In The Matter Of:

STUART Y SILVERSTEIN v. PENGUINPUTMAN, INC.

July 18, 2007

TRIAL SOUTHERNDISTRICTREPORTERS 500 PEARL STREET NEW YORK., NY 10007 212-805-0300

Original File 77I7SILF:ti.l, Pages 191-362 (172)

Word Index included with this Min-U-Script® STUARTY. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007 Page 191 Page 193

11} UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [1) going to be based on what you have read, is that right? [2} ------x [2) MR. DANNAY: Correct. \, [3) STUART Y. SILVERSTEIN, [3) THE COURT: All right, fine. Go ahead.

[4) Plaintiff, (4) MR. DANNAY: 1just need to explain what it is 1 am [5} getting to. [5} v. 01 Civ. 309 [6} THE COURT: Fine. [6} PENGUIN PUTMAN, INC., [7) Q. In the conclusion the court said, "We hold that [7) Defendant. . (8) Silverstein's rights are limited to his selection of ------~~------x [B) [9} categorization ofsome works as poems that were written by

[9) July 18, 2007 [10) Mrs. Parker." And I am focusing on the "some works," and in 9:30 a.m. [10) [11) your testimony yesterday, as I understood it, you appeared to Before: [12) be claiming protectable creativity for a certain number but, as [ll} HON. JOHN F. KEENAN [13} 1understood it, not all the poems individually in Not Much [12} District Judge [14} Fun. And that's what I want to go over here, someofthe [13) APPEARANCES [IS} numbers. (14) [16) Now, initially Not Much Fun collects, am I correct, NEAL GERBER & EI~NBERG LLP [15) Attorneys for Plaintiff (17) 121 - contains, rather, 121 previously uncollected poems and BY: MARK A. RABINOWITZ [18} [16) CHRISTOPHER D. MICKUS versus, putting aside Day Dreams for the moment. Isthat [17} COWAN LIEBOWITZ & LATMAN PC [19l correct? Attorneys for Defendant [lB} BY, RICHARD DANNAY [20) A. Yes. THOMAS KJELLBERG [19} [21) Q. Thank you. And as I understood your testimony -- and this [22) is a question -- you claimed some protectable creativity in the [20} [21} [23). inclusion ofthe 19 free verses which include the 18 hate [22} (23) (24) verses and the item called Oh, Look etc., the modernist verse, [24) (25) (25) is that right?

)------~------~----+----'------~--,------Page 192 Page 194

[1) (Trial resumed; jury present) [1) A. Not quite. I claimed that those were instances of (2) THE COURT-:' Good morning, ever·ybody _ Thank you. for [2) subjective selection. [3) getting here so promptly. It's a terrible day out, and traffic [3) Q. OK. And you claimed the same as to four works that were

[4J and everything is delayed, so thank. you very much. (4) found, you might say, in larger works, the two that you titled

[5) All right. Mr. Silverstein, come on up. (5) After Dawn and Crisscross, that is the two verses in book

(6) And you may continue cross-examination, sir. [6) reviews, correct?

[7) MR. DANNAY: Than~ you, your Honor. [7) A. Those were instances ofsubjective selection.

[B) THE COURT: All right. [8J Q. And that's your claim. Andthe two leiters Dorothy Parker [9) STUART Y. SILVERSTEIN, resumed. [9) to Ogden Nash that was in the advertisement, aild Dorothy Parker

[lq) CROSS EXAMINATION (ContinueQ) [10) to Robert Benchly,the letter and verse, is it the same claim?

(11) BY MR.DANNAY: [11) A. Instances ofsubjective selection, yes.

(12) Q- Good morning, Mr. 5i1verstein. I have s'orne questions' to [12) Q. Beg your pardon? (13) ask you obviously ,on cross-examanation, bU~ I do want to just [13)· A. Instances ofsubjective selection.

114f read --"it's not a question to you -- ~rom the conclus~on of [14) Q. Subjectiveselection, OK.

[15) the Sec'and Circuit opinion, because it re'lates to what I :want [15) Do you claim any protectable creativity underyour [16) to ask you at the outset here. And under this section in the 116) . selection copyright claim for the Inclusion -- and let me go

[17) opinion that says-~ [f7) through them from your table ofcontents from your book in Not

(lB) HR. RABINOWITZ: Objection, your Honot-. If this isn't (18) Much Fun which is Exhibit A and B ofours and 2 and 3 ofyours.

(19) . part of a question, I object to him"'making argurne"nt as pa'rt of [19) Is that correct? Just so you can fmd it. Not. Much FUn.

[20) cross-examination. [20) A. 1 claim a copyright inthe compilation itself as a wh6le.

