile as complete a list of items that I [51
[6) determined to be poems written by Dorothy Parker. I later [6)
[7) decided that I would try to add to it free verses which I did [7)
[BJ not regard to be poems, that I also had determined to be [BJ
[9J written by Dorothy Parker, even though they did not technically [9J
[10J 'conform to the fonnat of thebdok, becaiise it Was pretty much a [10J
[l1J whim. I just thought it would be nice to put them in, and I [l1J
[12] just liked them, and I put them in. Essentially what I did was [12]
[13J I put in apples in my compilation of oranges. [13J
[14J Q. What steps did you take to prepare Not Much Fun? [14J
[15J A. I visited probably close to a dozen'libraries in California [15J
[16J and Illinois, major university libraries at Northwestern at [16J
[17J . Evanston, Illinois; at the University ofCalifornia Berkeley; [17J
[lB] several libraries at UCLA. [lBJ
[19J I believe I visited I think the University of Southern [19J
[20J California library near downtown Los Angeles. I think I [20J
[21J visited the Cal State Northridge and Long Beach libraries. I [2lJ
[22J didn't put them down in my earlier response, but I think I did [22J
[23) make visits to those two also. [23J
(24) I visited several local libraries including the Los [24J
[25J Angeles public library, the Chicago public library, The [25J
July 17,2007
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Highland Park public library in Illinois, the Evanston publiclibrary in Illinois. I might be forgetting a few libraries. Ivisited every library pretty much -- I believe I went to theArlington Heights library in Illinois also. This is about 12,13 years ago, so I can't recall precisely which ones, but Ivisited pretty much any library I thought might possibly havesomething I could find.Q. What did you do with the information?A. I went through the paper versions of magazines andnewspapers if they were present, which in very few cases theywere. And I can't even remember offhand besides UCLA any ofthe libraries that did have anything in paper, but I was prettymuch a microfilm rat. I was going through microfilm of anynumber of magazines that were available in various libraries,because different libraries have different things. And I waslooking through the magazines I mentioned before, magazineslike Ainsley's, and I believe there was a magazine calledEverybody's magazine. There were probably a couple dozenmagazines and several newspapers, and I just went through themall.Q. What were the main titles of the magazines that you lookedat?A. Well, I think the ones, the most target-rich environmentswould have been -- well, the New York Tribune is where shefirst got a lot of her stuffpublished. The first stuff came.
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in Vanity Fair and Vogue, but she became -- she tried to becomefriendly with Franklin P. Adams, who was a noted columnist, youknow, before the first world war and between the wars. Andfrom 1913 I believe to In I he was at the New York Tribune, soI went through every issue of that newspaper day to day becausethere were no indexes to make the process any easier.
It was in one of those newspapers I found an odd itemwhere Franklin P. Adams accused her of committing plagiarism inregard to an item she published I believe in Vanity Fair, whichI don't think any of the biographers had everfound before,because there was no way to find it, because this was just anewspaper that was moldering in microfilm, and unless you werelooking through this newspaper in the original microfilm youwould never have found anything in it.Q. Why did you look at those particular publication? How didyou know?A. I didn't know. The problem was you don't know where you'regoing to find, what you're going to Imd. So, I generallylooked in the places where I thought it was most likely I wouldImd various items from Dorothy Parker.
I knew that later on, a few years after that, when theAlgonquin roundtable started, she became very friendly withFranklin P. Adams, so I related back from that to Franklin P.Adam's earlier columns in the same newspaper.Q. Did you use professor Calhoun's Biobibliography in locating
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[lJ any of the items? [lJ Q. What was your personal definition or opinion of what a poem[2J A. I had almost completed my collection at the time I went to [2] was? (~[3J -- I saw Randall Calhoun. And I am a bit unsure about the [3] A. It wasn't overly precise. I know there are basic J[4J chronology. There is one item I know that he had, that I had [4] definitions, dictionary definitions ofpoems. They are not[5] missed from a later issue of Life magazine. I think that c- [5J necessarily complementary to each other, they do contradict to[6] I'm not going to speculate as to why I missed it. It was on a [6J an extent, one of which is technically something that has meter[7] page with some artwork, and it was kind of -- it was not easy [7J and rhyme; another one is something that has some vague[8J to see on the microfilm, but that's not an excuse. I was [8] artistic undertone to it that prose doesn't have which is by[9J appalled I missed it. But he did have that one. He was [9] its very nature extraordinarily subjective.
[10J missing in his list several that I had. And then there are a [10J THE COURT: Let me interrupt. What you have just done[l1J few items from the Saturday Evening Post that he had which I [l1J is told us, as I understand it, is told us what other people[12J didn't have. However, at almost the same time -- I am not sure [12J defined poems as. The question before you is how do you define[13J about the exact timing -- as I said, this is '94, '95, so it [13] a poem, not what other people say, how do you define a poem.[14] was 12, 13 years ago, and I simply cannot recall the precise [14] Isn't that your question.[15J chronological sequence as this happened -- but at the time, [15J MR. RABINOWITZ: Yes, your Honor.[16J around the time I found the Calhoun book, I was also actively [16J THE COURT: Tell us how you define a poem.[17J negotiating with the Saturday-Evening Post for permissions for [17] THE WITNESS: At the time 1was trying to determine[18J those items, and they had their own very, very exhaustive [18] what I should consider to be a poem or not or free verse or[19J records about who wrote what. And I got -- some ofthe items [19J whether or not a free verse was a poem or not. I did a little120J that I found in Calhoun I also got in a letter or in a phone [20J research at the time. I spent a lot of time at the library[21J call, I'm not sure, from the Saturday Evening Post at the same [21J looked through various dictionaries. At the time I was[22J time. So, whether I found them in Calhoun first or whether I [22J becoming a rather active contributor to the Oxford English[23] got them in the Saturday Evening Post first, I cannot tell you, [23J Dictionary. I asked them, called them up, asked them what they[24J but it was pretty much simultaneously. [24J thought. They said we don't know what a poem is either, our[25J (Continued on next page) [25] defmitions are so hopelessly --
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[lJ Q. How long did you spend performing your search? [1] Q. What was your defmition of a poem?[2J A. Close to two years. I was looking for things right up [2J A. My defmition of a poem after doing some research was[3J until -- [3] pretty much that it had some kind of rhyme, it had some kind of[4 J THE COURT: The answer is close to two years. [4] meter maybe, but maybe not. These were general guidelines but[5J Your next question. [5] they were not carved in stone, not sharply etched, more like[6J Q. Over what period did your search extend? [6J guidelines rather than standards.[7J A. From the spring of 1994 to the spring of 1996. [7J Q. Did Dorothy Parker to your knowledge express an opinion on[8J Q. How many hours per week on average would you say you spent? [8] what she believed a poem was?[9J A. I can't say per week. It was I estimate several years, [9J A. Yes, she did, explicitly in 1928, constituted a review from
:10J llbout,$l ,000 total, SOme weeks I would be.there 60, 80 hours, [10J one ofher book reviews. She signed her book reviews Constant'l1J ..SODle weeks a lot less. [l1J Reader from New Yorker.12J Q~ Approximately how many items did you review and consider? [12) Q. Binder 4, Exhibit 54.13) A. Several hundred, not counting her previously collected [13) THE COURT: Volume 4, Exhibit 54 for identification.14) poems, not counting her previously collected short stories or [14 ) MR. DANNAY: Could we have a moment to get that.15) previously collected book reviews. I would say 4, 500; I can't [15] THE COURT: Sure.16J break it down any more than that. [16] Let them know when you have found it.17) Q. What did you do when you located an item you believed [17) MR.DANNAY: We have it, your Honor, thank you.18) Dorothy Parker had written? [18) A. I was right, it was 1928, from New Yorker, the issue dated19) A. First I would determine whether or not I considered it to (19) January 7, 1928, pages 77 through 79.20) be a poem or a verse. Second, maybe sometimes first I would [20) Q. What portion of that article in that -- it was written by21J determine whether or not I thought she had written it. There [21J Dorothy Parker, is that right?22) were several instances where items that published sources had [22] A. You will see on the middle of page 79, left-hand column,23J credited to her I decided were not written by her. Then I (23] it's signed with I think they call it a tag line, signed by '\24) would compare it to the collections to determine whether or not [24) Constant Reader, which was Dorothy Parker. It has been ,-,~)25J those items had been previously collected. [25J universally accepted to be Dorothy Parker. In 1970, after her
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[11 death, they put out a collection of her excerpts, it's called [1]
[21 Constant Reader, so, yes. [2]
[3J Q. First page, page 77, on the right-hand column, read the [3]
[4J paragraph beginning with "There is poetry?" [4 J[5J A. Midway in the paragraph, the starting paragraph on that [5J[6J column says, quote: "There is poetry, and there is not. You [6]
[7J can't use the words good or bad about it. You must know fo~ [7J[B] yourself Poetry is so intensely, so terribly personal. A [BJ[9] wise man, a very wise man -- well, Hendrik Willem Van Loon, if [9J
[10J you must have names -- once said to me that ifyou have any [10J[11] doubt about a poem, then it isn't a poem. Poetry is for you, [11]
[12] for you alone. If for you it's poetry, it will deluge your [12]
[13J mind, drain your -- [13J[14J THE COURT: So the record is clear, the record could [14J[151 come out delude. It's not delude; it's deluge your mind, like [15]
[16J a flood, it will deluge your mind -- [16][17J A. -- drain your heart, crinkle your spine." [l7]
[lBJ Q. That's fine. Thank you. When you were reviewing an item, [lBJ[19J Mr. Silverstein, how did you determine whether you believed it [19J[20] was a poem? [20J[21] A. I wish I could say that I went through this hard-and-fast [21J[22J process, what I did, like I had a checklist or something. [22J[23J Basically I had a general idea what a poem was based on what [23J[24J told you before. I would make a snap judgment, do I think this [24][25] is a poem or not. If not, is this a free verse or not or is [25J
Page 43
poetry experts will say it has some higher artistic merit to itover ordinary prose, but I would suggest that from myperspective and from a whole lot of other people'sperspectives, if it looks like, if it's just put in thatformat, it's a free verse. And pretty much any piece ofprosecan be made into free verse. You could take the Page 6 columnin today's New York Post and change it, put each sentence intoa separate line and break it down into stanzas, and you willfind lot of people say, yes, that's a free verse.
THE COURT: Thank you.Q. Can you look at back at Exhibit 2 in volume I, yourhardcover of Not Much Fun?A. Excuse me.
THE COURT: Exhibits 2 in volume I, the hardcover copyofNot Much Fun.Q. Can you tum to page 65 please.A. I can and I will.Q. That's contained within the introduction of your book,right?A. Yes, that's the last page of the introduction.Q. Can you read the last paragraph beginning with the word"those."A. "Those precarious undertakings called quote or unquote areconsidered and judged through intensely personal yet hazyprisms ofemotion, taste and experience. This collection will
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[1] this neither or not or this written by Dorothy Parker or not.[2J That was pretty much my, that was pretty much my judgment[3J process.[4 J Q. Did you select and include in Not Much Fun every item that[5J you considered?[6] A. No.
[7J THE COURT: Did you select and include in Not Much Fun[BJ every item that you considered to be a poem that was written by[9JDorothyParker that so far as yoU could determine had not been
[lOI'previously collected?[11) THE WITNESS: Aftet I made several preliminary[12] judgments, A, whether! thought it was a poem or not, B,[13) whether or riot Ithoughfit was written by Dorothy Parker, C,[14J whether or not I thought it was a free verse or not, and D,[15] whether or not it was collected, after I made all those[16J preliminary judgments, only the latter one which was hard and[17) fast because I could refer to what she had already collected.[lBJ THE COURT: You have used the term several times since[19) you have been on the witness stand, free verse. Since we have[20) tried to get a definition ofwhat apoem is would you tell me[211 what you consider a free verse to be.[22J THE WITNESS: Free verse is something that looks an[231 awful lot like prose but it is formatted in a way that tends to[24) look like a poem in that each line, each sentence has its own[25) line and it can be broken down into stanzas, and some of the
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[lJ ultimately be measured on those grounds. Enjoy."[2) End ofparagraph.[3] Q. What was your intention in writing those words?[4] A. I was saying this is intensely subjective; ifyou think[5) it's a poem and you enjoy it, enjoy it.[6] Q. Were all of the items that you selected immediately[7] recognizable to you as a poem?[BI A. No. As this paragraph says it's hazy. The very nature of[9) this is that it's hazy and very, very, I hate to keep using the
[10) .word subjective, it's an accurate word to describe what we are[11) trying to talk about here.[12) Q. Did you select any items that were contained, select any[13) items as poems that were contained in a longer item that you[14) did not immediately recognize as a poem?(15) A. I hadto decide several items that might not necessarily[16) have been objectively considered poems by someone else, I[17) consider to be poems. For example, there was an extract from a[lB) letter that Dorothy Parker wrote I believe in 1920 to Robert[19] Benchley when she was out camping, she was in some kind of[20J resort in Maine. I believe it was characterized as a letter,(21) not as a poem in Marion Meade's book where I first heard of it.[22] It was written in rhyme and it was goof'y and some ofthe rhymes(23) were not really rhymes either, and I decided I wanted to put it[24J in the book, I decided to characterize it as a poem.[25) There was something else, let's see, there was a thing
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[1) in 1931, advertisement that Simon & Schuster published for its [1 )
[2) author Ogden Nash, he had a book coming out. They ran a stunt, [2)
[3) they ran two items, letters from Dorothy Parker to Ogden Nash, [3J
[4 J from Ogden Nash to Dorothy Parker, and they were kind of in [4 )
[5) rhyme also, and I chose the Dorothy Parker one from this ad as [5)
[6J a poem. [6)
[7J I did notice, I did find out later on that Reader's [7)
[B) Guide characterizes it as a poem also, but I also noticed that [8)
[9) Reader's Guide, it was for a three-year period, page 1800 or [9)
[10J something out of 2500 for this one volume, I figured out how [10)
[11) many different items that they categorized every day. It comes [11)
[12) out to a couple 100 items every day that they categorized. [12)
[13) The other Dorothy Parker items in that list, they [13)
[14 ) called it all different kinds of things, even ones that are [14 J
[15J undoubtedly poems that she previously collected in earlier [15)
[16J books, they called them verse, didn't categorize them as [16)
[17J anything. It was pretty IllYCh luck of the draw what that [17J
[18J particular clerk called it, he might have called it a poem. [18)
[19J But it was catch as catch can really. [19)
[20J MR. DANNAY: I object to the answer to the extent it [20)
[21J speculates about what Reader's Guide actually categorizes. [21)
[22J THE COURT: I am going to let the answer stand; there [22)
[23J is no jury here. [23J
!24 ) A. As a practical matter -- [24)
!25) THE COURT: Vou don't answer unless you are asked [25J
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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ladies with glasses, I am not sure which it is. Is that a poemor not, whether it's ladies or women's?
THE WITNESS: Are you asking me.THE COURT: I am asking you.THE WITNESS: First of all, that was a particular sore·
spot. Whenever anyone misquoted that, she said she was goingto hit them with her handbag.
THE COURT: Does that mean she didn't write that?THE WITNESS: No, she wrote it, but it was in a
slightly different form. She wrote "men seldom make passes atgirls who wear glasses."
THE COURT: The statement "men seldom make passes atgirls who wear glasses," all I want to know is that a poem.
THE WITNESS: She said it wasn't.THE COURT: Was?THE WITNESS: She said it wasn't.THE COURT: Was not.THE WITNESS: She categorized all her verses, she was
once asked if she categorized these things as poems; she said,no, they are verses.
THE COURT: She said that was a verse not a poem.Thank you.
Q. Why do you think the --THE COURT: One minute. Let me ask the follow-up
question. She characterized it as a verse not a poem, the
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[lJ question.[2) Q. Look at volume 4, Exhibit 15.[3) MR. RABINOWITZ: Your Honor, I have an enlargement of[4J that item on th~ easel.[5J THE COURT: There is no jury. I have the volume,[6J fif. Dannay has the volume, the witness has the volume.[7) Q. Vou have the exhibit?[BJ THE COURT: What you are going to refer to, it's[9J highlighted on the blow-up, is the Christopher Morely thing.10J q. r>0yqu recog?ize this item on Exhibit 15?11 J A. Yes; This will be a continuation of my previous answer12) that items .that arepart oflarger items I decided were poems,13J there were two Constant Reader book reviews where I extracted14 J very small snippets from those book reviews and decided they15J were poems. They had ever been regarded as poemshyanyone16J previously.17J THE COURT: You regard the following as a poem. I am18J going to read it into the record. "Christopher Morley goes19) hippety hoppety, hippety hippety hop. Whenever I ask him20J politely to stop it, he says he can't possibly stop it."21) You view that as a poem?22) THE WITNESS: Yes, I do.23J THE COURT: Probably the most famous quote from24 J Dorothy Parker that people know of is the one which I think is25J "men do not make passes at women with glasses." Maybe it's
Page 48
[1) thing of "men seldom make passes at girls who wear glasses,"[2] what would you categorize it as, a poem or not a poem?[3J THE WITNESS: I would say it was a poem.[4) THE COURT: You would say it was a poem, even though[5) she said it wasn't?[6] THE WITNESS: Yes.[7) THE COURT: Thank you.[8J Q. This book review is two pages, right?[9J A. Page and a half, yes, extends over two pages.
[10J Q. It just was these four lines you identified as a poem?[11) A. Yes, I extracted that one part.[12) Q. What about it, why did you think it was a poem?[13) A. To tell you the truth right now lam not sure iflwould[14) have selected it now. I think ifI were to reselect it now, I[15] would have not have called it a poem. At the time something[16) about it just struck me, I thought it was diverting, and I kind(17) ofliked the meter in it, but it's very trivial and it's very[18) light, and technically somebody could call it a poem, somebody[19) could say it wasn't a poem.[20) At the time I thought, gee, I kind oflike this thing,[21 J I want to put it in. This is a larger point in terms of my[22) selection. I put a lot of things in there perhapsifI was[23J being stricter I shouldn't have put in. I just liked the way(24) they sounded even they though I really didn't think they were,(25) that they had that artistic sense that I should use. I put it
)
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[1] in there anyway. This was just plain out-and-out whim.
[2 J O. At the time you first read it, did you know if anybody else[3] had descnbed those four lines as a poem?[4] A. As far as I knew, no one had.[5] O. To your knowledge has anyone ever previously described[6] those four lines as a poem?[7] A. No.[B] Q. Are these four lines individually titled in the book[9] review?
[10] A. Yes, I think--[11] Q. In the original book review?[12] A. Excuse me?[13] Q. In the original book review?[14] A. No, in the original book review this was part of a larger[15] book review.[16] Q. How did that item appear in Not Much Fun?[17] A. I extracted it, I-put it on a separate, each item on a[lB] separate page ofNot Much Fun, and I gave it a title. I think[19] I called it Chris-Cross, because the tenor ofthis book review[20] tends to draw some confusion between Christopher Morley and[21] Christopher Robin, so I said Chris-Cross, it's a pun.[22] MR. DANNAY: Objection. I will move on. The titiing[23] of poems is not an issue remaining in this case.[24] THE COURT: Thank you.[25] MR. DANNAY: If it's asserted as a claim, I therefore
Page 50
[1] object.[2] MR. RABINOWITZ: It's not asserted as a claim; you[3] know that.[4] THE COURT: The objection is overruled.[5] _ Put your next question.[6] Q. Look at Exhibit 16.[7] A. It's another Constant Reader book review from May 30, 1931.
[B] O. Did you consider this book review as an item for inclusion[9} inNotMtich Fun?
[Hi] A:'; No. It'sa:bookreviewnota poem.[11]0. As you were reviewing the item did you determinethat a[l2] portion of it mightbe a poem?[13} A. UItimately! looked through the book review, and 1looked[14} through the bookreview in the original form, the way that she[15] compiled these things, the book reviews were edited, sothey[16J were much shorter. This one, yes, I saw these tWo lines at the[17] end of it which I decided I wanted to put in, it's more of a[18} literary thing than as a poem even though there is technically[19] a rhyme, I put it in because I tend to agree with her[20} philosophical literary stance about Theodore Dreiser. This was[21] also somewhat of a whim.[22} THE COURT: I am confused. What you are referring to[23} is the end of the review on page 72 and it reads Theodore[24] Dreiser should ought to write nicer. Are you saying that's a[25] poem or not a poem.
July 17,2007
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[lJ THE WITNESS: I am saying that at the time, I was[2] trying to fit it into a template to make it a poem just because[3] I wanted to put it in. Do I think it's a poem, not really, but[4] at the time I was trying to force it into a poem because I[5} wanted to put it in.[6] THE COURT: So you included it.[7] THE WITNESS: So I did include it.[B] O. Do you know whether anyone has described those 2 lines as a[9} poem?
[10] A. Not to my knowledge.[11] THE COURT: Do you know whether Mr. Calhoun has[12} characterized it as a poem?[13] THE WITNESS: No, Mr. Calhoun characterized it both[14] this and the previous book review as book reviews explicitly.[15] MR. DANNAY: Objection; I think the video will show[16J that's quite incorrect.[17] THE COURT: Then I wiJIlook at the video. That's the[lB] trouble with both of you. You are objecting, he is objecting[19] to things you do, you are objecting to things he does. When I[20] see the video, the video will speak for itself. He speaks and[21] the video speaks. Often people contradict each other. That[22] doesn't mean that the answer should be stricken.[23] Next question.[24] MR. RABINOWITZ: Mr. Calhoun--[25] THE COURT: I will see the video when I see the video,
Page 52
[lJ MR. RABINOWITZ: Exactly.[2] THE COURT: Next question.[3] MR. RABINOWITZ: I move the admission ofExhibit 15[4J which the was one we looked at a moment ago.[5] THE COURT: That's the Christopher Morley Higgledy[6J Piggledy.[7J MR. DANNAY: No objection.[B] THE COURT: 15 is received.[9] (Plaintiff Exhibit 15 received in evidence)
[101 BY MR. RABINOWITZ:[11] Q. Mr. Silverstein, were these two lines at the end of the[12} book review titled in the original publication?[13] A. No, they were not.[14] Q. How did they appear in Not Much Fun?[15] A. They appeared on a separate page as a separate item which I[16) characterized at that point as a poem.[17) THE COURT: For record purposes we are referring back[lBJ to Plaintiffl6.[19) MR. RABINOWITZ: Correct.[20) Q. Did you title that item in Not Much Fun?(21) A. Yes, I titled it After Dawn because it refers to the fact[22) that this book review is about a book called Dawn, and it's the[23] end of the book review, so it's After Dawn.[24J MR. RABINOWITZ: I move the admission of 16.[25) MR. DANNAY: No objection.
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STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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[1)
(2)
[3)
[4)
[5)
[6)
[7)
[8]
[9)
[10]
[11]
[12]
[13]
[14]
[15]
[16)
[17]
[18J
[19)
[20)
(21)
:22]
:23]
:24]
:25]
THE COURT: Thank you. No objection 16 is received.(Plaintiff Exhibit 16 received in evidence)
Q. Was that item ever published before Not Much Fun?A. Yes, it was. The book review, not these two lines bythemselves but an edited version of this book review I believewas published in the portable and also in the Constant Readerbook which I mentioned a few minutes ago, the collection ofsome of her Constant Reader book reviews edited.Q. Look at volume 6, Exhibit 259, beginning at page 520.
THE COURT: You want to go page 524.MR. RABINOWITZ: 520, we will wind up at 524.
Q. Do you recognize this document, page 520?A. Yes, I recognize it. That appeared in the most recentportable Dorothy Parker.Q. What is this, it's entitled Words, Words, Words?A. Yes, it's edited, it's edited, I believe it's an editedreview of a copy of that r€Wiew we just referred to.Q. Page 524, those two lines you identified and selected andtitled as After Dawn published in Not Much Fun, does thatappear?A. Yes, it does.Q. It is part of the longer review?A. Yes, it is.Q. Were you aware of anywhere those 2 lines have appearedalone as a poem?
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[1)
[2]
[3]
[4]
[5)
[6]
[7J
[8)
[9)
[10]
[11]
[12]
[13)
[14 )
[15)
[16)
[17)
[18)
(19)
[20)
[21)
[22]
[23)
[24)
(25)
A. I recognize this photocopy which I received from the MugarLibrary at Boston University I believe. It is a photocopy of aletter that was written by Dorothy Parker to Robert Benchley inthe summer of 1920.Q. Did you consider it for inclusion in Not Much Fun?A. Yes, I did.Q. Why?A. Despite the fact it doesn't rhyme in many places, it doeskind ofrhyme in other places and it wasn't attempting torhyme. It was a letter. I just liked it a lot. I think itunderscored the relationship between Robert Benchley andDorothy Parker which has been a big subject in literature, anda movie had just come out in 1994, a feature film, called Mrs.Parker and the Vicious Circle. The central theme of the wholemovie was the unrequited love affair between Dorothy Parker andRobert Benchley. Here I had this letter written by her to him,relatively intimate, I was quite intent on shoe-homing it in,to figure out some pretext to put in the book.Q. Did you believe it was a poem at the time you consideredit?A. I categorized it as a poem so I could put it in the book.Is it actually a poem, no, it's really a letter. It does rhymebut it's letter, but I deliberately changed my definitionsaround at the time just because I wanted to put it in the book.Q. At the time you first read it, did you know whether anyone
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\>J
/
[1) A. In Not Much Fun, then of course Complete Poems photocopied[2] my book, it appears in Complete Poems.[3] MR. RABINOWITZ: I move to admit 259.[4] MR. DANNAY: No objection.[5) THE COURT: Received.[6] (Plaintiff Exhibit 259 received in evidence)[7] Q. Have you ever heard of the 2 lines at the end of the[8J Theodore Dreiser quip described in terms other than as a poem?[9] A. I have never heard them described in any terms besides what10] I see in front ofme here and what! described them as and in
:11) thebpokreview.12)Q. Had you ever heard of them described as a clerihew?13) A. I believe it referred to that here, also in some of14) Penguin's moving papers, I can't recall where.15) Q. What is your understanding what clerihew is?16) A. Well, I seem to recall that Bentley's famous definition was17] a formless form of verse, it's formless. He usually used it18) for writing humorous biographical snippets..He was very famous19) for this early in the century.20) Q. In your opinion is clerihew a poem?21) A. No.22) Q. Look back at volume 4, Exhibit 18 please.23] A. Clerihew was Bentley's middle name; that's where the word24 J comes from.25) Q. Do you recognize that document?
[1] else had described it as a poem?[2J A. No, the only other person who described it as anything at[3) all was Marion Meade, and she described it explicitly as a[4] letter.[5] Q. Has anyone ever published this letter as a poem?[6] A. I put in into Not Much Fun, of course, Penguin photocopied[7J it and put it in Complete Poems.[8) Q. Is the letter titled?[9) A. No. It has a letterhead. It was published on stationery
[10] from the resort where she was staying. It was not really a[11) title.[12) Q. Was it titled in your compilation?[13) A. Yes, I titled it the letter to Robert Benchley I believe.(14) THE COURT: Let's take a break for the court reporter.[15) We will resume at 10 after 11.[16) MR. RABINOWITZ: Can I move to admit the exhibit[17) before we do that.[18) MR. DANNAY: No objection.[19) THE COURT: Plaintiff 18 received without objection.[20] (PlaintiffExhibit 18 received in evidence)[21J (Recess)[22) MR. RABINOWITZ: I believe I missed moving to admit[23) Exhibit 54, which was the Parker poem definition. Do you show[24) that as admitted already.[25] THE COURT: 54 is not admitted.
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[1) Any objection. [1)
[2) MR.DANNAY: No objection. [2)
[3) THE COURT: Received 54. [3)
[4) (Plaintiff Exhibit 54 received in evidence) [4)
[5) BY MR. RABINOWITZ: [5)
[6) Q. Mr. Silverstein, would you, we are still in volume 4, tum [6J
[7) to item 17, Exhibit 17. Do you recognize that document? [7J
[8) A. Yes. (8)
[9) Q. What is it? [9)
[10) A. A page from Saturday Review of Literature. [10)
[11) Q. Did you consider any portion of that page for inclusion in [11)
[12) Not Much Fun? [12)
(13) A. Yes, I had selected the first item in the left-hand column [13)
[14J from Dorothy Parker to Ogden Nash as a letter. [14)
[15) Q. Why you, did you conclude that it was a poem? (15)
[16) A. I shoe-homed it in as a poem because it really isn't a (16)
(17) poem, but I decided irwas a poem anyway because I wanted to (17)
[18) put it in. [18)
(19) Q. What about it seemed like a poem or not? [19)
[20) A. For example, it supposedly rhymes, but look at the first [20)
[21) line, old subscriber to vers libre, it doesn't rhyme. It's got (21)
[22) some kind ofweird approximation. But it's a funny little (22)
(23) thing; I just wanted to put it in. [23)
[24) Q. At the time you first read it did you know whether anyone [24)
[25) else had described it as a poem? [25)
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[1) A. No. Well, let me rephrase that. I might have seen the [1)
[2) Reader's Guide listing, I simply don't recall, but I didn't (2)
[3J think it was a poem, really. [3)
(4) Q. Was this item titled? [4)
[5) A. Well, it is titled here. It's got a subtitle, a letter [5J
[6) from Dorothy Parker to Odgen Nash. I changed that to letter to [6J
(7) Ogden Nash. (7)
(8) Q. Is that how it appeared in the book? (8)
(9) A. Somewhat. I took out the prefatory material regarding [9)
(10) where ifwaswritten from and the· date. [10)
(11) Q •. HasPiofessot Kinney in his biography of Parker, did he [11]
[12) describe this item? (12)
[13) A. I don't think he does, no. (13)
[14) Q. Do you recall his describing it as irregular rhyme and [14)
(15) verse? [15)
[16) A. Yes, he did. Sorry about that. (16)
[17) Q. Would you consider that to be a poem, Professor Kinney's (17)
(18) description? (18)
(19) A. I consider it to be an accurate description, but whether or (19)
(20) not it's a poem, it's a rhyming verse. [20)
[21) THE COURT: Hold on please. [21)
(22) A. I see several instances in here where it doesn't rhyme. I (22)
[23) gave you one before. Ifyou go down a little further, he tries (23J
[24) to rhyme I am and mayhem. (24)
[25) MR. RABINOWITZ: We move the admission of Exhibit 17. (25)
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MR.DANNAY: No objection.THE COURT: Received.(plaintiff Exhibit 17 received in evidence)
Q. Did you select and include in Not Much Fun any items thatyou determined were poems that were not in a fonnat of meteredlines and stanzas?A. Yes, there were a couple. The Milne take-off, I can'trecall the title, When We Were Very Young, very young was whatMilne says, When We Were Very Sore, would that be correct.Q. We will look at that. Was there another one too?A. Yes, there was Excursion Into Assonance, which wasn't, bythe way.Q. Look at 62, volume 4, do you recognize that document?A. Yes, that's When We Were Very Sore, in the originalpublication in New York World, a photocopy of it at least.Q. Did you consider that item for inclusion in Not Much Fun?A. Yes, I did. Not only that, I did include it in Not MuchFun.Q. Does that appear in metered rhyme, metered lines andstanzas?A. No.
MR. RABINOWITZ: I move the admission of 62.MR. DANNAY: No objection.THE COURT: Received.(Plaintiff Exhibit 62 received in evidence)
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Q. Exhibit 63, what is that document?A. It's a photocopy from the New York World; the date's not onit.
THE COURT: Wait a minute. This is in the New YorkWorld, not The New York Times.
THE WITNESS: No, New York World.THE COURT: I understand that. I am asking, you are
you saying this page is from the New York World.THE WITNESS: Yes, it is.THE COURT: Thank you.
Q. Did you consider the Excursion Into Assonance for inclusioninto Not Much Fun?A. Yes, I did.Q..Does Excursion Into Assonance contain metered lines andstanzas?A. It does have meters and it does have stanzas.Q. Does it have rhyme?A. No. Assonance is a weird form ofwhat poets considerrhyme, what no nonnal person would. Assonance is in essence -first ofall, this is necessary to understand this, your Honor.Generally a rhyme would be that the last vowel sound and thelast consonant sound in a line matched the last vowel sound andthe last consonant sound in a subsequent line. It could thenext line or it could be one line after the next line usually.
Assonance is trying to be clever. What it says is
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July 17,2007
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[1) that either the last vowel sound or the last consonant sound[2) can rhyme, but it doesn't require both. However, in this[3) instance she is apparently trying for assonance but she doesn't[4] make it. It's not assonance, it's really nothing. It's got[5) rhyme and meter, but doesn't have rhyme, even assonance rhyme.[6) MR. RABINOWITZ: I move the admission of63 into[7) evidence.[B) MR.DANNAY: No objection.[9) THE COURT: Received.
[10) (Plaintiff Exhibit 63 received in evidence)[11) Q. We talked about what free verse was. Have you read any[12) scholarly articles that discuss the distinction between poems[13) and free verse?[14) A. I have seen several. I have read extracts from them.[15) Q. Exhibit 74, the same volume.[16) A. Yes.(17) Q. The second page of that; read the second paragraph that[lB] begins more generally, the third sentence?[l9) A. I am sorry, repeat that.[20) Q. The second page, the paragraph that begins more generally,[21) second paragraph.[22) A. Yes.[23) Q. Third line, fourth line, third sentence, for some readers?[24) A. For some readers even now, free verse is not poetry. This[25) is wrong-headed, but the free verse WIiters also have to
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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[1] THE COURT: Fine. This has nothing to do with[2] anything Dorothy Parker wrote, right.[3] MR. RABINOWITZ: Not directly. It does corroborate(4) Mr. Silverstein saying free verses are not poems.[5) THE COURT: OK.[6) MR. RABINOWITZ: That's the only purpose for which[7] it's offered.[S) THE COURT: Received.[9) (Plaintiff Exhibit 74 received in evidence)
[10) Q. Exhibit 75, that too is in a similar vein; do you recognize[11) this document?[12) A. It was taken offline; it's an extract from Poetry Now(13) Magazine, issued June 24, 2002.(14) Q. Read the second page, the last sentence, in the fIrst[15) paragraph.[16J THE COURT: You are going to offer this in evidence in(17) a couple ofminutes. The lawsuit started, Mr. Dannay likes to[lB) say, seven years ago, probably six and a half, maybe six, but[19) whether it's six, six and a half or seven, it started in 2001.[20) This is an excerpt from a magazine, June 24, 2002. Aren't we[21) interested in his state of mind back when he collected the(22) Dorothy Parker items that are included in Not Much Fun.[23] MR. RABINOWITZ: Yes, your Honor.[24J THE COURT: What are we doing in 2002.[25) MR. RABINOWITZ: He already testifIed what his
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inquire about the border between their work and prose.Q. In your opinion is free verse poetry?A. No. As I said before I think basically free verse is prosethat has been reformatted.
MR. RABINOWITZ: I move the admission of74.MR.DANNAY: No objection.THE COURT: Received -- hold it so that I not be
accused of not understanding what's going on.Who wrote this Exhibit 74.MR. RABINOWITZ: Are you asking me.THE COURT: The witness.THE WITNESS: From what I can read here on the first
page, left-hand column, it says this is a personal and culturaland political web journal of George M. Wallace, an attorneypracticing in Pasadena, California.
MR. RABINOWITZ: The first paragraph on the first pageindicates it was Justin Quinn.
THE WITNESS: That's right. This particular excerptis from Justin Quinn. It says that on the fIrst page.
THE COURT: There is no objection so if there is in noobjection it's received. This has nothing to do with DorothyParker. You are putting it in to show what the witness thinksfree verse is.
MR. RABINOWITZ: To show there is scholarlydisagreement.
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understanding was concerning the distinction between free verseand poems. These are scholarly discussions that corroboratethat, even though they are after the fact. They are onlyoffered more in the nature of authority; they certainly don'trelate to the underlying events.
THE COURT: Go ahead, just so long as you understand Iunderstand the case started in 2001 and we are talking aboutdecisions that he made make in 1994, now we are taking in aJune 24, 2002 article.
MR. RABINOWITZ: The document that shows there isdispute in the literature. Weare not contending that heconsidered this at the time.
THE WITNESS: I know it's not my place -THE COURT: Then don't say it.Next question.MR. RABINOWITZ: We cited this in our briefs. These
are documents that post-date the events. I don't have to gothrough them and try to introduce them in evidence.
THE COURT: Fine.MR. RABINOWITZ: Would you prefer that I do it that
way.THE COURT: I will let you try your case. You make
offers, you make offers, then Mr. Dannay indicates whether heobjects or not, if there is no objection, it's going to bereceived. At some point in time somebody ought to look at Rule
(
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'.-: ....~, [1) 403 of the Rules of Evidence. Go ahead. [1)
c[2] BY MR. RABINOWITZ: [2]
[3) Q. Page 2 of Exhibit 75, read the last sentence on the first [3]
[4] paragraph. [4]
[5] A. "At some point, most experienced poets tend to veer towards [5]
(6) a particular style but tend not to fall into the ridiculous two [6)
17] opposing camps that say 'free verse is not poetry' or 'rh)'II!e [7)
(8) (with or without meter) is not poetry'." [8)
[9) MR. RABINOWITZ: Move the admission of75. [9)
[10J MR. DANNAY: So the defendant's position is not [10]
[11) misunderstood, while we do not object, I would like to note at [11]
[12J this point that Penguin's position is that there can be [12]
[13) absolutely no protectable creative combining free verse with [13)
[14) poetry or combining free verse with essentially anything. We [14 )
[15) are permitting these to go in. We don't want to seem to be [15]
[16J impeding. [16]
[17J THE COURT: You are not waiving your position. [17)
[18) MR. DANNAY: Certainly not. Our position is clear in (18)
[19) our papers. I won't to repeat it again. I just want to make [19)
[20] it clear at this juncture. [20)
[21) THE COURT: Thank you. [21]
[22] Plaintiff75 is received without objection. [22]
[23] (Plaintiff Exhibit 75 received in evidence) [23)
[24) (Continued on next page) [24)
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[1] 77H7SIL3 Silverstein - direct [1]
[2] BY MR. RABINOWITZ: [2)
[3] Q. Exhibit 76, Mr. Silverstein, on the left-hand side of that [3]
[4 ) page, could you just read the quotation. [4]
[5] A. On the left-hand side of the page? Oh, "It is mostly free [5J
[6J verse, and free Verse is not poetry but prosody, or often [6]
[7) simply pensees, or thoughts." [7)
(8) Q. That indicates that's the opinion of Ted Melnechuk, who is [8]
[9] an Amherstpoet scientist and philosopher? [9J
[10) A" Yes, that's his way ofsaying that the issuewhether free [10)
[11) verse is poetry is in dispute. [11)
[12) MR. RABINOWITZ: We move for the admission of 76. [12)
[13) MR. DANNAY: No objection. (13)
[14) THE COURT: Received. [14)
[15) (Plaintiffs Exhibit 76 received in evidence) [15)
[16) Q. Exhibit 77, the extract fromthe Journal ofAesthetics and [16)
(17) ·Art Criticism. Could you please look at page 280 and read four [17)
[18) 'lines down,just the sentence that begins "From a definition of (18)
[19) poetry..." [19)
[20] A. The bracketed items, is that correct? [20)
[21) Q. Yes? [21)
[22) A. "From a definition ofpoetry as requiring versification, a [22)
[23) writing in free verse is not poetry." [23]
[24J MR. RABINOWITZ: We move for the admission ofExhibit [24)
[25) 77. [25)
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MR. DANNAY: No objection.THE COURT: Received.(Plaintiffs Exhibit 77 received in evidence)
Q. OK. Mr. Silverstein, look at Exhibit 51, if you would,same volume.A. Yes.Q. And do you recognize that document?A. Yes. I made a photocopy and a PDF of it. It's a photocopyfrom microfilm of a Scottish magazine called FortnightlyReview, the issue dated November 1, 1869.Q. OK. And is this a poem, verse, something else, in youropinion?A. It's prose. It's turgent prose. It's prose.Q. Now look at page 507.A. Oh, and it's written by Walter H. Pater, by the way.Q. On page 507, the first full sentence that appears thatbegins she is older. Do you see that?A. OK. At the very top of 507, the second line, the passagereads, "She is older than the rocks among which she sits."Q. And then it continues on. Are you aware of thesignificance of that passage?A. It's a passage from this book. It's a passage from thisarticle which was a famous article, and other writers havecommented upon this article.Q. Now, look at Exhibit 60.
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A. But it's definitely prose.Q. Exhibit 60 is the Oxford Book of Modem Verse by W.E.Yeats?A. Well, it's edited by W.B. Veats, yes.Q. And if you look at the extract there entitled "Mona Lisa"by Walter Pater; that the same extract that we were justlooking at?
MR. DANNAY: Excuse me. Where is that?THE COURT: Hold it. We are at Exhibit 60.THE WITNESS: Are you referring to page 8,
introduction page 8 or the actual item?MR. RABINOWITZ: The item.THE WITNESS: OK. That's on page 1, I think it is.THE COURT: Maybe it would be better ifwhen I'm
talking you didn't interrupt me, sir. Thank you.THE WITNESS: I think that's a great idea.THE COURT: As I understand it, Mr. Dannay, we are in
Exhibit 60, which consists of two pages. I think we are on thefirst of the two pages.
MR. RABINOWITZ: I'm on the page, your Honor -THE COURT: Except that we have to go over to the
second page because then ifwe compare what Walter Pater had tosay in Exhibit 5I concerning the notes on Leonardo di Vinci,the text of Exhibit 51 is apparently the same as the text atpage 2 of Exhibit 60. That's what he is talking about.
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[1) MR. DANNAY: Yes, I now understand, your Honor. Thank [1) verses?
"')A. Yeah. I added four items called the Figures in American / .. ,[2) you. [2) .~ ...
[3) THE COURT: Now, is the portion that begins "She is [3J Folk Lore, which was included in the manuscript which I sent to[4) older than the rocks" and ends "tinged the eyelids and the (41 Penguin and upon which Penguin made an offer.[5] hands," is that poetry free verse, doggeral or prose? Doggerel [5] Q. Look at Exhibits 40 through 43.[6] being a yet-undefined tenn, not that either poetry or free [6] A. Which book is that in?[7] verse has been defined yet either. But what in your view is [7] Q. Same volume.[B] that portion that is headed here in Exhibit 60 "Mona Lisa," [B) A. Oh, I'm sorry.[9J what is it? [9) Q. Do you have it?
[10) THE WITNESS: Well, this underlines the point I was [10] A. Yes, he do.[11) trying to make earlier, that free verse is essentially prose [11] Q. And there are four separate items entitled Figures in[12) refonnatted. This is specifically labeled, almost 70 years [12) American Folk Lore?[13] after it was written, the editor Yeats, a famous poet, in the [13) A. Yes.[14] introduction page, right before this page, Roman numeral 8, [14] Q. Tell me again, you originally considered these to be poems,[15) refers to this as about halfway down the page, he refers to it [15] is that right?[16) about halfway down the page as verse libra, which is the French [16) A. No. I originally considered them some kind of free verse[17) tenn for free verse. [17) or maybe not, because in the introductory, page 2 of that[lB) And if you look at the actual item what he has done [lB] manuscript, I described them as a third category, although[19] here, classically what I said was he took a block of prose out [19] according to the class, to my definition of free verse, I could[20) of a long prose piece, right out of the middle of the [20J have called them free verse also because they meet the format[21) paragraph, cut it out, put it on a separate sheet of paper, [21] requirements, but I think I called them I think harangues and[22) changed the format by making each sentence into a separate [22) diatribes in the introductory page. I did include them both in[23) line, and said, voila, this prose is now free verse. [23J index to that manuscript, and I actually included these items[24] THE COURT: All right. Go ahead. [24) in the manuscript which I sent to Penguin in June of 1994.[25] BY MR. RABINOWITZ: [25] Q. Did you change your mind subsequently?
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[ 1] Q. How did you detennine, Mr. Silverstein, whether an item was [1] A. Subsequently I just decided I didn't like them, and I[2) free verse when you were compiling Not Much Fun? [2] decided I could have kept them, but I just took them out.[3) MR. DANNAY: Sorry. I missed the question. Could I [3) MR. RABINOWITZ: We move for the admission of Exhibits[4] have it repeated. [4] 40 through 43.[5J (Record read) [5] MR.DANNAY: No objection.[6) A. Well, given the defmition that I just described, I looked [6] THE COURT: 40 and 43 are received.[7J generally for the fonnat, and then I looked for some other [7) THE WITNESS: 40 through 43.[B) quality that made me want to collect it. [B) THE COURT: I thought it was 40 and 43.[9) I\IIR. DANNAY: .1 didn't hear answer. I'm sorry. [9) MR.RABlf'.IOWITZ: 40 through 43.
:10) A. Then I loo~edfor some otherqu(ility in it that made me [10) THE COURT: 40 through 43, all right, fme, all:11) want to collect it. [11) received.:12) I mean someofthl:: Dorothy Parker free verses, or the [12) (plaintiffs' Exhibits 40 through 43 received in:13) items that I characterize as free verses, are really horrible [13J evidence):14) stuff, yet they were clever. And I did not have any specific [14) Q. In the same volume, could you look at Exhibit 79, please.15) criterion on these things. I did decide I wanted these [15] A. Yes.16) particular items, but again I shoe-homed them in, because [16J THE COURT: Could I ask a question, please, about 4217) pretty much, as I said, any piece of -- the defmition of free [17) and 43? Was 42 the portion that is under the heading lithe1B) verse, although the poets will fight me until my dying day [lB) author" on the same page of the September 1st Life magazine as19) because they claim it has to have some -- [19) 43?20) THE COURT: Do you remember the question? [20) THE WITNESS: Yes, 42 and 43.21) THE WITNESS: Yes. He asked me what made me think [21) THE COURT: In one they are just xeroxing the left22) these items were free verse. [22] side and in the other we're just xeroxing the right side, is23) THE COURT: Next question. [23] that right? . ''!,.
24] Q. Did you review and consider any items for inclusion in That [24) THE WITNESS: That's correct. And the same with 45 I.-
25) Much Fun that in your opinion were neither poems or free [25) and 46 too. Wait a second.
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[1] THE COURT: We're only through 40 to 43 so far. Now[2] where are we going?[3] THE WITNESS: I'm sony.[4J THE COURT: That's all right.[5] MR. RABINOWITZ: Your Honor, apparently I didn't move[6] to admit Exhibits 51 and 60, which were the Pater documents.[7J If! have not done that, I would like to do that at this time:[BJ THE COURT: All right. That's the Mona Lisa thing,[9J right?
[10J MR. RABINOWITZ: Correct.[llJ THE COURT: Any objection?[12J MR. DANNAY: No objection.[13] THE COURT: Received.[14J (Plaintiffs' Exhibits 50 and 61 received in evidence)[15] Q. OK. We are now at Exhibit 79. Do you have that,[16] Mr. Silverstein?[17] A. Yes, I do.[IB] Q. What is that document?[19J A. This is a photocopy of the cover letter and the prologue[20J and the manuscript which I sent to Jane von Mehren of Penguin[21] on June 6, 1994.[22] Q. OK. And where in this document do the items Figures in[23] American Folk Lore appear?[24] A. Well, first of all in the prologue, which is page 184,[25] according to the numbers on the bottom here, the prologue
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[IJ Q. How many items did you ultimately include in That Much Fun?[2J A. 122.[3J Q. OK. And those were all items that you had concluded[4] Ms. Parker had not previously collected?[5] A. Well, it was erroneously -- I was wrong about one. It was[6] 121 plus one that actually had been collected in Enough Rope[7J titled Day Dreams.[BJ Q. Of those 121 or 122 items, how many of them did you[9J consider to be free verses?
[10] A. 19.[11] Q. And so the remainder were poems in your opinion at that[12J time?[13J A. They were items that I either considered to be poems or I[14J was intent on shoe-homing into the category ofpoerns because J[15] wanted to put them in for some reason.[16J Q. Why did you include free verses in Not Much Fun if the[17J title says the lost poems of Dorothy Parker?[IB] A. Because I wanted to include them, but I knew that they[19] didn't qualifY under the terms of the compilation.[20] Q. Did you do anything to segregate or label the free verses?[21] A. I mentioned poems. and verses or poems and free verses[22] repeatedly through the introduction at least five, six, seven[23] times. I am not sure how many times. It can be easily[24 J determined. Further more, which docliment number is Not Much[25) Fun? I'm sony, Exhibit 2? Hold on, let me look for it.
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[IJ mentions third paragraph from the bottom, it mentions four [lJ
[2J random diatribes in the second sentence. The next paragraph, [2J
[3J the first sentence says poems, free verses and the harangues. [3J
[4] So the harangues would also be identifYing those. [4 J
[5] Go forward a few pages to this second page of the [5]
[6] contents page -- excuse me -- the third page of the contents [6J
[7J page, you have verses, and then you have a couple lines of [7J
[B] spacing, and then you have those items mentioned there also. [B]
[9] 'That would indicate my ambivillenceabout whetherJ should call [9]
[10] them 'free verses or not orwhetberthey wereins()Illecompletely (10)
[11] differeritcategoiy that I just wanted tomelude them for. (11]
[l2j Then if you go to thi:frequisite pages that are [12]
[13] mentioned in that index, you will fmd those actual items [13]
[14] reprinted, under pages 130 through 134. [14J
[15] Q. These items were included in the manuscript as you [15]
[16] originally prepared it? [16J
[17) A. Yes, they were. And as I delivered it to Penguin. [17]
[IB) 'Q.And in That Much Fun, the actual final version did not [IB]
[19) contain these items because you changed your mind? [19)
[20] A. Yes, I took -- I ultimately decided to deselect them. [20]
[21] MR, RABINOWITZ: Move for the admission, your Honor, [21]
[22] ofExhibit 79. [22J
[23] MR. DANNAY: No objection. [23J
[24J THE COURT: All right. 79 is received. [24]
[25] (Plaintiffs Exhibit 79 received in evidence) [25]
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Q. First volume.A. Yeah, I understand. Also, in Not Much Fun I went to -- no,it's not Exhibit 1.Q.2.A. OK. I went to great lengths in Not Much Fun to segregatethem. I divided the text of Not Much Fun into two majorsections: Poems and the hate verses. The title page for thepoems section appears on page 67. I will wait until you andthe court gets to it. And the title page for that section istitled "The poems and some "modernist" verse."Q. What did you mean by that?A. Well, by poems it's self explanatory. By "some modernistverse," it refers explicitly to -- I have to fmd the page.Sony. I'm having trouble fmding the page here.
OK. Page 76, there is an item which I deteffilined wasfree verse and the title is "Oh, look M - I can do it, too."The subtitle is "Showing that anyone can write modernistverse." That's the title of that item which I determined wasfree verse. And the title of the section explicitly refers tothat item by putting in quotes modernist verse which directlycorresponds with the subtitle ofthat item. It was an explicitreference, and it was done very deliberately for that specificand sole purpose. So that way J was saying in this section youhave poems and one item that is modernist verse, and this isthe item because it has the same title that I'm referring to in
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this section head.Q. Did you include any other free verses in Not Much Fun?A. Yes, I did. As I said, that was one of two major sectionsin the text ofNot Much Fun. The other major section in thetext of Not Much Fun was to be found--Q. Page 187?A. -- there was a title page at 186, and that refers to thehate verses, and that has the 18 items which Dorothy Parkerpublished under the titles of hate songs, or hate verses, or aHymn of Hate.
So, I very, very carefully segregated all of the freeverses from the poems in the book. One section was poem andone section was free verses, and the one exception in the poemswas explicitly described in the cover page for the poems.Q. In preparing Not Much Fun, did you locate any items thatother sources had attributed to Dorothy Parker that youdetermined had not been written by her?A. I can think of actually seven offhand. Excuse me. Writtenby Dorothy Parker? Yeah, there were three at least. One wasthe so-called From the Ladies item, which appeared in abiography of Edna Ferber written by Julie GoldSmith Gilbert.It was attributed to -- it was signed by -- it was I think an80th birthday card or 70th birthday card to Franklin P. Adams.There were a series of them from various people that he knew.This one was signed "Squidge," and Ms. Gilbert the biographer
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published evidence was that Dorothy Parker wrote it, yet I justdid not believe it, and I did not select it for Not Much Fun,although I had published authority which would have allowed meto do so.
Second, there was an item which is known as theso-called Madonna item which is a famous item that wasapparently written in the guest book or in a bathroom orsomeone at San Simeon, where William Randolph Hearst had hisfamous house, and it referred to Marion Davies, his paramour.This has been widely attributed to Mrs. Parker, including byArthur Kinney, one of the authorities which Penguin has used inthe past. At other times it has been said that Mrs. Parkerherself denied having written it. However, also Mrs. Parkerhas been known -- had been known not to scrupulously honor thetruth. So the fact that she mayor may not have denied it isnot determinative either.
Several sources have attributed to her, including Ibelieve a memoir ofHollywood by Jesse Lasky. I can't recallthe title. It might have been Whatever Happened to Hollywood.I believe it was picked up by several anthologies includingClifton Fadiman's Thesaurus of Anecdotes or Little Brown BookofAnecdotes. I'm not sure what the title is.
Again, there is no authority one way or the other thatis conclusive on that item. There is published authoritystating that she did write it. Nonetheless, I refused to
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had I believe in brackets but in some typographical manner hadwritten Dorothy Parker.
I determined that it probably wasn't written byDorothy Parker. I had no proof whatever on that. The solepublished record of it claimed it was by Dorothy Parker fromthat book. I thought it unlikely that it was written by Parkerbecause there were several items that were published inMr. Adams' Conning Tower column in the mid to late '20s thatwere signed bya so-called pseudonymous Squidge.
TH,I;(;OU~T: Could yOlJspelIthat7nfE'WITNi:ss: S-Q-U+D~G:-E.THI;COURT:Thankyou.
A. And none of those had been collected by Mrs.,Parker in heroriginal three compilations. However, she had also publishedseveral items years before for the Saturday Evening Post alsounder a pseudonym., In that instance the pseudonym was HelenWells-- whichI believe is a play on hell on wheels -- andnone of those had been collected by Mrs. Parker for her earliercompilations either.
So, even the fact that the Squidge items had not beencollected by Mrs. Parker was not really evidence that theyweren't actually written by her, because ultimately I haddetermined and had selected the Helen Wells items as written byDorothy Parker.
So, basically as far as that item goes, the only
[1] select it because I was not convinced, and I don't think she[2J wrote it.(3) Third, there was an item that was sent to me by the[4) NAACP's attorney Ned Himmelrich, who handled the Dorothy Parker[5J legal matters for the NAACP. I don't have a copy of the letter[6J in front of me. It's probably in one of the exhibits, but he[7) got a letter from a correspondent that wanted authority for[SJ Dorothy Parker having written an item about Elinor Glyn, a(9) famous and deservedly forgotten 1920s writer who wrote what the
[10J British called bodice rippers. There was a short rhyme about[11) her, and this correspondent to Mr. Himmelrich wanted authority(12) that Dorothy Parker had written it. And there have been other[13J sources that I do not recall that have attnbuted that item to[14) her. I decided that she had not written it.[15) I was aware she had written a famous book review as a(16) constant reader regarding a book by Elinor Glyn. Nonetheless,[17) I don't think she wrote this item. So, even though I had[lB) authority again to have included this as an item by Dorothy[19J Parker, I chose not to select it.[20J Q. Look at Exhibit 52, Mr. Silverstein. volume 4, 1believe.[21) It's an excerpt from the Ferber biography you referred to a few[22) moments ago.[23] A. Yes, it is.[24] Q. OK. And on page 185 there is an item titled From the[25) Ladies. Is that the piece that you described a moment ago as
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[1) having been attributed to Mrs. Parker that you concluded she [1)
[2) had not written? [2]
[3) A. Yes. As far as I know, this is the sole published [3)
[4) attribution of this item, and it does attribute it to Dorothy [4)
[5) Parker. [5)
[6) Q. And you have decided for the reasons you stated not to [6)
[7) include it. [7)
[8) 'A. Yes. [8)
[9) Q. Because she had not written it. [9)
[10) THE COURT: Which one is the one that you decided not [10)
[11) to include? There are several pieces on this page 185. [11)
[12) THE WITNESS: On the right side of the page there is [12)
[13) an item entitled From the Ladies. [13)
[14) THE COURT: That's what you decided not to include? [14 )
[15) THE WITNESS: Yes, and it's signed by Squidge, better [15)
[16) known as Dorothy Parker. [16)
[17) MR. RABINOWITZ: We move for the admission ofExhibit (17)
[18) 52. [18)
[19) THE COURT: It's in. You put it in before. [19)
[20J MR. RABINOWITZ: 52? [20)
[21) MR. DANNAY: I have no objection in any case. [21]
[22) THE COURT: Well, I have it as in. All right. It's [22J
[23J in twice. OK, fine. Plaintiffs Exhibit 52 is in for the [23)
[24) second time. [24)
[25J (Plaintiffs Exhibit 52 received in evidence) [25)
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A. Yes, it does.Q. That is the one that despite some attribution to her, asyou descnbed you concluded she had not written?A. Yes.
MR. RABINOWITZ: We move for admission of Exhibit 97,your Honor.
MR. DANNAY: No objection.THE COURT: Received.(Plaintiffs Exhibit 97 received in evidence)
Q. Did you inform Mr. Himmelrich of your opinion that she hadnot written this piece?A. Yes.Q. During the course ofyour research, did you review anythingthat led you to believe that Professor Calhoun had detenninedthat certain items were poems that you had determined were not?A. Yes. Once I saw his book obviously, yes.Q. And which items had Professor Calhoun in your opinionclassified as poems that you concluded were not poems and didnot include?A. Well, the seven I can recall specifically right now -- andI might have forgotten some -- but the seven I can recallspecifically are the item --
THE COURT: Louder, please.A. The seven I can recall, the item called Playing Safe andsix items that were under the overall title Standardized Song
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[lJ Q. Look at Exhibit 53 if you would. Is that the excerpt from[2) Jesse Lasky's biography ofMs. Parker that you referred to[3) earlier?[4J A. Yes, it is.[5J THE COURT: This is the one that starts "Now on my[6J honor." Right?[7J THE WITNESS: Yes, it is, your Honor.[8J THE COURT: Fine.[9) \Q. And you concluded that despite attribution ofthat item to
[10J Ms, Parker thatshe hadnotwritteJi it, and you excluded it[11) from Not MuchFun,right?[12i ·A: Yes. It was also attnbuted to her by Arthur Kinney,[13) Professor Kinney who wrote two of the academic studies of[14J Dorothy Parker.[15) MR. RABINOWITZ: Move admission ofExhibit 53.[16J MR. DANNAY: No objection.[17) THE COURT: Received. Thank you.[18] (Plaintiffs Exhibit 53 received in evidence)[19J Q. Look at Exhibit 97.[20J Is that the letter from Mr. Himmelrich that you[21J mentioned earlier?[22J A. Without the lines, yes, it is. The lines were caused by[23) the electronic transmission, but, yes, that's a copy of the[24J letter I received from Mr. Himmelrich.[25J Q. And that mentions the Elinor Glyn piece at the bottom?
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[11 Sheet for Get-together Meetings.[2J Q. Let's take them one at a time. Let's look at Exhibit 38.[3J THE COURT: Before you get to 38, could I ask a[4J question, please?[5) On Exhibit 97, the letter from Mr. Himmelrich, the[6) lines that read "Would you like to sin on a tiger skin with[7) Elinor Glyn? Or would you prefer to err with her on another(8) fur," now your conclusion is that it was not written by Dorothy[9J Parker, correct?
[10J THE WITNESS: Yes, your Honor.[11) THE COURT: How did you conclude that? Tell me how[12J you concluded that.[13) THE WITNESS: I had seen it several times attributed[14 J to her before, but it just did not appear to be something that[15J she would have written. I had no knowledge. It was a[16) subjective decision. There was no categorical documentary[17) evidence either way.[18) THE COURT: So, in other words, the decision that it[19] was not written by her is not from the six lines that are[20) reproduced here but, rather, from external information and data[21) that you received, is that correct?[22J THE WITNESS: No, there was no external data whatever.(23) THE COURT: And that's how you came to the conclusion[24J that she didn't write it.[25) THE WITNESS: No, there was no external data whatever,
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your Honor. I simply looked at that and I had no reason tobelieve she had written it. It does not seem to me likesomething she would have written. And she also wrote -- I alsorecognize that she had written a long and scathing book reviewabout Elinor Glyn, and she didn't include it in that either,and so--
THE COURT: OK.THE WITNESS: So I had no evidence, your Honor, so I
was making -- it was informed speculation, your Honor.THE COURT: Thank you. You have explained it. Thank
you very much.Now you were going to 38. Sorry I interrupted you.MR. RABINOWITZ: Thank you, your Honor.
Q. Exhibit 38, do you recognize that item, Mr. Silverstein?A. Let me get to it fIrst, please.
THE COURT: It's entitled Sanctum Talk.MR. RABINOWITZ;. Playing it Safe on the right.THE COURT: Playing is Safe.
A. Yes, I recognize that item.Q. Were you aware ofand familiar with that item at the timeyou were compiling That Much Fun?A. Absolutely. In the fIrst few years of the '20S, I wentthrough every single page of every issue of Life magazine.There were no indexes, and she wrote a great deal of stuff forthose issues, and so I literally went through every page, and
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MR. DANNAY: No objection to it.THE COURT: All right 3 is received. Thank you.(Plaintiffs Exhibit 38 received in evidence)
Q. In what issue -- first of all, what publication did Playingit Safe appear?A. It appeared in Life magazine, January 19, 1922, on page 12.Q. Did you select any items that appeared in that periodicalduring that period that you included in That Much Fun?A. I cannot tell you ofthand whether I chose anymore from thisprecise issue, but I absolutely -- I'm sure that I collectedhalf a dozen within a couple weeks either side of it.Q. Look at Exhibit 2, which is your hardcover of Not Much Fun.A. Let me just go into the chronology in the back and fIndout.Q. Page 246. Can you tell me if you included any other itemsfrom Life magazine on the exact day that Play it Safe occurred?A. All right. This appeared on January 19, 1922, according tomy list. Yes, I picked Figures in Popular Literature, TheSheik.
MR. DANNAY: Can you speak up, please.A. Sorry. In that same issue I found Figures in PopularLiterature, The Sheik, on page 24. In other words, I2.pageslater, I found another item the issue before, I found anotheritem the issue afterward.Q. OK.
Page 88
"~".'....,
C··- .' -_"~: :
[IJ so, yes, I absolutely positively did see that.[2) Q. And what did you conclude about whether this was a poem?[3] A. At fIrst I didn't know how to categorize it. And, again,[4J it looked to me -- it didn't look like free verse to me either,[5) and I just decided that it was just a piece ofprose and rather[6J rotten prose at that.[7J Q. And you did not include it in That Much Fun?[8) A. No, I looked at it, and I said no.[9] Q. So, contrary to what -- you heard Mr. Dannay say you have10) not identifIed a single piece that you didn't include. Is this11)
12) A. I do recall him saying something. I cannot recall his13J exact words.14) Q. So Playing it Safeis an item that you identified as having15) been written by Ms. Parker which you excluded from Not Much16] Fun.17) A. Yes, absolutely.18] MR•.DANNAY: I am just going to state it misstates19) what I said, but the record will make that clear.20) THE WITNESS: Well, my answer made that clear too.21) THE COURT: There is no need to comment on Mr.22) Dannay's objection or statement. So, I have heard your23J observation, and the record is what the record is. And you are24] going to offer, I take it, Exhibit 38, is that right?25) MR. RABINOWITZ: Yes.
[1] A. So, you know, I defInitely saw this.[2) MR. RABINOWITZ: Did we move on 38, your Honor?[3) MR. DANNAY: Yes.[4) THE COURT: 38 is in evidence.[5J MR. RABINOWITZ: Thank you.[6J Q. Could you look at Exhibit 8, Mr. Silverstein. Now that is[7J going to be in volume 2.[8) A. Did you say item 8?[9) Q. Exhibit 8.
(10) THE COURT: Do you have it, Mr. Dannay?[l1J MR. DANNAY: Yes, we do.[12) Q. Do you recognize that document, Mr. Silverstein?[13) A. Yes, it's a photocopy of Professor Calhoun's book, or[14) extracts from it, I guess.[15] Q. Could you look at page 71.[16) Do you see Playing it Safe listed in Mr. Calhoun's--(17] Professor Calhoun's biography?[18) A. Yes, I am looking at page 71, the section is titled -- it's[19] a listing of items that appeared in New York Life, under[20) section 8, poetry. Under January 19, 1922 he lists Play it(21) Safe as poetry.[22J Q. So he classifIed that as a poem?[23J A. Yes, he did explicitly.[24) MR. DANNAY: I'm going to object as to "he[25J classifIed." The book contains the reference.
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[1] THE COURT: That is a more accurate description, what[2J Mr. Dannay said.[3J MR. RABINOWITZ: I will adopt his clarification.[4J THE COURT: Fine.[5J THE WITNESS: The book speaks for itself, your Honor.[6J Whatever he wants.[7J THE COURT: Thank you. IfI needs any help from you,[8] I will ask for it. Thank you.[9] Q. Mr. Silverstein, could you look at Exhibits 44 through 50.
[10) THE COURT: Are you offering 8?[11 J MR. RABINOWITZ: Yes, your Honor. I was going to get[12) to it again several times, but, yes, we will offer 8 at this[13) point.[14) MR.DANNAY: 8 being the entire Calhoun[15] Bio-bibliography?[16] MR. RABINOWITZ: Yes.[17J MR.DANNAY: No objection.[18J MR. RABINOWITZ: It's not the entire book. It's just[19J the primary Bio-bibliography section.[20] THE COURT: 8 is received. Where are we going now?[21J (Plaintiffs Exhibit 8 received in evidence)[22] THE COURT: Where are we going now?[23J MR. RABINOWITZ: Exhibits 44 through 50, your Honor.[24J THE COURT: Thank you.[25] MR. RABINOWITZ: Once again I will note that several
July 17,2007
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[lJ putting certain things in than I was other things. I was not[2J trying to expand the defmition for this item.[3] Q. These items appeared in the July 27, 1922 issue ofLife, is[4] that right?[5J A. That's correct.[61 Q. Did you select any other items for inclusion in Not Much[7J Fun from that issue or anything during the same approximate[8] time? Look at Exhibit 2, page 246 and 7.[9] A. I'm sorry. All right. These items appeared in the July
[10J 27, 1922 issue. I did not have any other items from that[l1J issue, however, I had one from the issue before and several[12] others from a couple months before that. At that time[13] evidently she was publishing most of her stuff in the Saturday[14J Evening Post. But I did -- you know, I was looking through[15J every issue at that time. I did at least see the item Folk[16] Song from the issue before that, and, yes, I did see this item,[17] and as I said I did debate including it.[18] MR. RABINOWITZ: We move for the admission ofExhibits[19J 44 through 50.[20J MR.DANNAY: No objection.[21] THE COURT: Received.[22J (Plaintiffs' Exhibits 44 through 50 received in[23] evidence)[24] Q. Look back again at Exhibit 8, which is the Calhoun[25] bibliography. Look at page 72, if you would.
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[1] of these items appeared on the same page. They were separated [1 J
[2J out with xeroxing just to isolate the items. [2]
[3J THE COURT: OK. Thank you for explaining that. [3]
[4J see. Thanks. I understand what you mean. [4]
[5] All right, 44. [5J
[6J Q. Do you recognize Exhibits 44 through 50? [6J
[7] A. Yes, I do. [7]
[8] Q. What are they? [8]
[9J A. It's 11 series of items under the master title Standardized [9J
(10J Song-sheet for GeHogether Meetings~ . 110J
[l1J Q.And were you aware ofand familiar with those items ~t the [11]
[12J time you were compiling Not Much Fun? [12J
[13J A. Yes, I was. [13J
[14J Q. How do you know that? (14]
[15J A. Because J was thinking about including them, selecting them [15J
[16J for Not Much Fun. [16)
[17J Q. And do you recall that? [17J
(18J A. Yes, I explicitly recall that. [18J
[19J Q. Why did you decide that they were not poems? [19J
[20J A. Well, there is a lot of rhyme in there and there is a lot [20J
[21] ofmeter in them. Nonetheless, J decided they were more second [21]
[22J rate parodies of song lyrics. As I said before, I chose [22J
[23J favorites. I mean I tried to shoe-hom in things I liked, and [23J
[24J I did not have as much interest in being so lax in terms of -- [24J
[25J that's not the best word -- but I was more interested in [25J
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A. Which volume would that be in?THE COURT: Volume 2.
A. OK. What page?Q.72.A. Yes.Q. Does Professor Calhoun's Bio-Bibliography show StandardizedSong-sheet on that page?A. Yes, it's also part of that same poetry section as thatprevious item. It's just on the next page.Q. Look at Exhibit 39 ifyou would, still on volume 4.A. All right.Q. Do you recognize that document?A. Yes, it's the introduction written by Somerset Maugham tothe original Portable Dorothy Parker.Q. Page 600 there is a piece that begins Higgledy Piggledy.Do you recognize that item? What's its significance?A. Basically it was a little table game. Dorothy Parker wassitting next to Somerset Maugham. He challenged her to writewhat he characterized as a poem, and she wrote a four line itemin two parts: "Higgledy Piggledy, my white hen; she Jays eggsfor gentlemen... You cannot persuade her with gun or lariat tocome across for the proletariat."
THE COURT: Now this is what is supposedly happened ata dinner party.
THE WITNESS: I think that's the circumstances he is
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[1) talking about here. Yes, the beginning of this introduction it[2) says here.[3) THE COURT: OK, thank you.[4) THE WITNESS: Yeah. For the record, this was taken[5) from a new edition of the book, 1973 or '76 edition, this[6) particular photocopy.[7) Q. So this item was attributed to Dorothy Parker?[8) A. Yes, by Mr. Maugham firsthand. He said that he had had[9) this experience with her.
[10) Q. And what opinion did you have as to whether this was a[11) poem?[12) A. Well, this on the other hand I decided it wasn't a poem. I[13) thought it was a cute little wisecrack. It rhymed, it had[14) meter and all those other elements, but I just didn't think it[15] was a poem, so I did not select it for a poem. In retrospect I[16) probably would have collected it for a poem but not included[17) some of the other items I tlid pick. So, there you are.[18J Q. Look back to Exhibit 8, which is Professor Calhoun's[19) Bio-Bibliography at page 63. Professor Calhoun's book shows[20) Higgledy Piggledy as a miscellaneous work, is that right?[21) A. Yes, he does.[22) Q. And did you--[23) A. It's number 7.[24) MR. DANNAY: Excuse me. I didn't hear the last.[25) A. It's number 7. The items in the miscellaneous work are
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[1) numbered, and just to make it easier it's number 7 on that[2) list.[3) THE COURT: I think what you are looking for is page[4) 53 of Exhibit 8 is the list. Am I right so far?[5) MR.DANNAY: No, it's page 63.[6) Q. Did you review Professor Calhoun's first declaration in[7J this case?[8) A. Yes, I did.[9J Q. And in that declaration how does he classify Higgledy10J Piggle.!iY?11J MR. DANNAY: I object.12J THE COURT: Sustained.13J One witness can't characterize another witness's14J testimony. That's the reason the objection is sustained.15J M~~RABINOWITZ:Will you pennit me to show him the16J declaration?17J THE COURT: As! understand it, the whole thing is1SJ going to be shown to me. Sure you can refer to that part of19J the declaration, but it's not for him to decide.20J MR. DANNAY: And, your Honor, the declarations, both21J declarations, are exhibits to that deposition, so they will be22 J included.23J THE COURT: Fine.24J MR. DANNAY: As well as the Bio-bibliography.25J THE COURT: Fine. It would seem to me to do it then.
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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[1] If you want to do it now--[2) MR.DANNAY: That's fine, your Honor. Look at[3J Exhibits 20 through 37, Mr. Silverstein.[4) THE COURT: What volume are they in, sir?[5) MR. RABINOWITZ: They are in volume 4.[6) THE WITNESS: Would it be all right if] amplified my(7) previous answer, your Honor?[8) THE COURT: No. At the recess, confer with your[9) lawyer, and ifhe thinks it's important --
[10) He wanted to know ifhe could amplify a previous[11) answer. My response was, no, at the recess he can confer with[12) his lawyer, and ifhis lawyer thinks it's important enough,it[13) can be amplified.[14) Where are we now?[15) MR. RABINOWITZ: I forgot to admit Exhibit 39, if![16) can, which is the Higgledy Piggledy item.[17) THE COURT: 39.[18) THE WITNESS: Where do you want me to go to next?[19) THE COURT: 39 is received without objection, correct?[20) MR.DANNAY: Correct.[21) (Plaintiffs Exhibit 39 received in evidence)[22) Q. 20 through 37.[23) A. All right.[24) Q. Do you recognize those pieces, Mr. Silverstein?[25) A. Yes. These are the famous hate verses.
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[lJ Q. OK. And did you include them in your compilation?[2J A. Yes,! did, and I segregated them in the hate verses[3J section apart from the poems.[4) Q. And so you considered them to be free verse rather than[5] poem?[6J A. Yes.[7J Q. Look at Exhibit A. First of all, why did you consider them[8) to be nonpoetic?[9J A. They fit my standard defmition of free- verse. It's
[10) essentially prose that's been reformatted.[l1J Q. Look at Exhibit 8, Professor Calhoun's Bio-bibliography. I[12J would like to refer you to pages 71, 72 and 79. Could you tell[13J me whether Professor Calhoun, his book lists any of the hate(14) verses in any particular category?[15J A. He lists each and every one of them as under -- well, once[16J for New York Life on pages 71 through 70 --71 through 72. He117) describes -- he puts them under the category ofpoetry. And as[18) to the Vanity Fair item, which is on 79, also under the[19J category of poetry.[20] Q. Look at Exhibit 19, ifyou would.[21J A. All right.[22J Q. Do you recognize that?[23J A. Yes, this is a photocopy of the original publication of[24) free verse we discussed before, Oh, Look, I Can Do It Too,[25J showing that anyone can write modernist verse.
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.''':.::--, [1] MR. RABINOWITZ: Move Exhibit 19. [1]
[2] MR. DANNAY: No Objection. [2]
[3] Q. That one was included in your book, right, Mr. Silverstein? [3J
[4] A. Yes, that's the one "modernist" verse I put in the poetry [4]
[5] section. [5]
[6J THE COURT: Plaintiffs Exhibit 19 is received without [6]
[7] objection. [7]
[8] (Plaintiffs Exhibit 19 received in evidence) [8]
[9] MR. RABINOWITZ: Exhibit 20 to 37, did I not move to [9]
[10] admit those? [10]
[11] MR. DANNAY: No objection. [l1J
[12] THE COURT: Plaintiffs 20 through 37 are admitted. [12]
[13] Receive. [13]
[14] (Plaintiffs' Exhibits 20 through 37 received in [14]
[15] evidence) [15]
[16] Q. Am I correct, Mr. Silverstein in Exhibit 19 -- well, fIrst [16]
[17] of all, how did you Characterize, Oh, Look, I Can Do It Too"? [17]
[18] A. I categorized it as a free verse. [18]
[19] Q. Why was that? [19]
[20] A. Because it essentially looks like prose that has been [20]
[21] reformatted. I mean also it has a little bit of an artistic [21]
[22] quality to it, but, you know, it's a free verse. [22]
[23] Q. Look at Exhibit 80 then which is Professor Calhoun's [23]
[24] Bio-bibliography at page 79. Tell me ifyou see how Oh, Look, [24]
[25] I can Do It Too is listed in that book? [25]
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Six. That's the last item on page 76.Q. And what category does that appear?A. Constant Reader Book Reviews.Q. And then same exhibit, look at the next page, do.es thepiece, the essay, the book review from which you extracted theAfter Dawn piece appear on that page, that list page 777A. The individual piece does not appear there, but the bookreview itself appears under the data 30th ofMay 1931 titledVVords, VVords, VVords.Q. In what category?A. Also under Constant Reader Book Reviews.Q. Are you aware of any additional items today that you couldhave selected as a poem or verse that you did not?A. I wasn't finished with my previous answer, things that hedid not include. He also didn't have Men I'm Not Married To.Q. OK.
Are you aware of any additional items that you couldhave selected as a poem or verse that you did not?A. Yeah, there were several items I guess I could haveselected. I mentioned a few of them. I just chose not to. Icould have chosen the Standardized Song-sheets if] wanted to.I decided they were not poems. I could have decided that theywere poems.Q. Let's look at Exhibit -- it's going to be in binder 6 -287. It's one of the ones we recently added. It should be.at
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A. It's listed under poetry.Q. Did you locate -- strike that. Did you consider andselect, Mr. Silverstein, any items that in your opinionProfessor Calhoun had determined were not poems but which youdetermined were?
MR. DANNAY: Could I have that repeated again?THE COURT: Sure.(Record read)
A. I Seem torecallhe did not categorize the two items that Iextracted from bookieviewsto'bepoems;heconsidered those tobe booktevi~\vs. Thdse wotild'beCrissCToss and After Dawn.Q. Look at Exhibit 8 on page 76.A. Page 76, OK.Q. Does the item that you titled Crisscross appear on page 76?A. VVell, being that I am the one who titled it and his bookcame out before --
THE OOURT: No, no, that's not an answer to the'question.A. No, it doesn't appear on here, your Honor.
THE COURT: Thank you.THE WITNESS: Sorry.THE COURT: That's all right.
A. The larger book review in which it appears does appear.Q. Under what title?A. Mr. Morely Capers on a Toadstool - Mr. Milne Grows to be
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the very back of the last volume.MR. DANNAY: Sorry. Could you repeat?
A. VVhat volume would that be in.Q. Volume 6, last piece -- last two pieces.A.Oh,OK.
THE COURT: I think the next to last one there.THE WITNESS: Actually I don't have a 286 here. I
have a 285 and 287.THE COURT: Sorry. I thought you said 287.MR. RABINOWITZ: 287.THE COURT: 287.THE WITNESS: OK. There is no 286 here.THE COURT: But do you have 2877THE WITNESS: Yes, I do.THE COURT: Fine. Your question, sir.
Q. That piece is titled Pollyanna Gets The Air?A. Yes, it is.Q. Does that meet your criteria for a poem or not?A. Yes, it does.Q. OK. And you did not include that?A. No, I did not.Q. Exhibit 288 --
THE COURT: Well, then, why didn't you include it?Q. Why didn't you include it?
THE COURT: You think it's a poem. Did you think it
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was a poem in 1994?THE WITNESS: I didn't know it was cited.THE COURT: You didn't know it existed. All right,
OK.MR. DANNAY: I object then to the answer and the
question.THE COURT: Well, the objection is overruled. He
wasn't aware of it at the time he compiled Plaintiffs Exhibit2. Go ahead.
MR. RABINOWITZ: One of the issues is what is thetotal universe we're dealing with here.Q. Exhibit 288, Mr. Silverstein, do you see that?A. Yes, I do.Q. And the piece is entitled Reformers; A Hymn of Hate.A. Yes.Q. Do you believe that's a poem?A. No, I believe it's a fre&-verse. It's one of her hateverses.Q. Were you aware of that at the time you compiled Not MuchFun?A. No, I was not.Q. Would you have included it if you had been?A. Yes.
MR. RABINOWITZ: Move for the admission of Exhibits287 and 288.
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on Dorothy Parker's works at the time you compiled this?A. Most of them were public domain. Some of them were bluny.The rest were owned by the Saturday Evening Post or the NAACP.Q. What if anything did you do to obtain nonexclusive licensesfrom the copyright holders to use the pieces?A. I contacted them, I negotiated with them, I cut themchecks, we signed deals.Q. OK. Did you receive nonexclusive licenses and permissionsfrom every holder of a copyright to the poems that were notalready in the public domain that you used?A. Yes, I did.Q. I'm going to show you Exhibit 83.
MR. DANNAY: 83?MR. RABINOWITZ: Yes, that's volume 4.I'd like to suggest, I can move through this more
quickly, there is a whole series ofletters thatMr. Silverstein sent to various copyright holders and responseshe got back. I can go through them one by one. I don't knowthat there is any objection to them. But ifyou would like toexpedite things, I can have him review several at a time.
THE COURT: I would love to expedite things, but Idon't know what Mr. Dannay's position is.
MR. DANNAY: I think my position would be is ifhewants to put in en masse all of the positions, including all ofthe NAACP and SEP permissions, and they are identified on the
Page 104
[1] MR. DANNAY: I'm going to object to those, because[2] they're not relevant to the time he completed Not Much Fun, and[3) I don't see any point in looking back. He had not found them,[4] he wasn't aware of them. They're not relevant here.[5) THE COURT: Objection sustained.[6) MR. RABINOWITZ: In the court's proposed pretrial[7) order one of the issues that was cited was what was the[8) universe of items.[9] THE COURT: My proposed pretrial order is not the
[10] pretrial order that's operative. Itwas notagreed to. I madeIll] an effort to prepare a joint pretrial order for you, it wasn't[12] agreedto,so as. far as the case is concerned it doesn't exist.[13] MR. RABINOWITZ: Your Honor, I am only pointing out[14) that--[IS] THE COURT: You don't have to point out anything. I[16] have ruled it's not relevant. He wasn't aware of these two:17] things in 1994 when he made his compilation which ended up as[18] Exhibit 2. He wasn't aware ofthem. They're not relevant to'19) what was going on back then.[20] Q. Mr. Silverstein, do you own the copyrights to Dorothy[21] Parker's poems and free verses themselves?[22] A. No, I don't.23) Q. Have you ever claimed that you do?:24] A. No.:25] Q. What was your understanding ofthe status of the copyrights
[1] record, and the documents are identified so that we know the[2] numbers. I will be happy to stipulate they exist. But ifhe[3] is going to do it only on a partial basis, then I would like to[4) hear why that's the case.[5] MR. RABINOWITZ: Do you have any problem with my[6] leading him as to these letters, which are really not[7] controversial? I will just show him the letters and ask him[8J about them.[9] MR.DANNAY: I'm lost. I thought I had just --
[10] THE COURT: I am lost too.[11] You are starting with Exhibit 83, correct?[12] MR. RABINOWITZ: It's the fIrst of a number of[13] letters.[14] THE COURT: And how far do you want to go? 83 through[15] what?[16) MR. RABINOWITZ: Well, they jump around a little. 83,
[17) 84,86, 88.[18) MR. DANNAY: Could you just slow down, please, so we(19) can follow this?[20] MR. RABINOWITZ: Should I just do it one by one?[21] Maybe that's the simplest thing.[22] THE COURT: No, we still may be able to save time.[23) MR. DANNAY: I just have to hear the numbers.[24) THE COURT: First of all, you are offering them not[25) for the truth of what is contained in them, is that correct?
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[1) MR. RABINOWITZ: Well, I'm offering them merely to[2) show that he made requests, he was granted certain rights, and[3) here they are. And I don't think there is any dispute that[4) that happened.(5) THE COURT: You see, I may have been a little short(6) when I started this morning, but if you fellows had spent a[7) little time talking to each other instead of writing these(8) letters, this could have all been ironed out, because you knew[9J that you were going to offer these. All you had to do was go
(10) over it with Mr. Dannay. I guess we're going to have to do it(11) one by one, because it's impossible for him to agree to things[12) when he doesn't know what is in which particular letter.[13) MR. RABINOWITZ: OK.[14) THE COURT: So, go ahead. You are starting with 83.[15) That's a letter that he wrote to Mr. Pettinga of the Saturday(16) Evening Post. Go ahead.[17) (Continued onnextpage)[18)
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[1) BY MR. RABINOWITZ:[2] Q. Do you recognize that letter?[3) A. Yes.[4) Q. What do you say in your letter in general?[5) A. It's just a list of the items that I thought Saturday[6) Evening Post had copyright to, I wanted to get rights.[7) MR. RABINOWITZ: I offer Exhibit 83 in evidence.[8) MR. DANNAY: No objection.[9) THE COURT: Received.
(10) (Plaintiff Exhibit 8Jieceivedin evidence)[l1)Q. What irany-response did you receive?(12) A. I seemed to recall that I got a letter back from him,[13J either a letter or phone call back that -- let me rephrase(14) this. Basically we made a deal; I don't remember, I can't[15) remember what the amount was.[16) Q. Exhibit 85, is that the response you got back?[17J A. Yes.[18) Q. What did Mr. Pettinga's letter say.(19)A. Basically it's an invoice. He is saying, giving me[20) non-exclusive rights, permission to republish 18 Dorothy Parker[21) poems for $500.[22J MR. RABINOWITZ: Move to admit 85.(23) A. He also asks for a specific credit line.[24] MR. DANNAY: No objection.[25) THE COURT: Received.