(21) MR. DANNAY: It's not an argument. [21) Q. I understand. But d~ you claim anyprotectab](: creativity

[n} MR~ RABINOWITZ: You ~on·t make statements to -­ [22) in the Bridge Fiend, which is the first poem listed in Not Much [23) THE COURT: It might be helpful if you·1et me rule. ·[23) Fun?

[24) If it's pr~efatory to a question, r-l'm going ,to permit him to do [24] MR. RABINOWITZ: Objection. Vague.

[25) it, and then he puts the question. I take it the questi-on is [25) THE COURT: Objection overruled.·

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(I) A. The claim is for a compilation copyright for the [lJ Q. I'm just trying to understand your claim from your

(2) compilation in toto. 12J testimony yesterday. I am asking you whether you are also

13) Q. OK. But my question' is do you claim any rights in the 13) claiming that some protectable right in having excluded from 14 ) Bridge Fiend individually? 14 ) your compilation ofNot Much Fun the standardized song sheet.

[5) A. Bridge Fiend is only alleged as an instance ofsubjective 15) I won't quarrel with you for the moment whetherthat consists

16) selection that was part ofthe composition ofthe compilation. [6) ofone item or six items. I know that Calhoun classified it as

[7) I'm not claiming any individual right in Bridge Fiend. 17J one and you classified it as six.

IB) Q. OK. Do you claim any individual right inAny Porch? IB) A. We are alleging that the selection ofsome item or the

(9) A, The same answer would go for any individual item. [9) refusal or the nonselection ofsome item is in itself

110) Q. Any individual item iuNot Much Fun? [10J subjective, and by not selecting an item which I could have

[llJ A. I'm saying that the claim isfor a subjective selective Ill) selected is in itselfsubjective.

112) compilation. We alleged certain specific items as instances of [12) Q. And,therefore, you are claiming some right in the [13) subjective selection. We're not claiming any individual rights [13) subjectivity you claim in having excluded the item? [14) in those items. [14J A. No, I'm claiming that that is an example ofselection. [15) Q. OK. Do you claim any, to use your phrase, subjective [15J Q. It's an example ofselection. (16J selection rights in the Bridge Fiend? I will go back to that. 116) A. Yes, subjective selection. 117) A. We are saying that ev~ one ofthe selections I made was [17) Q. And are you claiming protection for that selection, ifyou 11BJ subjective. [lB) will, by excluding the song sheet? 119) Q. OK. Now, that's what I want to focus on. You are saying (19) A.. I am saying that that is another example that displays the [20) it was subjective to include the Bridge Fiend? [20) subjectivity ofmy selection, because selection requires both [21J A. Yes. [21) selection and nonselection. [22) Q. You are saying it w~s subjective to include Any Porch? 122) Q. And in the nonselection area, the exclusion of the

(23) A. Yes. 123) standardized song sheet, that would fall in the nonexclusion? [24) Q. You are saying.it was subjective to include The Gun Men and [24) A. That would indicate the fact that I did not select it and I [25J The Debutante? [25) did so subjectively: .

Page 196 Page 19t·

11 ) A. Yes. [1) Q. Are you saying for Playing It Safe?

[2J Q. To save time in reading all ofthem, all "12 1 ofthe [2) A. Yes.

13) previously uncollected poems you say you included on the basis [3) Q. Are you saying the same for HiggledIy Piggledy? (4 ) ofsubjective selection; is that your claim? 14J A. Yes. [5) A. I am saying that in each individual instance I made a IS} Q~ Are you saying the same for the three attribution items,

[6J subjective selection whether to select or not to select.that 16J From the Ladies, Upon Your.Honor, and Elinor Glyn? [i) item. 17J A. I am saying for each ofthose three items I could as easily (B) Q. And do you think that each selection that you made reflects IBJ have selected them as not, and it was a subjective decision [9) creativity that you are ciaimirigprotection for in this court? 19J because there were no objective criteria upon which to base my

[10) A; I'm saying that each oneofthem-is subjective. [10J subjective selection. There was no documentary evidence that [11) Ck'My question wasllfeyou c1aiiningthat your subjective [llJ was conclusive either way; and all the documentary evidence for [12J selection, asyoupllfit,entitles youtoaClaim ofcreativity [12) at least one ofthem was that she had written it, that being [13J in support ofyour copyright claim? . . [13J From the Ladies. [14J A. I am saying that the claim that we are making is for a ll4i Q. Now turtling to figures in American Folklore, you testified

[15) selective and subjective compilation. [15J about that work yesterday. You said it was in the original

[16) Q.Fofa selective --'exCuse me? [16) manuscript that you had prepared?

II?J k .Weare not asserting individual rightsin the individual [17J A. Yes. Well,] said it was in the manuscriptthatI had (lBJ. poeins. We aresaying t!tat in toto theycomprise a subjective [lB) ~'Supplied to Jane von Mehren.

(19) selection and a compilation copyright. (19J Q. And you characterize it as either free verse or diatribes?

[20) Q. OK. And you are making a claim, are you not, for some i20) A. I don't recall exactly what the wording was, but I think

[21) protectabIe right in the exclusion from Not Much Fun ofthe (21) that harangues or diatribes were discussed in the prologue

[22} standardized song sheet, is that correct? (22) page.

[23J A. No. [23) Q. And you later omitted it from Not Much Fun? [24J Q. What's your claim! [24J A. No, I later determined not to select it for a later draft [25) A. Excuse me. Can you rephrase thequestion? [25) ofNot Much Fun.

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11) Q. Would you characterize Figures in American Folklore a~ [l) was more interested in the dramatic effect than she was in

12J prose? (2) accuracy.

(3) A. I wasn't characterizing it as anything other than as a . [3) Q. So, do you claim some creativity,Mr. Silverstein, in

(4) nonpoem or non-free verse. I did not have to come to any other [4J excluding an item as not by Dorothy Parker when as at least you

(5) conclusions about it. 15J report it Dorothy Parker has at least on one occasion has

[6) Q. Are you aware ofthe characterization that Calhoun gives to (6) denied writing? 17! Figures ofAmerican Folklore? [71. A. And otherpeople said she did write, including -- IB) A. I would have to look it up. [B) Q. But ifyou would just answer the question as to whether you

(9) Q. Well, let's do that. In Defendant's Exhibit E, which is [9) claim some creativity in excluding such an item.

[10) . the entire Bio-bibliography ofCalhoun; which we will offer [10) A. Yes, I do.

Ill) into evidence c_ perhaps we can show the witness -- I forget -­ [ll) Q. OK. Do you also claim that to avoid an infringement claim

(12) I don't know ifthat's in the excerpts that you included, but (12) Penguin would have to include such an item so as not to copy [l3) it's on page 73. (13) your selection or deselection?

[l4) MR. RABINOWITZ: That's in the excerpts. I think '[14) A. You are asking me for a legal {;onclusion, counsel.

[15) that's our Exhibit 8, unless you want to show Ilimthe whole (l5) Q. No, I'm asking you for your opinion.

(16) thing. (16) A. But that's a legal conclusion. (17) THE COURT: So E is 8, fine. OK. Ifypu have Exhibit 117) Q. Are you arguing with me?·

[18J 8 there, look at it. (lB) A. I'm not trying to argue with you, but you are asking what

[l9) MR. DANNAY:We're going to offerintoevidence the [19j Penguin would have to do to avoid a certain kind ofclaim.

(20) entire bibliography. I don't think there is any objection to (20) That by its very nature is a legal conclusion.

(21) that. [21J Q. No, I'm he not asking you what Penguin would have to do.

(22) THE COURT: I take it there is no objection. Is that (22) THE COURT: Now you are arguing with each other. Put

,(23) right? (23) a question. Go ahead.

124J MR.RABINOWITZ: Yes. (24) Q. Is that part ofyour claim that Penguin excluded that item

(25) THE COURT: OK. E isreceived. Fine. (25) from its compilation Complete Poems?

Page 200 Page 202

[1 J (Defendant's Exhibit E received in evidence) [1) A. Not at all. My claim is that Penguin photocopied and [2) Q. Would yo~ tu~ to page 73. (2) reproduced my book, and so they didn't do any thinking involved

[3J A. Yes. (3) in what they selected for the uncollected section ofthe

(4) Q. Can you tell me on that page how Calhoun, Professor [4) Complete Poems. That would require thought.

[5) Calhoun, classifies Figures in American Folklore, under what (5) THE COURT: Keep your voice up, please. [6) heading, classification? [6) THE WITNESS: Sorry, your Honor. (7) A. He categorizes them under prose. [7J Q. I want to tum to Playing it Safe. How did you. [B) Q•. Thank you. In Not Much Fun, Mr. Silverstein,'at page 43 -­ (BJ characterize that? (9) turn tothat. Do You have it? (9) A. rdidn't characterize it as anything except for I did not [l0) A. Yes. (10)' select it as an item for the book. . . [ll) Q.. ln your book. you write,"But she" -- I)1~ingI)orothy Parker [llJ Q. You said I think on other occasions that it's obviously'

(12) -- "denied writing the verse in William Randolph Hearst's San (12) labored prose. Is that a fair summary?