July 17, 2007
Page 107
[1) (Plaintiff Exhibit 85 received in evidence)[2) Q. Did you pay the required fee?[3) A. Yes.[4) Q. Exhibit 86, do you recognize that?[5) What do you ask for in that letter?[6J A. Other media opportunities that might come up with the book.(7) MR. RABINOWITZ: Move to admit 86.[8) MR. DANNAY: No objection.[9) THE COURT: Received.
[10) (Plaintiff Exhibit 86 received in evidence)(11) Q. Did you receive any other requests from any other entities?[12) A. NAACP.[13) Q. Exhibit 84, do you recognize that letter?[14) A. Yes.[15) Q. Did you send to Mr. Himmelrich at the NAACP?[16) A. Yes.[17) Q. On or about the date that appears?(18) A. Yes.[19) Q. Did you request permission to publish -- did you request a[20) non-exclusive license to publish the poems that are indicated?[21) A. Yes, I received the rights to publish all these. I amnot(22) sure all these were under copyright owned BY NAACP at the time.(23) It was not worth disputing it.[24) Q. Did you request permission or non-exclusive license to[25] publish?
Page 108
[1) A. Yes, I did.(2) MR. RABINOWITZ: I move the admission ofExhibit 84.
(3) MR. DANNAY: No objection.[4) THE COURT: Received.[5) (Plaintiff Exhibit 84 received in evidence)[6) Q. What if any response did you receive?(7) THE COURT: Ifhe goes to Exhibit 88, he will know the(8) answer.(9) MR. RABINOWITZ: We will get to 88.
(10) A. Eventually we negotiated a contract, I think a standard(11) form they had, and my agent wanted the additional language[12) regarding other media that we talked about with Mr. Pettinga at[13) the Saturday Evening Post.(14) Q. Does Exhibit 88 reflect NAACP's agreement to grant you the[15) non-exclusive license?[16) A. Yes.[17) MR. RABINOWITZ: Move to admit 88.[18) MR. DANNAY: No objection.(19) THE COURT: Received.(20) (Plaintiff Exhibit 88 received in evidence)[21] Q. Did you pay the required fee?[22) A. Yes, I did. I think we added a few items subsequent to[23) that to the list after that, and I paid a higher fee.[24) Q. Exhibit 89.(25) A. That's what I am talking about.
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[1 J Q. Did you write the letter reflected in that exhibit?[2J A. Yes, I did.[3J Q. Turn to the executed agreement.[4J A. Yes. I assume whatever the letter says, that's what I did.[5J Q. Did you pay the increased fee?[6J A. Yes.[7J MR. RABINOWITZ: Move Exhibit 89?[8J MR.DANNAY: No objection.[9J THE COURT: Received.
:10J (Plaintiff Exhibit 89 received in evidence):11] Q. Did you request a non-exclusive license from the Boston:12] University Mugar Library for the handwritten letter to Robert:13] Benchley?:14J A. Yes. They were not asserting any kind of, I do not believe:15J they were asserting a copyright right to it, but they did sole16J physical copy of the letter and they required credit for it.17J Q. Look at Exhibit 90. -18J A. So I gave them whatever credit they wanted. I signed19J whatever they wanted. They didn't want any money; they just20] wanted the credit.21J Q. Exhibit 90, is that the letter you sent?22] A. Yes.23J Q. Is that a copy of the letter that you sent to the library?24J A. It's a photocopy of it, yes.25] Q. Requesting permission to use the letter?
Page 110
[lJ A. Yes.[2] MR. RABINOWITZ: We move the admission ofExhibit 90.
[3J MR. DANNAY: No objection.[4] THE COURT: Received.[5] (Plaintiff Exhibit 90 received in evidence)[6J Q. Exhibit 91, do you recognize that?[7J A. That's the form that they asked me to fill out.[8J Q. Did you submit this to the library?[9J A. Yes, Ld~d.10J9,,»,jWB~rmissiontopublish theJetter?11J ,A. Yes,iti~.
12J THECpURT: Why don't we break for lunch now.13J MR. DANNAY: I have no objection to that.14J THE COURT: Fine.15J MR. RABINOWITZ: Movefor the admission of91.16J THE COURT: Received.17J (PlaintiffExhibit 91 received in evidence)18J MR. DANNAY: May I make one request. Defendants have19J a great number ofexhJbits that correspond to exactly to the20J exhibits being admitted. Could we have a statement so 1don't21J have to correlate all the numbers with the letters where22J exhibits had been admitted that our copies under letters will23J be admitted so I can use those.24J THE COURT: Sure. Once they are in, they are in.25J MR. RABINOWITZ: For all purposes.
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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[lJ THE COURT: Ifyou want for some reason to use, let's[2] hypothetically say Plaintiff Exhibit 91 is your Exhibit T,[3J let's say, so, when you are using it on your case or on[4J cross-examination, if you want to use your exhibit,just call[5] it 91 and T, that's all.[6] MR.DANNAY: I may not remember the 91; I will[7] remember the T.[8J THE COURT: Fine, so long as it's an exhibit in[9J evidence.
[10J MR. DANNAY: I am only saying this so I don't have to[11] go through the exercise of offering it to be admitted.[12J THE COURT: That's a colossal waste oftime.[13J Thank you. We will resume at 2:00.[14J (Lunch recess)[15] (Continued on next page)[16J[17][18J[19J[20J[21][22][23J[24J[25]
Page 112
[1] (2:00 p.m.)[2] STUART Y. SILVERSTEIN, resumed.[3J BY MR. RABINOWITZ:[4] Q. You understand that you are still under oath, is that[5] correct?[6J A. Yes, it is; I understand.[7J Q. This morning one of the items that we talked about was the[8J Higgledy Piggledy item; do you recall that?[9] A. Yes.
[10J Q. Did you mention that item in the book Not Much Fun even[llJ though you didn't actually include the item?[12J A, I didn't include it as one of the poems or verses; I did[13J mention it in an anecdote in the introduction as a footnote.[14 J Q. Did you look at Exhibit 2 which is your copy ofNot Much[15J Fun. Directing your attention to page 43, footnote 77. You[16J included a discussion of the Higgledy Piggledy item, is that[17] right?(18) A. Yes.[19J Q. Am I correct you certainly knew of this item at the time[20] you wrote the book since you mention it?[21J A. Yes.[22J Q. My recollection is that when we broke we had looked at[23J Exhibit 91 which was a letter, an application for permission to[24] use the Benchley letter from the Mugar Library. Did you[25] receive a response? Look at Exhibit 92.
f)
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[1] A. Yes, I did. [1)
[2) Q. Exhibit 92 granted you the permission you requested to use [2]
[3] the Benchley item? [3]
[4] A. Yes, it did. [4)
[5J Q. It was a non-exclusive license? [5)
[6) A. Yes. [6)
[7) MR. RABINOWITZ: Move exhibit 92. [7]
[B] MR. DANNAY: No objection. [B]
[9] THE COURT: Received. [9)
[10] (Plaintiff Exhibit 92 received in evidence) [10)
[11) Q. After you compiled the items that you selected for Not Much [11]
[12) Fun, what did you do next to prepare the book? [12]
(13) A. I wrote the introduction. [13J
[14) Q. Did you prepare a manuscript of the items as well as the [14)
[15) introduction? [15)
[16) A. Yes, I did. [16)
[17) Q. In what form did-you prepare the manuscript; did you type [17J
[IB] it, handwrite it? [IB)
[19] A. I input it into a computer. [19)
[20) Q. Did you actually input the text of each of the items you [20]
[21) had selected? [21]
[22) A. Yes, I did. [22)
[23) Q. The editing and punctuation changes that you mentioned [23)
[24] earlier, which is not a basis for your claim, did you input [24]
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Page 114
[1) A. Yes, I did. [1]
[2] Q. How many items did you assign titles to that previously [2]
[3) were not titled? [3]
[4J MR. DANNAY: Objection. I am going to put an [4]
[5) objection on the record as to all testimony or exhibits [5)
[6] relating to punctuation, titling, copy-editing more broadly. [6)
[7] think that's out of the case for all purposes. [7]
[8) THE COURT: I overrule your objection to this [B]
[9) question. Editing and copying is out ofthe case. I [9)
[10) understand .that. [10)
[11) MR. DANNAY: I would like to have it reflected that I [11)
[12) have an ongoing objection. [12)
[13) THE COURT:· No, because I never know what a continuing [13)
[14) objection is. The record then becomes imprecise. Ifyou don't [14)
[15] object and you say, well, I had a continuing objection, if [15)
[16) there are subsequent proceedings, then there becomes an issue [16)
[17) whether the continuing objection covers the more specific [17)
[18] objection. I think it's better that you object. [IB]
[19) I understand what's in the case and what's out of the [19)
[20) case. I have a marked underlined copy of the Second Circuit [20)
[21) decision in my right hand, it's right here in front ofme, and [21]
[22) so, there is plenty of talk about editing and punctuation, I [22J
[23) understand that that has nothing to do with the case. [23]
[24) Go ahead, Mr. Rabinowitz. [24)
[25) Q. How many items did you assign titles to? [25)
July 17,2007
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A. I can't recall the precise number.Q. Approximately?A. I don't know, 15, I simply don't recall.Q. Why did you assign titles to some of the items? _A. I assigned titles to the items that didn't have titles,such as Chris-Cross.
THE COURT: Louder. You assigned titles to some ofthe items that didn't have titles such as Chris-Cross.
Continue.A. And After Dawn, letter to Robert Benchley, letter to OgdenNash. I changed the titles, I assigned numbers to some of thetitles for items that had identical titles so they could bedifferentiated.Q. Exhibit 79, we looked at this a while ago, volume 4, do yourecognize this?A. That's a manuscript I sent to Jane von Mehren in 1994, yes.Q. The first page after the cover is a letter to Ms. vonMehren, right?A. Yes. It's a cover letter dated June 6, 1994.Q. Second page is titled Compilation to Prologue?A. Yes.Q. What was your purpose in writing that?A. The prologue was essentially a pitch designed-
MR. DANNAY: Difficult hearing.THE COURT: The prologue was essentially a pitch.
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A. The prologue was essentially a pitch designed to interestPenguin in the book.Q. What types of works did this manuscript contain?A. According to the prologue it contained poems and freeverses and/or other items.Q. Read the first sentence on the first page of themanuscript.A. The prologue page?Q. Yes.A. "During the early years, the years when she struggled to,quote, keep body and soul apart, close quote, Dorothy Parkersold more than 125 poems and verses to popular magazines."Q. What did you intend to convey by using the terminologypoems and verses?
MR. DANNAY: Objection.THE COURT: Read the question.(Record read)THE COURT: Objection overruled.
A. I was explicitly attempting to distinguish between poemsand free verses; that was the sole purpose.Q. You then have a table of contents that follows theprologue?A. Yes, I do.Q. You divided it into two sections, is that right?A. Yes, I do.
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Q. What are the two sections?A. Titled poems or poem and verse.Q. Why did you have separate sections?A. Because] was distinguishing between poems and free verses.Q. In the third from last paragraph of the prologue, back acouple ofpages, it talks about four random diatribes; do yousee that?A. Yes.Q. What were you referring to with those words?A. I was referring to the four figures in American Folkloreitems.Q. Next paragraph you described poems, free verses andharangues; do you see that?A. Yes.Q. What are you referring to by harangues?A. Four figures in American Folklore items.Q. Did Scribner do anything to protect your rights?A. They filed a registered copyright for Not Much Fun in 1996as a compilation copyright in my name.Q. At the bottom ofyoUf manuscript Exhibit 79, what does itsay at the bottom of each page?A. There is what they call a running foot which is a standardline that will appear through the course of a document or partof a document, and in this instance it says on each page, NotMuch Fun, The Lost Poems ofDorothy Parker, compilation, C in a
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the Viking Penguin booth. She was interested. The next day ormaybe two days later] came back and gave her a sheet of threeor four sample items.Q. You spoke with her at the Viking Penguin booth and she wasinterested; what was said?A. I don't recall the precise words, but she expressedinterest, she was very interested in seeing more from me duringthe convention.Q. She was interested in what?A. I told her I was assembling a compilation of poems byDorothy Parker that I characterized as lost.Q. She said she was interested; what was the rest of yourresponse?A. She said she was interested and wanted to see more.Q. What did she do in terms of further contact with Ms. vonMehren?A. I printed out a couple of the items, I can't recall whichones, and] brought them to her next day or the day after that,at some point during the convention. It was a 3-dayconvention, so it had to have been within that 3-day period.Q. Did you tell her at that time that you also had written abiographical essay?A. No.
MR. DANNAY: What was the answer.THE WITNESS: No.
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[1) circle, 1994 S.Y. Silverstein.[2) Q. You indicated Scribner filed a copyright registration, is[3] that right?[4) A. Yes.[5] Q. Look at Exhibit 9.[6) THE COURT: Exhibit 9 in volume 2.[7) Q. Do you recognize Exhibit 9?[8] A. This is a copy of a certificate ofregistration issued by[9) the Office of Copyrights, by the Copyright Office.10) Q. For what item?11).· A.·· Thetitle o{the workJor which it'sregistered is Not Much12)' Fun, previous alternative titles, Lost Poems of Dorothy Parker.13J Q. It includes a name?14) A. Name of author, Stuart Y. Silverstein.15J MR. RABINOWITZ: Move the admission of9 in evidence.16) MR. DANNAY: No objection.17J THE COURT: Received.18) (Plaintiff Exhibit 9 received in evidence)19) Q. What steps did you take to have Not Much Fun published?20) A. First I met Ms. von Mehren at the American Booksellers21) Association convention in Los Angeles, California during the22) Memorial Day weekend in 1994.23) Q. Who is she?24) A. They was then, I am not sure what her precise title was, I25) think a senior editor at Viking Penguin. I spoke with her at
[1) Q. Did you tell her that you wanted to publish the pieces as a[2] separate item, separate volume?[3) A. I don't think we got to that point at that point.[4] Q. What did you then do?[5] A. I brought her those sample items, she was very interested,[6J I suggested I send her the larger draft compilation, she was[7] very interested, she gave me her card and told me to send it to[8] her.[9) Q. Did you send it to her?
[10) A. Yes, I did.(11) Q. That's the document we looked at, Exhibit 4, I believe it[12) was, 79.[13) A. It was a draft that came with the June 4, 1994 cover(14) letter.[15) Q. Exhibit 79?[16] A. All right.[17) Q. Look at the cover letter ifyou would. It says per other[18) our telephone discussion of last Friday, enclosed please find(19) my compilation. Volume 4,79.[20) A. Yes, I see that.[21) Q. Did you have a telephone conversation with her that[22) preceded your sending this?[23) A. Yes, I assume there was an intervening telephone[24) conversation between the meeting at the booksellers convention[25J and the time I sent this to her.
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[1] Q. Did you get any kind ofresponse from Ms. von Mehren? [1 J
[2] A. Yes, I did, I simply cannot recall the character of it. I [2J
[3] think I got a fax or a letter; I am really not sure. [3J
[4] MR. DANNAY: Could you keep your voice up. [4]
[5] A. I said I did get some sort of response; whether it was a [5]
[6] letter or phone call next, I don't recall. [6]
[7] Q. Exhibit 8, that's a letter from Ms. von Mehren to you dated [7J
[BJ August 4, 1994. Did you receive that letter from on or about [BJ
[9] the date it bears? [9]
[10] A. Yes, I received it a few days after that date. [10]
[11] Q. The letter states, does it not, that we are inclined to [11]
[12] think about doing a selected or collected volume rather than [12]
[13] simply the works you sent us; do you see that? [13]
[14] A. Yes, I do see it, yes. [14 J
[15] Q. She then asked you for information about the copyright [15]
[16] status? [16]
[17] A. Yes. Penguin wm> concerned about the copyright status at [17]
[lB] the time. [lB]
[19] Q. PD status, what does that refer to? [19J
[20] MR. DANNAY: Objection to the cherry-picking ofthe [20]
[21J letter. Read the whole thing. [21]
[22] THE COURT: You are right really. [22]
[23] Are you going to offer this letter. [23J
[24] MR. RABINOWITZ: Yes. [24]
[25] MR. DANNAY: No objection to offering. [25]
Page 123
making an offer for the work?A. Basically he asks her to put up or shut up. He says, hewants to know whether they are prepared to make a convincingoffer, in his words.Q. He sent you a copy of this letter at the time he sent it?A. Yes.Q. You were shown as a blind carbon copy of the letter?A. Yes.
MR. RABINOWITZ: Offering 81.MR. DANNAY: No objection.THE COURT: Received.(Plaintiff Exhibit 81 received in evidence)
Q. What was your next communication with Ms. von Mehren?A.From then on the communications were done via my agentPeter Lampack.Q. Did Mr. Lampack ever advise you what Penguin's position wasregarding your proposal?A. He reiterated that they wanted to do it as part of thelarger volume.Q. What was your response?A. No.
MR.DANNAY: Objection to the last answer; was thathis response to the agent or the response to Penguin.
THE COURT: You want the answer clarified.Who was the no to.
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[lJ THE WITNESS: I told Mr. Lampack to tell Penguin that[2] I was not interested in that offer.[3] THE COURT: Thank you.[4J Q. Exhibit 82, it's a letter to Mr. Lampack from Ms. von[5] Mehren, right?[6J A. I believe a fax from her but yes.[7] Q. Fax of a letter. Did you receive copy of this from Mr.[B] Lampack?[9] A. Yes, I did.
(10J Q. What does the letter say about Penguin's position regarding[11] your proposal?[12] A. They reiterate that they want to include it in the larger[13] selection, not as a standalone volume.[14] Q. What did they say in terms of, what did Penguin say in[15] terms oftheir position as to what role you might have in the[16] project?[17] A. They apparently say that my sole role would be to assemble[lB] the material.[19] Q. In return for what kind of consideration?(20) A..For $2,000.[21] Q. It says that in the second to last paragraph?[22] A. Yes, it does.[23J MR. RABINOWITZ: Plaintiff offers Exhibit 82 into[24] evidence.[25] MR. DANNAY: No objection.
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THE COURT: Offer the letter. He said there was noobjection.
MR. RABINOWITZ: Move the admission ofExhibit 8.THE COURT: Exhibit 8 is received.(Plaintiff Exhibit 8 received in evidence)THE COURT: Give me an opportunity to read it now,
then that will save probably several questions.(Pause)
[9]'Q; Did this request for you to send -J\IIR.,DANNAY: The judgeis 'reading the letter.(Pause);'THE COURT: There was aquestion,and Idon't think
there is an answer to it.What is PD status; what does PD status mean.THE WITNESS: PD status is short for public domain, no
longer a copyright.THE COURT: Public domain. Thank you.
Q. Did you respond to Ms. von Mehren's request for informationabout the copyright status of the items?A. I don't have a specific recollection but I am sure I dideither directly or through my agent Peter Lampack.Q. Exhibit 81, Mr. Lampack responds to Ms. von Mehren andencloses a copyright search, is that right?A. Yes, that's what the letter states.Q. What did Mr. Lampack say to Ms. von Mehren about Penguin
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STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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THE COURT: 82 is received.(Plaintiff Exhibit 82 received in evidence)
Q. Could you read the fIrst sentence in the third, fourthparagraph in the beginning that begins Mr. Silverstein?A. "Mr. Silverstein could pull together the lost poems and theattending permissions and perhaps also select the other poemsto be included in the book."Q. What did you understand the word select to refer to?A. I assumed Mr. von Mehren was explicitly allowing me toselect the poems that would appear in the book, a plain readingof the words.
MR. DANNAY: Objection.THE COURT: The words speak for themselves. The
objection is therefore sustained. The document is in evidence.Q. What was your response to this letter?A. I reiterated to Mr. Lampack --
MR. DANNAY: I am sorry.A. I reiterated to Mr. Lampack my lack of interest in pursuingthis deal with these parameters and I think I also expressedsome interest to him that Penguin seemed to be so concernedabout the underlying copyrights.Q. Did he tell you whether he had communicated your positionto Penguin?A. He told me he would do so.Q. Did he tell you that he did do so?
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copyright registered with the Copyright OffIce.Q. Exhibit 3, your paperback edition, the same page numberright before the contents, does that also contain a copyrightnotice?A. Yes, identical language.
THE COURT: Keep your voice up please. The courtreporter who is only four feet from you is shaking her head.You have to keep your voice up.Q. Go back to Exhibit 2, page 245, there is a section therethat is called complete chronology, is that right?A. Yes.Q. The fIrst paragraph begins: This is a chronological listof all Dorothy Parker poems and verses?A. Yes.
MR. DANNAY: That's not quite correct; I object.MR. RABINOWITZ: What was wrong.MR. DANNAY: The word "all" is italicized in both
books.MR. RABINOWITZ: The words are correct; I agree it's
italicized.Q. Is that right, Mr. Silverstein?A. Yes.Q. Then it goes on, it talks about, it says most of theseoriginalIy appeared in magazines or newspapers and were latercollected in one of four books, and it lists four books, is
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[1] A. Yes, he did eventually.[2] Q. Did Simon & Schuster -- in addition to hardcover, they[3] publish paperbacks, right?[4] A. Yes, they do.[5] Q. We looked at that as Exhibit 3?(6) THE COURT: Exhibit 3, correct.[7] Q. Did the paperback edition, Exhibit 3, also contain a[8] copyright notice?[9] A. Yes, it did.
[10] g. ,Qid yOJIrhardcover contain a copyrightllotice?(11] A~ Yes, it did.[12)- Q. Look. at Exhibit 2, the page that immediately precedes the[13) table ofcontents, the hardcover version in volume 1.[14) A. Which page?[15] Q. The page immediately before the contents.[16) _ A. Yes.(17] Q. Do you see a copyright notice on there?[18) A. Yes.[19] Q. What does it say?[20] A. It says copyright, c 1996, by Stuart Y. Silverstein,[21] evidently referring to the registration for the compilation and[22] introduction that was registered by Scnbner.[23) MR. DANNAY: I couldn't hear any of that.[24) A. It states copyright, c 1996, by Stuart Y. Silverstein,[25] evidently referring to the compilation and introduction
[11 that right?[2) A. Yes.[3) Q. Who wrote this paragraph?[4] A. This fInal draft was written by Gillian Blake.[5) Q. Who was that?[6) A. My editor at Scribner.[7] Q. Do you have any personal knowledge of the circumstances[8] under which Ms. Blake wrote that sentence?[9) A. Yes. It was partof along process that took several
[10] months. It was triggered mainly by some confusion by reviewers(11) who received the bound galley or the earlier prepublication[12) bound edition of the book who were unclear, basically who had[13) questions why all the items in this list were not in the book[14) Not Much Fun. We wanted to make it clearer that this list was[15) a list of all of herprevious compilations as well as Not Much[16) Fun. That is what the "all" referred to.[17] MR.DANNAY: Objection.[18J THE COURT: Objection overruled.[19] A. This is --[20] THE COURT: You have answered. I have overruled his[21) objection. You are a lawyer. If you weren't a lawyer I might[22) not be as strict with you. You are a lawyer. You are up here,[23] you are answering things that you are not asked. Just answer[24] what you are asked, Mr. Silverstein. Keep your voice up[25J please. What is the word next to each of the poems --
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(1 J MR.DANNAY: Your Honor, I couldn't hear you. [1)
(2] THE COURT: What is the word next to Any Porch, in (2)
(3) parentheses, which is in italics, the word Fun, what does that (3J
(4) refer to, what does that mean in this context. (4)
(5J THE WITNESS: This refers to the original compilation (5)
(6) where it appeared. Each of the four compilations is (6)
(7) abbreviated to a single word. Enough Rope is abbreviated t~ (7)
[B) Rope, Sunset Gun is abbreviated to Gun, Death and Taxes is [B)
[9) abbreviated to Taxes, and this collection Not Much Fun is (9)
(10) abbreviated to Fun. So, after each individual item, the word [10)
(11) in italics afterwards refers to the compilation in which it [11)
[12) appears. (12)
[13) THE COURT: Thank you. (13)
[14J Q. What did the ftrst draft of this section look like? [14)
[15) MR.DANNAY: Objection. I don't know what we are [15)
(16) referring to. [16)
(17) THE COURT;I think we are referring to the complete (17)
(lB) chronology which begins on page 245. [lB)
[19) Am I correct, Mr. Rabinowitz. [19)
(20) MR. RABINOWITZ: Yes, your Honor. [20)
[21J THE COURT: All right. (21)
[22) MR. DANNAY: My objection was as to draft, whether it (22)
(23) was the Penguin draft or the bound galley, I don't know what [23J
(24) draft we are talking about. That was my objection. Sorry. [24)
(25) THE COURT: You don't have to be sorry. My [25)
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A. Actually prior to the publication of the bound galley ofNot Much Fun.Q. On page 3, item 7, the third sentence says, I have,however, written up a better introductory paragraph, is thatreferring to the complete chronology?A. Yes. The original chronology just gave a legend; it didnot have any explanatory paragraph. It just had the legendthat appears in the ftnal book after that introductoryparagraph.Q. The very first version said the complete chronology thenhad a list of items?A. No, it explained the legend, how they were portrayed.have to go back to Exhibit 2 to show you.Q. That's the book.A. Exhibit 2 is the final draft ofNot Much Fun. On page 245you have the complete chronology introductory paragraph. Ifyou look at that paragraph there is a paragraph, then there isa 2-line essentially legend which says original title, thenbracket, collected title at different, close bracket, openparen, collection compilation, close paren, then originalpublication, date, page. The purpose of that is --
MR. DANNAY: Excuse me, I don't know what exhibit youare referring to.
THE COURT: Exhibit 2.THE WITNESS: I am referring to the actual copy ofNot .
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(1) understanding, they are talking about the original draft of the(2) introduction which is entitled complete chronology which was(3) written by the woman whom he has identified.[4) Is that right, Mr. Rabinowitz.[5) MR. RABINOWITZ: Yes, your Honor.[6J Q. There was more than one draft of this section, is that[7) right.[8) A. Yes, there were several drafts of this introductory[9 ) paragraph.
[10J THE COURT: Were they sent tOyOll for approval, the[11) drafts.[12) THE WiTNESS: Not for approval. We basically sent[13) drafts back and forth and she ultimately wrote the draft that[14) appeared ftrst in the bound galley and then the one that[15) appeared here.. But it should be made clear that it was a[16J 'back-and-forth thing. We were trying to address a speciftc[17) identifiable issue that was brought up by reviewers who were(18) complaining about it being ambiguous.[19) BY MR. RABINOWITZ:(20) Q. Look at Exhibit 98 also in volume 4. Is that a letter that[21) you sent to Ms. Blake?[22) A. It's a copy ofone, yes.(23) Q. Dated March 13, 1996?(24) A. Yes.[25) Q. This is prior to the publication ofNot Much Fun?
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Much Fun.THE COURT: Exhibit 2, the page is headed chronology.MR.DANNAY: In the book itself.MR. RABINOWITZ: Yes.THE WITNESS: Shall I continue my answer.THE COURT: Yes. Go slowly.
A. Originally we didn't have this introductory paragraph; wejust had that 2-line legend explaining the format for how thosethings were laid out underneath. I am not sure ifit wasprecisely in that form, but that's generally what it was.Someone at Scribner, I am not sure if it was Gillian or one ofher superiors, said that was not quite clear enough, suggestedwe write an introductory paragraph. That's where this March13, 1996 letter comes in.Q. Exhibit 98.A. Yes, and to start with I wrote this paragraph which appearsimmediately thereafter on the next page. It was just astarting place; it wasn't intended to be any kind of ftnaldraft, it was just a starting place for us to try to determinewhat the language of that paragraph should be. This came outin late March of 1996 and the bound galley came out eitherlater that month or at the very beginning of April 1996.Q. Read please the paragraph that you were suggesting toMs. Blake.
THE COURT: What exhibit are you going to be reading
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STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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from.MR. RABINOWITZ: 98, the last page, your Honor.THE COURT: Is this paragraph 7 you are going to read
on 98.MR. RABINOWITZ: Next page.THE WITNESS: The page after that.THE COURT: In Exhibit 98, on page 3.THE WITNESS: No, it's the page after page 3.THE COURT: All right. This is entitled new paragraph
Not Much Fun, page 253, right.THE WITNESS: Yes.THE COURT: Go ahead.
A. This is the paragraph that I suggested just to start with,for us to start working from before we came up with the finalparagraph. You want me to read it.Q. Please.A. "This is a chronologicaHndex of Dorothy Parker's poemsand verses. Most of these originally appeared in magazines ornewspapers and were later collected in one of four books,Enough Rope (Rope), Sunset Gun (Gun), Death and Taxes (Taxes),and this collection, Not Much Fun (Fun). In some instances thetitles were altered when they were collected. Most of thepoems that appear in the first three collections were latercomplied in Not So Deep As A Well (Well). The full contents ofWell, and one edition, were reprinted in the Portable Dorothy
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THE WITNESS: No, this was '96, and this was in Marchof '96.
THE COURT: In Exhibit 98, on page 4, what you justread into the record, I thought you told me you wrote that.
THE WITNESS: Yes, I did.THE COURT: How could you have written that and she
have written the other thing, because the verbiage is exactlythe same until it gets to the chronology follows this format,and what you read it reads the index follows this format.That's the only different word up until then.
MR. RABINOWITZ: Except for the most important word ofall, which is "all" in the first sentence is not in the draft,but it is in the final.
THE COURT: All right. You are right. You are right.Go ahead. You wrote this 98 and she ultimately you claim added"all," is that right.
THE WITNESS: Actually, it gets more complicated thanthat. It went through two more renditions beforehand. Theyare here also chronologically. This is a give-and-take, itwent back and forth. We do not have her drafts except for thefinal drafts in the books.
THE COURT: But the book was published as your book.THE WITNESS: Yes.THE COURT: Which had "all" in it, correct.THE WITNESS: Yes.
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[1) Parker. Therefore, excepting that one edition, the Portable is[2) not listed here. Any item that is contained in Well also[3) appears --[4] MR. DANNAY: I think you misread.15) Any poem, not any item.[6) THE COURT: You are right.[7] THE WITNESS: I thought I said poem.[8) A. "Any poem that is contained in Well also appears in the19) Portable. The index follows this format."
,10) Thell we1;lave th,es<t:r;ne kinqpflegend.,11) TI:JE COURT: So the only thingthatis different from:12) Exhibit 98, which you justread, and the actual chronology and:13) complete chronology so-called is that instead of it reading in:14) the actual book that was published, iUs written: The index15) follows this format, in 98, and the actual book, it reads, the16] chronology follows this format. Is that correct.17) THE WITNESS:. I have to actuaIly compar.ethembut it:18) sounds right.19) THE COURT: The reason I am asking, maybe I misheard20) you, I thought you said that Colleen Breese wrote what is21) contained in Exhibit 2,at page 245.22) THE WITNESS: NO,1 said Gillian Blake.23] THE COURT: I am sorry, you are 100 percent right.24) You said Gillian Blake. That's my mistake. But you just told25) me, if! understand it, that you wrote what is in 98.
[11 THE COURT: Go ahead.[2] Q. In your draft, Mr: Silverstein, Exhibit 98, does the word[3] "all" appear in the first sentence?[4) A. No, it does not.(5) Q. What was your intent in drafting this paragraph?[6] A. We were just trying to clarify what the contents of the[7] list that followed contained.[8) MR. RABINOWITZ: Move Exhibit 98.(9) MR. DANNAY: No objection.
(10) THE COURT: 98 is received.(11) (Plaintiff Exhibit 98 received in evidence)[12) Q. Did you have any discussions with Ms. Blake concerning this[13) letter Exhibit 98 and your proposed paragraph at the end of it?[14) A. Yes, we did.[15) Q. What was the substance of those discussions?[16) A. We are going back and forth over particular language before(17) she had to submit the final language for the bound gaIley which(18) was coming out within the next couple of weeks.[19) Q. It's the next version of this paragraph contained in the[20) bound galley?[21) A. Yes, it is.[22) Q. Exhibit 11, at the end of the book, there is a section
[23) tAitleyd souIrcdes, about ten pages in, do you see that? ....,.....)[24) • es, o. . ..0"
[25) Q. Is that the section that ultimately was retitled complete
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[1) chronology in the final version?[2) A. Yes, it is.[3) Q. This draft that's in the bound galley was the product of[4] whose writing?[5J A. As I said we went back and forth but ultimately the final[6) language was submitted by Gillian Blake; this would be[7] Gillian's language after we discussed it.[8]Q. Does the word "all" appear in the first sentence?[9] A. No, it doesn't.
[10) MR. DANNAY: I object. I object the word "complete"[11) appears there. That's very much misleading.[12) THE COURT: The question is does the word "all"[13) appear. The question is not is the word "complete" not there.[14) The question is is the word "all" there.[15) MR.DANNAY: You are right.[l6) THE COURT: Objection is withdrawn. Fine.[17]Q. What was yourmtention in drafting this paragraph?[18J A. It was to explain what was going to be coming next, and if[19J there was a list of items from all four of her compilations,[20J and the "complete" doesn't modify the poems, it modifies list.[21] Q. So you were meaning to list, I am sorry you were meaning to[22J explain what with that sentence?[23J A. We were trying to explain that, obviously there is somebody[24] at Scribner, I have no idea, who obviously, they thought that[25J the list being attached at the end of the book containing a
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[1) Q. Not poems?[2] A. No. There was an identifiable issue. The sole purpose of[3] this paragraph from beginning to end was not to make any kind[4) ofvainglorious representation about how comprehensive the book[5] was. It was merely to try to address the inherent confusion[6) about having a list ofa lot of different items that mayor may[7J not have been included in the book itself. That was always the(8) purpose of this list, of that explanation.[9] THE COURT: Fine. We have gone through this. We have
[10J been going through this basic subject here for about 15[11) minutes. What ultimately came out in the hardcover compilation[12] as published and in the softcover compilation as published is[13J the paragraph with the word "all" in it, is that correct.[14] THE WITNESS: Yes, it is.[15] THE COURT: Thank you.[16J Q. Exhibit 101, volume 4, it's a letter from you to Ms. Blake.[17) A. Yes.[18] Q. It's dated May 17, 1996. Did you send this letter to her[19J on or about that date?[20) A. Yes, I did.[21] Q. Read the first sentence.[22J A. "Per our telephone conversation of a few minutes ago, I[23) suggest that the only way to clear up the problem regarding -[24] re confusion over the source list, and I think it could[25J potentially be a serious one, is to send a letter containing.
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[1) list of a huge number of items that did not actually appear in II] the following information to all publications that have[2] that book needed some explanation. [2J received galley copies ofNot Much Fun."[3J SO we were struggling to come up with an explanation [3] Q. Read what follows.[4] to explain why this list contained many more items than [4J A. "Sir/madam: You have received a bound galley ofNot Much[5J appeared in the book. That was the sole purpose of this [5J Fun: The Lost Poems of Dorothy Parker. Please be assured that[6] paragraph, to explain that perceived confusion or what they [6] the poems and verses that comprise this volume are collected[7] expected to be confusion. [7J here in book form for the first time. There has been some[8) MR. RABINOWITZ: Move the admission of Exhibit II. [8J confusion regarding the source list at the back of the book.[9J MR.DANNAY: No objection. [9) Please understand that this list provides publication
[10] THE'COURT: Exhibit 11 received. [10J information for all of Ms. Parker's poem and verses, not only(11) (Plaintiff Exhibit 11 received in evidence) [l1J those contained in Not Much Fun."[12) "Q. Did you have any further communications with Ms. Blake [12] MR. DANNAY: I have an objection because I think there[13J about this paragraph? [13) should read the underscoring of "all."[14) A.. Very soon thereafter because the Scribner publicity [14] THE COURT: You have corrected it; now your objection[15) department a got few calls from reviewers who were sent this [15] is unnecessary. There is no question "all" is underscored.[16) bound galley for review puiposes, and they complained, this is [16) Q. What was your intention, what did you intend to convey by[17) "sbcondhand,what GilJian told me had happened, they complained 117] that paragraph you drafted?(18) 'that the reviewers wanted to know why all of the items in this [18) MR. DANNAY: Objection; speaks for itself.[19) list were not contained in the book. So she was instructed by (19) THE COURT: Overruled.[20] her superiors to again change the paragraph to try to make it [20] You may answer.[21) more clear that the items in this list were all of her [21] A. Yet again it was to say that, and the reason "all" was used[22J compilations, not merely this compilation. [22] there, the reason, the purpose, the sole purpose of this was to
'\ [23J Q. The word "complete" in this Exhibit I I was meant to modify [23) address explicitly identified confusion over what the contents/ [24J what otherword? [24] of that list was, whether it was only Not Much Fun or all her
[25J A. List. [25] other compilations. We wanted to make clear it was all her
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[1) compilations, not that it was all the poems that she ever[2) collected. It referred to the number, to compilations, not to[3) the poems.[4) MR. RABINOWITZ: Move the admission of 101.[5) THE COURT: You want those records indolent cretins in[6) with it, I take it.[7) MR. DANNAY: We do.[B) THE COURT: I am asking Mr. Rabinowitz.[9J MR. RABINOWITZ: I don't think I have a choice.101 THE COURT: 101 received without objection.11) (Plaintiff Exhibit 101 received in evidence)12) Q. Did the version that appears in Exhibit 101 appear in the13) final version of Not Much Fun or was it changed?14) A. It was changed.15) Q. Who wrote the final version that appeared in Not Much Fun?16) A. Gillian Blake did.17) THE COURT: In the sense, if we are going to--1B) MR. DANNAY: Objection.19) THE COURT: To the answer.20) MR. DANNAY: Yes.21 J THE COURT: In the context of everything that has been22) said about this, your objection is overruled, because it's23) clear to anybody that has listened to this or anyone who might24J read this record, there is a tremendous amount of contribution25) to the paragraph by the witness himself as evidenced by the
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[1) portion that he read in about 6 or 7 minutes ago. So, he may[2) characterize it as having been written by Gillian Blake, but it[3) seems there is a certain amount of coauthorship. Go ahead.[4) In any event, the book as publishedrefers to a[5) compilation on the cover of the book, compiled and with an[6) introduction by Stuart Y. Silverstein. So he seems to have[7) adopted whatever Gillian Blake contributed to it.[B) Q. Did you approve the fmal version of the complete[9) chronology?10) A. No.I.didp't,se,e,it,untila.fteritwasprinted..11) THE COORT:Pidyou object to it after it wasprinted.12) TJ;lEWIT~E~S: I neversaw it before it was printed.13) THE COURT: Did you ever change it in the paper14) edition.15) THE WITNESS: It never occurred to anyone --16) THE COURT: I didn't ask you that, did 1.17J THE WITNESS: No, you didn't, your Honor.IB) THE COURT: Did you ever ask anybody to change it in19) the paper edition.20) THE WITNESS: No, I didn't.21) THE COURT: Did you ask anybody to change it or22) retract it in the hardcover edition.23) THE WITNESS: No, I didn't.14] THE COURT: Thank you.15) Q. What did you understand the paragraph as appeared in the
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[lJ fmal volume under your name to mean?[2) MR. DANNAY: Objection.[3) THE COURT: Overruled.[4) You may answer.[5) A. It was always intended merely to try to explain to anyone[6) reading the book that the list included all the compilations,[7J not merely Not Much Fun.[B) Q. Did it ever occur to you that that language could be[9) construed to mean that you included all of the poems that
[10) Dorothy Parker had ever written?[11) MR. DANNAY: Objection.[12) A. No one ever wanted --[13) THE COURT: Objection overruled, the answer as begun[14) not responsive.[15) Read the question to the witness.[16) Please answer the question.[17) (Record read)[lB) A. I don't think it can be construed that way.[19) THE COURT: You don't think that the sentence, this is[20) a chronological list of all, in italics, of Dorothy Parker's[21) poems and verses, you don't think that can be construed as(22) meanings all her poems.[23) THE WITNESS: Are you asking for a response.[24) THE COURT: Yes.[25) THE WITNESS: I think that with the rest of the
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[1) paragraph, I think it's very clear that it relates only to the[2) compilations. It's clear under the context of what follows[3) that's what it's talking about. No one ever brought it up[4] until Penguin needed a defense.[5) MR. DANNAY: Objection.[6) THE COURT: Objection sustained.[7) Strike the answer, the gratuitous part of it anyway.[B] Thank you.[9) Q. Exhibit 2, the introduction at page 62, there are two
[10) paragraphs that I would like you to read portions of. You can[11] read the whole thing ifMr. Dannay insists.[12) MR.DANNAY: I don't know what we are talking about.[13) Q. Starting with Dorothy wrote more than 330 poems and free[14) verses, then I propose skipping some of the second paragraph,[15) but in the interests ofnot fighting over this, read 62, the[16J paragraph that begins Dorothy wrote, then the next paragraph.[17) A. "Dorothy wrote more than 330 poems and free verses in the[lB) 30 years from 1915.. She published nearly 300 of these during[19) the twenties, an average of more than one poem or free verse[20) every two weeks. It was a prolific but necessary achievement,[21) because the poems and verses were her primary source of income,[22] at least until she became Constant Reader in 1927.[23J "Dorothy originally published these poems and verses[24) in at least twelve newspapers and magazines, first in Vanity[25) Fair (1915-19, 1926) and Vogue (1916), then in Life (1920-27),
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[1] the Saturday Evening Post (1922-23), Frank Adam's Conning Tower[2] in The World (1923-31), and later the New York Herald Tribune[3] (1931-35), The New Yorker (1925-44), and the Bookman (1927-28).[4] "She also published single pieces in The New Republic[5] and McCall's (both in 1927) and the Yale Review (1930), and she[6] even wrote a rhyme for a Simon & Schuster advertisement that[7] appeared in the Saturday Review of Literature in 1931.[8] "At least two ofher pieces were unpublished. Most of[9] her pieces appeared in Life, the Conning Tower, The New Yorker,
[10] Vanity Fair, and the Saturday Evening Post. She was probably[11] unpaid for all of them --[12] THE COURT: She was probably paid.[13] THE WITNESS: Excuse me.[14] A. "She was probably paid for all of them except the Conning[15] Tower and the unpublished pieces, and she collected most of[16] them -- mOre than 200 in all -- in her three books of original[17] poetry and two subseqtJent compilations. The other 122 poems[18] and free verses -- the forgotten ones -- are collected here for[19] the first time."[20] Q. What did you mean to communicate by that last sentence?[21] MR.DANNAY: Objection.[22] THE COURT: Overruled.[23] (Continued on next page)[24]
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[1) BY MR. RABINOWITZ:[2) Q. And what did you mean to communicate by that last sentence?[3] MR.DANNAY: Objection.[4) THE COURT: Overruled. You may answer.[5] A. That was distinguishing yet again explicitly between poems[6) and free verses and that this was the first compilation that[7) would collect them.[8) Q. Did you mean to communicate anything in these two[9) paragraphs about the content ofyOur book and the complete
[10] chronology?[1'1)' MR; DANNAY:Objeetion.[12] THE COURT: Overruled.[13] A. Yes. I was trying to say that -- I was trying to make -- I[l4] was trying to describe in some detail how complicated her[15] publishing history was and that was why the complete chronology[16] was necessarily so complex and had to be explained, because[17) . 'therewere dozens - there are dozens ofnewspapers involved,[18] . dozens of magazines, and there were several different[19) compilations. Some ofthe compilations compiled some of the[20] other compilations, and it was a rats nest, it was very, very[21] difficult to unravel, and I was trying to do it as clearly as I[22J could.(23) Q. Who wrote the word on pages 62 and 63?[24] A. I did.