(13) Simeonguest book "Upon my honor] saw Madonna..." Itreferred 113J A. I have sa'idthat.

(14) to Hearst and his ·mistress, the actress Marion Davies. Though .£l4) Q. You said that. You were present at the deposition of

[15) the verse was quite popular, Dorothy waslivid that she would [15J Professor Calhoun which we will see at a later .occasion?

(16) rhyme honor and Madonna." . [16J A. Yes, I was. [17J So in her lIfetime Dorothy Parker deniedwriting that [17] Q. And did you hear him say that he had made an error in [lB) item, is that correct? (lB) characterizing it as a poem and that in fact it was in his (19) A. Not quite. She said in this one article she denied it, but [19] opinion prose and ~ot a poem, and that he would change his

(20) .in that same article the writer said she often lied. [20] classification in the new edition ofthe Bio-bibliography?

(21) Q. Did the writer say that she lied about this item? (21] MR. RABINOWITZ: Objection, your Honor.

(22) A. He said that she lied quite often in their interviews. It (22) THE COURT: Sus~ained.

(23) was written by Wyatt Cooper in Esquire Magazine in ]968, and he (23) Q. Let me tum to the free verse. The free verse in Not Much (24) . prefaced the article on the first page by saying that you (24) Fun consists of 19 items, is that right?

(25) . really could not count on the accuracy ofwhat she said. She (25) A. Yes.

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[1) Q. The ]8 hate verses and the one Oh, Look item? [1) A. You are asking me for a legal conclusion about the (2) A. Yes. [2) parameters ofthe complaint. ,[3) Q. And you told us yesterday, am I correct, that you selected [3) Q. I'm asking you whether it is part ofyour claim that it [4) them as'nonpoems in Not Much Fun? (4) would be,an infringement ofyour alleged selection copyright if [5) A. No,l said] selected free verses despite the fact that [5) you included works as nonpoems and Penguin included them as [6) they did not comply with the general limit ofwhat the (6) poems. . [7) collection, what the compilation waS supposed to be,.because ] (7) A. Again, you are asking me for a legal conclusion. [B) wanted to put them in anyway. [B) MR.DANNAY: YourHohor. [9) Q. OK. But they were included as nonpoems in your opinion, is [9) THE COURT: Why don't you answer the question as best [10) that correct? (10) you can. [ll) A. I very carefully distinguished between poems and free [ll) THE WITNESS: Can you restate the question? [l2) verses throughout the book, yes. [12) MR.DANNAY: Can it be read back to the witness, [13) Q. And the free verses in yourjudgment are nonpoems, is that [l3) please.

(14) correct? [14) THE COURT: Please read him the question. (15) A. Yes. [15J (Record read) , [16) Q. OK. In Complete Poems, would you riot say that Penguin [16J A. No, because the issue is the selection as a whole. And the [17) quite obviously fLOm theface ofthe book selected the hate [17J selection that] made for the compilation is identicai except [lB) verses as poems? [lBJ 'for the one item I inadvertently added. [19) A. No, they didn't do any selection whatever. They copied my 119J SO the reason I brought up the poem/nonpoem [20)bookand to use my selection, so there was no selection [20) distinction was to show an indication that those were [21) involved. They merely changed the order in which they put [21) selective, creative selective or subjective selective , [22) things. (22) decisions. The fact that Penguin used my selection'does not in [23) Q. What's the title of the book? (23) any way indicate that Penguin used any creativity whatever. I [24) A. What book? [24) Q. I'm going to tum to the letter to Ogden Nash included in [25) Q. OfComplete Poems. (25) your Not Much Fun. Correct? 1

Page 204 Page 206

" "j [1) A. Complete Poems. (1) A. Yes, I did. [2) Q. OK. And what's the title ofthe section where the (2) Q. And that appeared in an advertisement initially?

[3) uncollected works appear? [3) A. Yes, it did. [4) A. Poems Uncollected by Parker. [4) MR. DANNAY: I'd like to offer Exhibit XX. XX is an I [5) Q. OK. It doesn't say verses or free verses, is that correct? [5) excerpt from The Reader's Guide to Periodi,cal Literature from I [6) A. No. (6) January 1929 to June 1932. [7) Q. That's not correct? [7J THE COURT: That's The Reader's Guide to Periodicill IB) A. No, you asked the question in the negative, so] answered IB} Literature, January 29 to June]932. There is no objection, is

[9) no. [9) ,there,'sir?

llO) Q. OK. So the section ofthe book where they appear is Poems '(10J MR. RABINOWITZ: No, your Honor. ,[llJ Uncollected by Parker? ;, , ' [ll) THE COURT:. All right. Defendant's XXis received. [12J A~ Yes. [l2} (Defendant's Exhibit XX received in evidence) [l3) Q. And the hate Verses are not placedtogether in a separate [13) Q. Would you examine that, please, Mr,Silverstein.

[l4) Section in the Complete Poems book, is that correct? [14) A. Yes~ [15) A. No, they're not (15) Q. Tum to page 1873 ofthis exhibit. [16) Q. Astheyaie inNotMuch Fun, isthat correct? [16) A. Yes. [17) A. Yes. [17J Q..Doyou see where it says Mrs. Dorothy Parker with her birth [lB) Q~ Doyou believe -~ is it part ofyouT claim that a (lB} name Rothschild in a paren? [19) selection -- excuSe me -- withdraw that. [19) A. Yes. (20) Are you contending in this case tha,t there is an [20) Q. OK. Do you see where it says letter under that, letter [21) infringement ofyouralJeged selectioncopyright claim ifyou [21} from Dorothy Parker to Ogden Nash?

[22) included works as nonpoems and Penguinincluded them as poems? [22) A. Yes,] do. [23) A. Penguin didn't include them as poems. [23) Q. Do you see where following that it says poem? [24) Q. I'm just asking you ifthat \yere the fact, istbat your [24} A. Yes, I do. (25J claim? [25) Q. And it then refers to the Saturday Review ofLiterature iIi

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. \ [I) the January 193I issue? . [lJ indented portion that says some childr~ here have the whooping

[2J A. Yes. (2J cough? .

[3J Q. AID I correctly reading this that the Reader's Guide 13) A. Yes. (4) classified that item as a "poem"? [4J Q. And it was after you saw this item that you tracked down (5) A. Yes, as far as it goes, yes. [5J the original letter from the university that you testified to (6) Q.OK. So, is it fair to saY,Mr. Silverstein, that iliis [.6J yesterday?

(1) item, Letter to Ogden Nash, was classified as a poem at lea~t [1J A. Yes. [8J by The Reader's Guide long before Not Much Fun was published? 18) Q. Andyou said it was classified as a letter in the Meade 19) A. No. 19) book, is that correct? [10J Q. Really? Gan you explain why you would say no? 110J A. Yes. 111( A. Yes, I can. Because it was not necessarily classified that (11) Q. Would you now tum to page 453 ofthe excerpts. Well,

112J way by The Reader's Guide, butby some clerk at The Reader's (12) really pages 452 and 453. (13) Guide. Ifyou look at the item right above it, which is Enough (13) THE COURT: In'What exhibit?

114J Rope Inventory, it's one ofher most famous poems, they call (14) MR. DANNAY: Same exhibit, your Honor, FFF, from the

[15J that a verse. It all depends on which clerk did the [15J Meade book. (16) categorization. So, it was published in the Reader's Guide [16) THE COURT: Thank you. 117) that way, but to saythat the Reader's Guide was claiming it is (17) Q. Do you see on page 452, Mr. Silverstein, in the second

118J an oversimplification over the editorial process ofthe 118) column, the name Dorothy Parker? (19) Reader's Guide, which we do not know at this point. (19) A. Yes. [20J Q. I won't quibble with you,Mr. Silverstein. I will just [20J Q. And then indented are a number ofentries with various page [21J simply say is it not correct that in the periodical, Reader's (21) numbers, is that correct, going down in the list? [22J Guide to Periodical Literature for January 1929 to June 1932 [22J A. Yes. .. [23J the Ogden Nash item wasdassified and appears as a "poem"? [23J Q. OK. Now, looking at page 453, still in the index, at the (24J A. Yes. (24] bottom ofthe page --

(25) Q. I would like to tum to Defendant's Exhibit FFF, which is [25J A. Yes.

Page 208 Page 210

II) the Dorothy Parker What FreshHell Is This, a biography by [1 J Q. The entry at the very bottom ofthe second column that says

[2J Marion Meade. You are familiar with that, are you not? [2J "poetry of' and then lists a number ofpages. Do you see where

[3J A. Yes, lam. [3] I am?

14) Q. Can we put forth a copy ofthe relevant excerpts? [4) A. Yes, I do.

15J Your Honor, we ar~ going to offerjust the excerpt [SJ Q. And would you say that's poetry ofDorothy P¥ker, that's [6] into evidence. [6J Where it's classified?

[7] THE COURT: Is there any objection? [7) A. Yes.