[25] THE COURT: And the record should reflect that quite
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[1] unintentionally the witness left out the numbers that appeared[2] after each publication that was listed, the numbers referring[3] to the number ofpieces that were in each publication.[4] THE WITNESS: My apologies, your Honor.[5] THE COURT: Your apology is accepted.[6] Q. Did Simon & Schuster or Scribner issue any foreign edition[7] ofNot Much Fun?[8] A. No, they didn't.[9] Q. Did any publisher issue a foreign edition?
[10] A. Yes. In 1999 Duckworth in the UK issued an edition. I(11) believe it might have been called the Uncollected Dorothy[12] Parker. I'm not sure. And I think in 200212003 a French[13) publisher called Phebus issued an edition of the hate verses[14) only in French.[15] Q. Did you ever learn that anyone else published Not Much Fun[16) or its contents without your permission?[17) A. Yes, Penguin did Complete Poems in 1999.[18] MR.DANNAY: Objection.[19J THE COURT: Well, that's his contention, so the[20] objection is overruled.[21] Q. How did you learn that Penguin had published the items that[22J are contained in Not Much Fun?[23) A. I saw the Complete Poems in a bookstore in Los Angeles, and[24] I leafed through it, and I saw that they had a section titled[25] Poems Uncollected by Parker, which was identical to my
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[1) compilation, with the exception of the one item that I[2] inadvertently included that had previously been collected.[3J Q. Look at Exhibit 4, ifyou would. It's in volume I. Do you[4) recognize that document?[5] A. Well, it's a photocopy of Complete Poems.[6] Q. Is this the book that you saw in the bookstore and[7] purchased?[8] A. Well, it's a copy of the same book, yes.[9] Q. Go to the table of contents, ifyou would.
[10) A. Yes.(11) Q. The page bearing Roman numeral XI, what portion of the[12] material as indicated in the table of contents replicated what[13] was in Not Much Fun?[14) A. Well, the Poems Uncollected by Parker section is precisely[15) the make-up ofNot Much Fun, copied verbatim, with the(16) exception of that one item, and with slight rearrangement of[17) the poems and versus.[18) Q. How many total pages is Complete Poems, excluding the -[19] THE COURT: Insofar as this line of questioning is[20] concerned, I just want the record to be perfectly clear that I[21] am aware of the paragraph of the Court of Appeals decision that[22] begins "In 1991 Penguin published Dorothy Parker Complete[23] Poems," and it goes on to explain that "Exhibit 4 contained 121[24] of the I22 poems printed in Silverstein's book ordered[25] chronologically rather than in Silverstein's more subjective
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arrangement." The last bit I read is a quote from the Court ofAppeals decision, so I am aware of the Court of Appealsdecision.
Go ahead with your examination, but just be aware thatI understand what the Court of Appeals wrote there.
Go ahead.Q. How many total pages is Complete Poems, Mr. Silverstein,excluding the index?A. 391.Q. And the poems under the section Poems Uncollected by Parkerrepresent -- every one ofthe poems that are contained in PoemsUncollected by Parker section, beginning at page 2I I and goingto 391, were in Not Much Fun?A. Yes, they were.Q. So the first 210 pages were in Ms. Parker's priorcompilations, is that right?A. Well, not quite. It staNs on page 3, but, you know,pretty much, yeah.Q. So then approximately, does it appear to you approximatelyhalf of this book constitutes the poems that appeared in NotMuch Fun?A. Between 40 and 50 percent, yeah.Q. And when you first saw this book, Complete Poems, what didyou look at first?A. I went to see -- first I saw the title was Complete Poems,
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MR. RABINOWITZ: OK.Q. Was there anything about Complete Poems -- strike that.When you first saw Complete Poems, did it occur to you thatPenguin had merely performed the same selection and compiledthe same items as you did?
MR. DANNAY: Objection.THE COURT: Sustained.
Q. Is there anything contained in Complete Poems other thanthe actual original text from Dorothy Parker's works, that ledyou to believe that it was copied directly from your book?
MR. DANNAY: Objection.THE COURT: Objection sustained.
Q. Did you--THE COURT: The reason I'm sustaining these objections
is you are asking for his opinion. I understand that he isbringmg a lawsuit. That's why we're all here. But hisopinion is not something that is binding on me, and I am thetrier of the facts.
MR. RABINOWITZ: I am asking for his actual visualobservation.
THE COURT: Oh, I didn't hear that. All I heardwas --
MR. RABINOWITZ: I apologize.THE COURT: Your apology is accepted.
Q. Let me try again. In your version ofComplete Poems you
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[1) so the first thing I went to look for was to see a listing for[2) Not Much Fun, and there was none. But then I sawall the items[3) from Not Much Fun in a section titled Poems Uncollected by[4) Parker.[5) Q. What was your reaction?[6) A. Well, I was surprised among other things, because the other[7) major sections were titled with the title of the original[8J compilation. So, the first thing I noticed about this was that[9) Penguin was deliberately.concealing the provenance of the10) material.11) IV!~. PA,N~AY: Objection.12) TH~ COURT: I will strike that answer. That's your13) conclusion. The answer is stricken.14) . MR. RABINOWITZ: We move for the admission of Exhibit15) 4, your Honor.16) M,R. DANNAY: No objection.17] THE COURT: Exhibit 4 is received.18) (Plaintiff's Exhibit 4 received in evidence)19) Q. Could you tell whether Penguin had made the same selection20) of these items themselves or merely taken them from your book?21) MR. DANNAY: Objection.22) THE COURT: That calls for his opinion, his23) conclusion, and I will sustain it.24J MR. RABINOWITZ: Sorry?25] THE COURT: I said sustained.
[1) testified you had made editing changes, right-[2) A. Yes.[3) Q. -- from Dorothy Parker's original works?[4) A. Yes.[5) Q. You had made punctuations changes?[6) A. Yes.[7) Q. That you had put in titles that you created, right?[8) A. Yes.[9) Q. Did those appear in Complete Poems?
[10) A. Yes. When I first saw Complete Poems I saw -- objectively(11) I saw several reasons to believe that they had copied my book(12) directly.(13) Number one, all the title changes which I had made(14) appear here. The only place they could have gotten them was(15) from Not Much Fun.(16] Other poems had numbers after them when they were[17) identically named in the original publications. They had my[18) numbers there for those.[19) They used my format for the hate verses, the titles.(20) So, even in looking in the table ofcontents, even[21) before I looked at the text of the items, I could tell[22) conclusively that they had taken it from my book.[23) MR. DANNAY: Objection.[24) THE COURT: The end of the answer is stricken.[25) Q. Did you make any inadvertent errors in Not Much Fun?
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[1) A. Well, I later detennined I had. At the time I didn't [1)
[2) realize it, but then when I went back to check I found that [2)
[3) there were several inadvertent errors in the book. [3]
[4 ) Q. Such as? [4)
[5) A. In one of the items, I can't recall which one, I omitted an [5)
[6) entire line. (6)
[7) Q. From one of Dorothy Parker's original works? [7)
[B) A. Yes, between the original -- [B)
[9) MR. DANNAY: I am objecting to this. [9)
[10) THE COURT: The objection is overruled. He is going [10)
[11) to tell me about the line of the poem that he left out. [11)
[12) A. Yes. [12)
(13) THE COURT: Or free verse. Go ahead. [13)
[14) What line did you leave out? [14)
(15) THE WITNESS: ] cannot recall which item it appeared [15)
[16) in, but I went through some of the items line by line, between [16)
[17) the original publicattbn photocopies and Not Much Fun, and I [17)
[lB) found that in one of the longer items I had completely left out [lB)
[19) one of the lines inadvertently, and I compared it to Complete (19)
[20) Poems, and they left out the same one. [20)
[21) THE COURT: Thank you. (21)
(22) THE WITNESS: And there were other typographical [22)
[23) errors. That's the most egregious of them. But there were [23)
[24) other typographical errors, and they were all faithfully [24J
[25) reproduced in Complete Poems. [25)
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(1) THE COURT: Do you recall the names of the 122 items [1)
[2) that were in Not Much Fun which had previously been compiled [2)
[3) and been in another compilation? [3)
[4J THE WITNESS: Yes, one. [4]
[5) THE COURT: What was it? [5)
[6) THE WITNESS: Day Dreams. [6)
[7) THE COURT: DayDream. [7)
[B) THE WITNESS: Day Dreams, I believe. [B]
[9) THE COURT: And did that appear in the section in [9)
IlO) Complete Poems, Exhibit 4, that is headed Poems Uncollected by [10)
[11) "Parker? [11]
[12) THEWITNESS: No, it did not. [12]
[13) THE COURT: Thank you. [13)
[14) Q. Did you prepare a document that recorded the individual [14)
[15) edits, punctuation changes and titles that you created at any [15)
[16) time? [16]
[17) A. Yes, I believe I did for one of the depositions. I can't (17)
[lB) recall which one. It might have been Kathryn Court, but I [lB)
(19) can't remember which one. [19)
[20) Q. Was that document produced during the court deposition to (20)
[21) Penguin? [21)
(22) A. I believe it was. I wasn't at that deposition, so I can't [22)
[23) state, but I believe it was. [23)
)[24) Q. And I am showing you what has been marked as Exhibit 10. [24]
(25) A. Yes. [25)
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Q. And do you recognize that document?A. Yeah, it's an extract from Not Much Fun with notations onit, and from the exhibit number that's been either attached toit or stamped on it it would appear to match the date fOf thecourt deposition.Q. And who prepared -- who wrote the handwritten notationsthat appear on the items?A. I did.Q. What did you intend to record?A. These were the editing changes between the originalpublications and the final version ofNot Much Fun.Q. And did these changes that appeared in Not Much Fun alsoappear in Complete Poems?A. Yes.Q. Did you ever count them?A. I might have at the time. I probably did at the time. Isimply don't recall the number.
THE COURT: OK. We will take a ten-minute recess nowand resume at 3:30 by your watches. As I told you, thecourtroom clock is five minutes slow. Off the record.
(Discussion held off the record)(Recess)THE COURT: All right. You may continue and hopefully
conclude examination, Mr. Rabinowitz.MR. RABINOWITZ: ] will race to the conclusion, your.
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Honor.THE COURT: I don't want you to race. Hopefully we
will conclude direct examination. Go ahead.STUART SILVERSTEIN, resumed.DIRECT EXAMINATION (Continued)BY MR. RABINOWITZ:Q. Did Complete Poems, Mr. Silverstein, contain any credit orattribution to you or Not Much Fun?A. No, it did not.Q. Did Complete Poems state from what source Penguin hadobtained the text of the items?A. There was a note on the text that claimed -- well, the bestevidence I guess would be the actual text.Q. Look at Exhibit 4, ifyou would. Ibelieve it appears atpage, the following page, Roman 37.A. Did you say Roman 37?Q. Yes.A. The page isn't technicaHy numbered, but it would appearafter 35, so I assume it's 37.Q. Did you find a note on the text?A. Yes, I have.
MR. DANNAY: I'm going to object, your Honor, to anytestimony on a note on the text. It's directly related to thecopy editing claim, and it's quite clear that what --
THE COURT: Well, first of all, before I can rule on
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your objection, I have to find what we are talking about, and Ican't find it. There is an be Exhibit 4 on Roman numeral 37,right?
MR. RABINOWITZ: Following 37.THE COURT: Sorry, following 37.MR. RABINOWITZ: Before the very first item.THE COURT: Well, to me follows 37 reads A Note on the
Text.MR. RABINOWITZ: That's it.THE COURT: What are you objecting to, sir?MR. DANNAY: Your Honor,] am objecting to A Note on
the Text because A Note on the Text is just a corollary to thecopy editing claim which has been dismissed.
THE COURT: It's part of the exhibit that's inevidence, so it's in evidence already.
MR. DANNAY: The copy editing exhibit was not offeredinto evidence.
THE COURT: Exhibit 4 was offered in evidence.MR. DANNAY: Oh, Exhibit 4, yes. But I'm objecting to
the testimony, your Honor. It speaks for itself.THE COURT: That's a whole different objection.MR. RABINOWITZ: I haven't asked a question yet.THE COURT: Well, let's hear the question. Let's hear
the question.MR. RABINOWITZ: Well, before] do that, if] have not
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(Plaintiffs Exhibit 10 received in evidence)THE COURT: Next we are at this note on the text in
Exhibit 4, correct?MR. RABINOWITZ: Yes.THE COURT: All right. And you were starting to refer
to it, Mr. Dannay objected, we had some colloquy, and youpointed out you haven't yet asked a question, so now put yourquestion.Q. Would you please read the note on the text.
THE COURT: Do you want to read it into the record, isthat it? Read it into the record.A. "A note on the text. The poems that appear here arefaithfully reproduced from Dorothy Parker's originalcollections: Enough Rope (1926); Sunset Gun (1928); Death andTaxes (] 93]), Death and Taxes and Other Poems in Not So Deep asa Well (1936); The Portable Dorothy Parker (1944); and fromBookman, Life, McCall's, Nation, New Republic, The New Yorker,New York Herald Tribune, New York World, Saturday Evening Post,Saturday Review, Vanity Fair, Vogue, and Yale Review. In ]936Parker added one poem to Enough Rope and five to Death andTaxes and renamed the collection Death and Taxes and OtherPoems. In ]944 she added only one previously uncollected poemto the portable Dorothy Parker, 'War Song'. The text and orderof the poems in the original collections are retained intact;the additions that appear in Not So Deep as a Well are included
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[1] moved to admit 45, I do move to admit 45.[2] THE COURT: Now we're going back? Hold it now. We're[3] going back to 45.[4] MR. MICKUS: 45 is in.[5] MR. DANNAY: Wait a minute. You're referring to the[6] deposition number, I think.[7] THE COURT: 45 is in evidence. 45 is a long, long[8] trail. That got in evidence this morning.[9] MR. RABINOWITZ: I'm sorry, Judge.
:10J THE COU~T:It's all right. Take your time. Takeit'11] easy.:12J MR. ~BINOWITZ: Exhibit 10 I'm referring to.13J THE COURT: Exhibit 10.
:14] Exhibit ,lOis the,one that's titled The Poems, right?IS] MR. RABINOWITZ: Yes, and it contains the editing16] changes Mr. Silverstein testified about, which we are not17] claiming is the basis of any kind of protection but merely18] shows the verbatim copy.19] THE COURT: You're offering 10.20J MR. RABINOWITZ: Yes.21] THE COURT: Is there an objection to 1O?22] MR. DANNAY: There is an objection to that exhibit,23] your Honor.24] THE COURT: lOis received over objection. All right,25] fme.
[1] at the end of each collection. Parker continued to write for[2] magazines until her death in 1967, but there was no complete[3] collection of her work until Penguin's Complete Stories in[4] 1995. This volume is the first complete collection ofher[5] poems."[6J Q. Now, you testified a few moments ago, Mr. Silverstein,[7] about the punctuation changes, the edits, the titles that were[8] in Not Much Fun that you had created, and those appeared in[9] Complete Poems, is that right?
[10J A. That's correct.[l1J Q. Those modifications, I will call them, did those appear in[12J the original publications of the Dorothy Parker works?[13J A. No, they did not.[14J Q. Did they appear in the compilations that are referred to[15J here in the collections Death and Taxes, Sunset Gun, etc.?[16] A. No, they did not.[17J MR. DANNAY: And again, your Honor, I will record my[18J objections to all of these questions.[19] THE COURT: Objection is noted. Overruled.[20J Q. So were the poems as they appeared here faithfully[21] reproduced from Dorothy Parker's original collections?[22] A. No, they were not.[23] Q. Last sentence on A Note on the Text says, "This volume is[24J the first complete collection ofher poems." Had the poems[25] that were contained in the Uncollected Poems by Parker section
)
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[1) appeared in the collection before? [1)
[2) A. No, they had not. [2]
[3) Q. What about Not Much Fun? [3)
[4] A. Besides Not Much Fun, of course. (4]
[5] Q. Well, that's what I'm referring to. [5J
[6J MR.DANNAY: I'm frankly lost as to what the question [6J
[7J is. [7)
[8] THE COURT: Would you please read back the question, [8]
[9) Mr. Griffing, and the answer, so that Mr. Dannay has both the [9J
[10) question and the answer. [10J
[l1J (Record read) [11)
[12) Q. So did the poems that appeared in the Poems Uncollected by [12)
[13) Parker section of Complete Poems appear in Not Much Fun? [13J
[14J A. Yes, they did. [14 J
[15) Q. What did you do after you discovered and learned about [15]
[16) Complete Poems? [16)
[17) A. I contacted a laWyer. [17J
[18) Q. What did your lawyer do? What did you instruct your lawyer [18J
[19) to do? [19]
(20) A. The lawyer'S name was Glen Kulik, and he sent a demand [20)
[21) letter to Penguin I believe dated May 17, 2000. [21J
[22) Q. Look at Exhibit 121, if you would. [22]
[23) A. Excuse me. Which number? [23J
[24) Q. 121 in volume 4. [24)
[25) A. Hold on, please. OK. [25]
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[1) Q. Do you recognize that letter? [lJ
[2) A. Yes. That was the demand letter I just referred to. [2J
[3J Q. Could you read the last paragraph of the first page, [3J
(4) please. [4}
[5) A. "Penguin published a compilation of Dorothy Parker's poems [5]
[6J entitled Dorothy Parker: Complete Poems (Complete Poems)n [6J
[7) 1999. To Mr. Silverstein's shock Complete Poems contains a [7)
[B) lengthy section entitled Poems Uncollected by Parker that is a [8J
[9] mere reproduction ofNot Much Fun, copying both the selection [9J
[10] ofDorothy Parker poems in Not Much Furi· and the internal [10J
[li] . editing of the poems themselvesdone by Mr. Silverstein. Even [11]
[12] to a casual observer, it would be obvious that Penguin copied (12)
[13] Mr. Silverstein's work." [13)
[14) Q. And then in the last paragraph, what relief or remedy does [14)
(15) your attorney request? [15J
[16) A. I believe it's in the next to last paragraph, on page 2. [16)
[17) Q. Right. [17)
[lB) A. "Based on the foregoing, we demand that Penguin immediately [lBI
[19) cease and desist the continued publication of Complete Poems [191
(20) and withdraw all unsold copies currently in circulation. We [201
(21) also demand that Penguin pay Mr. Silverstein for damages [21]
[22J already incurred as Complete Poems has infringed on [221
[23] Mr. Silverstein's rights in Not Much Fun and diminished the [23J
[241 value of the market for that work. Mr. Silverstein has [241
[251 instructed us to proceed vigorously on his behalf should there [25]
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be no resolution of this matter in the near future. Pleasecontact me at your earliest convenience with your response."
MR. RABINOWITZ: Plaintiff moves for the admission ofExhibit 12l.
MR. DANNAY: Objection.THE COURT: Well, the language in it is terribly self
serving. It is also lawyers language, and some of it hasalready been ruled upon by the Second Circuit, so to thatdegree I'm going to sustain the objection.
MR. RABINOWITZ: It merely demonstrates the demand,your Honor.
THE COURT: Well, you see, I harken back to this oldproblem about the pretrial order. Do you dispute that a demandwas made, Mr. Dannay? Do you dispute that there was a demand?
MR. DANNAY: Are you addressing that to me?THE COURT: Yes.MR. DANNAY: No, your Honor, we know a demand was
made.THE COURT: You will stipulate that a demand was made?MR. DANNAY: Absolutely.THE COURT: Absolutely.THE COURT: OK. Fine. The demand was made. You have
proven it. The objection to the exhibit is sustained.Q. Did you or your attorney receive a response to yourattorney's letter?
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A. Yes, we received a response from Alexander Gigante in Julyof2000. I don't know the date.Q. What was the substance of Mr. Gigante's response?
MR. DANNAY: Objection.THE COURT: Well,1 mean will you stipulate that you
on behalf of the defendants deny liability?MR. DANNAY: Correct.THE COURT: All right, fine.MR. DANNAY: Yes, we still do.THE COURT: There is no issue about this at all.You notified them -- when Isay you, I mean the
plaintiff -- through his first lawyer, notified the defensethat he felt his rights were being violated. They said, no,they're not, and we're not responsible for anything and anywrongdoing. Both sides agree that that's their position, isthat correct?
MR. DANNAY: Yes.THE COURT: OK. They both nodded yes. Go ahead.
Next.MR. RABINOWITZ: I guess we have a pretrial order
then.THE COURT: No, if we had a pretrial order we might
have saved a little time. But go ahead.Q. Did you subsequently discover that Penguin had publishedany further editions of Complete Poems?
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[1) A. Yes, I did.[2) Q. And how did you discover that?[3) A. Because I know how to determine -- it's not editions but[4J it's reprinting we are talking about. It's possible to[5J detennine in most American books which particular.printing is[6J in your hands actually by looking for a line ofnumbers that[7J appear, they're one through ten usually, or if it's'[8J best-seller it could be 20 to 30, whatever. The smallest[9J number that still is on this list is that printing. As each
[10J printing is released they just take off one of those numbers.[11 J Q. But how did you end up with another presenting in your hand[12) is the question?[13J A. I repeatedly went to bookstores around the country, in[14) Chicago, New York, the Bay Area, I think in New York, and I[15) found that as time passed I was buying books or seeing books[16) from later printings, successively later printings.[17) MR. DANNAY: Obj-eetion on the ground ofrelevance[18J among other things, your Honor. The number of printings is[19) completely irrelevant.[20) THE COURT: Objection is overruled.[21) Q. Look at Exhibit 5 -- Exhibit 6. I'm sorry.[22) THE COURT: Sorry. We are on Exhibit 6, is it?[23J MR. RABINOWITZ: 6, correct.[24) THE COURT: Thank you.[25) MR. RABINOWITZ: Volume 2.
Page 166
[lJ THE WITNESS: Yes, I found it. Thank you.[2) Q. Do you recognize that?13) A. Yes, that's the copyright page for a sixth printing.[4J Q. And can you tell what year that was published?[5) A. I can tell-- well, the book was originally published in[6J 1999, but you cannot determine from this page what year the[7 J reprint was issued.[8) Q. And this was the sixth printing?(9) A. Yes, it was.
[101 Cl, Istpis.~qpj~Qfrom a,.- is this--[11) lYIB, D~.N~AY:,Excuse me. I'm going to object to all of112Jthis. ldon':t\glQw,hQwMr. Silverstein can possibly know how[13J many prinqngsthere are from Penguin's book.,14J THE WITNESS: Because it's standard policy.i15) THECQURT: Did he ask you a question? Diel he? Now,:16) come on. You're a very intelligent fellow. I toldyou this:17J about three Qr four times now. Don't answer unless you are[18J asked a question.[19J MR. RABINOWITZ: He already testified, your Honor, you:20J can tell from the copyright page.:21J THE COURT: I always find it happier if! run my:22J courtroom and if! make my rulings, and if the witnesses and:23J the lawyers abide by what I tell them.:24J The objectionis overruled.25J What printing was it?
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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[lJ THE WITNESS: Exhibit 6 would be from the sixth[2) printing, which --[3) THE COURT: Thank you. Next question.[4) Q. Is this exhibit a photocopy from the copyright page of a(5) volume that you purchased of Complete Poems?[6) A. Yes, it is.[7J Q. Please look at Exhibit 7.[8J First of all, I move for the admission of Exhibit 6.[9) THE COURT: I take it there is an objection to Exhibit
[10) 6.[l1J MR. DANNAY: Yes.[12) THE COURT: Is that correct?[13) MR. DANNAY: Yes, your Honor. I'm sorry. Yes.[14J THE COURT: Your apology is accepted. The objection[15) is overruled. Exhibit 6 is received.[16J (Plaintiffs Exhibit 6 received in evidence)[17J THE COURT: All right. Now we are at Exhibit 7.[18J Q. Do you recognize it?[19) A. Yes, I prepared it.[20J Q. What is it?[21) A. This is a photocopy of the copyright page of Complete Poems(22) from a printing from an issue from the seventh printing.[23) Q. And how did you get it?[24) A. Excuse me?[25J Q. How did you get the book?
Page 168
[lJ A. I bought it.[2J Q. Where?[3J A. I cannot recall where I bought it.[4J Q. Do you buy it at a pop stand?[5J A. I bought it at a bookstore.[6J MR. RABINOWITZ: Move for the admission ofExhibit 7.
[7J MR. DANNAY: Same objection.[8J THE COURT: Exhibit 7 is received over objection,(9) because I know Mr. Dannay is objecting.
(10) (Plaintiffs Exhibit 7 received in evidence)[l1J Q. Did you ever observe Not Much Fun being offered for sale in[12J a bookstore?[13J A. Yes, I did.[14J Q. On how many occasions?(15) A. Dozens of times.(16) Q. In how many book stores?[17 J A. Every bookstore I visited for years. Dozens ofbook[18J stores.[19J Q. Did you ever observe Complete Poems being offered for sale[20J in a bookstore?[21J A. Yes, I did.[22J Q. On how many occasions?[23) A. Dozens.[24J Q. In how many bookstores?(25) A. The same, dozens.
\j
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[1 ) Q. In which section of the bookstores was Not Much Fun [1 ) MR. DANNAY: Yeah, just -- let us just look at them.[2) displayed? [2) THE COURT: Take your time and look at them, and if[3) A. In those bookstores in the poetry section, I believe it [3) the lawyers have to confer, take a copy of the exhibits over to[4J would be in the poetry section. In some stores it would be in [4) the side and sit down next to each other and confer.[5J a literary section. [5) MR.DANNAY: Which volume?[6J Q. Which section of the bookstores was Complete Poems [6) MR. RABINOWITZ: That would be in volume 5.[7J displayed? [7) MR. DANNAY: This is my problem. Let me explain my[B) A. The same sections, depending on how the store was laid out. [B) problem. I don't want to be an obstructionist here. It's a[9) Q. What if any compensation did you receive for sales ofNot [9) two-part answer. I really don't have an objection to the
[10) Much Fun? [10) royalty statements as such as coming from the various[11) A. I can't calculate what I received. I received periodic [11) publishers. I assume they are authentic. I hope they're[12) royalty statements and checks. I'm not going to speculate as [12) complete. I can't really do that computation here. But the[13J to the total amount. [13) problem I have is I don't think they show clearly the answer[14 J Q. From whom? [14 ) that Mr. Silverstein cannot supply and indicated, that is, what[15J A. I receive the statements and the checks from my agent Peter [15J royalties he has been paid.[16) Lampack. [16) You cannot tell from these documents really -- they're[17) Q. And where werethe royalties being paid -- strike that. [17) unclear as to what the royalty payments are. If there was[lB) By whom were the royalties being paid? [lB) somebody here from the publishers to state that, that would be(19) A. By the respective publishers, be it either Scribner through [19) fine. Ifwe could get together somehow and figure this out, I[20) Simon Schuster its parent company or by Duckworth UK or by [20) would be willing to stipulate it if I knew it, but I am a[21J Phebus business in France. [21) little troubled by the fact that Mr. Silverstein -- who paid[22J Q. Did you have an agreement with Simon & Schuster for the [22) income taxes and must indeed have some records, or at least[23) payment of royalties for sales ofNot Much Fun? [23) secondary records as to what his royalties were -- is unable to(24) A. Yes, there were royalty rates both for the hardcover and [24J say what his royalties were, and to some extent is even unable[25J for the softcover. I simply cannot recall what the precise [25) to say what his royalty rates were, because they vary.
Page 170 Page 172
[1) percentages were. I know it was a smaller percentage for the [1 ) I'm not unsympathetic, and I'm not even being(2) softcover per industry standard. [2J critical, because having represented publishers for 40 years I[3J Q. Are those rates reflected in the royalty statements that [3) know how complicated royalty statements can be to get that[4 J you received? (4) infonnation, and how you need that interpretation.[5J A. I think they are, but I cannot specifically recall seeing [5) So, I don't have an objection to the documents as[6J them in a recent statement, so I don't want to state it [6) such, but I will have an objection to any statements that seem[7J categorically. [7) to compile what the royalties were from that, because it's got[B) Q. What if any records did you receive relating to the payment [B) to be shown to me how one does that.[9) of royalties? [9) I must say that of the papers --
[10) A. I received periodic royalty statements from Mr. Lampack. I [10) THE COURT: All we're at at this stage --[11) believe they carne twice a year for the Scribnerbook and after [11) MR. DANNAY: I don't want to waive my objection as to[12] the royalty had been -- after the advance had been burned [12) the amount, that's all.[13) through by royalties. I am not sure how often I get the [13) THE COURT: Fine. All we are at at this stage is an(14) royalty statements from Duckworth and from Phebus. I do know [14) offer of certain documents by number in evidence.[15) that whenever they do come, Mr. Lampackdeposits the funds, [15J MR.DANNAY: OK.[l6J deducts his commission and sends me a check and copies of the [16J THE COURT: You're telling me you are not objecting to[17J ·'statements. [17J those documents, those documents are then received.[lB) MR. RABINOWITZ: There are approximately 80 royalty [lBJ Everything after that we will rule upon as we get to[19) statements, your Honor, that we have put in the exhibit books, [19) it.[20J and I believe we have stipulated to at least the admissibility [20) My understanding from the proposed pretrial order of[21) and authenticity of these documents with Penguin. I would like [21) the plaintiff is that the agent for Mr. Silverstein -- I[22J to be able to not walk through them one by one, ifthat's OK. [22) thought the agent was on the witness list. Maybe I'm wrong.
I[23) THE COURT: I would much prefer that you didn't walk [23J MR. DANNAY: No, he is not, your Honor. The person on[24) through them one by one ifwe can agree that they're [24) the witness list that you may be thinking of is Mr. Angelini(25) admissible. [25) who is Penguin's controller, and he was subpoenaed by
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July ·17, 2007
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STUARTY. SILVERSTEIN vPENGUIN PUTMAN, INC.
Page 175
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plaintiffs, although we had offered him as a witness.MR. RABINOWITZ: We also have a declaration which Me
Dannay got from Simon & Schuster authenticating his records.MR. DANNAY: But that's not my objection.THE COURT: There is no objection to the documents.
You list the documents by name or by number.You can list the documents again by name or number in
a moment.On the question on the total amount of royalties -MR. RABINOWITZ: It's a matter of mathematics.THE COURT: That is, as you put it--MR. DANNAY: May I add one thing, your Honor -- I
don't want to interrupt you --THE COURT: Go ahead.MR. DANNAY: There was -- and perhaps Mr. Rabinowitz
will remember the exact title of the document -- there was asort of supplemental respoose to our interrogatories. Therewere several, so I don't remember the exact title of this atthe moment, that I thought purported to update and contain acompleted summary in that form of the unit sales ofNot MuchFun and the royalties ofNot Much Fun.
MR. RABINOWITZ: I think we have interrogatory answerslike that. I can't imagine why this would be an issue.
MR. DANNAY: No, but my point was that when I tried toreconcile that document with the royalty statements you
Page 174
[1] THE COURT: I read the name in the pretrial order. He[2J is not a listed witness. The documents are received. He can't[3J tell me what the total amount of the royalties was because he[4J doesn't have it at his fingertips.[5J (Pause)[6J BY MR. RABINOWITZ:[7J Q. The royalty statements that you received that are marked as[BJ Exhibits 140 through 202, did they also show the number of[9) sales ofNot Much Fun at the various price points?
[10] A. Yes, they did.[11] Q. Look at Exhibit I please. Do you recognize that document.[12] A. Yes.[13J Q. What is it?[14J A. It's a set of original microfilm, photocopies from the[15J original microfilms of the various works that appear in Not[16J Much Fun.[17J Q. These are photocopies from the periodicals, newspapers, and[lBJ magazines in which the items that appear in Not Much Fun were[19J originally published by Ms. Parker in the '20s and '30s?[20] A. Yes.[21] MR. RABINOWITZ: Move the admission of Exhibit I.[22J MR. DANNAY: No objection.[23J THE COURT: Received.[24J (Plaintiff Exhibit 1 received in evidence)[25J Q. Did you compile Exhibit 1 during your selection and
Page 176
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provided, I could not do it.Now, math is not my strongest subject, so perhaps it
was 1.THE COURT: Suppose we do this. What are the
documents you are offering? Number them.MR. RABINOWITZ: 140 through 202.THE COURT: So that's 63 documents, right?MR. RABINOWITZ: Correct.THE COURT: There is no objection to those documents.MR.DANN.AY: Your Honor, no objection as long as I do
not WaiVelD,y opjectionto what they--THE COURT: -- the total amount, you are reserving
your objection. The documents are received.(Plaintiffs' Exhibits 140 through 202 received in
evidence)THE COURT: There has been some reference to the fact
that he had an agent, and he has mentioned the agent. What isthe agent's name again?
THE WITNESS: Peter Lampack.THE COURT: Peter Lampack.(Continued on next page)
(lJ
[2J
[3J
[4]
[5]
[6]
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(13)
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compilation ofNot Much Fun?A. I made the original photocopies during that period; I amnot sure I put the cover sheet on it at that time.Q. The actual photocopies were copies you worked off incompiling Not Much Fun?A. Yes.
MR. RABINOWITZ: Your Honor, do you have Exhibit 93 ashaving been admitted or introduced.
THE COURT: 93, there has been no offer.Q. Look at exhibit 93 in volume 4.
THE COURT: You stopped at 92.Q. Do you recognize that?A. Yes.Q. Did you receive that letter from Mr. Himme1rich on or aboutthe date it bears?A. Yes.
MR. RABINOWITZ: Move the admission 93.MR. DANNAY: No objection.THE COURT: Received.(Plaintiff Exhibit 93 received in evidence)
Q. Exhibit 95, do you recognize that document?A. Yes.Q. Did you send that letter to Mr. Himmelrich on or about thedate it bears?A. Yes.
\.J
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[1] MR. RABINOWITZ: Move the admission ofExhibit 95.[2] MR.DANNAY: No objection.[3J THE COURT: Received.[4J (Plaintiff Exhibit 95 received in evidence)[5] Q. Exhibit 96, did you receive that letter from Mr. Himmelrich[6] on or around the time it's dated?[7] A. Yes.[B] MR. RABINOWITZ: Move the admission ofExhibit 96.[9J MR.DANNAY: No objection.
[10] THE COURT: Received.[11] (Plaintiff Exhibit 96 received in evidence)[12] Q. Exhibit 99, did you send that letter to Mr. Himmelrich on[13] or about the date it bears.[14) A. Yes.[15) MR. RABINOWITZ: Move the admission ofExhibit 99.[16] MR. DANNAY: No objection.[17) THE COUR"F: Received.[lBJ (Plaintiff Exhibit 99 received in evidence)[19) Q. Exhibit 102, did you send that letter to Mr. Himmelrich on[20] or about the date it bears?[21] A. Not quite. At the bottom, there was something wrong with[22] fonnatting, obviously; this reproduced the letterhead at the[23) bottom again. As far as the text goes, I am sure it's[24] perfectly accurate, but --[25J Q. Did you send that letter to Mr. Himmelrich on or about the
July 17,2007
Page 179
[lJ Q. What was the response?[2] MR.DANNAY: Objection.[3] THE COURT: You are objecting to 119; I want to make[4] sure I have the right exhibit.[5) MR.DANNAY: No, to the question and answer, what was[6) the response from Simon & Schuster to his request about their[7] participation in the lawsuit.[B] THE COURT: That's 119. What is the pending question.(9) MR. RABINOWITZ: What was the response you received
[10] from Simon & Schuster.[11] THE COURT: You are objecting to the response.[12J MR.DANNAY: I think he is going to testify to[13] testimony. If it's a letter, I won't have a problem.[14] THE COURT: The response I believe is Plaintiff 119.[15) MR. RABINOWITZ: Let me withdraw the question.[16) Q. Look at Exhibit 119.[17] A. Yes.[lB) Q. Did you receive that letter on or about the date it bears?(19) A. Yes.[20) Q. From Emily Remes.[21] A. I am sorry. Yes, I did.[22) Q. What does the letter say?[23] A. It says in somewhat -- it waives the right to, it waives[24) Simon & Schuster's right to participate in any action I might[25) take against Penguin Quinn.
Page 178
[1) date it bears? [1]
[2] A.With the exception of the fact that the letterhead has been [2]
[3J reproduced at the bottom again, yes. [3)
[4) MR. RABINOWITZ: Move the admission of 102. [4)
[5] MR.DANNAY: No objection. [5)
[6J THE COURT: Received. [6J
[7) (Plaintiff Exhibit 102 received in evidence) [7]
[8J Q. Exhibit 103, did you send that letter on or about the date [BJ
[9) .it bears to Mr. Pettinga The Saturday Evening Post? [9J
[10) A. Yes, (10)
[11J MR~RABIN(ijWITZ:Move the admission of 103. [11J
(12) MR. DANNAY: No objection. [12)
[13J THE COURT: Received. [13)
(14) (PlaintiffExhibit 103 received in evidence) [14J
[15] Q. Did you communicate with your publisher, Scribner Simon & [15)
[16J Schuster about whether they had any desire to participate in [16)
[17) this lawsuit? [17J
[l8J A. Yes, I did. [18J
(19) .Q. What communication did you have; did you make any requests (19)
[20] ofthem? [20J
[21) A. I made a request. [21)
[22] Q. Which was? (22)
[23J A. That they waive any rights. [23]
[24J Q. Did you receive a response? [24)
[25J A. Yes, I did. [25]
Page 180
MR. DANNAY: I object. I think the letter speaks foritself. I object to the testimony but I don't object to theletter.
THE COURT: Are you offering the letter.MR. RABINOWITZ: Yes.THE COURT: Received. Your objection to the
characterization of the contents of the letter is sustained.The answer is stricken. The letter is received and the letterspeaks for itself.
(PlaintiffExhibit 119 received in evidence)Q. Look apartment Exhibit 120, did you receive that letter onor about the date it bears?A. Yes.Q. From Emily Remes?A. Yes.
MR. RABINOWITZ: Offer 120.THE COURT: Any objection.MR.DANNAY: No objection to the letter.THE COURT: Received.(Plaintiff Exhibit 120 received in evidence)MR. RABINOWITZ: Could I have a moment to regroup.THE COURT: You may.(Pause)
BY MR. RABINOWITZ:Q. Mr. Silverstein, could you look at Exhibit 146, volume 5;
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STUART Y. Sn...vERSTEIN vJuly 17,2007 PENGUIN PUTMAN, INC.
Page 181 Page 183
[1) do you recognize that? [1 J criminal case I will interrupt. I suppose what Mr. Dannay is[2) A. Yes, this is one of the cover letters and royalty [21 going to tell me is that he would like to begin cross tomorrow
."."",",\
[3) statements I received from my agent Peter Lampack. [3] morning assuming you finish direct at 4:29, and thatj
[4] Q. Attached to it is a Simon & Schuster document entitled [4] application will be granted.(5) royalty statement? [5) MR. DANNAY: Thank you, your Honor. It will take us[6) A. Yes. [6) some time to move our stuffoff the table.[7) Q. I am not going to show you all the 80 or so of these, but [7] THE COURT: We don't need the tables. You can leave[8) did you receive these on a periodic basis from Mr. Lampack? (8] your stuff here. Ifwe finish a little early, I want to see[9] A. Yes, I did. [9) counsel. Ifwe don't fmish early, I will still see counsel.
[10) Q. They were accompanied by a check that represented your [10) Let's try to finish direct.[11) royalties for the sales ofNot Much Fun? [11] BY MR. RABINOWITZ:[12] A. Yes, the figure represented on the front page. [12) Q. Look at Exhibit 255, which is in volume 6. Did you send[13) Q. And the attachment was what Mr. Lampack had received from [13] that letter to Ms. Tysie Whitman on or about the date it bears?[14) Simon & Schuster in the ordinary course of business, is that [14] A. Yes.[15) right? [15) Q. Who is Ms. Whitman?[16) A. Yes. [16] A. Tysie Whitman was an editor at Scribner who was one of my[17) Q. Those royalty statements-o;howed the actual number of sales [17] editors taking care ofmy book before she left in January 2000,(18) ofNot Much Fun, isn't that right? [18] rather 1996, and was replaced by Gillian Blake.[19) A. Yes, they did. [19) Q. She was Ms. Blake's predecessor?[20] Q. Did you rely on these statements in receiving and [20) A. Yes, on this project.(21) depositing your royalty statements? [21] Q. Did Ms. Whitman have any input in the drafting and(22) A. Absolutely. The figures always corresponded. (22) preparation of the complete chronology paragraph at the end of~23) Q. Your testimony on that point applies to the remainder of [23] Not Much Fun?:24] the royalty statements? [24] A. I don't think so no.:25) A. Yes. I relied on my agent's honesty and the cover page. [25) MR. RABINOWITZ: Move the admission ofExhibit 255.
'->.';~
Page 182 Page 184 J[1 ) Q. And the Simon & Schuster pages attached? (1] MR. DANNAY: No objection.[2) A. I occasionally looked through those to see the number of (2) THE COURT: Received.(3) copies sold, but yes. [3) (Plaintiff Exhibit 255 received in evidence)[4) MR. RABINOWITZ: One moment, your Honor. [4] Q. This letter just discusses various issues about the(5) (Pause) [5) production of the book, is that right?[6) MR. RABINOWITZ: Your Honor, we received a second set [6] A. Yes. There are a lot of them.[7) ofroyalty statements from Simon & Schuster actually at [7] Q. But it does not concern or address the complete chronology[8) Mr. Dannay's request, Exhibit 266 to 285. My partner reminds [8) section?[9) me that that wasn't within the number range we stipulated to [9] A. No, it was more about typesetting.10) before. Ifwe can go through the. same exercise, these are [10) Q. Exhibit 256 is a letter from you to Ms. Blake, I think,11] particular ones that were verified by the declarations that you [11) January 31, 1996. Did you send that letter on or about that12) gentlemen got. [12] date to her?13] MR. DANNAY: Your Honor, I have no objection to the [13) A. Yes, I did.14) exhibit but with the same reservation I had before as to [14) Q. Does this once again concern just production issues about15] calculating what was actually paid. [15) the book?16] THE COURT: All that is being offered is the exhibits. [16] A. No, more typesetting things, yes.17) Exhibits 266 to 285 received without objection. [17) Q. Not the complete chronology?18) (PlaintiffExhibits 266 to 285 received in evidence) [18] A. No.19) MR. RABINOWITZ: Your Honor, I understand you have [19) MR. RABINOWITZ: Move the admission of256.20] something going on here at 4:30. I am very close to finishing, [20) MR. DANNAY: No objection.21] so we are inquiring as to your pleasure. [21] THE COURT: Received.22] THE COURT: I would like to see you finish. Ten [22) (Plaintiff Exhibit 256 received in evidence)23) minutes is a lot of pages of the record. Keep going. [23) THE COURT: Educate me, Mr. Silverstein, what do the24] MR. RABINOWITZ: We didn't want to-- [24] initials FPL stand for.25) THE COURT: You are not. When we are ready with the [25) THE WITNESS: Figures of Popular Literature, that was
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STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
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[1] a series of items that appeared in the book. [1)
[2] THE COURT: Thank you. (2)
[3] BY MR. RABINOWITZ: [3]
[4] Q. Exhibit 257, did you send that document on or about the [4]
[5J date it bears to Ms. Gillian Blake? [5)
[6) A. Yes, I did. (6)
[7) Q. Does that letter likewise concern production issues with [7]
[B] the book but not the complete chronology? [B)
[9] A. It doesn't refer to the complete chronology. It's a fax (9)
[10) also I should say. It's mainly devoted to the questionnaire. [10)
[11) MR. RABINOWITZ: Move the admission of257. [11)
[12) MR. DANNAY: No objection. (12)
[13] THE COURT: Received. [13]
[14] (Plaintiff Exhibit 257 received in evidence) [14]
[15J Q. Exhibit 258 is another letter from you to Ms. Blake, April [15)
[16J of'96. Did you send that on or about the date it bears? [16]
[17) A. Yes. [l7]
[lB] Q. Does that also deal with production issues and not the [lB)
[19] complete chronology? [19)
[20) A. Yes. [20)
[21) MR. RABINOWITZ: Move the admission of 258. [21)
[22) MR. DANNAY: No objection. [22]
[23) THE COURT: Received. [23]
[241 (Plaintiff Exhibit 258 received in evidence) (24)
[25) MR. RABINOWITZ: Exhibits 262 and 263 are the [25]
Page 186
[1) declarations that I alluded to earlier that Simon & Schuster [1 )
[2) provided that authenticated the royalty and sales statements. [2]
[3] I am asking Penguin if they would stipulate to the admission of [3J
[4) those. [4 )
[5] MR. DANNAY: I don't have any objection. [5]
[6] THE COURT: No objection, 262 is received. [6]
[7] I take it there is no objection to 263; it is also [7)
[B) received. [B)
[9) (Plaintiff Exhibits 262, 263 received in evidence) [9)
[10) MR. RABINOWITZ: One moment, your Honor. (10)
(11) (Pause) [l1J
[12) MR. RABINOWITZ: That's all we have, your Honor. [12)
[13) THE COURT: Thank you. [13)
[14) lam going to direct you to begin cross-examination. (14)
[15) You will understand why in about 30 seconds. [l5)
(16) Begin cross-examination. (16)
[17) CROSS EXAMINATION [17)
[lB) BYMR: DANNAY: [lB)
[19) Q. Mr. Silverstein, I would like to go over some of your [19)
[20) testimony as to what items in Not Much Fun are Exhibits A and [20J
[21 ) B, the hardcover editions ofNot Much Fun. (21)
[22) THE COURT: They are already in as 2 and 3 as [22]
\ [23) plaintiff exhibits. That's what you want to start with. [23)
1[24) We will recess for the day. Thank you very much. (24)
[25) Off the record. [25)
July 17,2007
Page 187
(Discussion off the record)THE COURT: You can step down.(Witness excused)(Trial adjourned to July 18, 2007, 10 a.m.)
Page 188
INDEX OF EXAMINATIONExamination of: PageSTUARTY. SILVERSTEINDirect By Mr. Rabinowitz. . . . . . . . .. 22Cross By Mr. Dannay 186
PLAINTIFF EXHIBITSExhibit No. Received2 243 2415 5216 53259 5418 5654 5717 5962 5963 6174 6375 6576 6677 6740 through 43 7250 and 61 7379 7452 81
TRIAL Min-U-Script® (47) Page 185 - Page 188
July 17,2007
[1] PLAINTIFF EXHIBITS[2] Exhibit No. Received[3] 53 82[4] 97 83[5] 38 87[6] 8. . . . . . .. . . . . . . .. . . .. 89[7J 44 through 50 91[8] 39 95[9] 19 97
[10] 20 through 37 97[11] 83 106[12] 85 107[13] 86 107[14] 84 108[15] 88 108[16] 89 109[17] 90 110[18] 91 110[19] 92 113[20] 9. . . . . . . . . . . . . . . . . . .. 118[21] 8 122[22] 81 123[23] 82 125[24] 98 136[25] 11. . . . . . . . . . . . . . . . . . .. 138
[1] PLAINTIFF EXHIBITS[2] Exhibit No. Received[3] 101 141[4] 4. . . . . . . . . . . . . . . . . . .. 150[5] 10 159[6] 6. . . . . . . . . . . . . . . . . . .. 167[7] 7... .. .. . . . .. .. . .. 168[8] 140 through 202 174[9] 1. . . . . . . . . . . . . . . . . . .. 175
[10] 93 176[11] 95 177[12] 96 177:13] 99 177'14) 102 178:15] 103. . . . . . . . . . . . . . . . . .. 178:16] 119 180:17] 120. . . . . . . . . . . . . . . . . .. 18018) 266 to 285 182
:19) 255. . . . . . . . . . . . . . . . . .. 18420) 256. . . . . . . . . . . . .. . . . .. 18421) 257. . . . . . . .. . . . . . . . ... 18522] 258. . . . . . . . . . . . . . . .. .. 18523) 262, 263 186
:24)
:25)
~age 189 - Page 190 (48)
Page 189
Page 190
Min-U-Script®
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
TRIAL
July 17,2007
176190:10 1st 72:18 3:30155:19 56188:13$ 177190:11,12,13 3050:7;144:18;165:8; 57188:14
178190:14,15 2 186:15 59 188: 15,16
$1,00038:10 18 54:22;56: 19,20;77:8; 300144:18
$2,000 124:20 106:20;187:4;188:13 223:11,13,24;24:1,3; 305175:19 6$27513:14;18:6 180190:16,17 43:11,14;51:8;53:24;54:7; 30th 99:8
$500106:21 180045:9 65:3;68:25;71: 17;75:25; 31184:11 643:6;53:9;73:21 ;99:24;182190:18 76:4;87: 12;88:7;91 :8;92:2; 330144:13,17 100:4;115:19;142:1;
1 18473:24;190:19,20 101 :9;102: 18;112:14; 35156:19 165:21,22,23;167:1,8,10,18580:24;81: 11 ;190:21, 118:6;120:12;127:9; 3795:3,22;97:9,12,14; 15,16;183:12;190:6
123:11;43:11,14;67:10; 22 131 :13,15,24;132:2; 156: 15,16,19; 157:2,4,5,7; 60 38: 10;67:25;68:2,9, 18,68:13;76:3;126:13;148:3; 186 77:7; 188:5;190:23 134:21;144:9;162:16; 189:10 25;69:8;73:6175: 11 ,21 ,24,25;190:9 186967:10 165:25;186:22;188:8 3884:2,3;85:12,14;86:24; 60092:151056:15;154:24;158:12, 18777:6 2:00111:13;112:1 87:3;88:2,4;189:5 6173:14;188:17,2313,14,19,21,24;159:1 ; 1975:10;87:6,17;88:20; 2095:3,22;97:9,12,14; 3992:10;95:15,17,19,21; 6259:13,22,25;144:9,15;187:4;190:5 96:20;97: 1,6,8,16;189:9 165:8;189:10 189:8 146:23;188:1610045:12;134:23 191336:4 200145:16 391 149:9,13 6360:1;61:6,10;93:19;101 139:16;141:4,10,11, 1915144:18 2000 161 :21;164:2;183:17 3-day 119: 19,20 94:5;146:23;174:7;188: 17,12;190:3 1915-19144:25 2001 23:9;63:19;64:7 18102177:19;178:4,7; 1916144:25 2002 63:13,20,24;64:9 4 6543:16;188:19-190:14 191926:24 2002/2003147:12 66188:20103178:8,11,14;190:15 192044:18;55:4 2007187:4 433:14;38:15;40:12,13; 6776:8;188:21106189:11 1920-27 144:25 202174:6,14;175:8;190:8 46:2;54:22;57:6;59: 13;107189:12,13 1920580:9 20526:25;27:11,24;78:8; . 80:20;92:10;95:5;103:14; 7108189:14,15 192136:4 175:19
--. '-.. t':: -. H5:14;120:11,13,19; -
109189:16 1922 87:6,17;88:20;91 :3, 20529:5;85:22 121 :8;130:20;135:3; 7 40: 19;91 :8;93:23,25;1156:15;136:22;138:8,10, 10 20th 24:17;25:11 139:16;148:3,23;150:15, 94:1 ;131 :3;133:3;142:1;
11,23;189:25 1922-23145:1 210 149:15 17,18;154: I0; 156:14; 167:7,17;168:6,8,10;190:7110189:17,18 1923-31 145:2 211149:12 157:2,18,19;159:3; 161 :24; 7069:12;96:16113189:19 1925-44 145:3 22188:4 176:10;190:4 70th 77:23118189:20 192630:17;144:25;159:14 2463:13,20;64:9;87:22; 4:29183:3 7188:15,18;96:12,16,16119179:3,8,14,16;180:10; 1927144:22;145:5 188:8,9 4:30182:20 72 50:23;91 :25;92:4;
190:16 1927-28 145:3 245127:9;129:18;131 :15; 4071:5;72:4,6,7,8,9,10,12; 96:12,16;188:221235:4;37:14;87:6,22 192830:18;40:9,18,19; 134:21 73:1;149:22;172:2;188:22 73188:23120180:11,16,20;190:17 159:14 24687:15;91:8 40365:1 7461: 15;62:5,9;63:9;12110:1;14:8;75:6,8; 1930 145:5 250045:10 4272:16,17,20 188:18,24148:23;161 :22,24; 163:4 193130:18;45:1;50:7; 253133:10 43 71 :5;72:4,6,7,8,9,10,12, 7563: 10;65:3,9,22,23;12210:1;14:8;75:2,8; 99:8;145:7;159:15 255183:12,25;184:3; 17,19,20;73:1;112:15; 188:19145:17;148:24;154:1 ; 1931-35 145:3 190:19 188:22 7666:3,12,15;76:15;93:5;
189:21 1936 30:20;159:16,19 256184:10,19,22;190:20 43a 10:7 98:12,13,14;99:1 ;188:20123189:22 194430:22;159:16,22 257185:4,11,14;190:21 44 89:9,23;90:5,6;91:19, 77 40:19;41:3;66:16,25;
125116:12;189:23 1967160:2 258185:15,21,24;190:22 22;189:7 67:3;99:6; 112:15;188:21
1335:5;37:14;130:23; 197031 :8;40:25 25953:9;54:3,6;188:12 44th 27:5 77H7SIL3 66: I132:14 197393:5 262 185:25;186:6,9; 4572:24;158:1,1,3,4,7,7 7940:19,22;72:14;73:15;
13074:14 197622:13 190:23 4672:25 74:22,24,25;96: 12,18;
13474:14 197831:3 263 185:25;186:7,9; 97:24;115:14;117:20;136189:24 198122:14,15 190:23 5 120: 12,15,19;188:24138189:25 198632:25 266182:8,17,18;190:18140174:6,14;175:8;190:8 198731:6 2791:3,10 5165:21;171:6;180:25 8141 190:3 1991 148:22 28066:17 5073: 14;89:9,23;90:6;146180:25 199431 :20;32:9,10;38:7; 285 100:8;182:8,17,18; 91 :19,22;149:22;188:23; 8 68: 10,11 ;69: 14;88:6,8,9,1546:2,10;52:3,8,9;115:3; 55: 13;64:8;71 :24;73:21; 190: 18 189:7 20;89: 10,12,14,20,21;139:10;188:10 101:1;102:17;115:16,19; 286 100:7,12 50038:15 91 :24;93:18;94:4;96:11;150190:4 118:1,22; 120: 13;121:8 28799:25;100:8,9,10,11, 50767:14,16,18 98: 12;121 :7;122:3,4,5;159190:5 199532:10,11,12;33:15; 13;101:25 51 67:4;68:23,24;73:6 189:6,211650:6;52:18,24;53:1,2; 160:4 288100:22;101:12,25 5280:20;81 :18,20,23,25; 8038:10;97:23;170:18;188:11 199623:2,20;38:7;117:18; 2-line 131:18;132:8 188:10,25 181:7167190:6 126:20,24;130:23;132: 14, 52053:9,11,12 80th 77:23168190:7 21,22;139:18;183:18; 3 52453:10,11,18 81 122:22;123:9,12;17 57:7,7;58:25;59:3; 184:11 5382:1,15,18;94:4; 188:25;189:22139:18;161 :21 ;188:15 199831 :4 324:4,11,14;87:2;126:5,6, 188:11;189:3 82124:4,23;125:1,2;174190:8 1999147:10,17;162:7; 7;127:2;131 :3;133:7,8; 5440:12,13;56:23,25; 189:3,23175190:9 166:6 149: 17;186:22;188:9 57:3,4;188:12,14 83103:12,13;104:11,14,
STUART Y. SILVERSTEIN v, PENGUIN PUTMAN, INC.
TRIAL Min-U-Script® (1) $1,000 - 83
July 17,2007STUART Y. SILVERSTEIN v
PENGUIN PUTMAN, INC.
16;105:14;106:7,10;189:4, action 179:24 138:20;140:21;146:5; 25;118:21;147:23 104:16;165:13;177:611 active 39:22 151 :25;160:17;173:7; Angelini 172:24 arrangement 11 :7;20:3,34104:17;107:13;108:2,5; actively 37:16 174:18;177:23;178:3; announce 12:25 6;149:1189:14 actor 26: 14,19 184:14 answered 128:20 Art 66:1735 106:16,22;107: I; actual 68:11;69:18;74:13, Again 79:23 anthologies 20:21 ;30: 15; Arthur 31 :3;79: II ;82: 12189:12 18;131 :25;134:12,14,15; against 10:4;17:22; 79:20 article 40:20;64:9;67:23,36104:17;107:4,7,10; 151 :9,19;156: 13;176:4; 179:25 anticipate 26:4 23,24189:13 181:17 agent 108:11 ;122:21; anymore 87:9 articles 22:19;61:1237189:5 actually 33:9,21 ;45:21; 123:14,23;169:15;172:21, apart 17:5;96:3;116: II artistic 27:3;39:8;43: I;38104:17;108:7,9,14,17, 55:22;71 :23;75:6;77:18; 22; 174: 17,17;18-1:3 apartment 180: II 48:25;97:21W;189:15 78:22;112:11 ;113:20; agent's 174:18;181:25 apologies 147:4 arts 33:1539 108:24; I 09:7, 10;189:6, 134: 17;138:1 ;165:6;182:7, ago 35:5;37: 14;52:4;53:7; apologize 25:22;151 :23 Arts 22:1316 15 63:18;80:22,25;115:14; apology 147:5;151:24; artwork 37:7
Actually 100:7;131:1; 139:22;142:1;160:6 167:14 assemble 18:12;124:179 135:17 agree 50: 19; I 05: II; appalled 37:9 assembling 119:10
ad 16:24;45:5 127:19; 164: 15;170:24 apparently 61 :3;68:24; assembly 16:5} 118:5,6,7,15,18;189:20 Adams 26:9;36:2,8,23; agreed 15:24;18:18; 73:5;79:7; 124: 17 asserted 11 :9;49:25;50:2}O 109:17,21;110:2,5; 77:23 102:10,12 Appeals II:IO;148:21; asserting 109:14,15189:17 Adam's 36:24;145:1 agreement 108:14;109:3; 149:2,2,5 assign 114:2,25;115:4}1 110:6,15,17;III :2,5,6; Adams'78:8 169:22 appear 21 :5;30:5;33:15; assigned 115:5,7,11112:23;189:7,18 add34:7;173:12 ahead 10:25;19:6,1 I; 49: 16;52: 14;53:20;59:19; assistant 32:25}2 1I2:25;1I3:2,7,10; added 71 :2;99:25;1 08:22; 25:2;29:22;31 :21 ;32:23; 73:23;84: 14;87:5;98:14,19, Association 118:21176:11;189:19 135:15;159:20,22 64:6;65: I ;69:24;101:9; 23;99:2,6,7;117:23;125:10; assonance 61 :3,4,5}3176:7,9,1O,17,20; addition 126:2 105:14,16;114:24;133:12; 133:23;136:3;137:8,13; Assonance 59: 11 ;60: 11,190:10 additional 99:12,17; 135:15;136:1 ;142:3;149:4, 138:1 ;141 :12;149:19; 14,18,19,25}4 31 :24;32:12;37: 13 108: II 6; 153:13;156:3;164: 18,23; 152:9,14;154:9;155:4,7,13; assume 30:20; I 09:4;)531:24;37:13;176:21; additions 159:25 173:14 156: 18;159:12,25;160:11, 120:23;156:19;171 :II177: 1,4;189:8;190:11 address 130: 16;139:5; Ainsley's 35: 17 14;161 :13;165:7;175: 15,18 assumed 125:9}6 135: I ,2; 177:5,8,11 ; 140:23;184:7 Air 100:16 appeared 28:2;30:17,18, assuming 183:3185: 16;190:12 addressing 163:15 Alexander 26: 14,16; 18;31 :3,8;52:15;53:13,24; assured 140:5}7 82: 19;83:5,9;84:5; adjourned 187:4 164:1 58:8;77:20;87:6,7,17; attached 137:25;155:3;189:4,9,10 admissibility 170:20 Algonquin 24:18;26:8, 88: 19;90:1;91 :3,9;127:24; 182:1)8 130:20;132:15;133:2,4, admissible 170:25 23;27:4;28: 16;29: II ;36:22 129:6;130: 14,15;133:18; Attached I 81 :47; 134:12,15,25;135:3,15; admission 23:23;24:10; allowed 79:3 138:5;141 :15;142:25; attachment 181 :13136:2,8,10,11,13;189:24 52:3,24;58:25;59:22;61 :6; allowing 125:9 145:7,9;147: I ;149:20; attempting 55:9;116:19}9177:12,15,18;190:13 62:5;65:9;66: 12,24;72:3; alluded 186: I 153:15;155: 12;160:8,20; attending 125:6
74:21 ;81: 17;82: 15;83:5; almost 18:25;37:2,12; 161:1,12;185:1 attention 27:2;112:15A 91 :18; I 01 :24;1 08:2;11 0:2, 69:12 appearing 28:23 attorney 62:14;80:4;
15;118: 15;122:3;138:8; alone 14:9;41:12;53:25 appears 13:23;23:21; 162:15;163:24\bbie's 28:23 141 :4;150:14;163:3;167:8; alphabetical 13:20 24:6;54:2;67: 16;76:8; attorney's 163:25lbbreviated 129:7,7,8,9, 168:6;175:21;176:17; altered 133:22 98:23;99:8;107:17;129:12; attribute 81 :410 177:1,8,15;178:4,11 ; alternative 118:12 131 :8;132:16;134:3,8; attributed 16:13;77:16,lbide 166:23 183:25;184:19;185:11,21; although 26:25;70: 18; 137: 11;141:12;156:14 22;79: I 0,17;80:13;81: I;Ible 14:2;104:22;170:22 186:3 71 :18;79:3;173: I apples 34: 13 82: 12;84: 13;93:7Ibsolutely 17:14;29:8; admit 54:3;56:16,22;73:6; always 12:12;139:7; application 112:23;183:4 attribution 81 :4;82:9;)5:13;86:1,17;87:10 95:15;97:10;106:22; I 07:7; 143:5;166:21 ;181:22 applies 181 :23 83:2;156:8\bsolutely85:22;163:20, 108:17;158:1,1 ambiguous 130:18 approval 130:10,12 August 12]:8~1 ;181 :22 admitted 56:24,25;97:] 2; ambivalence 74:9 approve 142:8 authentic 171: 11lcademic 82: 13 110:20,22,23;11 ]:11;176:8 American 71:2,12;73:23; approximate 91:7 authenticated 186:2Iccepted 40:25;147:5; adopt 89:3 117:10,16;118:20;165:5 approximately 149:]9, authenticating 173:351:24;167:14 adopted 142:7 Amherst 66:9 19;170:18 authenticity 170:21lccompanied 181: I 0 advance 170:12 among 67:19;150:6; Approximately 38: 12; author 45:2;72: 18;118:14Iccording 71:19;73:25; adverse 18:10 165:18 115:2 authorities 79: I ]:7:17 advertisement 45: I; amount 106:15;14]:24; approximation 57:22 authority 64:4;79:3,23,\ccording 116:4 145:6 142:3;169:13;172:12; April 132:22;185:15 24;80:7,1 ],18\ccordingly 10:3 advise 123:16 173:9;174:12;175:3 area 18:11 authorized 13:25;19:2]Iccurate 44: 10;58: 19; Aesthetics 66:] 6 amounting 18:9 Area 165:14 available 35:14:9:1;177:24 affair 55:15 amplified 95:6,13 arguable 11:4 average 38:8;144:19ICCused 36:8;62:8 afterward 87:24 amplify 95: 10 arguing 18:23 award 10:5Ichievement 144:20 afterwards 129:11 and/or 116:5 argument 19:2,10;21:1 aware 32:2,5;53:24;Icquired 20:16 again 29:12,17;65:19; anecdote 112:13 Arlington 35:4 67:20;80: 15;85:20;90:11;Icross 92:22 70: 16;71:14;80:18;86:3; Anecdotes 79:21,22 around 12:10;18:16; 99:12,17;101 :8,19; I 02:4,\ct 10:7 89: 12,25;91 :24;98:6; Angeles 22:]0,19;34:20, 24: 16;26:8,24;37:16;55:24; 16,18;148:21;149:2,4
14 - aware (2) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC. July 17,2007
\
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away 25:17 besides 24:9;35:11 ;54:9 139:4,7;140:7,8;142:4,5; casual 162: 12awful 42:23 Besides 161:4 143:6;146:9;148:6,8,24; C cataloged 12:14
best 25:11 ;28:9,11 ;90:25; 149:20,23;150:20;151: I0; catch 45:19,19B 156:12 152: II ,22;153:3;166:5,13; Cal 34:21 categorical 84:16
best-seller 165:8 167:25;168:16,17;170:11; calculate 169: II categorically 170:7
Bachelor 22:13 better 29:14;68:14;81 :15; 183:17;184:5,15;185:1,8 calculating 182: 15 categories 33:10.
back 26:2;29:23;36:23; 114:18;131:4 Book 68:2;79:21;99:3,11 Calhoun 14:11;15:3,3,7, categorize 45: 16;48:2;
43:11 ;52:17;54:22;63:21; bibliography 91 :25 Bookman 145:3;159:17 14,16,18,23;16:7;17:1,2; 86:3;98:987: 13;91 :24;93: 18; I00: 1; big 55:12 books 16:14;45:16; 18:17;31 :12,13,16,17; categorized 45:11,12;102:3,19;103:18;106:12, binder 99:24 127:18,25,25;133: 19; 32:21,24,25;37:3,16,20,22; 47:18,19;55:21 ;97:1813,16;117:5;119:2;127:9; Binder 40: 12 135:21;145:16;165:5,15, 51:11,13,24;83:14,17; categorizes 45:21
130:13;131 :13;135:20; binding 151:17 15;170:19 89: 14;91 :24;96:13;98:4 category 11:20,22;17:20;
136:16;137:5;140:8;153:2; Biobibliography 17:3; book's 12:21,25 Calhoun's 15:11;16:16; 71 :18;74:11;75:14;96:14,
158:2,3;161 :8;163:12 31: I0;32:16,17,20;33:2; booksellers 120:24 31: I0,22;36:25;88: 13,16, 17,19;99:2,10back-and-forth 130:16 36:25 Booksellers 118:20 17;92:6;93:18,19;94:6; caused 82:22
bad41:7 Bio-bibliography 89:15, bookstore 147:23;148:6; 96: II ;97:23 cease 162:19Ball 33:1 19;94:24;96:11 ;97:24 168:5,12,17,20 California 22: I0;34: 15, central 55:14barred 14:21 Bio-Bibliography 92:6; bookstores 165: 13; 17,20;62:15;118:21 century 54: 19
bartender 25:5 93:19 168:24;169: I,3,6 call 37:21 ;40:23;48:18; Century 24:17;25:11
baseball 24: 16 - biographees 31 :2 booth 1] 9: 1,4 74:9;106:13;111 :4;1] 7:22; certain 83:15;91:];105:2;
based 10:4;41:23 biographer 77:25 border 62:] ]2]:6;160:1 ] ]42:3;172:14
Based 20:24;162:]8 biographers 29: I0;36:] 0 borrow] 6:21 ;18: 10 called 12:2];13:]9;27:13; certainly 64:4; I ]2: 19
basic 3]:2;39:3;139:10 biographical 54:18; Boston 55:2;]09:11 28:23;30:21 ;35: 17;39:23; Certainly 65: 18
basically 62:3;78:25; 119:22 both 2] :7;5]:] 3,18;61 :2; 41:1 ;43:23;45:14,16,18,18; certificate 118:8128:12;130:12 biography 31 :6,7,8; 71 :22;94:20;127: 17;145:5; 48: 15;49:19;52:22;55:13; challenged 92: 18Basically 41 :23;92:17; 58: II ;77:21 ;80:21 ;82:2; 161 :9;162:9;164:18;169:24 67:9;71 :2,20,21 ;80: I0; change 43:7;71 :25;
106:14,19;123:2 88:17 Both 164:15 83:24;127:10;147:11,13 138:20;]42: ]3,18,21
basis] 1:5;104:3;113:24; Biography 31:3 bottom 73:25;74:] ;82:25; calls 2]:]9;138:]5;150:22 changed 55:23;58:6;158:17;]81:8 birthday 77:23,23 117:20,21;177:2],23;178:3 came 35:25;84:23;98:] 6; 69:22;74:] 9;] 15:11;
bathroom 79:7 bit 29:13;37:3;97:2];149:1 bought 168:1,3,5 ] 19:2;120:13;132:20,2]; 141:13,]4
Bay 165:14 bizarre 17:21,23 bound 128:] I,] 2; 129:23; 133:14;139:] ];170:11 changes 113:23;152:1,5,BBC 33:14,14,17 Blake 128:4,8;130:21 ; 130:14;131:1 ;132:21; camping 44: 19 13;154:15;155:10,12;Beach 34:21 132:24;134:22,24;136:12; 136:17,20;137:3; 138: 16; camps 65:7 158:16;160:7bearing 148:11 137:6;138:12;139:16; 140:4 can II :6;12:9;14:3;17:15, character 121:2bears 121:9;176:15,24; 141 :16;142:2,7;183:18; boys 28:25 18;18:10;20:25;21 :14,24; characterization 180:7
177:13,20;178: I,9; 179: 18; 184: I0; 185:5,15 bracket 131:19,19 29: 17;42:25;43:6,17;45: 19; characterize 44:24;
180:12;183:13;185:5,16 Blake's 183:19 bracketed 66:20 61 :2;62: 12;65: 12;75:23; 70: 13;94:13;97: 17;142:2became 27:9;32:1,2,5; blind 123:7 brackets 78:1 76: 16,17;77:18;83:20,21, characterized 44:20;36:1,22;144:22 block 69:19 break 38:16;43:8;56:14; 24;94:18;95:11,13,16; 47:25;51 :12,13;52: 16;become 31:22;36:1 blOW-Up 46:9 110:12 96:25;97:25; 103:15,18,20; 92:19;119:11becomes 114:14,16 blurry 103:2 breaking 29:3 104:19;110:23;143: 18,21; characterizes 33:6;45:8becoming 39:22 bodice 80:10 Breese 134:20 144: 10;156:25;166:4,5,12, check 153:2;170:16;beforehand 135:18 body 116:11 Breeze 14:11;18: 18;20:4 20;170:24;172:3;173:7; 181:10begin 183:2;]86:14 bold 16:22 briefs 64:16 182:10;183:7;187:2 checklist 41 :22
BetJiri 186:16 . book 12:1;16:23;20: 17, bringing 151:16 Can 21:22;25:19;26:20; checks 103:7;169:12,15beginning 41 :4;43:2]; 17;23:19;24:16;25:5; British 80: 10 43:11,16,21;56:16;87:15, cherry-picking ]21:20
53:9;93:] ;]25:4;132:22; 28: 16;30:21 ;31 :23,25;32:]; broadly] 14:6 20;96:24;97:] 7 Chicago 34:25;]65:14139:3;]49:12 34: I0;37:] 6;38: 15;4·0:] 0, Broadway 28:22 candidates 14:7 choice 141:9begins 61:18,20;66:] 8; 10;43:18;44:21,24;45:2; Broadway's 29:3 candidly 18:15 chose 45:5;80:19;87:9;67: 17;69:3;92:15;125:4; 46:13,14;48:8;49:8,1 ],13, broke 112:22 Capers 98:25 90:22;99:20127:12;]29:18;]44:16; 14,15,19;50:7,8,] 0,] 3,]4, broken 42:25 capsule 28:18 chosen 99:21148:22 ]5;51 :14,]4;52:12,22,22, brought 119:18;120:5; carbon 123:7 Chris-Cross 49:19,21;begun 143:13 23;53:4,5,7,8;54:2,1] ; 130:17;144:3 card 77:23,23;120:7 115:6,8behalf] 62:25;] 64:6 55:] 8,21 ,24;58:8;67:22; Broun 26:12 care 27:9;183:17 Christopher 46:9,18;belong 11:23;]4:15 71 :6;77: 12;78:6;79:7; brow 10:11 carefully 77: II 49:20,21 ;52:5belongs 17:9 80: 15,16;83:] 6;85:4;88: 13, Brown 79:21 carved 40:5 chronological] 2:23;Benchley 26:9;28:] 9; 25;89:5,18;93:5,] 9;96: 13; burned 170:12 case 10:22,22;11:8,9,14; 13:] 9;20:3,6;37: 15;127:12;29:10;30:3;44:19;55:3,11, 97:3,25;98: 10,11 ,15,23; business 10:8;169:21; 16: I;17:6,7;19: 13,25; 133:17;143:20]6;56:13;109:13;] 12:24; 99:5,7;107:6;] 12:10,20; 181:14 20:12;21 :9,9;30:1 0;32:4; chronologically 135:19;113:3;115:10 I] 3:12;] 16:2;] 25:7, I0; buy 168:4 49:23;64:7,22;81 :2] ;94:7; 148:25Benchley's 29:5 128:12,13;131 :8,14;132:3; buying 165:15 102:12;104:4;1] ]:3;114:7, chronology 13:23;37:4;Bentley's 54:]6,23 134:14,]5;135:22,22; 9,19,20,23;183:1 87:13;127: 10;129:18;Berkeley 22:]4;34:17 136:22;137:25;138:2,5,19; cases 33:7;35:10 130:2;13] :5,6,] 0,] 6;132:2;
TRIAL Min-U-Script® (3) away - chronology
luly 17, 2007STUARTY. SILVERSTEIN v
PENGUIN PUTMAN, INC.
34:12,13,16;135:8;137:1 ; collecting 31 :18 complained 138:16,17 consideration 124:19 conveyed 13:642:9;146:10,15;183:22; collection 12:8, II; 13:9; complaining 130:18 considered 12:15;38: 19; convinced 80: I84:7,17;185:8,9,19 16:9;18:16;20:19;37:2; complementary 39:5 42:5,8;43:24;44: 16;55:19; convincing 123:3
:;hronology 12:22 41 :1;43:25;53:7;129:9; complete 12:9, I0, II; 64:12;71: 14,16;75: 13;96:4; copied 20:9, I0, 13;21: I;;ircle 13:25;118:1 131 :20;133:21 ;159:21; 13:9,17,21,21,23;14:18; 98:10 148:15;151 :10;152:11;:;ircle 55:14 160:1,3,4,24;161 :1 16:9;17:16,17,19; 18:7,16; consists 68: 18 162:12;166:10:;ircuit 11:18,24;12:4; collections II :21 ;38:24; 34:5;127:10;129: 17;130:2; consonant 60:22,23;61: I copies 110:22;140:2;3:4;15:4,24;16:21 ;17:9, 133:23;159: 14,24; J60: 15, 131:5,10,16;134: 13; constant 80: 16 162:20;170:16;176:4;182:32;20:7,15,24;114:20; 21 136:25;137: I0, 13,20; Constant 40: 10,24;41 :2; copy II :8;20:22;23:19;63:8 Colleen 134:20 138:23;142:8;146:9,15; 46:13;50:7;53:6,8;99:3,11; 43: 14;53:17;80:5;82:23;
;irculation 162:20 college 22: II 160:2,4,24;171: 12;183:22; 144:22 109:16,23;112:14;114:20;;ircumstances 15:25; colloquy 159:6 184:7,17;185:8,9,19 constituted 40:9 118:8;123:5,7;124:7;12:25;128:7 colossal 111 :12 Complete 12:21 ;13:25; constitutes 149:20 130:22;131 :25;148:8;;itations 33:4,5 column 40:22;41 :3,6; 16: 12;17:11 ,24;18:2; 19: 15, construed 143:9,18,21 156:24;157:13,16;158:18;;ited 64:16;101:2;102:7 43:6;57:13;62: 13;78:8 21 ;54:1 ,2;56:7;147:17,23; contact 119:15;163:2 171:3;Iaim 11:6,13;14:6,7;15:9; columnist 26:9,12;36:2 148:5,18,22;149:7,23,25; contacted 33:14,14; copy-editing 114:6.6: 17;20:14;49:25;50:2; columns 36:24 151 :2,3,8,25;152:9,1 0; 103:6;161:17 copying 20:1;114:9;162:970:19;113:24;135:15; combining 65:13,14 153: 19,25;154:1 0;155: 13; contain 60:14;74:19; copyright 10:6; II :6,14;.56:24;157:13 comedy 28:24 156:7,10;160:3,9;161: 13, 116:3;126:7,10;127:3; 12:8;13: 12,13;15:1 ;17:25;;Iaimed 15:7;20:13;78:5; coming 45:2; 136: I8; 16;162:6,6,7,19,22;164:25; 156:7;173:19 18:5,6,20,21 ;19: 13,14,17,02:23; 156: 12 137:1'8;171 :10 167:5,21 ;168:19;169:6 contained 30:22;43:18; 20,23;103:5,9,17;106:6;;Iaiming 14:21;158:17 comment 86:21 completed 37:2;102:2; 44:12,13;104:25;116:4; 107:22;109:15;117:18,19;;Iaims 10:6;11:8,15 commented 67:24 173:20 134:2,8,21;136:7,19;138:4, 118:2;121:15,17;122:16,;Iarification 89:3 commission 170:16 completely 16:16,17; 19;140:11;147:22;148:23; 19,23;126:8,10,17,20,24;;Iarified 123:24 committing 36:8 18:18;74:10;153:18;165: 19 149:11;151 :8;160:25 127: I,3;166:3,20;167:4,21;Iarify 136:6 communicate 13:5; completeness 13:7,24 containing 19:16;137:25; Copyright 118:9;127: I:Iass 71:19 145:20;146:2,8;178: 15 complex 146:16 139:25 copyrightable 16:6:Iassically 69: 19 communicated 125:22 complicated 135:17; contains 88:25;158:15; copyrights I8: I, I0;;Iassified 83:18;88:22,25 communication 123:13; 146:14;172:3 162:7 19:17;102:20,25;125:21:Iassifies 33:9 178:19 complied 133:24 contemporaries 26:5 Copyrights 118:9:Iassify 94:9 communications comprehensive 12:16; contend 14:21 corollary 157:12:Iassifying 15:25 123:14;138:12 139:4 contending 64:11 corrected 140:14:Iear 10:4;13:5;41:14; company 169:20 comprise 140:6 content 146:9 correlate 110:21i5: 18,20;86:19,20;130: 15; compare 38:24;68:22; computation 171:12 contention 147:19 correspond 110:1932:12;138:21 ;139:23; 134:17 computer 113:19 contents 74:6,6;116:21; corresponded 181 :2240:25;141 :23;144:1 ,2; compared 30:6,7,8; concealing 150:9 126:13,15;127:3;133:24; correspondent 80:7,1148:20;156:24 153:19 concern 184:7,14;185:7 136:6;140:23;147:16; corresponds 76:21:Iearer 128:] 4 compensation 10: II; concerned 11:14;102:]2; 148:9,12;152:20;] 80:7 corroborate 63:3;64:2:Iearly 146:21;17l :13 169:9 121 :17;125:20;148:20 context II: 13,15;129:4; coterie 26:24:Ierihew 54:12,15,20 competition 10:7 concerning 64: I ;68:23; 14]:2];144:2 counsel 183:9,9;Ierihew 54:23 compilation II :6;25:6; 136:12 continuation 46:] I count 155:15:Ierk 45:]8 30:7;32:] 3;33:3;34:] 3; conclude 13:9;57:15; continue 132:5;155:23 counting 38:13,]4;LERK25:25 56:12;75:] 9;96: I;] 02:17; 84:1 ];86:2;155:24;156:3 Continue 115:9 country 165: 13:Iever 60:25;70:14 1]7:]9,25;119:10;120:6, concluded 14:15;15:18; continued 160:1;162:] 9 couple 27:]6;35:18;;Iifton 79:2] 19;126:21,25;129:5,11; ]6:7;75:3;81:1 ;82:9;83:3, Continued 37:25;65:24; 45: 12;59:7;63:17;74:7;:loc~155:20 131 :20;138:22;139:11 ,12; 18;84:12 105:]7;]] ]:15;145:23; 87:] 1;91: 12;] 17:6; 119: 17;:Iose 2]:3;34:]5;38:4; ]42:5; 146:6; ]48: 1;150:8; conclusion] 8:] 7;84:8, ]56:5;174:21 136:]816:11;] 3]:19,20;182:20 154:3;]62:5;] 76:1 23;150: 13,23;1 55:25 continues 67:20 course 28: 15;30:3;54:];;Iose 38:2 Compilation 115:20 conclusive 79:24 continuing] ]4:13,15,17 56:6;83:13;] 17:23;]6]:4;:Ioser 22:22 compilations 30:7,16,16, conclusively 152:22 contract 13:15;108:10 18] :14:o3uthorship 142:3 19;78:14,19;128: 15;129:6; condition 13:17 contradict 39:5;51 :21 court 10:3;13:8;14:24;:ohesive 12:16 137:19;138:22;140:25; confer 95:8,11 ;171 :3,4 contrary 86:9 18:] 9;56:14;76:9;127:6;;oleen 14:11;18:17;20:4 141 :1,2;143:6;144:2; conform 34:10 contributed 142:7 154:20;155:5:ollect 30: II ;70:8,11 ; 145:] 7;146:19,19,20; confused50:22 contribution]41 :24 Court 11:10;]48:21;46:7 149:16;160:14 confusion 49:20;128:10; contributor 39:22 149: I,2,5; 154:18:ollected 10:2;12: 19; compile 13:9;28:14;30: I; 138:6,7;139:5,24;]40:8,23 controller 172:25 COURT 10:1,15,25;11:2,3:];25:8;30:11;38:13,14, 34:5;172:7;175:25 Connelly 26: 10 controversial 104:7 24;] 8:23; 19:1,4,9;21: 16,5,25;42: 10,15,17;45:15; compiled 30: 19,24,25; Conning 78:8;145:1,9,14 convenience 163:2 20,24;22:4,22;24: 1,13,21;;3:21 ;75:4,6;78:13,18,21; 32:]5;50: 15;101 :8,19; consider 14: 16;21 :4; convention 118:21; 25:19,22,25;26:1,17;28:6,;7:10;93: 16;]21 :12; 103:1;113:11 ;142:5; 38: 12;39:18;42:21 ;44: 17; 119:8,19,20;120:24 8;29:14,17,21,25;30:14;27:25;] 31 :19;133:19,22; 146:19;151 :4;154:2 50:8;55:5;57:11 ;58:17,19; conversation 120:21,24; 31 :14,19,21 ,25;32:8,20,23;40:6;14] :2;]45:15,18; compiling 12:15;34:4; 59: 16;60: II ,18;70:24;75:9; 139:22 38:4;39: I0,16;40:13,15;48:2 70:2;85:21 ;90: 12;176:5 96:7;98:2 convey 116:13;140:16 41 :14;42:7,18;43:1 0,14;
:hronology - COURT (4) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC. July 17,2007
45:22,25;46:5,8,17,23; covers 114:17 128: 17;129:1 ,15,22; 94:20,21;182:11;186:1 39: 17;41: 19;42:9;50: II;47:4,8,12,15,] 7,21,24; created II :20,22;]52:7; 131 :22;] 32:3; 134:4;136:9; deducts 170: 16 70: I; 132: 19;] 65:3,5; 166:648:4,7;49:24;50:4,22;5] :6, ]54:15;]60:8 137: I0,] 5; 138:9;140:12, deemed 16:20 determined 25:6;34:6,8;11,17,25;52:2,5,8,17;53:1, creative I0: 13;65: 13 18;141:7,18,20;]43:2,11 ; Deep 30:8,21,22;133:24; 59:5;75:24;76: 15,18;77:17;10;54:5;56:14,19,25;57:3; creatively 16:19 144:5,12;145:2];146:3,11; 159:15,25 78:3,23;83:14,15;98:4,5;58:21 ;59:2,24;60:4,7,10; creativity 15:1,10;16:6 ]47:18; 150:11 ,16,21; defendants 164:6 153:161 :9;62:7,11,20;63: I ,5,8, credit 106:23;109: 16,18, 151:6,11;]52:23;]53:9; defendant's 65: I0 devoted 185: 1016,24;64:6,14,19,22;65:] 7, 20;156:7 156:22;]57:1] ,16,19; Defendants 110:18 di 68:2321 ;66:14;67:2;68:9,14,17, credited 38:23 ]58:5,22;160: 17;161 :6; defense 144:4;]64:12 diatribes 71 :22;74:2;21 ;69:3,24;70:20,23;72:6, cretins 141:5 163:5,15;17,20;164:4,7,9, define 39:12,13,16 117:68,10,]6,21 ;73:1 ,4,8,11,13; criminal 183:1 17;165:17;166: II ;167:11, defined 39: 12;69:7 dictionaries 39:2174:24;78:10,12;81:10,14, crinkle 41 :17 13;168:7;171:1,5,7;172: II, definitely 68: I ;88: I dictionary 39:419,22;82:5,8,17;83:8,23; Crisscross 98:11,14 15,23;173:4,]2,15,24; definition 39: I ;40: I ,2; Dictionary 22:21 ;39:2384:3,11,18,23;85:7,10,]6, criteria 33:8;100:18 174: I0;175:22;176:18; 42:20;54: 16;56:23;66:18, different 17:10,13;29:7;18;86:21 ;87:2;88:4, I0; criterion 70: 15 177:2,9,16;178:5,12;179:2, 22;70:6,17;71: 19;91 :2;96:9 33:8,8,9;35: 15,15;45: II,89:],4,7,10,20,22,24;90:3; critic 26:10,11,13,14,18; 5,12; 180: I,18;182: 13; definitions 39:4,4,25; 14;47:10;74: II; 131: 19;91 :21 ;92:2,23;93:3;94:3, 28:19 183:5;184:1,20;185:12,22; 55:23 134: II; 135: I0; 139:6;12,17,23,25;95:4,8,17,19; critical 15:18;]7:6;29:2]; ]86:5,18 degree 22:1] ;163:9 146:18;157:2197:6,12;98:7,17,20,22; ]72:2 Dannay's 86:22;103:22; delay 24:24 differentiated 115: 13100:6,9,1 ],13,15,23,25; _ Criticism 66: 17 ]82:8 deliberate 10: 13 difficult 146:21101 :3,7;1 02:5,9,] 5;1 03:21; cross 183:2 data 84:20,22,25;99:8 deliberately 55:23;76:22; Difficult] 15:24104: I0,14,22,24;1 05:5,14; Cross 188:5 date 58:10;107:17;121:9, 150:9 difficulty 22:23106:9,25;] 07:9;1 08:4,7,19; CROSS 186:] 7 10;131 :2] ;139:19;155:4; deliver 13:16 diminished ]62:23109:9; II 0:4,12,14,16,24; cross-examination ] 64:2;176:15,24;177: 13, delivered 13:22;74:17 dinner 92:24111:1,8,12;113:9;114:8,13; I] 1:4;]86:14,16 20;178:1,8;179: 18;180:12; delivering 13:19 direct 66: I; 156:3;183:3,115:7,25;116:16,18;] 18:6, cultural 62:13 183:13;184:12; 185:5,16 delude 41:15,15 ]0;186:1417;121 :22;]22:1 ,4,6,12,17; currently 162:20 dated 40:18;67:10; deluge 41:12,]5,16 Direct] 88:4123:] 1,24;124:3;125:1,13; cut 69:21;103:6 ] 15:19;121:7;139:18; demand 161 :20;162:2,18, DIRECT 22:5; 156:5126:6;127:6;128:18,20; cute 93:13 ]61:21;177:6 21; 163:1 0,13,14,17,19,22 Directing 112:15129:2,13,17,21,25;130: I0; cutting 20: 1,5 Dated 130:23 demonstrates 163:10 directly 63:3;76:20;131 :24; 132:2,6,25;] 33:3,7, Cutting 19:25 date's 60:2 denied 16:14;79:13,]5 122:2]; 151:10;152: 12;9,12;134:6,1] ,19,23;135:3, Davies 79:9 deny 164:6 156:236,14,22,24;136: I, 10; D Dawn 52:21,22,23;53:19; department 138: 15 disagreed 15:8137:12,16;138: I0;139:9, 98:11 ;99:6;115:10 depending 169:8 disagreement 62:2515;140:14,19;]41 :5,8,1 0, damages 10:5;162:21 day 36:5,5;45:1 ],12; depositing 181 :21 disagreements 15:9,13] 7,19,21;142:1] ,13,] 6,18, Dannay 10:15;21:16; 70:18;87: 16;119:1,18,18; deposition 15:11,17; discover 164:24;165:221,24;143:3,13,19,24; 46:6;63: 17;64:23;68:17; 186:24 16:16;94:21;154:20,22; discovered 161: 15144:6;145:12,22;146:4,12, 86:9;88: I0;89:2; I05: I0; Day 75:7;] 18:22;154:6,7,8 155:5;158:6 discuss 61 :]225;147:5,19;148:19; 144:11 ;159:6;161 :9; days 27:6,7;119:2;121:10 depositions 154: 17 discussed 33:] 8;96:24;150:12,17,22,25;151 :7,12, 163: 14;168:9;173:3;183: I; deal 85:24;106:]4;125:19; deposits] 70: 15 137:714,2] ,24; 152:24;153: I0, 188:5 185:18 DEPUTY 25:25 discusses 184:413,21 ;154:1 ,5,7,9,13; DANNAY 10:17;1]:1,4, dealing 101: 11 describe 44:10;58:]2; discussion 112:16;155:] 8,23; 156:2,25;157:5, 25;18:25;19:3,7,12;22:25; deals 103:7 146:14 120:187,10,14;1'8,21 ;23;158:2,7, 23:25;24:12,] 9;25:16,20; dealt 26:8 described 49:3,5;51 :8; Discussion 155:21;187:1I0,J:3i19,2'l;24;159:2,S,1 0; 26:3,15;29: 12,16;32: II; death 41:1;160:2 54:8,9,10,12;56:1,2,3; discussions 64:2;160:f9;f6J':'8;l63:6,12,i 6, 40: 14,17;45:20;49:22,25; Death 30:18;129:8; 57:25;70:6;71: 18;77:14; 136:12,1519,21;2i;i 64:5,8,10;18,22; 51: ]5;52:7,25;54:4;56:18; 133:20;159:14,15,20,21 ; 80:25;83:3;117:12 dismissed 11:8;20:15;165:20;22,24;166:15,21; 57:2;59:1,23;61 :8;62:6; 160:15 describes 96: 17 157:13167:3,9,12,14,17;168:8; 65: I0,18;66: 13;67: I ;68:8; debate 91:17 describing 58:14 displayed 169:2,7170:23;]7] :2;] 72:] 0,13, 69: I ;70:3,9;72:5;73: 12; decade 27:] description 58:] 8,19; dispose 20: 1716;173:5,11,14;] 74:4,7,9, 74:23;8] :21 ;82: 16;83:7; decide 28:14;44:15; 89:1 dispositive 15:]512,]6,20;] 75:1,23;176:9, 86:18;87: I ,20;88:3,11 ,24; 70:15;90:19;94:19 deselect 74:20 dispute 15:2,12;16:17;11,19;177:3,10,17;178:6, 89: 14,17;91 :20;93:24;94:5, decided 18:2;30:1,11; deservedly 80:9 64:11;66:11;105:3;163:13,13;179:3;8,11,]4;] 80:4,6, 11,20,24;95:2,20;97:2,1 ]; 34:7;38:23;44:23,24;46: 12, designate ]6:19 ]417,]9,22;182:16,22,25; 98:6;] 00:2;] 01 :5;102:1; ]4;50:] 7;57:17;72: 1,2; designations 15: I0 disputing 107:23183:7;184:2,21 ,23;185:2, ]03: 13,23; I04:9,18,23; 74:20;80:14;81 :6,1 0,14; designed 1]5:23;116:1 distinction 61:12;64: I13,23;186:6,13,22;187:2 106:8,24;107:8;108:3,18; 86:5;90:21 ;93: 12;99:22,22 desire 178:16 distinguish 116:19courtroom 155:20; 109:8;] 10:3;13,18;111:6, decision 84:16,18; desist 162:19 distinguishing 117:4;166:22 10;113:8;114:4,11;115:24; 114:21;]48:21;149:2,3 despite 14:6;82:9;83:2 146:5court's 102:6 I] 6: 15;118: 16;119:24; decisions 64:8 Despite 55:8 diverting 48:16cover 12:25;24:6;73:19; 121 :4,20,25;122:10; declaration 94:6,9,16,19; detail 146:14 divided 76:6;116:2477:14;115:17,19;120:13, 123: I0,22; 124:25;125: 12, 173:2 determinative 79: 16 division 23:517;142:5;176:3;181 :2,25 17;126:23;127:15,17; declarations 15:17; determine 38: 19,21 ,24; Doctor 22:14
TRIAL Min-U-Script® (5) courtroom - Doctor
July 17,2007STUART Y. SILVERSTEIN v
PENGUIN PUTMAN, INC.