,[8) MR. RABINOWITZ: May 1have anioment? I'm trying to (8) Q. OK. Tell me ifyou see the number 79 under poetry of

[91 find it.. (9J Dorothy Parker.

(10) ttiECOURT: Sure. [10J A. Yes, I do.

(11) MR.RABINOWn"Z: Just the excerpts? [l1J Q. So am I correct then, Mr. Silverstein, that in the Meade.

[12J MR~OANNAY: Yes. . (12) book, this Exhibit FFF, iliis item was classified as a poem?

113) MR. RABINOWITZ: Noobjection, your·Honor. (13) A. In this book it's classjfied boili as a letter and as a

[14J THECOURT: Allright~ , [14J poem.

[15J (Defendant's Exhibit FFF receive

116J tHE COURT: Whatpage, please? [l6J A. Yes.

117.) MR. DANNAY: Well, first let me ask a question, your [l7) Q. Is there anything else onpage 79 iliat the index number (18) Honor. There are only a few pages here, and 1 will get to that (18) could be referring to as poetry? ..

(19) in a moJilent. (19) A.. No, there is not.

(20) THE COURt: All right. (20) Q. OK. So it was classified as poetry at least In the index

(21) Q. The Meade book, ExhibitFFF, was the source, was it not, (21 J to the Meade book before Not Much Fun was published, is that (22) Mr. Silverstein, for your finding the letter that you called [22) correct?

123J letter to Robert Benchly? [23J A. Yes.

[24J A. Yes, it was. . [24J Q. Have you examined the Calhoun bookwhich we put in evidence (25) Q. And an excerpt from the letter appearS on page 79, the (25) as Exhibit E, the entire book, during the course ofthe

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[1} litigation? . [I} A. Yes. 12} A. I can't say I have read every page, but i have looked [2} MR. DANNAY: Again, your Honor, thIS is the full book.

(3) through the book, yes. (3) THE COURT: This is Exhibit E, right?

[4} Q. I didn't hear that. [4} MR. DANNAY: Yes, Exhibit E, not the excerpts but the

[5} A. I said I cannot.state categorically I read every page, but [5} entire book.

[6} I have inspected the book, yes. [6} Q. Please tum to page 42.

[7} Q. By our count -- and I wonder ifyou can confinn this -- at [7} A. Yes.

[B} least 116, and really 118 ifyou count the two book reviews IB} Q. Do you see item number 3 on that page? 19} where the verses appear, ofthe 121 previously uncollected 19} A. J stand corrected. I saw it was listed as a prose piece, llO} poems and verses in Not Much Fun appear in the Calhoun book. [10} and then I see unde!TIeath it it says it was a poem.

[U} Wouldyou confinn that? [U} Q. Yes. So it says Parker's poem, Men I'm Not Married To, in [12} A. I can't confinn that, no. (1'2] '. the Saturday Evening Post, correct?

[l3} Q. You have made no determination ofthat? [13) A. Yes, I stand corrected.

[U} A. Excuseme? [14] Q. Thank you. OK. Mr. Silverstein, I want to ask you .- and [15} Q. You have made no detennination during the course ofthe [15] please listen carefully to this question -- is thereany work [16} litigation aslo how many ofthe items in your book aCtually [16] that you detennined to be an uncollected poem or verse by [l1} were classified and appe~r in'the Calhoun book? .l17] DOTOthy Parker thatyou left out ofNot Much Fun? I will read [lB} A. Appear at all in the Calhoun hook? Is thatwhat you're (lB) that back ifyou want me to. [19} asking? [19] A. No. i collected those items which I subjectively [20} Q. Yes. [20} determined to be her poems and verses, not the ones other [2l} A. I think most ofthem are. I don't know exactly howmany, 12l} people claimed were poems or verses or that were written by [22} but virtually all ofthem I would say, yeah. [22} Parker, but the ones I did. [23} Q. Virtually all ofthem appear in the Calhoun book? 123} Q. So is it a fair statement then that there is no work that [24} A. In some fonn. I mean perhaps not by name but maybe in a (24) you determined to be an uncollected poem or verse by DOTOthy [25} larger source. [25} Parker that you left out ofNot Much Fun?

{"\ Page 212 Page 21';.;~",,,,ff

[1} Q. OK. And the appearance, as you are putting it, would [I} A. Ifit was a poem or arree verse or written by Dorothy [2] indicate that Calhoun was aware ofthose items, those works, (2) . Parker, all subjective determinations by me, I would select [3} obviously when he did the book. (3) them, except with the exception that, as I said yesterday, I [4} A. Yes. 14} did expand or limit my definition based On my own personal [5} Q. OK. 15}preferences and some that I liked more than others. [6} A. Excuse me. I have to add to my answer. There were several [6} For example, I testified yesterday that I would -- I

17J I can think ofoffhand that were not in the book also. There [7} could have put in the standardized song sheet. It did [B] were six or seven that were not in the book. IB} technically meet some ofthe criteria, but I did not do,so. [9} Q, Well, can you tell us which ones those might be ifyou [9} Q: That's not my question, sir. My question is quite simple: [lO} recall? Because byourcount -- and obvi6uslyth~books~ak [10} . Is there any work that you, Stuart Silverstein, detennined to (U) for themselves -- 118 oftheworkS that appearin your book do IU} be an uncollected poem or verse by DOTOthy Parker.that you left [l2}' ··appearan'd are chissifiedin the Calhoun book in one section or 112} out ofNot Much Fun? I think that could be ayes or no answer. [13} another: 113} A. It could be, but I'm sayil)g that my defiriitions were [14} A. As I recall, there was no mention ofMonity, and there.wa~ 114} expanded and limited by my own personal preferences in some 115} no mention ofAPassionateScreenwriter to His Love. Those are 115} cases, and I gave you a specific example just now. [16} the twoI remember offhand. I recailthere were several [16} MR. DANNAY: Your Honor, I don't believe that's [17} others also. (17) responsive to my question.. _ [IB} Q.Do you recall them specifically? I1B} THE COURT: When you compiled Not Mucb Fun, did you [19} A. I just said those are the only ones I recall specifically. 119} leave out any poems or yerses by Dorothy Parker -- (20) Q. Correct me ifI'm wrong; Mr. Silverstein, but I thought I 120} MR.DANNAY: No, your Honoi";that wasn'ttbe question [21] heardyou say in your testimony'yesterday that you bdieve the (21) I asked~ [22} poem Men I'm Not Married To by Dorothy Parker did not appearin [22} THE COURT: -. that were not previously collected that [23} the Calhoun book. [23} you know of? (24) A. It doesn't. [24} I thought that's what your question was. [25) Q. It doesn't. OK~ Doyou have the book in front ofyou? [25}. MR.DANNAY: No. I will be happy to repeatmy

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[IJ question. [lJ way in the cover letter to Jane von· Mehren or the prologue to

[2) THE COURT: Repeat your question then. [2J the draft that I gave to Jane von Mehren.

(3J MR. DANNAV': Sorry? [3} Q. Ifl understood the answer to your question is that you

[4) THE COU~T: Yes. Repeat your question. [4} said that you determined that they were not uncollected poems

[5J Q. Yes.. My questionis this: Is there any work that you [5} or verses and that's why you left them out.

[6) detennined to bean uncollected poem or verse by Dorothy Parker [6} A.' No, I said later on I determined not to put them in, but at

[7J that you left out ofNot Much Fun? (7) one point! did have them in, and that was in Not Much fun.

(BJ A. I collected every item I subjectively detennined to be a [B) Q. But at the time you completed Not M~ch Fun, did you believe .

[9} poem or a free verse that was written by Dorothy Parker -­ [9} that those items were uncollected poems or verses by Dorothy

[l'Oj Q. And my question then again --and this should be simple -­ [10) Parker?

[11} A.-- which does answer your question. [l1J A. By that time I concluded I did not want to select them.

[12) Q. - this should be simple to answer --. [12) Q. And you did not want to select them, but did you at that

[13} THE COURT: Don't preface stuffwith your view. [13) time believe they were uncollected poems or verses by Dorothy Parke~ [14) MR. DANNAY: Sorry. I withdraw that. [14J .

[IS} THE COURT: Put a simple, direct question. You are . [IS} A. To be perfectly honest, I'm absolutely not sure exactly

[16} compounding every question, and it makesit very difficult to [16J what my final determination was. I decided to take them out,

[17} answer the questionyes or no when you are doing all ofthis (17) but I'm not sure that I actually made a conclusion in doing so

[lB) compounding and independent and dependent phrases. Put a [lB) thatthey were not poems or verses by Dorothy Parker.

[19J simple question. Go ahead. (191 Q. OK.

[20} MR. DANNAY: ] will put the question simply again, MR. DANNAY: I'd like to move ori and offer Exhibit K,

[21) your Honor. [21} which is the supplemental declaration ofMr. Silverstein, dated (22] Q. Is there any work that you determined to be an uncollected [22) May 17,29°5.

[23J poem or verse by Dorothy Parker that you left out ofNot Much [23) MR. RABINOWITZ: Excuse me. Could I ask a question [24] Fun? about the exhibits? I thought Exhibit E --

(25J A. There is no work I did not determine subjec!ively to be a [25) MR. DANNAY: K I said.