c10ctrine 14:21 drama 25:12 elements 93:]4 178:9 exhaustive 37: 18c10cument 23:15;53:12; dramatic 26: 11,18;27:14; Elinor 80:8,16;82:25; event II :10;142:4 exhibit] 6: 1;46:7;56: 16;54:25;57:7;59: 13;60:]; 28:19,24 84:7;85:5 events 64:5,17 99:4;109:1;111:4,8;113:7;53: II ;64:] 0;67:7;73:] 8,22; draw 45: 17;49:20 elongate 24:24 eventually 126: 1 131 :22;132:25;155:3;75:24;88: 12;92:12;117:23, Dream 154:7 else 16:20;44: 16,25;49:2; Eventually 108:10 ]57:14,16;158:22;163:23;24;120:11;125:14;148:4; Dreams 75:7;154:6,8 56:1;57:25;67:11 ;147:15 Everybody's 35:18 167:4;170:19;176:10;154: 14,20;155: I;173:16, Dreiser 50:20,24;54:8 Emily 179:20;] 80: 14 evidence 14:24;19:8,9, 179:4;182:1425;175: I] ;176:21 ;181 :4; drop 25:23 emotion 43:25 18,20;20:2,9,20;24:2,3,14; Exhibit 23:] 3,24;24: 1,3,4,185:4 Duckworth 147:10; en 103:24 52:9;53:2;54:6;56:20;57:4; 11,]4;40:12,13;43:11;46:2,c10cumentary 84: 16 ]69:20;170:]4 enclosed 120:18 59:3,25;61 :7,10;63:9,16; 10;50:6;52:3,9;53:2,9;54:6,c10cuments 64:17;73:6; duly 22:2 encloses 122:23 64: 18;65:23;66:15;67:3; 22;56:20,23;57:4,7;58:25;104:] ;170:21 ;171 :16; during 33:] 8;87:8;91 :7; end 27:1 ;50:17,23;52:1], 72:] 3;73:14;74:25;78:2]; 59:3,25;60: 1;61: 10,] 5;172:5,14,] 7,17;173:5,6,7; ] 18:2];1] 9:7,] 9;]44:] 8; 23;54:7;136:] 3,22;] 37:25; 79: I ;81 :25;82:] 8;83:9; 62:9;63:9,10;65:3,23;66:3,174:5,7,9,13;] 75:2 ]54:20;175:25;] 76:2 139:3;152:24;] 60: 1; 84: 17;85:8;87:3;88:4; ]5, 16,24;67:3,4,25;68:2,9,:foggeral 69:5 During 83:13;116:10 165:11;183:22 89:21 ;91 :23;95:2] ;97:8,]5; 18,23,24,25;69:8;72:] 4;Doggerel 69:5 duties 28:20 End 44:2 106:7,10;107: 1,10;108:5, 73: 15;74:22,25;75:25;76:3;:fomain 103:2,10;]22:]5, dying 70:18 ended 102:17 20;109:10;] 10:5,17;111:9; 80:20;81: 17,23,25;82:],] 5,17 ends 69:4 113:]0;] 18:]5,18;122:5; 18,19;83:5,9;84:2,5;85:] 4;:fone 18:25;20:2;39:10; E enforce 10:9 123:12;124:24;125:2,14; 86:24;87:3,12;88:6,9;59:] 8;73:7;76:22; 123:14; English 22:21 ;33: 1;39:22 136:11 ;138:11 ;141: II; 89:21 ;91 :8,24;92: 10;93:] 8;162:] ] earlier 30:9;34:22;36:24; enjoy 44:5,5 ]50:] 8;] 56:] 3;157: 15,15, 94:4;95:]5,21;96:7,] 1,20;Dorothy 10:10;12:3,8,17, 45: 15;69:] 1;78: 18;82:3,2]; Enjoy44:1 ]7,18;158:7,8;159: I; 97: 1,6,8,9,16,23;98:12;18,24,25;13: 17,20;14:4,12, ] 13:24;] 28: 11;] 86: 1 enlargement 46:3 167: 16;168:1 0; 172: 14; 99:24;100:22;101 :8,]2;16;15:23; 16:4,9;18:21; Earlier 20: 12 enough 95:12;132:12 174:15;175:24;176:20; 102:18;103:12;104:11;Z1:2,6;25:4,7,8,9,10;27:12; earliest 163:2 Enough 30:17;75:6; 177:4,11,18;178:7,14; 106:7,10,16;107:1,4,1 0,13;30:5,9,15,24;31:] ,18;33:4, early 29:5;32: 10,12; 129:7;133:20;159: 14,20 180:10,20;182:18;184:3, 108:2,5,7,14,20,24;109:7,13,15;34:2,6,9;36:20; 54:] 9;116: 10;183:8,9 entail ]6:6 22;185:]4,24;186:9 10,17,21 ;110:2,5,6,17;38: 18;40:7,21,24,25;42:], Early 32:] I enter 10:4 Evidence 65:1 111:2,2;112:]4,23,25;),13;44:18;45:3,4,5,13; easel 46:4 entire 89: 14,18;153:6 evidenced 141 :25 113:2,10;115:14;117:20;l6:24;53: 14;55:3,12,15; easier 36:6;94:1 entirely 17:10 evidently 91 :13;126:21, 118:5,6,7,18;120:] 1,]5;57:14;58:6;62:21 ;63:2,22; easily 75:23 entities 107:11 25 12] :7;]22:3,4,5,22;123:]2;70: 12;75:] 7;77:8,16,19; easy 37:7;158:] 1 entitled 53: 15;68:5;71: 11; exact 37: 13;86: 13;87:] 6; 124:4,23; ]25:2;] 26:5,6,7,78:2,4,5,24;79:] ;80:4,8,] 2, edited 50: 15;53:5,8,16, 8] :13;85:] 6;1 OJ :14;130:2; 173:]6,18 12;127:2,9;] 30:20;131: 13,18;81 :4,16;82: 14;84:8; 16,16;68:4 133:9;162:6,8; 181 :4 exactly 110:19;135:7 15,24;] 32:2,] 5; 133:7;)2: 14,17;93:7;] 02:20; editing 11:8;12:]6; environments 35:23 Exactly 52:1 134:12,2] ;135:3;136:2,8,103:] ;106:20;116:11; 113:23;114:22;152: 1; equally 17:23 examination 33:23; ] 1,13,22;138:8,10,] 1,23;117:25;118:12;119:11; 155:10;156:24;157:13,16; err 84:7 149:4;155:24;156:3 139:16;141: II,] 2;144:9;127:13;133:17,25;140:5; 158:15;162:11 erroneously 75:5 Examination 188:2 148:3,23;150:14,17,18;143: 10,20;144: 13,16,17, Editing 114:9 errors 152:25;153:3,23,24 EXAMINATION 22:5; 154: 10,24;156: 14;157:2,~3;147:] 1;148:22;15]:9; edition 23: 18;24:7;93:5,5; especially 26:8 156:5;186:17;188:1 18,19;158:12,13,14;159: I,152:3;153:7;159:13,16,23; 126:7;127:2;128: 12; essay 99:5; 119:22 example 44:17;57:20 3;161 :22;163:4;165:2] ,21,160: 12,2]; 162:5,6,10 133:25;134:1 ;142:14,19, essence 60: 19 except 135:20;145:14 22;167: 1,7,8,9,15,16,17;:Ioubt 41:11 22;147:6,9,10,13 essentially 12:20;33:3; Except 68:21;135: II 168:6,8,10;175:11,21,24,:Iown 29:13;34:22;38:16; editions 30:9;164:25; 65: 14;69: II ;96: I0;97:20; excepting 134: I 25;176:7,20,21; 177:1 ,4,5,12:25;43:8;58:f 3;66:18; 165:3;186:21 115:23,25;116:1;131:18 exception 16:12;77:13; 8,11,12,15,18,19;178:7,8,;9:15,16;104:18;171 :4; editor 69:13;I 18:25; Essentially 34: I2 148:1,16;178:2 14;179:16;180:10,1 1,20,187:2 128:6;183:16 establish 1I: I7 excerpt62: 18;63:20; 25;182:8;183:12,25;184:3,:Iowns 28:12 editors 183:17 estimate 38:9 80:21;82:1 10,22;185:4,]4,] 5,24;:Iowntown 34:20 edits ]54:]5;]60:7 estoppel 14:21 excerpts 4 I:] 188:7;] 89:2; 190:2:Iozen 34:15;35:]8;87:]] Edna26:6;77:2] etc 16:3;160:] 5 excluded 82:10;86:]5 exhibits 21 :22;23:10;:Iozens 28:2;]46:]7,17; Educate ]84:23 etched 40:5 excluding I I :20; I48:] 8; 80:6;94:2 I; 1]0: I9,20,22;8;168:25 effect] 8:9;1 9: 13 evaluated] 1:]6 ]49:8 1]4:5;] 71 :3;1 82: 16;1 86:23)ozens 168:]5,]7,23 effort 102:11 Evanston 34:17;35:1 exclusive 19:] 8 Exhibits 43:]4;71 :5;72:3,:Iraft 120:6,13;]28:4; eggs 92:20 even 11:17;14:3,23;17:5; Excursion 59:] ] ;60:] ], ]2;73:6,] 4;89:9,23;90:6;29: 14,22,23,24;130:] ,6, egregious 153:23 34:9;35:11;45:]4;48:4,24; 14 91:18,22;95:3;97:14;3;13]:15;132:]9;135:]2; either 26: 17;30:1 0;39:24; 50: 18;6] :5,24;64:3;78:20; excuse 37:8;74:6 10] :24;1 74:]4;1 75:8;36:2;137:3 44:23;6]:] ;69:6,7;75:] 3; 80:]7;1 ]2:10;145:6; Excuse ]9:4;43:13;49:12; 182:] 7,18;] 85:25;186:9,20frafted 140:] 7 78:] 9;79: 16;84:] 7;85:5; 152:20,20;171 :24;] 72: 1 68:8;77: I8;93:24;131 :22; EXHIBITS 188:6;189: 1;frafting 136:5;137: 17; 86:4;87:11;106:13;122:2] ; Even ]62:]] ]45:13;]61:23;166:11; 190:]83:21 132:2];155:3;] 69:19 Evening 27:2] ;28:5,7; 167:24 exist 102:12;104:2
frafts 130:8,] ] ,13; Either 32:10,]2 37:11,]7,21,23;78:]5; excused 187:3 existed 26:25;1 OJ:335:20,21 Eleanor 26:6 9] :14;1 03:3;1 05:16;] 06:6; executed 109:3 existence 32:2frain 41:13,17 electronic 82:23 108:13;145: 1,] 0;]59:18; exercise]] 1:] 1;182:10 expand 91:2
loctrine - expand (6) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 17, 2007
expected 138:7 102:12;104:14;177:23 104:12;115:17;116:6,6; four 16:22;48: I0;49:3,6,8; 10,23;173:21,21 ;175:9,16,expedite 103:20,21 fast 42:17 125:3;127:12;129:14; 66:17;71 :2,11 ;74:1 ;92:19; 18;176:1,5;181 :11 ,18;experience 43:25;93:9 favor 10:5 130:14;131: I0; 133:23; 117:6,10;119:3;127:7,25, 183:23;186:20,21experienced 65:5 favorite 27:6 135:12;136:3;137:8; 25;129:6;133:19;137:19; funds 170: I5experts 43:1 favorites 90:23 139:21 ;140:7;144:24; 166:17 funny29:9;57:22explain 137:18,22,23; fax 121:3;124:6;185:9 145:19;146:6;149:15,23, Four 117:16 fur 84:8138:4,6;143:5; I48:23; Fax 124:7 24,25; I50: I,8;151 :3; fourth 12:18;61:23;125:3 further 58:23; I 19: I5;171 :7 feature 55: 13 152:10;1 56:25;1 57:6; FPL 184:24 138: I2; I64:25explained 85:10;131:12; fee 107:2;108:21,23;109:5 160:4,24;162:3;164:12 France 169:2I Further 75:24146:16 feet 127:7 First ]]:"17;38:19;41:3; Francine 33:17 future 163:1explaining 90:3;132:8 fellow 166:16 47:5;76: I;96:7; I04:24; Frank 145:1explains 12:22 fellows 105:6 118:20;167:8 Franklin 26:9;36:2,8,23, Gexplanation 138:2,3; felt 164:13 firsthand 93:8 23;77:23139:8 Ferber 77:21 ;80:21 fit 20: I8;5 1:2;96:9 frankly 161:6 galley 128: I I; I29:23;explanatory 76: I2; I31:7 few 30: I9;35:2, I0;36:2 I; five 29:5;75:22;155:20; free 18:12;25:7,14;27:14; 130: 14;1 31:1;132:21;explicit 76:21 37: I I ;53:7;74:5;80:2 I; 159:20 33: I9;34:7;39: I8,1 9;41 :25; 136: I7,20; I37:3; 138: I6;explicitly 40:9;51 :14; 85:22;99:20; I08:22; flaming 27:10 42: I4,19,21;43:5,6,9; 140:2,456:3;76:13,19;77:14;88:23; 121 :10;138:15;139:22; flapper 27: I0 61:1 I ,13,24,25;62:2,3,23; game 92:1790:18;116:19;125:9; 160:6 flat 13:14;18:5 63:4;64:1;65:7,13,14;66:5, gave 13:13;49:18;58:23;140:23;146:5 - field 16:19 flood 41:16 6,10,23;69:5,6,11,17,23; 109: I8;1 19:2;120:7;131:6Explicitly 33: I I fight 70:18 Folk 71:3,12;73:23;91:15 70:2, I2,1 3, I7,22,25;71: I6, gee 48:20explored 15:6 fighting 144:15 Folklore 117:10,16 19,20;74:3,10;75:9,16,20, general 40:4;41:23;106:4express 40:7 figure 25: I0;55: 18; follow 104:19 21;76:16,19;77:2,11,13; generally 36: 18;6I: I8,expressed 119:6;125:19 171:1 9;1 81: 12 followed 136:7 86:4;96:4,9,24;97: 18,22; 20;70:7; I32: I0extend 38:6 figured 45:10 following 46:17;140:1; 101:17;102:21;116:4,20; Generally 60:21extends 48:9 figures 117:10,16;181:22 156:15;157:5 I 17:4,12;144:13,17,19; gentlemen 92:2 I; I82: I2extent 39:6;45:20; I71:24 Figures 71:2,11;73:22; Following 157:4 145: I8; I46:6; I53: 13 George 26:1 1;62:14external 84:20,22,25 87:18,21;184:25 follows 22:3;1 16:21; Free 42:22 gets 76:9;135:8,17extract 44:17;63:12; filed II 7: 18; 118:2 134:9,15,16;135:8,9;140:3; French 69:16;147:12,14 Gets 100:1666: I6;68:5,6;155:2 fill 110:7 144:2; I57:7 Friday 120: I8 Get-together 84: 1;90: lOextracted 46: I3;48: I I; film 25:13;55:13 follOW-Up 47:24 friendly 36:2,22 Gigante 164:149: I7;98: I0;99:5 final 12:18,2 I ;74: I8; foot 117:22 friends 26:7 Gigante's 164:3extracts 61:14;88:14 128:4;131 :8,15; I32:1 8; footnote 112:13,15 front 54: I0;80:6; I 14:2 I; Gilbert 77:21,25extraordinarily 39:9 133:14;135:13,21;136:17; force 51:4 181:12 Gillian 128:4; I32: I I;extravagant 14:6 137:1,5;141:13,15;142:8; foregoing 162:18 Fruen 31:8 134:22,24;137:6;138: I7;extremely 17:22;29:2 143:1;155:1 I foreign 147:6,9 fulfilled 13: 18 141 :16;142:2,7; I83:18;eyelids 69:4 finally 19:24;20: I6 foremost 15:5 full 12:14;13:25;34:1,2; 185:5
find 35:7;36: I I,18,18,20; forgetting 35:2 67:16;133:24 Gillian's 137:7F 43:9;45:7;74: I3;76: I3; forgot 95:15 Fun I I :25;12:17;13:6,23; girl 28:24
87: I3; I20: I8; I56:20; forgotten 80:9;83:21; 14:5,8,13,18;15: I9,23; girls 47:1 1,13;48:1faced 16:22 157:1,2;166:21 145:18 16:1,8,1 1,14,19;17: I,4; give-and-take 135: I9fact 10:21;12:6;13:24; finding 17:7,22;76: I4 form 12:16;15:20;16:2,23; 21 :4,13;22:20;23:1,16; given 18:4;70:614:21;16:22;17:2;52:21 ; finds 18:19 24:8;47:10;50:14;54:17; 24:7;25:3;28: I4;30:2,25; giving 19:10;106:1955:8;64:3;78:20;79: I5; fine 19:1;41:]8;72:10; 60: 18;108:11; I 10:7; 32:13,15,18;34: 1,2,4,14; glasses 46:25;47:1,1 I,171 :21 ;174:16;178:2 81 :23;95:2;158:25;164:8; 113:17;132:10;140:7; 42:4,7;43: 12,1 5;49: I6,18; 13;48:1factor II :23;21:9 171:19 173:20 50:9;52: 14,20;53:3,19; Glen 161:20facts 19:11,12;151 :18 Fine 63:1;64:19;82:8; format 34:10;43:5;59:5; 54:1;55:5;56:6;57:12;59:4, gloss 20:14Fadiman's 79:21 89:4;94:23,25; I00: 15; 69:22;70:7;71 :20;132:8; 16,18;60: I2;63:22;70:2,25; Glyn 80:8,16;82:25;84:7;Fair 28:3;36:1,9;96: I8; 110:14;111 :8;137:16; 134:9,15,16;135:8,9; 74: 18;75: I, I6,25;76:2,5,6; 85:5144:25;145:10;159:19 139:9;163:22;172: 13 152:19 77:2,4,5,15;79:2;82:1 I; goal 34:4,5faithfully 153:24;159:13; fingertips 175:4 formatted 42:23 85:21 ;86:7,16;87:8,12; goes 46:18;78:25;108:7;160:20 finish 182:22; I83:3,8,9, formatting 177:22 90:12,16;91 :7;101:20; 127:23;148:23;177:23fall 65:6 10 formed 26:24 102:2;112:10,15;113:12; GoldSmith 77:21falls 28:24 finished 99:14 formless 54:17,17 117:18,25;118:12,19; good 41:7familiar 30:6;3 I:22,25; finishing 182:20 forth 130:13;135:20; 128:14,16;129:3,9,10; Good 10:17;22:7,832: I;85:20;90: I I first 12:22;21:17;25:10; 136:16;137:5 130:25;13 I:2, I5; I32: I; goofy 44:22families 28:25 30:7,24;31:2,7,22;32:5,6; Fortnightly 67:9 133:10,21,21 ;140:2,5,1 I, graduate 22:12famous 26:13;27:10; 35:25,25;36:3;37:22,23; forward 74:5 24; 14I: 13,15;143:7;147:7, grant 108:1428:12,12;46:23;54:16,18; 38:20;44:21 ;49:2;55:25; found 11:18;12:2;14:1 I; 15,22;148:13,15;149:13, granted 105:2;113:2;67:23;69: I3;79:6,9;80:9, 57: I3,20,24;60:20;62: I2, 20:8;30:4,10;36:7,10,14; 2I; I50:2,3; I52: I5,25; 183:415;95:25 16,16, I9;63:14;65:3;67:16; 37:16,20,22;40: I6;77:5; 153:17;154:2;155:2,11,12; gratuitous 144:7far I I: 14;14:3;42:9;49:4; 68:19;73:24;74:3;85:15,22; 87:21,23,23;102:3;153:2, 156:8;160:8;161 :3,4,13; great 27:9;68: I6;76:5;73:1;78:25;81 :3;94:4; 86:3;87:4;94:6;97: I6; 18;165:15;166:1 162:9,10,23;168:1 I ;169:1, 85:24;110:19
TRIAL Min-U-Script® (7) expected - great
July 17,2007STUART Y. SILVERSTEIN v
PENGUIN PUTMAN, INC.
Griffing 161:9 Heights 35:4 humorist 26: I0 indefensible 10:5 124:2ground 165:17 held 12:4;21:14;155:21 humorous 54: 18 indeterminate 25: 15 interests 33:22;144:15grounds 44: I Helen 27:22;78: 16,23 hundred 38:13 index 71 :23;74:13; internal 162: I0group 27:1 hell 27:22;78:17 hurdle 14:25 133:17;134:9,14;135:9; interpretation 172:4Grows 98:25 help 89:7 Hymn 77:10;101:14 149:8 interpreted 10:19guess 88:14;99:19; hen 92:20 hypothetically 111:2 INDEX 188:1 interrogatories 173:17105: I0;156: 13;164:20 Hendrik 41 :9 indexed 30:13 interrogatory 173:22guest 79:7 Henriette 27:20 I indexes 36:6;85:24 interrupt 25: 16,21 ;39:10;Guide 45:8,9,21 ;58:2 Herald 28:4;145:2;159:18 Indiana 33: I 68:15;173:13; 183: Iguidelines 40:4,6 herself 11:20,21;16:13; idea 41 :23;68: 1-6; 137:24 indicate 74:9 interrupted 85:12gun 92:21 79:13 identical 13:22,22; indicated 107:20;118:2; intervening 120:23Gun 30:17;129:8,8; Heywood 26: 12 115:12;127:5;147:25 148:12;171:14 intimate 55:17133:20,20;159: 14;160:15 Higgledy 52:5;92:15,20; identically 152:17 indicates 62: 17;64:23; into 21 :11 ;26:20;42:25;
93:20;94:9;95:16;112:8,16 identifiable 130:17;139:2 66:8 43 :6,7,8;46: 18;51 :2,4;56:6;H higher 43:1 ;108:23 identification 40: 13 indisputable 17:15 60: 12;61 :6;65:6;69:22;
Highland 35:1 identified 15:4;48: I0; individual 21 :4;28:13; 75:14;76:6;87:13;113:19;half 25: II ;33: 16,25;48:9; highlighted 46:9 53:18;86:10,14;103:25; 99:7;129: I0; 154:14 116:24;124:23;135:4;53:18,19;87:11 ;149:20 Himmelrich 80:4,11; 104:1 ;130:3;140:23 individually 49:8 157:17;159:10,11halfway 69:15,16 82:20,24;83: I0;84:5; identifying 74:4 indolent 141:5 Into 59:11;60:11,14hand 22:24;93:12;114:21; 107:15;176:14,23; 177:5, ignore 14:23 industry 170:2 introduce 64:18165:11 12,[9,25 Illinois 34:16,17;35:1,2,4 inform 83:10 introduced 176:8handbag 47:7 himself 141:25 imagine 173:23 information 35:8;84:20; introduction 43: 18,20;handle 28:25 hippety46:19,19,19 immediately 44:6,14; 121 :15;122: 18;140:1,10; 68: II ;69: 14;75:22;92: 13;handled 80:4 history 22: 13;24:18; 126:12,15;132: 17;162: 18 172:4 93:1;112:13;113:13,15;hands 69:5;165:6 146:15 immoral 10:8 informed 85:9 126:22,25;130:2;142:6;handwrite 113:18 hit 47:7 impeding 65:16 infringe 18:2 144:9handwritten 109: 12; hold 62:7 important 11:12,22; infringed 18:20;162:22 introductory 71: 17,22;155:6 Hold 58:21 ;68:9;75:25; 24:22;95:9,12;135:11 infringement 10:6;17:7 130:8;131 :4,8,16;132:7,13happen 24:22 158:2;161:25 impossible 105:11 infringer 18:6;19:14,20 inventory 12:14happened 37:15;92:23; holder 103:9 imprecise 114:14 infringes 17:24 invoice 106:19105:4;138:17 holders 103:5,17 impression 13:6 inherent 139:5 involved 146:17Happened 79: 19 Hollywood 79: 18,19 imprint 23:4 inheres 15:24 Irish 28:23,24lappier 166:21 honesty 181 :25 inadvertent 152:25;153:3 initials 184:24 ironed 105:8lappy 104:2 honor 79: 14;82:6 inadvertently 148:2; injunction 11: II irregular 58:14larangues 71 :21 ;74:3,4; Honor 10:17,18,19;11:4; 153:19 Injunctive 11:9 irregularly 27:4117:13,15 14: I;17:6;19:7;21 :3,15,18; inclined 121:11 input 113:19,20,24; irrelevant 165:19lard 42:16 23:24;24: II ;26:3;29:20; include 14:19,19;42:4,7; 183:21 isolate 90:2lard-and-fast 41 :21 39: 15;40:17;46:3;60:20; 51 :7;59:4,17;71 :22;74: II; inquire 62:1 issue 15:6;17:5;30:13,13;lardcover 23:6,7,17,18; 63:23;68:20;69: I;73:5; 75:1,16,18;77:2;81 :7,11, inquiring 182:21 36:5;37:5;40: 18;49:23;B:12,14;87:12;126:2,10, 74:21 ;82:7;83:6;84:1 0; 14;83:19;85:5;86:7,10; insists 144:11 66: 10;67: I0;85:23;87:4,1 0,13;139:11 ;142:22;169:24; 85: I,8,9,13;88:2;89:5, II, 96: 1;99: 15; I00:20,23,24; Insofar 148:19 21,23,24;91 :3,7, I0,11 ,II,186:21 23;94:20;95:2,7;98:19; 112:11,12;124:12 instance 61:3;78:16; 15,16;114:16;130:17;larken 163:12 102:13;129:1,20;130:5; included 12:1;14:20; 117:24 139:2;147:6,9;164: 10;late 44:9;76:7;77:8,9,9; 133:2;142:17;147:4; 16:8,11,11;18:7;51:6; instances 38:22;58:22; 167:22;173:23)5:25;96:2,13; I01 :17; 150:15;156:1,22;157:11, 63:22;71 :3,23;74:15;80:18; 133:21 issued 63:13;118:8;147:13;152:19 20;158:23;160:17;163:11, 87:8,15;93:16;94:22;97:3; instead 105:7;134:13 147:10,13;166:7iate 77:10;101:14 17;165:18;166:19;167:13; 101 :22;112:16;125:7; instruct 161:18 issues 85:25;101:10;lated 29:8 170:19;172:23;173:12; 139:7;143:6,9;148:2; instructed 138:19;162:25 102:7;184:4,14;185:7,18launting 12:12 174:10;176:7;182:4,6,13, 159:25 insulting 10:25 italicized 127:17,20lazy 43:24;44:8,9 19;183:5;186:1 0,12 includes 118: 13 intact 159:24 italics 129:3,11;143:20lead 77: 1;127:7 hop46:19 including 17:1,19;34:24; intelligent 166:16 item 16:12;27:20;36:7,9;leaded 69:8;132:2; hope 10:23;171:11 79:10,17,20;90:15;91 :17; intend 116:13;140:16; 37:4;38:17;41:18;42:4,8;154:10 hopefully 155:23 103:24 155:9 44: 13;46:4,10;49:16,17;leading 72: 17 Hopefully 156:2 inclusion 50:8;55:5; intended 10:20; II: 1; 50:8,11 ;52: 15,20;53:3;lear 18:12;26:15,17;70:9; hopelessly 39:25 57:11;59:16;60:11;70:24; 13:5;14:18;132:18;143:5 57:7,13;58:4,12;59: 16;)3:24;104:4,23;126:23; hoppety 46: 19 91:6 intensely 41 :8;43:24;44:4 68: 11,12;69:18;70:1;76:15,.29: 1; 151 :21;157:23,23 horrible 29:2;70: 13 income 144:21;171:22 intent 55:17;75:14;136:5 18,20,21,24,25;77:20;leard 19:25;44:21 ;54:7,9, hosted 33:16 incorrect 51 :16 intention 44:3; 137:17; 78:25;79:5,6,6,24;80:3,8,2;86:9,22;151 :21 Hotel 27:4 increased 109:5 140:16 13,17,18,24;81 :4,13;82:9;learing 22:23;24: 19; hour 33:16,16,25,25 incurred 162:22 interest 19:18;90:24; 83:22,24;85:14,19,20;!5:20,20;29:12;115:24 hours 38:8,10 indeed 12:9;17:25;18:8; 116:1;119:7;125:18,20 86: 14;87:23,24;88:8;91 :2,iearst 79:8 house 79:9 19:12;171 :22 interested 63:21 ;90:25; 15,16;92:9,16,19;93:7;leart 41:17 huge 138:1 Indeed 19:19 119:1,5,7,9,12,14;120:5,7; 95: 16;96: 18;98:14;99: 1;
:;riffing - item (8) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN v, PENGUIN PUTMAN, INC. July 17,2007
112:8,10,11,16,19;113:3; Kathryn 154:18 145:2;153: 1;165:16,16 liable 20:25;21:14 29:9,13,15;39:19;57:22;I 18:10;120:2;129: I0; Kaufman 26: I I Later 26:17 libra 69:16 58:23;92: 17;93:13;97:21;131 :3;1 34:2,5;148:1,16; Keats 31:7 latter 42:16 libraries 34: 15,16,18,21, 104:16;105:5,7;164:23;153:15;157:6 keep 24:21,22,24;25:24; law 10:8;18:11 ;19:23 24;35:2,12,14,15 171:21;183:8items 10:12;25:6,15; 44:9;116:11;121:4;127:8 Law 22:14,19,19 library 28: 18;32:6;34:20, Little 79:2127:21,23;30:5,10,20,22; Keep 127:6;128:24; lawsuit 63:17;151 :16; 25,25;35: 1,2,3,4,6;39:20; local 34:2433:6;34:5;36:20;37: I,ll, 182:23 178:17;179:7 109:23;110:8 locate 77: I5;98:218,19;38:12,22,25;44:6,12, kept 72:2 lawyer 95:9,12,12;128:21, Library 55:2; I09: I2; located 38:1713,15;45:3,11,12,13;46:12, kind 37:7;40:3,3;44: 19; 21,22; 161:17,18,18;164:12 112:24 locating 36:2512;59:4;63:22;66:20;70: 13, 45:4;48: 16,20;55:9;57:22; lawyers-163:7;166:23; Iibre 57:21 long 18:15;33:24;38:1;16,22,24;71 :2, II ,23;73:22; 71 :16;1 09: 14;121:1; 171:3 license 13:14,17;107:20, 64:6;69:20;85:4;1 I 1:8;74:8,13,15,19;75:1,3,8,13; 124: I9;132:1 8;1 34: I0; lawyer's 161 :20 24;108:15;109:11;113:5 128:9; I58:7,7;174: I077:8,15;78:7,15,20,23; 139:3;158:17 lax 90:24 licensed 19: 15 Long 34:2183:15,17,25;87:7,15;88:19; kinds 45:14 lays 92:20 licenses 103:4,8 longer 30:20;44: I3;53:22;90:1,2,9,11;91:3,6,9,10; Kinney 31 :3;58: 1I ;79: 11; lead 17:22 licensor 12:7;18:1 122:16;153:1893: I7,25;98:3,9;99:12,17, 82:12,13 leading 33: 17;104:6 life 33:20,21 longevity 29:319;102:8; I06:5;108:22; Kinney's 58:17 leafed 147:24 Life 28:17,19;30:4,12; look 23: 13;24:4;36: I5;112:7;113:11,14,20;114:2, knew 36:21 ;49:4;75: 18; lean 26:20 37:5;72: 18;85:23;87:6,16; 42:24;43:11;51:17;57:20;25;115:4,5,8,12;116:5; 77:24;105:8;112:19;171:20 learn 147:15,21 88:19;91 :3;96: I6;144:25; 59: I0;64:25;66: I7;67:4,14,117:11,16;119:3,17;120:5; _ knowing 10:13 learned 161:15 145:9;159:17 25;68:5;69: 18;72: 14;122:19;128:13;13 1:1 1; knowledge 40:7;49:5; least 27: 19,20;59: I5; Iight48:18 75:25;76: I6;84:2;86:4;137:19;138:1,4,18,21 ; 51:1 0;84:15;128:7 75:22;77:19;91:15;144:22, liked 34: 12;48:17,23; 88:6,15;89:9;99:4,24;139:6;147:21 ;150:2,20; known 16:5;25:11;28:9, 24;145:8;170:20;171 :22 55:10;90:23 112:14;129:14;131 :17;151:5;152:21 ;153:5,16,18; 11;79:5,14,14;81 :16 leave 153:14;183:7 likely 36: 19 149:24;150: 1;167:7;171:1,154:1;155:7;156: II; knows 14:11 led 83:14;151:9 likes 63:17 2;180:25175:18;185: 1;186:20 Kulik 161 :20 left 11:5,14;14:5,15;72:21; likewise 185:7 Look 46:2;50:6;53:9;it's' 165:7 147:1 ;153:11,18,20;183:17 line 28:21;29:6;40:23; 54:22;59: 13;71 :5;80:20;
L left-hand 40:22;57: 13; 42:24,25;43:8;57:21 ;60:22, 82:1,19;87: 12;91 :8,24,25;J 62: I3;66:3,5 23,24,24,24;61 :23,23; 92: I0;93: 18;95:2;96:7, I I,
label 75:20 legal 19:2,10;80:5 67: 18;69:23;92:19; I06:23; 20,24;97: 17,23,24;98: 12;Jane 73:20;115:16 labeled 23:11;69:12 legally 17:2 I;18:23 117:23;148:19;153:6,11, 109:17;112:25;118:5;January 40: I9;87:6, I7; lack 125:18 legend 131:6,7,12,18; 14,16,16;165:6 120:17;126:12; 130:20;88:20; I83: I7;184: 11 ladies 47: 1,2 132:8;134: I0 lines 28: 12,21 ;48: I0;49:3, 148:3;156:14;161 :22;Jesse 79: 18;82:2 Ladies 77:20;80:25;81: 13 lengths 76:5 6,8;50:16;51 :8;52:11 ;53:4, 165:21;175:11;176:10;Jewish 28:25 laid 132:9;169:8 lengthy 162:8 18,24;54:7;59:6,19;60: 14; 179:16;180: II ;183: 12John 31:7 Lampack 122:21,22,25; Leonardo 68:23 66: 18;74:7;82:22,22;84:6, looked 35:21 ;36:19;joint 102:11 123:15,16;124: I,4,8; Leslie 31:8 19;153:19 39:21;50:13,13;52:4;70:6,journal 62: 14 125:16,18;169:16;170:10, less 26:25;38: I I Lisa 68:5;69:8;73:8 7,10;85: I ;86:4,8;1 12:22;Journal 22:20;66: I6 15;174:19,20;181 :3,8,1 3 lesser 17:20 list 12:23;13:17,21,24; 115:14;120:11;126:5;Journalism 22:14 language 16:21;108:1 I; letter 10: 19;20:4;37:20; 33:3;34:5;37: I0;45: I3; 152:21;182:2journalist 26: I I, I I 127:5;132:20;136:16,17; 44: I8,20;55:3,1 0,1 6,22,23; 87:18;94:2,4;99:6; I06:5; looking 23:21 ;28:1 8;30:3;journalistic 27:3 137:6,7;143:8;163:6,7 56:4,5,8,13;57: 14;58:5,6; 108:23;127:12;128:13,14, 35:16;36: I3;38:2;68:7;judge 122:10 Lanham 10:7 73: I9;80:5,7;82:20,24; 15;131:1 1;136:7;137:19, 88: 18;91:14;94:3;102:3;Judge 20:25;25:25;158:9 larger 46:12;48:21 ;49:14; 84:5;105: 12,1 5;1 06:2,4,12, 20,21,25;138:1,4,19,21 ; 152:20;165:6judged 43:24 98:23;120:6;123:19;124:12 13,18; I07:5,13;109:1,4,12, 139:6,8,24;140:8,9,24; looks 42:22;43:4;97:20judgment 10:4;15:24; largest 12: 18 16,21,23,25;110:10; 143:6,20;165:9;172:22,24; Loon 41:941:24;42:2 lariat92:21 112:23,24;115:10,10,17, 173:6,7 Lore 71:3,12;73:23judgments 15:15;42:12, Lasky79:18 19;120:14,17;121 :3,6,7,8, List 138:25 Los 22:10,19;34:20,24;16 Lasky's 82:2 11,21,23;122:1,10,24; listed 88: 16;97:25;98:1; 118:21;147:23Julie 77:21 last 26:2,15;28:6;29:23; 123:5,7;124:4,7,10;125:15; 134:2;147:2;175:2 lost 12:17;75:17;104:9,10;July 91 :3,9;164:1;187:4 43:20,21;60:21,22,22,23; 130:20;132:14;136:13; listened 141 :23 119:11;125:5;161:6jump 104:16 61:1,1 ;63:14;65:3;93:24; 139:16,18,25;161 :21; listing 58:2;88: 19;150: 1 Lost 34:2;117:25;118:12;juncture 65:20 99:1 ;100:1,4,4,6;117:5; 162:1,2;163:25;176: 14,23; lists 13:20;33:3;88:20; 140:5June 26:24;63:13,20; 120:18;123:22;124:21 ; 177:5,12,19,25;178:8; 96:13,15;127:25 lot 35:25;38:11 ;39:20;64:9;71:24;73:21;115:19; 133:2;145:20;146:2;149: 1; 179:13,18,22;180:1,3,4,7, literally 85:25 42:23;43:3,9;48:22;55: 10;120:13 162:3,14,16 8,8,11,18;183: 13;184:4,1 0, literary 25: 10;26:24;27:3, 90:20,20;139:6;182:23;Juris 22:14 Last 160:23 11;185:7,15 II ;33:22;50:18,20;169:5 184:6jury 45:23;46:5 late 32:8,10,12;33:15; letterhead 56:9;177:22; literature 55: 12;64:11 loud 25:1,2justice 10:14 78:8;132:21 178:2 Literature 57: I0;87: 18, louder 29: 18Justin 62:17,19 later 14:10;26:13,14,18; letters 16:23;45:3; I03: 16; 22;145:7;184:25 Louder 83:23;115:7
27:16,24;31 :24;34:6;36:21; 104:6,7,13;105:8;110:21, litigation 14:3,5,22; love 28:25;55:15;103:21K 37:5;45:7;87:23;119:2; 22;181 :2 17:14;18:16 Loyola 22:14,15
127:24;132:22;133:19,23; liability 164:6 little 15:24;22:22;24:19; luck 45:17
TRIAL Min-U-Script® (9) items - luck
July 17,2007STUARTY. SILVERSTEIN v
PENGUIN PUTMAN, INC.
lunch 27:5;1 10:12 146:4;155:23;172:24; Midway 41:5 Most 103:2;133:18,22;Lunch 111:14 180:22 might 16:20;27:23;35:2,6; 145:8 Nlyrics 90:22 May 50:7;99:8; 110:18; 44: 15;45:18;50:12;58:1; mostly 66:5
139:18;161 :21;173: 12 79: 19;83:21;107:6; 124:15; move 49:22;52:3,24;54:3; NAACP 12:7;13:12,15,16,M maybe 28:21 ;38:20;40:4, 128:21;141:23;147:11; 56: 16;58:25;59:22;61:6; 19,22,24;14: I7;18:1,6,12,
4;63:18;71 :17;119:2; 154: 18;155:16;164:22; 62:5;66:12,24;72:3;73:5; 21 ;19: 14,16,19;80:5;1 03:3,mad 25:1 134:19 179:24 81: 17;83:5;88:2;91: 18; 25;107:12,15,22Madonna 79:6 Maybe 46:25;68:14; mike 29:18 97:9;103:15;108:2;110:2; NAACP's 18: I0;80:4;magazine 28:20;35:17, 104:21 ;172:22 Millay 26:7 150:14;158:1 ;167:8;183:6 108:1418;37:5;63:20;67:9;72: I8; mayhem 58:24 Milne 59:7,9;98-:25 Move 22:22;65:9;74:21; name 14:2;16:4;54:23;35:23;87:6,16 McCall's 145:5;159:17 mind 31:15;41:13,15,16; 82:15;97:1;101 :24;106:22; 117: 19;118:13;143:1;Magazine 22:21 ;63:13 Meade 56:3 63:21;71:25;74:19 107:7;108:17;109:7; 161 :20;173:6,7;174:18;magazines 15:20;16:2; Meade's 31:6;44:21 minimum 14:20 110:15;113:7;118:15; 175:128: 17;30:4,12;35:9,14,16, mean 11 :3;32:1 ,2,3;47:8; minute 47:24;60:4;158:5 122:3;136:8;138:8;141 :4; Name 118:1416,19,21;116:12;127:24; 51 :22;70:12;76:11 ;90:4,23; minutes 53:7;63:17; 168:6;175:21 ;176:17; named 33:17;152:17133:18;144:24;146:18; 97:21;122:14;129:4;143: I, 139:1 1,22;142:1 ;155:20; 177:1,8,15;178:4,11; namely 17:15160:2;175:18 9;145:20;146:2,8;164:5,11 182:23 183:25;184:19;185:11,21 names 41:10;154:1main 35:21 meaning 137:21,21 miscellaneous 93:20,25 moved 158:1 Nash 45:2,3,4;57:14;58:6,V1aine 44:20 meaningful 15:12 misconduct 10:5 moves 23:23;24:10;163:3 7;115:11mainly 128:10;185:10 meanings 143:22 misheard 134: I9 movie 55:13,15 Nation 159:17najor 25: 10;30:7;31 :7; meant 138:23 misleading 137:11 moving 54:14;56:22 National 22:19,2034:16;76:6;77:3,4;150:7 measured 44:1 misquoted 47:6 Mrs 12:14;55:13;78:13,18, nature 39:9;44:8;64:4nakes 15:20 media 27:8;107:6;108:12 misread 134:4 21;79: 10,12,13;81:1 near 27:1;34:20;163:1nake-up 148:15 meet 27:4;71 :20;100:1 8 missed 12:12;37:5,6,9; much 10:19;27:10;29:16; nearly 144:18naking 18:24;29:9;69:22; meeting 120:24 56:22;70:3 32:4;34:10;35:3,6,1 3; necessarily 39:5;44:15;\5:9;123:1 Meetings 84:1;90:10 missing 37:10 37:24;40:3;42:2,2;43:5; 146:16nan 41:9,9 Mehren 73:20; I 15: 16,18; misstates 86: 18 45:17;50:16;70:17;85:1 I; necessary 60:20;144:20nanner78:1 118:20;119:16;121:1,7; mistake 134:24 90:24;137:11;149:18; Ned 80:4nanuscript 71 :3,18,23, 122:22,25;123: 13;124:5; misunderstood 65:11 170:23;186:24 need 24:25;26:3;86:21;~4;73:20;74:15;1 13:14,17; 125:9 mockery 19:22 Much 11:25;12:17;13:6, 172:4;183:7115: 16;116:3,7;117:20 Mehren's 122:18 Modern 68:2 23;14:5,8,13,18;15: 19,22; needed 138:2;144:4nany 16: 18;29: 11 ;33:5; Melnechuk 66:8 modernist 76:10,12,17, 16:1,8,11,14,19;17:1,4; needn't 25:22\8:8,12;45: 11;55:8;75: 1,8, members 27:5 20,24;96:25;97:4 21 :4,13;22:20;23:1 ,16; needs 89:7~3; 114:2,25;138:4;148: 18; memoir 79: 18 modifications 160:11 24:7;25:3;28: 14;30:2,25; negotiated 103:6;108: 1049:7;166:13;168:14,16, Memorial 118:22 modifies 137:20 32:13,15,18;34:1,2,4,14; negotiating 37:17!2,24 men 46:25;47: I0, I2;48: 1 modify 137:20;138:23 42:4,7;43:12,15;49:16,18; neither 14: 11 ;42: I;70:25v'larc 26:10 Men 99:15 moldering 36: 12 50:9;52: 14,20;53:3,1 9; nest 146:20v'larch 130:23;132:13,21; mention 112:10,13,20 moment 40:14;52:4; 54: 1;55:5;56:6;57: 12;59:4, new 31:4;93:5;133:935:1 mentioned 26:23;35: 16; 80:25;173:8,19;180:21 ; 16,17;60:12;63:22;70:2,25; New 10:8;27:2,23;28:3,4,iIIarion 31:6;44:21 ;56:3; 53:7;74:8,13;75:21 ;82:21; 182:4;186:10 74:18;75: 1,16,24;76:2,5,6; 4,4;35:24;36:4;40:11,18;/9:9 99:20;113:23;174:17 moments 80:22;160:6 77:2,4,5,15;79:2;82: 11; 43:7;59: I5;60:2,4,5,6,8;narked 114:20;154:24; mentions 74:1,1;82:25 Mona 68:5;69:8;73:8 85:21 ;86:7,15;87:8,12; 88: I9;96: I6;145:2,3,4,9;75:7 mere 13:14;162:9 money 109: I9 90:12,16;91 :6;101:19; 159: I7,1 7,18,18;165:14,14narket 162:24 mere,ly 19:21;105:1; Monsey 33:1 102:2;112:10,14;113:1 I; newspaper 27:24;36:5,narks 12:9 138:22;139:5;143:5,7; month 132:22 117:18,25;118:11,19; 12,13,24Jlarried 99: 15 150:20;151 :4;158:17; months 91:12;128:10 128:14,15;129:9;130:25; newspapers 15:20;16:3;Jlarymount 22: 15 163:10 more 17:23;26:25;28:2, 131 :2,15;132:1 ;133:1 0,21; 35: 10,19;36:7;127:24;naSse 103:24 merit 43:1 12;29:4;33:20,22;38:16; 140:2,4,11,24;141:13,15; 133:19;144:24;146:17;ilaster 90:9 message 13:5 40:5;50:17;61 :18,20;64:4; 143:7;147:7,15,22;148:13, 175:17lIaster 22: 13 met 118:20 75:24;89:1 ;90:21,25; 15;149:13,21;150:2,3; next 29:25;37:25;38:5;natch 155:4 meter 39:6;40:4;48:17; 103:15;114:6,17;116:12; 152:15,25;153:17;154:2; 50:5;60:24,24;65:24;74:2;natched 60:22 61 :5;65:8;90:21 ;93:14 119:7,14;130:6;135:17,18; 155:2,11,12;156:8;160:8; 92:9,18;95:18;99:4;1 00:6;naterial 20:23;58:9; metered 59:5,19,19;60:14 138:4,21 ;144:13,17,19; 161 :3,4,13;162:9,1 0,23; 105:17;111:15;113:12;24: 18;148:12;150:10 meters 60: 16 145:16;148:25;184:9,16 168:11;169:1,10,23; 119:1,18;121:6;123:13;nath 174:2 MICKUS 158:4 Morely 46:9;98:25 173:20,21 ;175:9,16,18; 128:25;129:2;132:17;nathematics 173:10 microfilm 35:13,13; Moreover 11:25;15:14 176:1,5;181 :11,18;183:23; 136:18,19;137:18;144:16;natter 45:24;163:1; 36: 12,13;37:8;67:9;175:14 Morley 46: 18;49:20;52:5 186:20,21 145:23;162:16;171:4;73:10 microfilms 28:17;175:15 morning 10:17;22:7,8; Mugar 55:1;109:12; 174:21natters 15:15;80:5 microphone 22:23; 105:6;112:7; 158:8;183:3 112:24 Next 30:14;51 :23;52:2;~augham 92:13,18;93:8 25: I9;26:21 most 13:1;26:25;35:23; multiple 21 :21 64:15;70:23;1 17: 12;133:5;nay 22:4;79:15,15; mid 78:8 36:19;46:23;53:13;65:5; must 10:20;41:7,10; 159:2;164: 19;167:304:22;105:5;111 :6;139:6, mid-80s 31:9 91: 13;127:23;135:1 I; 171 :22;172:9 nice 34:1 1;140:20;142:1 ;143:4; middle 40:22;54:23;69:20 145: I5; I53:23; I65:5 nicer 50:24
.J
linch - nicer (10) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN v"PENGUIN PUTMAN, INC. July 17,2007
Nobody25:1 73:11,12;74:23;81:21; Offer 122:1 ;180:16 102:13;104:3;111 :10; 143:13;]47:20;] 53:] 0;nodded 164:] 8 82: 16;83:7;86:22;87: I; offered 63:7;64:4;157:16, ]27:7;134:] 1;135:10; 165:20;] 66:24;] 67:] 5nominal 18:5 89:17;91 :20;94: 14;95:19; 18;168:] 1,19;173: I; 182: 16 139:23;140: I0,24;144: I; Overruled ]40:]9;143:3;none 78: 13,] 8;] 50:2 97:7,] 1;101:7;103:19; offering 89: I0;1 04:24; 147:14;152:]4;159:22 145:22;146:4,12;160:19None 11:1 106:8,24;107:8;] 08:3,] 8; 105:1;111:11;121:25; open 10:16;13] :]9 overwhelming 14:23Nonetheless 79:25; 109:8;110:3,13;113:8; 158:19;] 74:5; 180:4 opening 10:24;18:24; owes 17:1280: 16;90:21 1]4:5,8,12,14,15,17,18; Offering 123:9 19:2,4 own 11:2];15:10;16:1,25;nonexclusive 13:14; 118:16;121 :25;122:2; offers 64:23,23;124:23 operative ]02:10 18:7,13;20: I0;37: 18;42:24;18:4;103:4,8 123:]0;] 24:25; 125:14; offhand 35: II ;77: 18;87:9 opinion 28:9;39: I;40:7; 102:20non-exclusive 106:20; ]28:2]; ]29:22,24;136:9; Office 1t8:9,9;127:1 54:20;62:2;66:8;67: 12; owned 103:3;107:22]07:20,24;] 08:]5;109:1]; 138:9;]40:12,14;141:10, offline 63:12 70:25;75:11;83:10,17; owner ]2:8;13:]2,13;113:5 22;147:20;150: 16;153: I0; often 66:6; 170:13 93: I0;98:3; 150:22;151: 15, ]8:1,21noninfringing 20:3,7,8 157:1,21;] 58:2] ,22,24; Often 51:21 17 ownership 20: 16nonpoetic 96:8 163:9,23;166:24;167:9,14; Ogden 45:2,3,4;57:14; opportunities 107:6 owns 19:16nonsense 19:22 168:7,8;17]:9;172:5,6,11; 58:7;115:10 opportunity]22:6 Oxford 22:21 ;39:22;68:2nor ]4:11 ]73:4,5;174:9,10,] 1,13; OK 21 :20;31 :19;63:5;67:4, opposing 65:7normal 14:14;60:19 175:22;176:18;] 77:2,9,16; ] ],18;68:13;73: 15,22;75:3; oral 21:1 PNorthridge 34:21 178:5,12;180:6,] 7,18; 76:5,]5;80:24;81 :23;85:7; oranges 34:] 3Northwestern 34:] 6 182:13,17;184:] ,20; 87:25;90:3;92:3;93:3;96: I; order 102:7,9,10,11; page 21 :10,10,1] ;23:21;notables 28:3 - 185:12,22;186:5,6,7 98: 13;99:16; I00:5,12,20; 159:23;163:13;164:20,22; 30:] 3, 13;37:7,25;40:22;notations ]55:2,6 Objection 49:22;51: 15; 101 :4;] 03:8;1 05:13; 151:1; ]72:20;175:] 41 :3,3;43:] 6,20;45:9;note 65:] ];89:25;156:12, 97:2;102:5;114:4;] ]6:15, 155:18;] 61 :25;163:22; ordered 148:24 49:] 8;50:23;52:] 5;53:9,1 0,20,23; 159:2,9,12 18;121 :20;123:22;125:]2; ]64:18;170:22;172:15 ordinary 43:2;181 :]4 ]2;57:10,11 ;60:8;6] :17,20;Note 157:7,11,]2;160:23 128:17,18;]29:15;137:] 6; old 28:19;57:21;163:]2 organizes 33:4 62: 13,16,] 9;63: ]4;65:24;noted 36:2;160: 19 ]40:18;]4]:18;]43:2,] ], older 67: 17,19;69:4 original 10:13;]6:2; 66:4,5,17;67: 14,16;68: I0,notes 68:23 ]3;144:5,6;145:2] ;146:3, omitted 14:13;153:5 28: 17;30:4,16;36:13;49: I], 11,13,20,22,25;69:14,]4,notice 45:7;126:8,10,17; 11;147:]8;150:11,2]; once 41 :10;47: 19;96:15; ]3,14;50:14;52: 12;59:14; 15,16;71:] 7,22;72:18;127:4 151 :6,1 ],]2;]52:23; 184:14 78:14;92:14;96:23;129:5; 73:24;74:5,6,6,7;76:7,8,9,noticed 45:8;150:8 160:19;163:5;164:4; Once 83:16;89:25;110:24 130:1 ;13] :6,18,20;]45:] 6; 13,]4;77:7,14;80:24;8]:]] ,notified 164:11,12 165:17,20;179:2 one 11:4;12:14,]4;]4:3; 150:7;15] :9;]52:3,17; 12;85:23,25;87:6,22;88:}5,November 67: I0 objections 15]:14; ]6:5,12,24;20:4;27:20; 153:7,8,17;155:10;159: 13, ] 8;90:1 ;91 :8,25;92:3,7,9;number 35:14;75:24; 160:] 8 28:6,20,21,22;29:5,6;30:9; 24;160:] 2,21 ;175:14,15; 93: 19;94:3,5;97:24;98: 12,93:23,25;94: I; I04: 12; objectively 15:21;16:3; 3] :4;33: 16;36:7;37:4,9; 176:2 14;99: I,4,6,6; I05: 17;110:]9;1 ]5:1;127:2;138:]; 44:16;152:]0 39:6,7;40: I0;42: 16;45:5, originally 15:19;23:7; 11] :15;112:15;115:17,20;]4] :2;147:3;155:3,17; objects 64:24 10;46:24;48: II ;49:4,5; 71 :14,16;74:16;127:24; 116:6,8;1 ]7:21,24;126:12,158:6;16] :23;165:9,18; obligated 13: 16 50: 16;52:4;58:23;59: I0; 133:18;144:23;166:5; 14,15;127:2,9;]29:] 8;172:]4;173:6,7;175:8; obligation 13:18 60:24;72:21 ;75:5,6;76:24; ]75:19 131 :3,15,21 ;132:2,17;]8]:17;]82:2,9 observation 86:23; 77:3,13,13,25;79: II ,23; Originally 26: 18;132:7 133:2,5,6,7,8,8,10;134:2] ;Number 152:13;174:5 15] :20 80:6;81: I0, I0;82:5;83:2; others ]6:25;91:12 135:3;144:9;145:23;numbered 94:] ;156: 18 observe 168:] 1,19 84:2;91 :11 ;96:15;97:3,4; other's 27:8 148: II ;149:12,17;]56:15,numbers 73:25;104:2,23; observer 162: 12 98: 15;99:25; I00:6; I01 :17; otherwise 14:22;16:20 15,] 8; 162:3,16;166:3,6,20;110:21;] 15:11;]47:1,2; obstructionist 171:8 102:7;103:18,18;104:20, ought 11:2;50:24;64:25 167:4,21 ;174:2];] 81 :12,25]52:16,] 8;165:6,10 obtain 103:4 20;105:11,] 1;110:]8; out 11:9,24;]4:5,]5;15:13; Page 43:6;48:9;53:18;numeral 69:14;148:1 ]; obtained] 5: 16;156: I] 112:7,12;127:25;130:6,14, 2] :9;29:9;32:6;41 :],15; 65:3;76: 15;77:6;87:] 5;]57:2 obvi9uS 162:] 2 22;132:11 ;133:19,25; 44:19;45:2,7,10,10,12; 92:] 5;98:] 3;188:2
0obviotJsJy83:16;137:23, 134:1 ;139:25;143:12; 55:13,] 8;58:9;69:] 9,20,2] ; pages 20:] 8,2] ,23;21 :4,4,24;]77:22 ]44:3,19;]48:] ,16;]49:]]; 72:2;87:] 4;90:2;98:] 6; 5,5,13;40: 19;48:8,9;68:] 8,occasionally] 82:2 ]52:13;153:5,5,7,18,] 9,20; 102:13,]5;105:8;110:7; 19;74:5,12,]4;87:22;96:]2,
oath 1]2:4 occasions ]68:14,22 ]54:4,17,] 8,]9;158:14; 1]4:7,9,]9;] ]9:]7;132:9, 16;117:6;136:23;]46:23;object 45:20;50: I;65:] I; occupation 22: 16 ]59:20,22; 165:7,] 0; 20,21;136:] 8;139: II; 148:] 8;]49:7,15;] 82:1,2388:24;94:1];] 0] :5;102:1; occur 28:];143:8;151:3 ]70:22,22,24,24;] 72:8; 147: I;]53:1 ],]4,18,20; paid 108:23;145:]2,]4;] 14:15,18;]27:]5;137:10, occurred 87:]6;]42:]5 173:]2;18] :2;] 83:16 159:7;]69:8;]7] :19 169:17,]8;171 :]5,2];10;142:1 ];]56:22;166:11; odd 36:7 One 47:24;77:12,]9; over 43:2;48:9;68:2]; 182:]5180:],2,2 Odgen 58:6 94:13;10]: 10;] 82:4;]86:]0 105:] 0;] 36:] 6; 139:24; paper 21 :]2;35:9,]2;objected 159:6 off 27:] ;]55:21 ;165:10; ones 35:5,23;45:]4; ]40:23;]44:15;158:24; 69:21;142:13,]9objecting 51: 18,18,19; ]76:4;] 83:6; 187:1 99:25;] 19:18;145:] 8; 168:8;17] :3;186:19 paperback 23:6,8,] 7;]53:9;157:10,1 ],19;168:9; Off ]55:20;186:25 182:11 Over 38:6 24:7;126:7;]27:2]72:] 6;] 79:3,] I offense 10:20 one-time 13:14 overall 83:25 paperbacks] 26:3objection 23:25;24:12; offensive 10:20 ongoing 24:17;1 ]4:12 overcome 14:25 papers 54:]4;65:19;172:950:4;52:7,25;53:];54:4; offer 63:16;71 :4;86:24; only 10:],23;1 ]:4,13; overly 39:3 paragraph 4] :4,5,5;56:18,19;57:1,2;59:1,23; 89:12;] 05:9;106:7;]21 :23; ]4:15;18:4;20:1,9,10;21:1 ; overrule] 14:8 43:21 ;44:2,8;61 :17,20,2];61 :8;62:6,20,21 ;64:24; 123:1,4;124:2;172:14; 29: I0;42: 16;56:2;59: 17; overruled 50:4;] 01 :7; 62:] 6;63:] 5;65:4;69:2];65:22;66:] 3;67: 1;72:5; ]76:9 63:6;64:3;73: I;78:25; ] 16:18;128:18,20;141 :22; 74:1,2;]] 7:5, 12;124:2];
TRIAL Min-U-Script® (11) Nobody - paragraph
July 17,2007STUART Y. SILVERSTEIN v
PENGUIN PUTMAN, INC.
125:4;127:12;128:3;130:9; Pasadena 62: 15 permitted 19:2 PLAINTIFF 188:6;189: I; 75:11,13,14,17,21,21;76:8,131 :4,7,9,16,17,17;132:7, passage 67: 18,21 ,22,22 permitting 65: 15 190:1 10,12,24;77:12,13,14;13,16,20,23;133:3,9,13,15; passed 165:15 person 56:2;60: 19;172:23 plaintiffs 173: I 83:15,18,18;90:19;96:3;136:5,13,19;137:17;138:6, passes 46:25;47:10,12; personal 39: I;41 :8; plaintiffs 16:1 98:4,10;99:22,23;102:21;13,20;139:3,13;140: 17; 48:1 43:24;62: 13;128:7 Plaintiffs 24:1,3,14; 103:9; I06:21; I07:20;141 :25;142:25; 144: I,14, past 79:12 perspective 43:3 66: 15;67:3;74:25;81 :23,25; 112:12;116:4,12,14,19;16,16;148:21 ;162:3,14,16; pasting 19:25;20:1,5 perspectives 43:4 82: 18;83:9;87:3;89:21; 117:2,4,12;119:1O;125:5,6~
183:22 Pater 67:15;68:6,22;73:6 persuade 92:21 95:21 ;97:6,8,12;101 :8; 10;127:13;128:25;133: 17,;>aragraphs 144:10; Pause 122:8,11; 175:5; Peter 122:21;123:15; 150: 18;159:1;167:16; 23;137:20;139: I ;140:6;146:9 180:23;182:5;186: II 169:15;174:19,20;181 :3 168:10 141:1 ,3;143:9,21 ,22;:>arameters 125:19 pay 107:2;108:21;109:5; Pettinga 105:15; I08: 12; Plaintiffs' 72:12;73:14; 144:13,17,21,23;145:17;:>aramour 79:9 162:21 178:9 91 :22;97:14;174:14 146:5;148:17,24;149:10,:>aren 131 :20,20 payment 13:14;18:5; Pettinga's 106:18 play 27:22;28:21 ;29:7,8; 11,20;152:16;159: 12,24;:>arent 169:20 169:23;170:8 phase 15:16 78:17 160:5,20,24,24;161:12;:>arentheses 129:3 payments 171:17 Phebus 147:13;169:21; Play 87:16;88:20 162:5,10,11i>ark 35: I PD 121:19;122:14,14,15 170:14 played 14:10 Poems 13:25;16:12;i>arker 10:12;11 :19,21; PDF 67:8 philosopher 66:9 Playing 83:24;85:17,18; 17:11,24;18:2;19:21;34:2;12:3,8,18,19;13:1,3,13; pending 179:8 philosophical 50:20 86: 14;87:4;88:16 54: I,2;56:7;76:7;117:25;14:4,12,16;15:5,8,23,25; Penguin 10:4;13:25; phone 37:20;106:13; plays 27: 17;28:22 118:12;140:5;147:17,23,16:4,9,11,13,13;17:9;18:1 ; 17:18,22;18:20;19:16,21 ; 121:6 playwright 25: 13;26: I0, 25; 148:5,14,18,23;149:7,W:2;21 :2;25:4,7,8,9, I0; 20:5:1 1,13,17,19,24;21:1, photocopied 54: 1;56:6 12,13 10,11,23,25; 150:3;151 :2,3,17:12;30:5,10,15,24;31:1, 14;56:6;71 :4,4,24;73:20; photocopies 153:17; please 23:13;43:16; 8,25;152:9,10;153:20,25;18;33:4,13,15;34:3,6,9; 74:17;79:11;116:2;118:25; 175:14,17;176:2,4 54:22;58:21 ;66: 17;72:14, 154: I0,10; 155:13;156:7,36:20;38: 18;40:7,21 ,24,25; 119:1,4;121 :17;122:25; photocopy 23: 16;55: I,2; 16;83:23;84:4;85:15; 10;158:14;159:15,22;12: 1,9,13;44: 18;45:3,4,5, 123:23;124:1 ,14;125:20, 59: 15;60:2;67:8,8;73:19; 87:20; I04: 18;120: 18; 160:9,25;161 :12,13,16;13;46:24;53:14;55:3,12,14, 23;129:23; 144:4;147:17, 88: 13;93:6;96:23; I09:24; 127:6;128:25;132:23; 162:6,7,8,19,22;164:25;15;56:23;57:14;58:6,11; 21;148:22;150:9,19;151 :4; 148:5;167:4,21 159:9;161 :8,25;162:4; 167:5,21;168:19;169:6>2:22;63:2,22;70: 12;75:4, 154:21 ;156:1 0;161 :21; photostat 24:6,9 175:11 Poemsn 162:617;77:8,16,19;78:2,4,5,6, 162:5,12,18,21;164:24; physical 20:17,17;21 :11; Please 24:4;133: 16; poet 66:9;69:1313,18,21,24;79:1,10,12,13; 170:21 ;179:25;186:3 109:16 140:5,9;143: 16;163: 1; poetic 10:14lO:4,8,12,19;81:1,5,16; Penguin's 10:13,22; pick 23:10;93:17 167:7 poetry 12:15,19;13:2;!2:2,1 0,14;84:9;86:15; 11: 12;17:11,24,25;54:14; picked 79:20;87: 18 pleasure 29:8;182:21 16:20;26:6;30:16;41 :4,6,}2:14,l7;93:7;106:20; 65: 12;123:16;124:10; piece 29:2;43:5;69:20; plenty 114:22 12;43:1;61 :24;62:2;65:14;116: 11;117:25;118:12; 160:3;166: 13;172:25 70: 17;80:25;82:25;83:11; plus 75:6 66:6,11,19,22,23;69:5,6;119:11;127:13;134:1; pensees 66:7 86:5,10;92:15;99:5,6,7; pm 112:1 88:20,21 ;92:8;96: 17,19;140:5;143:10;147: 12,25; people 26:7;27:2;33:22; 100:4,16;101:14 poem 14:4,12;16:4,10; 97:4;98: 1;145:17;169:3,4148: 14,22;149: I0,12; 39: 11,13;43:9;46:24;51 :21; pieces 27:15;81:1 I; 17: 16;38:20;39: I,13,13,16, Poetry 41 :8,11;63:12150:4;154:11;159:16,20, 77:24 95:24; I00:4; I03:5; 120:1; 18,19,24;40:1,2,8;41:11, poetry' 65:7,8!3;160:1,12,25;161: 13; people's 43:3 145:4,8,9,15;147:3 11,20,23,25;42:8,12,20,24; poets 60: 18;65:5;70:18162:6,8,10;175:19 per 38:8,9;120:17;170:2 Piggledy 52:6;92:15,20; 44:5,7,14,21 ,24;45:6,8,18~ point 30:11;32:13;48:21;i>arker's 10:10;12:14,24; Per 139:22 93:20;94:10;95:16;112:8, 46:17,21 ;47:1 ,13,21 ,25; 52: 16;64:25;65:5,12;69: I0;13:17,20;18:22;20:10;21 :7; perceived 138:6 16 48:2,2,3,4,10,12,15,18,19; 89:13;102:3,15;119:19;102:21;103:1;133:17; percent 134:23;149:22 pitch ]]5:23,25;]]6:1 49:3,6;50: I0,12,18,25,25; 120:3,3;173:24;181 :23140:10;143:20;149:15; percentage 170: I place 21:22;64:13;132:18, 51 :2,3,4,9,12;52:16;53:25; pointed II :24;159:7151 :9; 152:3;153:7;159:13; percentages 170: I 19;152:14 54:8,20;55: 19,21 ,22;56:1, pointing 102:1316Q:?1;lq2·:5 perfect 21:12 places 36:19;55:8;9 5,23;57: 15,16,17,17,19,25; points 25:23; 175:9)arodies.QO:22·. perfectly 148:20;177:24 plagiarism 36:8 58:3,17,20;67:11;77:12; policy 166:14)art 15:5;21 :5;46:12; performed 151:4 plain 125:10 86:2;88:22;92:19;93:11,12, politely 46:20~8:ll;49:14;53:22;92:8; performing 27:3;38:1 plaintiff 21: 18;22:2; 15,15,16;96:5;99:13,18; political 62:1414:18;117:23;123:18; perhaps 27: 19;48:22; 23:23;164:12; 172:21; 100:18,25;101 :1,16;117:2; Pollyanna 100:1628:9;144:7;157:14 125:6;173:15;174:2 186:23 134:5,7,8;140:10;144:19; pop 168:4)artial 104:3 period 38:6;45:9;87:8; Plaintiff 24: 10;52:9,18; 153:11 ;159:20,22 popular 29:2; 116:12)articipate 178:16; 119:20;176:2 53:2;54:6;56: 19,20;57:4; Poem 19:15 Popular 87:18,21;184:2579:24 periodic 169:11;170:10; 59:3,25;61: I0;63:9;65:22, poems 10:10;11:19;12:2, Porch 129:2)articipation 179:7 181:8 23;106:10;107:1,10;108:5, 17,24;13:1,2,9,18,20;14:8, portable 53:6,14;159:23)articular 36:15;45:18; periodical 87:7 20;109:10;110:5,17;111:2; 16;15:8,19,21,22,25;16:2, Portable 30:9,24;92:14;17:5;62:18;65:6;70:16; periodicals 175:17 113:10;]]8:18;122:5; 8,9,24,25;17:3,9,16,19,20; 133:25;134:1 ,9;159:1613:6;96:14;105:12;136: 16; permission 106:20; 123:12;124:23;125:2; 18:7,7,13,22;19:16;20:3,5; portion 40:20;50:12;65:5;182:]] 107:19,24;109:25;110: 10; 136:11;138:11;141:]]; 25:7,14;31 :18;33:6;34:6,8; 57:11;69:3,8;72:17;142:1;)arties 15:16 112:23;113:2;147:16 163:3;175:24;176:20; 38: 14;39:4,12;44:13,16,17; 148:11)artner 182:8 permissions 37:17; 177:4,11,18;178:7,14; 45: 15;46:12,15,15;47:19; portions 144:10)arts 92:20 103:8,25;125:6 179:14;180: I0,20;182: 18; 49:23;59:5;61 :12;63:4; portrayed 131:12)arty 92:24 permit 94: 15 184:3,22;185:14,24;186:9 64:2;70:25;71: 14;74:3; position 65:10,12,17,18;
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)aragraphs - position (12) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC. July 17,2007
pseudonymous 78:9 puts 96:17 race 155:25;156:2pseudonyms 16:5;27:18 putting 62:22;76:20;91: I Radio 33: 14public 34:25,25;35:1,1; raise 22:23103:2,10;122:15 Q ran 29:4,4;45:2,3Public 122:17 Randall 15:3;31: I0;publication 32:17;33:5; qualification 12:23 32:24,25;37:336: I5;52: 12;59: 15;87:4; qualify 75: 19 Randolph 79:896:23;130:25;131:1,21; quality 25:15;70:8,10; random 74:2;1 17:6140:9;147:2,3;153:17; 97:22 range 182:9162:19 - questionably 16:13 ranging 33:19publications 28: 1;33:6, questionnaire 185:10 rat 35: I38;140:1;152:17;155:11; quickly 103:16 rate 90:22160:12 Quinn 62:17,19;179:25 rates 169:24;170:3;publicity 138:14 quip 54:8 171:25publish 17: 16;18:2;19:16, quips 27:6,8 rather 39:22;40:6;84:20;21 ;20:6,11 ;30: 15;1 07:19, quite 51 :16;55: 17;127:15; 86:5;96:4;121 :12;148:25;20,21,25;11 0: I0; 120:1; 132: I2;146:25;149: 17; 183:18126:3 156:24;177:21 rats 146:20published 13:25;15:20; quotation 12:9;66:4 re 139:2416:2,18,24;18:6;19:15; quotations 25:12 reaction 150:522: 18;23:1,3,6,7,8,19;24:8; quote 12: 11 ;41 :6;43:23; read 26:2;29:23,24;30:25;35:25;36:9;38:22;45:1; 46:23;116: 11,11;149: 1 31 :2,2,6,6,8,1 0,16,17;32:3,53:3,6,19;56:5,9;77:9;78:5, quotes 76:20 6,17;4 1:3;43:21 ;46: 18;
I----='-.:::...::..c=-=-=-...:...:..:=----'------I7,14;79: 1,3,24;81 :3; 49:2;55:25;57:24;61 :11,14,118:19;134:14;135:22; R 17;62:12;65:3;66:4,17;139:12,1 2;142:4; 144:18, 70:5;84:6;98:8; 116:17;23;145:4;147:15,21; Rabinowitz 21 :17; 122:6;125:3;133:3,15;148:22;162:5;164:24; 114:24;129: 19;130:4; 134:12;135:4,9;140: 13;166:4,5;175:19 141 :8;155:24;173:15;188:4 141 :24;142: I;143: 17;publisher 12:7,10,13; RABINOWITZ 10:3; 144:10,11,15;149:1;159:9,14:17;17:15,18,18,19; 21 :18,21 ;22:6;23:23;24:1 0; 10;161 :8,11 ;162:3;175:118:15;23:3;147:9,13; 26:20;39:15;46:3;50:2; Read 63:14;1 16:6,16;178:15 51:24;52:1,3,10,19,24; 121 :21 ;132:23;139:21;publishers 20:20;169:19; 53:11;54:3;56:16,22;57:5; 140:3;143:15;159:11171 :11,18;172:2 58:25;59:22;61:6;62:5,10, reader 80: 16publishing 17:21 ;27:9; 16,24;63:3,6,23,25;64: 10, Reader 40: 11 ,24;41 :2;91: 13;146: 15 16,20;65:2,9;66:2,12,24; 46: 13;50:7;53:6,8;99:3,11;pull 125:5 68:12,20;69:25;72:3,9; 144:22pulp 21:11 73:5,10;74:21;81:17,20; readers 12:6,20;14:17;pun 49:21 82:15;83:5;85:13,17;86:25; 61:23,24punctuation 20: 13;21 :8, 88:2,5;89:3,11, I6,18,23, Reader's 45:7,9,21 ;58:28;113:23;114:6,22;154:15; 25;91:18;94:15;95:5,15; reading 122:10;125:10;160:7 97:1,9;100:10;101:10,24; 132:25;134:13;143:6punctuations 152:5 102:6,13;103:14;104:5,12, reads 50:23;67:19;purchased 148:7;167:5 16,20;105:1,13;106:1,7,22; 134:15;135:9;157:7purported 173:19 . - 107:7;108:2,9,17;109:7; ready 182:25purpose 19:4;20:4;63:6; 110:2,15,25;112:3;113:7; realize 153:276:23;115:22;116:20; 118:15;121 :24;122:3; really 25: 16;29: 1;44:23;131 :21;138:5;139:2,8; 123:9;124:23;127:16,19; 45:19;48:24;51 :3;55:22;140:22,22 129:20;130:5,19;132:4; 56: 10;57: 16;58:3;61 :4;purposes 14:22;32:20; 133:2,5;135:11;136:8; 70:13;78:21;104:6;121 :3,52:17;110:25;114:7;138:16 138:8;141:4,9;146:1; 22;171:9,12,16pursuing 125:18 150:14,24;151:1,19,23; rearrange 20:5put 12:9;20:2,19,20;28:12; 155:25;156:6;157:4,6,9,22, rearrangement 148:1634:11,12,13,22;41:1 ;43:4, 25;158:9,12,15,20;159:4; reason 17:8;75:15;85:1;7;44:23;48:21,22,23,25; 163:3,10;164:20;165:23, 94:14;111:1 ;134:19;49: 17;50:17,19;51 :3,5; 25;166:19;168:6;170:18; 140:21,22;151 :1455:18,21,24;56:6,7;57:18, 171 :6;173:2,10,22;174:6,8; reasons 81 :6;152:1123;69:21 ;75:15;81 :19; 175:6,21 ;176:7,17;177:1 ,8, recall 33:25;35:5;37:14;97:4; 103:24; 114:4;123:2; 15;178:4,11;179:9,15; 54: 14,16;58:2,14;59:8;152:7;159:7;170: 19; 180:5,16,21,24;182:4,6,19, 79: 18;80:13;83:20,21 ,24;173:11 ;176:3 24;183:11,25;184:19; 86:12,12;90:17,18;98:9;Put 50:5 185:3,11,21,25;186:10,12 106:12;112:8;115:1,3;
printed 119:17;142:10,11,12;148:24printing 165:5,9,10;166:3,8,25;167:2,22,22printings 165:16,16,18;166:13prior 130:25;131:1 ;149:15prisms 43:25probably 25:11 ;26:6;27:22;28:2;34: 15;35:18;63: 18;78:3;80:6;93:16;122:7;145:10,12,14;155:16Probably 46:23problem 36:17;104:5;139:23;163:13;171 :7,8,13;179:13proceed 22:4;162:25proceedings 114:16process 36:6;41 :22;42:3;
_ 128:9produced 154:20product 137:3production 28:22;184:5,14;185:7,18professor 15:3;32:25;36:25Professor 14:11;15:3,7,11,14,23;16:7;17:2;18:17;31 :12,13,22;58: 11,17;82: 13;83:14,17;88:13,17;92:6;93:18,19;94:6;96:11,13;97:23;98:4project 124:16;183:20projects 24: 15proletariat 92:22prolific 144:20prologue 73:19,24,25;115:23,25;116: 1,4,8,22;117:5Prologue 115:20proof 78:4proper 16:9proposal 123:17;124:11propose 144:14proposed 102:6,9;136:13;172:20prose 27:15;33:6;39:8;42:23;43:2,5;62: 1,3;67: 13,13,13;68:1 ;69:5,11 ,19,20,23;86:5,6;96:10;97:20prosody 66:6protect 117: 17protectable 11:7;15:1;17:5;65:13protection 158:17prove 15:2;19:6,11proven 163:23provenance 150:9provided 15:14;174:1;186:2provides 140:9pseudonym 27:20,21,24;78:16,16
103:22,23;123:16; 124: I0,15;125:22;164:15positions 103:24positively 86: 1possession 18: I0possibility 12:12possible 14:7;16:12;165:4possibly 35:6;46:20;166:12Post 27:21 ;28:5,7;37: 11,17,21,23;43:7;78: 15;91 :14;103:3;105: 16;106:6;108:13;145: 1,10;159: 18;178:9post-date 64:17potentially 139:25practical 45:24practices 10:8practicing 62:15precarious 43:23preceded 17:3;120:22precedes 126:12precise 37:14;39:3;87:10;115:1;118:24) 19:6;169:25precisely 35:5;132: 10;148:14predecessor 183:19prefatory 58:9prefer 64:20;84:7;170:23preliminary 42: 11,16preparation 183:22prepare 34:14;102:11;113:12,14,17;154:14prepared 74:16;123:3;155:6;167:19preparing 77:15prepublication 128: 11present 17:13;35:10presentation 33:13presenters 33:17presenting 165:11pretext 55:18pretriaI102:6,9,10,11;163:13;164:20,22;172:20;175:1pretty 27: 10;29:1;32:4;33: 19;34:10;35:3,6,12;37:24;40:3;42:2,2;43:5;45:17;70:17;149:18previous 27:7;46:11;51 :14;92:9;95:7,10;99:14;118:12;128:15previously 25:8;38: 13,14,15,25;42:10;45:15;46:16;49:5;75:4;114:2;148:2;154:2;159:22price 175:9primary 89:19;144:21principal 13:13principle 11:19,23;12:8;13:7;17:8,11principles 17:13
TRIAL Min-U-Script® (13) positions - recall
July 17,2007STUART Y. SILVERSTEIN v
PENGUIN PUTMAN, INC.
119:6,17;121 :2,6;153:5,15; reconcile 173:25 relied 13:24;181 :25 respective 169:19 116:24;118:3;120:16;154: 1,18;155: 17;168:3; record 32:20;41: 14,14; relief 11 :9;162:14 respond 122:18 121 :22;122:23;124:5;169:25;170:5 46: 18;52: 17;78:5;86:19,23, rely 1&1:20 responds 122:22 126:3;127:3,10,21 ;12&:1;receive 103:&;106:11; 23;93:4;104:1;114:5,14; remainder 75: 11; 181 :23 response 34:22;95: 11; 129:21;130:4,7;133:9, I0;107:11;108:6;112:25; 135:4;141 :24;146:25; remaining 13:2;49:23 106:11,16;108:6;112:25; 134:6,18,23;135:14,14,14,121 :8;124:7;163:24;169:9, 148:20;155:9,20,21 ; remanded 15:5 119:13;121:1,5;123:20,23, 16;137: 15;149:16;152: 1,7;15;170:8;176:14;177:5; 159: 10,11 ;160:17;182:23; remarks 10:24 23; 125: 15;143:23;163:2, 155:23;157:3;158:10,14,178:24;179:18;180:11 ; 186:25;187: 1 remedy 10:23;162:14 24;164:1,3;173:17;178:24; 24; 159:5;160:9;164:8;181:8 Record 29:24;70:5;98:8; remember 35: 11 ;70:20; 179:1,6,9,11,14 167:17;174:7;179:4,23,24;~eceive 97: 13 116:17;143:17;161:11 106:14,15;111:6;7;154: 19; responses 103:17 181:15,18;184:5"eceived 24:3,14;52:8,9; recorded 154:14 173:16,18 responsibility 29:6 Right 82:6;162:1753:1,2;54:6;55:1;56:19,20; records 29:3;37:19; remembered 30:20 responsible 164:14 right-hand 41 :357:4;59:3,25;61: 10;62:21; 141 :5;170:8;171 :22,23; Remes 179:20;180:14 responsive 143:14 rights 10:9;11:18;18:4;>3:9;64:25;65:22,23;66: 15; 173:3 reminds 182:8 rest 103:3;119:12;143:25 20:22;105:2;106:6,20;>7:3;72:6,11,12;73:14; redress 10: 12 renamed 159:21 result 17:23;18:8 107:21 ;117:17;162:23;74:24,25;81 :25;82:18,24; refer 42: 17;46:8;94:18; renditions 135:18 results 17:20 164:13;178:23l3:9;84:21 ;87:2,3;89:20, 96: 12;121 :19;125:8;129:4; repeat 19:9;24:23;61:19; resume 56:15;111:13; rippers 80: 10~1 ;91 :22;95:19,21 ;97:6,8, 159:5;185:9 65:19;100:2 155:19 Robert 26:9,12;28:19;14; I06: 10;107: 1,10,21; reference 76:22;88:25; repeated 19:7;70:4;98:6 resumed 112:2; 156:4 44: 18;55:3,11,16;56:13;j 08:5,20; 109: 10;110:5,17; 174:16 repeatedly 75:22; 165:13 retained 159:24 109:12;115:10.13:10;118:18;121 :10; referred 53:17;54:13; rephrase 58:1;106:13 retitled 136:25 Robin 49:2122:4,5;123:12;125: 1,2; 79:9;80:21 ;&2:2; 128: 16; replaced 183:18 retract 142:22 rocks 67:19;69:428:11;136:10,11;138:10, 141 :2;160:14;162:2 replicated 148:12 retrospect 93:15 role 124:15,171;140:2,4;141 :10,11; referring 50:22;52:17; re-plus 25:4 return 124:19 Roman 69:14;148:11;50: 17,18;158:24;159:1; 68:10;76:25;117:9,10,15; report 16:15 review 38: 12;40:9;48:8; 156:15,16;157:264: 1;167:15,16;168:8,1 0; 126:21,25;129:16,17; reporter 56:14;127:7 49:9,11,13,14,15,19;50:7, Rope 30:17;75:6;129:7,8;69:11,11 ;170:4,1 0; 131 :5,23,25;147:2;158:5, represent 149:11 8,10,13,14,23;51 :14;52:12, 133:20,20; 159:14,2072:17;174:13,14;175:2,7, 12;161:5 representation 139:4 22,23;53:4,5,17,17,22; Rose 28:23~4;176:20;177:4,11 ,18; refers 52:21;69:15,15; represented 14:19; 54: 11 ;70:24;80: 15;83: 13; rotten 86:678:7,14;179:9;180:8,10, 76:13,19;77:7;129:5,11; 172:2;181:10,12 85:4;94:6;98:23;99:5,8; roundtable 24: I&;26:8,:0;181 :3,13;182:6,17,18; 142:4 reprint 21 :7;166:7 103:20;138:16 23;36:2284:3,22; 185: 14,24;186:6, reflect 108: 14;146:25 reprinted 15:19,22;16:8; Review 22:19,20;57:10; royalties 169:17,18,23;:,9 reflected 109:1;114:11; 74:14;133:25 67: 10; 145:5,7;159:19,19 170:9,13;171: 15,23,24;~eceived 24:1,13;54:5; 170:3 reprinting 165:4 reviewer 25: 13 172:7;173:9,21 ;175:3;7:3;59:2,24;61 :9;62:7; reformatted 62:4;69: 12; reproduced 84:20; reviewers 128:10;130: 17; 181:11,3:8;66: 14;67:2;73:13; 96:10;97:21 153:25;159: 13;160:21; 138:15,18 royalty 13:15;169:12,24;2:17;83:8;91 :21;1 06:9,25; Reformers 101:14 177:22;178:3 reviewing 41 :18;50:11 170:3,10,12,14,18;171 :10,07:9; 108:4,19; I09:9; refused 79:25 reproduction 162:9 reviews 16:23;27:14; 17,25;172:3;173:25;175:7;10:4,16;113:9;118:17; refutes 16: 16 Republic 145:4;159:17 28: 18;38:15;40:1 0,1 0; 181 :2,5,17,21 ,24;182:7;23:11 ;175:23;176:19; regale 27:7 republish 106:20 46: 13,14;50: 15;51 :14;53:8; 186:277:3,10,17;178:6,13; regard 34:8;36:9;46:17 request 107:19,19,24; 98:10,11 rule 156:25;172:1880:6,19;184:2,21;185:13, regarded 12:2; 14:4;46:15 109:11;110: 18;122:9,18; Reviews 99:3,11 Rule 64:253;188:7;189:2;190:2 regarding 33:13;58:9; 162:15;178:21;179:6;182:8 rhyme 39:7;40:3;44:22; ruled 102:16;163:8eceiving 181 :20 80:16;108:12;123:17; requested 113:2 45:5;50: 19;55:8,9, I0,22; Rules 65:1ecent 53: 13;170:6 124:10;139:23;140:8 requesting 10: II 57:21 ;58:14,22,24;59:19; rulings 20:24;166:22ecently 99:25 registered 117:18; Requesting 109:25 60: 17,19,21 ;61 :2,5,5,5; run 29:4;166:21ecess 95:8,II;HI:14; 118:11 ;126:22;127:1 requests 105:2;107:1 I; 65:7;80:10;90:20;145:6 running 117:2255:18;186:24 registration 118:2,8; 178:19 rhymed 93:13 Russo 27:20~ecess 56:21;155:22 126:21 require 61:2 rhymes 44:22,23;57:20 Ryan 25:24;29:17~cognizable 15:21;16:3, regret 10:18 required 107:2;108:21; rhyming 58:20
S4;44:7 regroup 180:21 109:16 ridiculous 65:6~cognize 23:15;24:5; reiterate 124:12 requirements 71 :21 right 11:10,13;13:21;4: 14;46:10;53:12,13; reiterated 123: 18;125:16, requiring 66:22 14:18;17:16;18:5;19:18; Safe 83:24;85:17,18;4:25;55:1 ;57:7;59:13; 18 requisite 74:12 20:6,11 ;21:7,12;22:4; 86: 14;87:5,16;88:] 6,213:10;67:7;85:4,14,19; relate 64:5 research 28:16,17;39:20; 23:20;38:2;40: 18,21 ;43: 19; sale 168:]],198:12;90:6;92:12,16;95:24; related 36:23;156:23 40:2;83:13 48:8,13;62: 18;63:2;69:14, sales 169:9,23;173:20;5:22;106:2;107:4,13; relates 144:1 researcher 14:14 20,24;71 :15;72:10,22,23; 175:9;181 :11,17;186:210:6;115:15;118:7;148:4; relating 114:6;170:8 reselect 48:14 73:4,8,9;74:24;81: 12,22; same 12:20;13:15;20:19;55:1 ;162:1 ;166:2;167:] 8; relationship 55: 11 reservation 182:14 82:11 ;83:20;85:17;86:24; 36:24;37:12,21 ;61: 15;67:5;75:11 ;176:12,21;181: I relatively 55: 17 reserving 174:12 87:2,17;90:5;91 :4,9;92:11; 68:6,24;72: 14,18,24;76:25;~cognized 16:25;17:2 released 31:5;165:10 reside 22:9 93:20;94:4;95:6,23;96:21 ; 87:21 ;90: I;91 :7;92:8;99:4;~co"ection 112:22; relevance 165:17 resolution 163:1 97:3;98:22;101 :3;109: 15; 127:2;134: 10;135:8;148:8;12:20 relevant 102:2,4,16,18 resort 44:20;56: I0 112:17;114:21,21 ;115:18; 150:19;151 :4,5;153:20;
~ceive - same (14) Min-U-Script® TRIAL
STUARTY. SILVERSTEIN v, PENGUIN PUTMAN, INC. July 17,2007
168:25;169:8;182:10,14 160:25;161 :13;1 62:8; serving 163:7 24;97:3,16;98:3;101 :12; somebody 48:1 8,1 8;Same 71:7;168:7 169:1,3,4,5,6;1 84:8 set 21:22;175:14;182:6 102:20;103:17;118:1,14; 64:25;137:23;171 :18sample 119:3;120:5 Section 10:7 seven 14:2,5;63:18,19; 125:4,5;126:20,24;127:21; somehow 171:19San 79:8 sections 76:7;77:3; 75:22;77: 18;83:20,21,24 128:24;136:2;142:6;149:7; someone 44:16;79:8Sanctum 85:16 116:24;117:1,3; 150:7; seventh 167:22 156:7;158:16;160:6; Someone 132:11Saturday 27:21 ;28:5,7; 169:8 several 27:21,23;30:5; 162: 11,21 ,24;166: 12; Somerset 92:13,1837:11,17,21,23;57:10; seeing 119:7;165:15; 34: 18,24;35:19;37:10;38:9, 171: 14,21;172:21;180:25; sometimes 38:2078: I 5;91 :13;1 03:3;105: 15; 170:5 22;42: I 1,18;44:15;58:22; 184:23;186:19 somewhat 50:21;179:23106:5;108:13;145:1 ,7,1 0; seeking 10:9,12,14 61: I 4;78:7,15;79:20;81: I I; SILVERSTEIN 22:1; Somewhat 58:9159:18,19;178:9 seem 54: I 6;65: 15;85:2; 84:13;89:12,25;91: I I; I 12:2; I 56:4;188:3 somewhere 12: I 3save 27:6;104:22;122:7 94:25;98:9; 172:6 99: I 9; 103:20; 122:7; I 28:9; Silverstein's 11 :5; I 2: I; song 90:22saved 164:23 seemed 25:17;57:19; 130:8;146:18;152:1 I; 13:10;15:9;16:17,22;17:8, Song 83:25;91:16saw 20: 18;32:6;37:3; 106:12;125:20 153:3;173:18 25;18:9;19: I 9;148:24,25; Song' 159:2350: 16;83:16;88: I;142: I 2; seems 142:3,6 Several 22:19;38:13; 162:7,13,23 songs 77:9147:23,24;148:6;149:23, segregate 75:20;76:5 79:17 Simeon 79:8 Song-sheet 90: I 0;92:725;150:2; 151 :3;152:10,1 0, segregated 77: 11 ;96:2 shaking 127:7 similar 63: 10 Song-sheets 99:21II seldom 47:10,12;48:1 Shall 132:5 Simon 23:4;45:1;126:2; soon 27:9;138:14saying 19:10;21:3;32:9; select 42:4,7;44:12,12; sharply 40:5 145:6;147:6;169:20,22; sore 47:544:4;50:24;51: 1;60:8;63:4; 59:4;79:2;80: I,19;87:7; sheet 69:21;1 19:2;176:3 173:3; I 78: I 5; I 79:6, I 0,24; Sore 59:9,1466:10;76:23;86:12;106:19; _ 91 :6;93:1 5;98:3;1 25:6,8,1 0 Sheet 84:1 181 :4,14;1 82:1,7;1 86: I sorry 23: 1I ;25: I 6;26:22;I I 1:10 selected 10:1;14:8;44:6; Sheik 87:19,22 simplest 104:21 6 I:19;70:9;71 :8;73:3;scathing 85:4 48: 14;53:18;57:1 3;78:23; Sherwood 26:12 simply 37:14;58:2;66:7; 75:25;91 :9;125:17;129:25;scene 27:1 I 99: 13,18,20;113:1 I ,21; shock 162:7 85:1;115:3;121 :2,13; 134:23;137:21 ;158:9;scholar 15:5 121 :12 shoe-horn 90:23 155:17;169:25 165:21;167:1 3;179:21scholarly 15:2,12;16:17; selecting 90:15 shoe-horned 57:16; simultaneously 32:5; Sorry 25:2 I ;26: I 5;29:20;31:1 ;33:1 2;61 :12;62:24; selection I 1:7, I 0, 13,18, 70:16 37:24 32: 11 ;58: 16;70:3;76: I 4;64:2 19,20,23;12:3,4;13:7,10, shoe-homing 55:17; sin 84:6 85: I 2;87:21 ;98:21;100:2,9;Scholarly 31:3 11;15:1;17:5,8,11,13,25; 75:14 single 17: I 7;20:25;23:21; 129:24;150:24;157:5;School 22:15 18:13,14,20;25:6;48:22; short 25:13;27:14,15; 85:23;86: 10;129:7; I 45:4 165:22Schuster 23:4;45: I; 124: I 3;1 50:19;1 51 :4; 28:20;30:23;33:7;38: 14; Sir/madam 140:4 sort 28:15;121 :5;173:17126:2;145:6; I 47:6; I 69:20, 162:9;175:25 80: 10;105:5;122:15 sit 171:4 soul 116:1122;173:3; 178: 16;1 79:6,1 0; self 76: I 2; 163:6 shorter 50: I 6 sits 67:19 sound 60:21,22,22,23;181 :4,14;182:1 ,7;1 86:1 self-selecting 27: I show 14:1;15:11;16:19; sitting 92: 18 61: 1,1Schuster's 179:24 send 107:15;120:6,7,9; 19:3,5,8, I 0, I 2,18,20;20:2, situation 10:23 sounded 48:24scientist 66:9 122:9;139:18,25;176:23; 10,20;33:15,16,18,24; six 63:18,18,19,19;75:22; sounds 134:18Scottish 67:9 177:12,19,25;178:8; 5I: I 5;56:23;62:22,24;92:6; 83:25;84: 19 source 12:13;20:21;screenplays 27: 16;33:7 183:12;184:11;185:4,16 94:15;103:12;104:7;105:2; Six 99:1 139:24;140:8;144:21 ;screenwriter 26:13 sending 120:22 131:13;171 :13;1 75:8;1 81:7 sixth 166:3,8;167:1 156:10Scribner 23:4,20;24:8; sends 170:16 showed 181:17 sketched 14:24 sources 38:22;77:16;II7:1 7; II 8:2;126:22; senior I 18:25 showing 14:25;96:25; skin 84:6 79: I 7;80: 13; I 36:23128:6;132: II;137:24; sense 48:25;141 :17 154:24 skipping 144:14 Southern 34:19138: 14; 147:6;1 69:1 9; sent 71 :3,24;73:20;80:3; Showing 76:17 slight 11:11,15;148:16 spacing 74:8170:11;178:15;183:16 103:17;109:21,23;115:16; shown 94:18;123:7;172:8 slightly 47:10 speak 11 :3;25: I ;29: I 4,scrupulously 79: 14 120:25;121 :13;1 23:5,5; shows 16:3;64:10;93:19; slogans 19:25 19;51:20;87:20;125:13search'38:1,6;122:23 130:10,12;21 ;138:15; 158:18 slow 29:13;104:18;155:20 speaking 25:2searching 10:11 161 :20 shut 123:2
,slower 29: 15 speaks 51:20,21;89:5;
secohd14:25;61: 17,17, sentence 12:22;42:24; side 66:3,5;72:22,22; slowly 29: 19;132:6 140:18;157:20;180: 1,920,21 ;63:14;67:18;68:22; 43:7;61 :18,23;63: 14;65:3; 81:12;87:11;171:4 small 46:14 specific 70:14;76:22;72:25;74:2,5;81 :24;90:21; 66: 18;67:16;69:22;74:2,3: sides 21:7;164:15 smaller 170: I 106:23;114:17;122:20;124:21;144:14;182:6 116:6;125:3;128:8;131:3; signed 16:4;40: I0,23,23; smallest 165:8 130:16Second 11 :18,24;12:4; 135:12;136:3;137:8,22; 77:22,25;78:9;81 :15;103:7; snap 41:24 specifically 69:12;83:20,13:4;15:4,24;16:21 ;17:9, 139:21 ;143: 19;145:20; 109:18 snippet 28:21 ;29:7 22;170:512;20:7;14,24;38:20;79:5; 146:2;160:23 significance 67:21;92:16 snippets 29:9;30:3; speculate 37:6;169:1 2114:20;115:20;163:8 SEP 103:25 significantly 15:8 46:14;54:18 speculates 45:21secondary 171:23 separate 15: 17;43:8; Silverstein 10:6,9,10,12, so-called 77:20;78:9; speculation 85:9secondhand 138: 17 49:17,18;52:15,15;69:21, 14; I 2:2,6;13:13,16,18; 79:6;134:13 spell 78:10seconds 186:15 22;71:11;117:3;120:2,2 14:2,9,14,24;15:2,7,15; soft 24:6 spend 38:1section 12:21;76:8,9,19; separated 90:1 17: I0,12; 18:4,15,19;19:17; softcover 139: 12;169:25; spent 38:8;39:20;105:623;77: 1,4,12,13;88:18,20; September 72: 18 20: I 2;2 I: I 9;22:7;24:4,15; 170:2 spine 41 :1789: 19;92:8;96:3;97:5; sequence 37:15 25:3;28:9;30:1;41:19; sold 116:12;182:3 spoke 118:25;119:4127:9; I 29: 14; I 30:6; series 28: I 8;77:24;90:9; 52: I I;57:6;63:4;66: I ,3; sole 76:23;78:4;81 :3; spot 47:6136:22,25;147:24;148:14; 103:16;185:1 67:4;70:1;73: I 6;80:20; 109:15;116:20;124:17; spring 38:7,7149:10,12;150:3;154:9; serious 139:25 85: 14;88:6,1 2;89:9;95:3, 138:5;139:2;140:22 Squidge 27:24;77:25;
TRIAL Min-U-Script® (15) Same - Squidge
July 17, 2007STUART Y. SILVERSTEIN v
PENGUIN PUTMAN, INC.
78:9,20;81:15 strange 18:8 79:22;87: 10;107:22; terribly 41 :8;163:6 titles 35:21 ;77:9;114:2,S-Q-U-I-D-G-E 78: 11 Street 27:5 118:24; 121:3;122:20; testified 15:23;16:10; 25;115:4,5,5,7,8,11,12,12;St 26:6 stricken 51 :22; 150: 13; 132:9,11;147:12;170:13; 22:3;63:25;152:1 ;158:16; 118:12;133:22;152:7,19;stage 172:10,13 152:24;180:8 176:3;177:23;179:4 160:6;166:19 154:15;160:7stamped 155:4 strict 128:22 Sure 40: 15;94:18;98:7; testify 179:12 titling 49:22;114:6stance 50:20 stricter 48:23 110:24 testimony 16:16,18; Toadstool 98:25stand 21: 19;42:19;45:22; strident 19:24 surprised 150:6 94:14;114:5;156:23; today 99:12168:4;184:24 strike 98:2;150:12;151 :2; sustain 150:23;163:9 157:20;179:13;180:2; today's 43:7standalone 124: 13 169:17 sustained 11 :6; 19:13; 181 :23;186:20 together 16:18;20: 19,20;standard 96:9; I08: 10; Strike 144:7 94: 14;102:5; 125:14;144:6; Thanks 90:4 125:5;171:19117:22;166:14;170:2 strongest 174:2 150:25;151:12;163:23; theft 10:13 told 12:6,7,7,13,20;13:12,Standardized 83:25; strongly 16: 14 180:7 theme 55:14 15;14:16,17,17;39:11 ,11;90:9;92:6;99:21 struck 48: 16 Sustained 94:12;151:7 Theodore 50:20,23;54:8 41 :24;119:10;120:7;124:1;standards 40:6 struggled 116:10 sustaining 151:14 theory 19: 19 125:24;134:24;135:4;stanzas 42:25;43:8;59:6, struggling 138:3 sweat 10:11 thereafter 132:17;138:14 138:17;155:19;166: 1620;60:15,16 Stuart 21:19;118:14; sworn 22:2 therefore 49:25;125:14 tomorrow 183:2start 10: 18;30:11;132: 16; 126:20,24;142:6 SY 118:1 Therefore 134:1 took 29:8;32:6;58:9;133:13,14;186:23 STUART 22: 1;112:2; symbolic 27: 10 Thesaurus 79:21 69: 19;72:2;74:20;128:9started 30: 12;31: 17; 156:4;188:3 thinking 90:15;172:24 top 67:1836:22;63:17,19;64:7;105:6 studies 82: 13 T third 21:10;61:18,23; total 38:10;101:11;starting 41:5;104:11; stuff 35:25,25;70:14; 71: 18;74:1,6;117:5;125:3; 148:18;149:7;169:13;105:14;132:18,19;159:5 85:24;91: 13;183:6,8 table 92:17;1 16:21; 131:3 173:9;174:12;175:3Starting 144: 13 stunt 45:2 126:13;148:9,12;152:20; Third 61 :23;80:3 towards 65:5starts 82:5;149: 17 style 65:6 183:6 though 10:20;12:12;34:9; Tower 78:8;145:1,9,15state 63:21;86:18;154:23; subject 55: 12;139:10; tables 183:7 48:4,24;50: 18;64:3;80:17; trail 25:17;158:8156:10;170:6;171:18 174:2 tag 40:23 112:11 trailed 26:25State 33:1;34:21 subjective 39:9;44:4,10; take-off 59:7 thought 34:11;35:6; transmission 82:23stated 81:6 84:16;148:25 talk 44:1 1;114:22 36: 19;38:21 ;39:24;42: 12, tremendous 141 :24statement 18:24;19:2,5; submit 17:14;110:8; Talk 85:16 13,14;48:16,20;72:8;78:6; trial 10:23;11:16t7: 12;86:22;11 0:20; 170:6; 136:17 talked 61:11 ;108:12; 93:13;100:9;104:9; 106:5; Trial 187:4181 :5 submitted 137:6 112:7 134:7,20;135:4;137:24; Tribune 28:3,5;35:24;statements 19:8;169: 12, subpoenaed 172:25 talking 64:7;68: 15,25; 172:22;173: 19 36:4;145:2;159:1815;170:3,10,14,17,19; subscriber 57:21 93:1;105:7;108:25;129:24; thoughts 66:7 tried 36:1 ;42:20;90:23;171: 10;172:3,6;173:25; subsequent 60:23; 130:1;144:3,12;157: 1; three 13:1;21:5;27:19; 173:24175:7;181 :3,17,20,21,24; 108:22;114: 16;145: 17 165:4 28:21;77:19;78:14;119:2; trier 151 :18182:7;186:2 subsequently 23:8; talks 117:6;127:23 133:23;145:16;166:17 tries 58:23;tates 121:11;122:24; 29:10;71 :25;164:24 tape 15:13 Three 21:4 triggered 128:10126:24 Subsequently 72: I target-rich 35:23 three-year 45:9 trivial 15:14;48: 17;tating 79:25 substance 136:15;164:3 taste 43:25 thrown 21:9 trouble 24: 19;29:12;.tationery 56:9 subtitle 58:5;76:17,21 taxes 171 :22 thrust 28:15 51:18;76:14.tatus 102:25;121: 16,17, subtracting 30:19 Taxes 30: 18; 129:8,9; thus 16:6 troubled 10:21;171 :2119;122:14,14,15,19 successively 165: 16 133:20,20;159: 15,15,21, Thus 13:8 truth 48:13;79:15;104:25.taying 56: 10 suggest 26:20;43:2; 21;160:15 tiger 84:6 try 29:21 ;34:7;64: 18,22;.tep 187:2 103:15;139:23 technically 34:9;39:6; times 42:18;75:23,23; 132:19;138:20;139:5;.teps 34:14;118:19 si;Jggested 120:6;132:12; 48:18;50:18;156:18 79: 12;84:13;89:12;166:17; 143:5;151 :25;183:10Itereotypical29: I 133:13 Ted 66:8 168:15 Try 24:21ItillI9:1;24:17;57:6; suggesting 132:23 telephone 120:18,21 ,23; Times 60:5 trying 26:22;27:2;39:17;)2: 10;104:22;112:4; 164:9; sum 18:5 139:22 timing 37:13 44:11;51:2,4;60:25;61:3;;65:9;183:9 summary 173:20 telling 18:21;19:11,14; tinged 69:4 69:11 ;91 :2;130:16;136:6;.tipulate 104:2;163:19; summer 55:4 172:16 title 32:2;34:1,2;49: 18; 137:23;146:13,13,14,2164:5;171 :20;186:3 Sunset 30:17;129:8; template 51 :2 52:20;56:11 ;59:8;75: 17; turgent67: 13.tipulated 170:20;182:9 133:20;159:14;160:15 ten 136:23;165:7 76:7,9,16,18,19,25;77:7; turn 19:24;24:16;25:19;)tock 33:17 superiors 132:]2;138:20 Ten 182:22 79: 19,22;83:25;90:9;98:24; 43:16;57:6.tone 40:5 supplemental 173:17 tend 50:19;65:5,6 118:11,24;131:18,19; Turn 109:3.top 46:20,20 supplier 25:12 tends 42:23;49:20 149:25;150:7;152:13; turned 15:13;21:11.topped 176:11 supply 171:14 ten-minute 155:18 173:16,18 twelve 144:24.tore 169:8 support 11 :11 ;15:1 tenor49:19 titled 30:8;49:8;52:12,21; twenties 144:19.tores 168:16,18; 169:4 supported 15:9 term 18:11;25:4;42:18; 53: 19;56:8,12,13;58:4,5; twice 81:23;170:1 Iitories 27: 15;30:23;33:7; suppose 183:1 69:6,17 75:7;76: 10;80:24;88: 18; two 15:12;16:23,23,23;;8:14 Suppose 174:4 terminology 116:13 98:14,15;99:8;100:16; 27: 19;28:21 ;29:6;34:23;itories 160:3 supposedly 57:20;92:23 terms 16:25;26:7;48:2]; ] ]4:3;] 15:20;136:23; 38:2,4;45:3;46: 13;48:8,9;itory25:13 sure 18:12;30:6;31 :24; 54:8,9;75: 19;90:24;119:15; 147:24;150:3,7;158: 14 50: 16;52:11;53:4,18;65:6;,traight 31 :15 37:12,21 ;47: 1;48:13;75:23; 124:14,15 Titled 117:2 68: 18,19;76:6;77:3;82:13;
i-Q-U-I-D-G-E - two (16) Min-U-Script® TRIAL
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC. July 17, 2007
92:20;98:9; I00:4;102:16; 34:17,19;55:2;109: 12 verse 12:15;14:4,12; 72: I4;76: I ;80:20;88:7; 55:14;94:17;103:16;116:24;117:1;] 19:2; unless 36: 12;45:25; 27: 13;38:20;39:18,19; 92: 1,10;95:4,5;100:1,3; 121:21 ;144:1 I ;157:21135:18;144:9,20;145:8,17; 166:17 41 :25;42:14,19,21,22;43:5, 103:14;115:14;118:6; whose 137:4146:8 unlikely 78:6 6,9;45: 16;47:21 ,25;54:17; 120:2;121:12;123:19; widely 79: 10two-part 171:9 unnecessary 140:15 58:15,20;61 :11,13,24,25; 124: 13;126:13;130:20; Willem 41:9type 33:2,12;1 13:17 unpaid 145:11 62:2,3,23;64: 1;65:7,13,14; 139:16;140:6;143:1 ;148:3; William 79:8types 27:12;116:3 unprotected 13: 10 66:6,6,11,23;67: 11;69:5,7, 160:4,23;161 :24; I67:5; willing 17] :20typesetting 20:22;184:9, unpublished 145:8,15 11,16,] 7,23;70:2,18,22; 171 :5,6;176:10;] 80:25; wind 53:1116 unquestionably 20:7 71 :16,] 9,20;76:] 0,13,16, 183:12 Winter 20:25typographical 78: 1; unquote 43:23 18,19,20,'24;86:4;96:4,9, Volume 23:1 ];40:13; wise 41:9,9153:22,24 unravel 146:21 24,25;97:4,18,22;99: 13,18; 92:2;] 00:4;] 20: 19;165:25 wisecrack 93: 13Tysie 183:13,16 unrequited 55:]5 101: 17;117:2;144:19; volumes 13:1;21:22 wish 10:15;41:21
unsold 162:20 153:13 von 73:20;] 15:16,17; wishing 13:8U unsure 37:3 Verse 68:2 118:20;]] 9:]5; 121:1,7; wit 25:1 ];28:1 I
unsympathetic 172: I verses 12:3,24;13:],2,20; 122:18,22,25;] 23: 13; withdraw 162:20;179:15UCLA 22: 13;28:17;34:] 8; up 13:3;21:22;23: 10; 14:16;16:23;25:7,14;27:13, 124:4;] 25:9 withdrawn 137:] 635:11 24:21,23,25;25: 19,24;27:6; 14;31 :18;34:7;47:18,20; vowel 60:21,22;61:1 within 43:]8;87:11;UK 147:10;]69:20 30:3;38:2;39:23;53:1 I; 63:4;70: 12,13;71:1 ;74:3,7, 119:20;136: 18;] 82:9ultimately 44:] ;74:20; 79:20;87:20;102:17;107:6; ]0;75:9,16,20,2],21 ;76:7; W without ]2:22;17:19;75: 1;78:22;130: 13;135:15; _ 121 :4;123:2,2;127:6,8; 77:2,8,9,12,13;95:25;96:2, 56: 19;65:8,22;95:]9;97:6;136:25;137:5;139:] I ]28:22,24;130: 17;] 3] :4; 14;101 :18;102:21 ;112:12; wait 76:8 ]41:10;147:16;] 82:1 7Ultimately 50: I3 133:]4;135: 10;1 38:3; 1]6:5,12,]4,20;117:4,12; Wait 60:4;72:25;158:5 Without 23:21 ;82:22unable 171:23,24 139:23;144:3;165:1 I ]27:13;133:] 8; 140:6,] 0; waive 172:] 1;174:1]; witness 2]: 17;42: I9;unacceptable 17:23;18:8 update 173:19 143:21 ;144:14,17,21,23; 178:23 46:6;62:] 1,22;94:] 3;unanswerable 17:14 updated 31 :4 ]45: 18;]46:6;147:13; waives 179:23,23 141 :25;143:15;]47:];unclear 27:25;]28:12; upon 28: I5;67:24;71 :4; 152:] 9 waiving 65:17 172:22,24;173:1;175:2171:17 163:8;172:18 versification 66:22 walk 170:22,23 Witness] 87:3uncollected 11:19,22; use 21:12,14;36:25;41 :7; version 53:5;74: 18; Wallace 62:14 WITNESS 26:]6,18,22;12:2,15;14:4,12;16:10; 48:25;] 03:5; 109:25; 126:13;131:] 0;136:19; Walter 67: 15;68:6,22 28:7;29:20;31: 17,20;32:4,17:8,20;18:7,13;20:2; 110:23;111:1,4;112:24; 137:1 ;141 :12,13,15;142:8; wants 89:6;103:24;123:3 10, I2,22;39: 17;42: II ,22;159:22 113:2 151:25;155:11 war 36:3 46:22;47:3,5,9,14,16,18;Uncollected 147:11,25; used 20:25;27:4;42:18; versions 35:9 War 159:23 48:3,6;51 :1,7,13;60:6,9;148:14;149:10,12;150:3; 54:17;79:11;103: I0; versus 148: 17 wars 36:3 62:12,18;64:13;68:10,13,154:10;160:25;161 :12; 140:21;152:19 via 123:]4 waste I 11 :I2 16;69:10;70:21 ;72:7,20,24;162:8 using 20:21;44:9;1 I1:3; Viacom 23:5 watch 11:2 73:3;78:11;81:12,15;82:7;under 10:8;16:5;19:19; ] 16:13 Vicious 55:14 watches 155:19 84: I0,13,22,25;85:8;86:20;27: 18,19,20,21 ,24;72: I7; usually 54: I7;60:24; video 15:10;51:15,17,20, water 24:25,25 89:5;92:25;93:4;95:6,18;74:14;75: 19;77:9;78:16; 165:7 20,2],25,25 way 20:19;25:18;36:1 1; 98:21;]00:7,12,14; 101 :2;83:25;88: 19;90:9;96:15,17, videos 14:10 42:23;48:23;50: 14;59:12; 119:25;122:15;124:1;18;98:1 ;99:8,1 1;107:22; V view 11:12;17:21;18:9,21; 64:21 ;66: I0;67: I5;76:23; 129:5;130:12;131 :25;110:22;112:4;128:8;143:1; 46:21;69:7 79:23;84:17;139:23;143:18 132:5;133:6,8,1I;134:7,17,144:2;149:10 vague 39:7 vigorously 162:25 WB 68:2,4 22;135: I,5,17,23,25;Under 88:20;98:24 vainglorious 139:4 Viking 118:25;119:1,4 wear47:11,13;48:1 139:14;142: 12,15,17,20,underlined 114:20 valid 18:20 Vincent 26:7 web 62:14 23;143:23,25;145: 13;underlines 69: I0 validity 11:5 Vinci 68:23 week 14:10;29:6,7,10; 147:4;153:15,22;154:4,6,8,underlying 64:5; I25:21 value 162:24 violated 164:13 38:8,9 12;166:1,14; 167:1;174:19;underneath 132:9 Van41:9 violation 10:6 weekend 118:22 184:25underscored 55:11; Vanity 28:3;36:1 ,9;96: 18; virtually 17:2;32:]5 weeks 38:10,1 ];87:11; witnesses 166:22]40:]5 144:24;145:10;159:19 visited 34:15,19,21,24; 136:18;144:20 witness's 21:23;94:13underscoring 140: 13 various 25: I5;27:5;33:6; 35:3,6;168:17 weird 57:22;60: 18 woman 33:17;130:3understood 10:22;13:4 35: 14;36:20;39:21 ;77:24; visits 34:23 Wells 27:22;78:17,23 women 46:25undertiikings 43:23 103:17;171:10;175:9,15; visual 151:19 weren't 78:22;128:21 women's 47:2undertone 39:8 184:4 vivid 15:14 what's 62:8;1 14:19,19 wonder 25: 17undertook 15:2 Various 27:5 Vogue 28:4;36:1 ;144:25; What's 92: 16 Woollcott 26:14,16undoubtedly 45: 15 vary 171:25 159:19 whatsoever 12:23 word 10:10;20:10,25;unfair 10:7,8 vast 14:7 voice 24:21,23,25;25:23; wheels 27:22;78: 17 43:21 ;44:10,10;54:23;unintentionally 147:1 veer 65:5 121 :4;127:6,8;128:24 whenever 170: 15 90:25;125:8;127:17;unit ]73:20 vein 63:10 voila 69:23 Whenever 46:19;47:6 128:25;129:2,3,7,10;universally 40:25 verbatim 20: 1,1 0;21 :1; volume 12:18;13:3;17:17, whim 34: 11 ;50:2 I 135:10,11;136:2;137:8,10,universe 14:7;101:11; 148:15;158:18 ]7,19,24;19:15;23:10,11; white 92:20 12,] 3,] 4;] 38:23,24;102:8 verbiage 135:7 25:24;43: 11,14;45: I0;46:2, Whitman 183:13,15,16, 139:13;146:23university 34:]6 verified 182:]) 5,6,6;53:9;54:22;57:6; 21 words 20:9,10,14;21 :6,6,University 22:] 5;33: I; vers 57:21 59: I3;61 :]5;67:5;71 :7; whole 12:16;29:1;43:3; 7;25: 17;41 :7;44:3;84:18;
TRIAL Min-U-Script® (17) two-part - words
July 17,2007
~6:13;87:22;117:9;119:6;
123:4;125:11,13;127:19Nords 53:15,15,15;99:9,~,9
Nork 10:14;13:7;14:3;16:20;24: 17;29:2;30:23;32:21 ;33:2, 19;62: I ;93:20,25;118:11 ;123: I ;160:3;162:13,24Norked 176:4Norking 24:15,16;133:14Norks 11:21;12:1;14:15;15:25;16: 18,22;17:3;22:18;27:12;28: I ,2,13;31:1 ;33:9;103:1;116:3;121:13;151:9;152:3;153:7;160:12;175:15Norld 14:20;17:21;36:3Norld 27:23;28:4;59: 15;50:2,5,6,8;145:2;159: 18Norlds 27:3North 107:23Nrite 27: 12,18;28:20;~9:6;47:8;50:24;76:17;79:25;84:24;92:18;96:25;109:1 ;132:13;160:1Nriter 22:17;25:13,13;W:9Nriters 61:25;67:23Nriting 16:14;44:3;54:18;56:23;105:7;115:22;137:4Nritten 25:7;27:23;28: 18;\0:5;31 :7;33:21 ;34:6,9;\8: 18,21 ,23;40:20;42: I ,8,13;44:22;55:3,16;58: I0;57:15;69:13;77: 17,21 ;78:2,\,6,22,23;79:7,13;80:8,12,14,15;81 :2,9;82:1 0;83:3,II ;84:8,15,19;85:2,3,4;l6:15;92:13;119:21 ;128:4;130:3;131 :4;134:14;135:6,7;142:2;143:10Nritten 77: 18Nrong 75:5;127:16;172:22;177:21NrpllgdoiIl9164: 15IIIrC?ng~headed61 :25IIIrote 21 :2;25:14,14,14;~7: 13,13,14,14,14,15,15,.6,16;16,19,19,20;33:5;\7: 19;44:18;47:9,1 0;62:9;i3:2;79:1;80:2,9,17;82:13;:5:3,24;92:19;105: 15;12:20;113:13;128:3,8;30: 13;132:16;134:20,25;35:4,15;141 :15;144:13,6,17;145:6;146:23;149:5;55:6'lfylie 26:6
x~eroxing 72:21,22;90:2(1148:11
Nords - youth (18)
y
Yale 145:5;159:19year 22: II ;23: I ;29:4,4;31: 19;166:4,6;170:11years 10:22;14:2,5;29:5;35:5;36:21 ;37: 14;38:2,4,9;63:18;69:12;78: 15;85:22;116:10,10;144:18;168:17;172:2Yeats 68:3,4;69: 13yesterday 10:19yet-undefined 69:6York 10:8;27:3,23;28:3,4,4;35:24;36:4;43:7;59: 15;60:2,4,5,6,8;88: 19;96: 16;145:2;159:1 8,18;165:14,14Yorker 28:4;40: II ,18;145].,9;159:17young 27:2;28:24,25;59:8Young 59:8youth 27:11
Min-U-Script®
STUART Y. SILVERSTEIN vPENGUIN PUTMAN, INC.
TRIAL
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