Page 216 _ Page 218

11] poem or a free verse, or in the instances ofthose four items (1) MK RABINOWITZ: No, I know, a moment ago, E was the

[2J which I did put in and then I later determined to take out, [2) entire bibliography and it's just a cover.

[3} which I determined were not poems or verses, that I [3} THE COURT: My Exhibit E --

[4] . subjectively determined were written by Dorothy Parker that) (4) MR. RABINOWITZ: All I have is just the cover ofthe

(5} left out. And all ofthose conditions are necessary to answer [5) book.

(6] thequestion accurately. [6) THE COURT: .' My ExhibitE consists of, th,e last

[7} MR. DANNAY~ Your Honor,! don't believe that's [7) numbered page is 171.

[a) responsive to my question. [B} MR. RABINOWI1Z: All I have is the first page ofthe (9) Tli~ COURT:lt's notresponsive. [9) book. Counsel has just tendered me the rest. I thought [10) Readthe question to him and liste9 to the questio.\l, l'0) something was wrong.

[11) and. answer theql1estion. [11). THE COURT: OK, fme.· So you now have all ofExhibit

112) MR. DAt-JNAY: Can I state it again, your Honor? (12} E, all right.

[13) -THE COURT: No: He can read the question to him. [13) MR. RABINOWITZ: Thank you.

[14) . (Record read) , [14J THE COURT: Now we are going to EXhibitK, I believe.

[15) . A; OK. The answer is yes, .theFour Figures ofAmerican [15) MR. RABINOWITZ: Thank you, your Honor..

[16) Folklore -- [16J THE COURT: All right. We are going to Exhibit K.

[17) THECOURT: The answer is yes, period. [17) Doyou want to offer Exhibit K,?

[lB) Now yournext question. [lB) MR DANNAY: Yes.

[19) Q. Which ones then did you leave out that you had detennined [19J THE COURT: Is there an objection to Exhibit K, or is

[20) to be an uncollected poem or verse by Dorothy Parker? [20} it not objected to?

[21) A. The Four Figures inAmerican Folklore items. (21) MR. RABINOWITZ: No objection, your Honor.

[22} Q_ And at the time you compiled J:'Iot Much Fun, you believed [22J THE COURT: All right. Exhibit K is received: It's

[23) those were uncollected poems or verses by Dorothy Parker? [23) in evidence.

(24} A. ActuallyI explicitly characterized them a.s harangues or [24} (Defendant'S Exhibit K received in evidence)

(25) diatribes that I wanted to include anyway, and I put it that [25)0 Q. Look at paragraph 5, please. It reads, am I correct, "In

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[1] compiling Not Mpch Fun I selected 122 poems and verses from a [1 J You made a determination that certain writings were by

[2] vastly larger pool ofpossible candidates." Then it goes on? [2J Dorothy Parker, is that correct?

(3) A. Yes. [3J THE WITNESS: That's true.

[4] Q. OK. I would like you to name the works in the vastly [4J THE COURT: All right. Having made that [5J larger pool that you determined to be uncollected poems and [5J determination, as you sit here today can you tell me any [GJ verses by Dorothy Parker that you left out ofNot Much Fun. [GJ previously uncollected poems by her that you left out ofNot [7J A. The vastly larger pool would consist ofall ofher [7J Much Fun? Any at all that you remember as you sit here today?

[8] previously uncollected work that were -- th.e previously (8) THE WITNESS: I don't want to get you angry, your [9J coUected work she had done were various book reviews, short [9J Honor.

[1 OJ stories, poems and some other criticism and maybe some other [10J THE COURT: You don't rememberany? [l1J 'items. Beyond that she wroteJ think 300 or 400 other items [l1J THE WITNESS: No, that's not the answer. The answer [12J that had not been collected before. That was the pool. [12J is I had to go through everything she wrote to see whether or (13J Q. But that was not my question. My'question is: Out ofthat [l3J not it was a poem or not, and then I had to make a subjective (14J pool, will you name, please, the works in that pool that you [14 J determination whether it was a poem and then compare it to what [15J determined to be uncoIlected poems and verses by Dorothy Parker [15J she had previously collected. And so to anSWerMr. Dannay's [lG] that you left out ofNot Much Fun. [lGJ question, I'm trying to do this in good faith, I would have to [17J A. I'm telling you it's everything she wrote other than those [17J go through hundreds and hundreds ofitems, [18] specific things that I mentioned before, the previously [18J THE COURT: I'm notqu~tioning your good faith. I'm

[19J collected things. That was the pool. Everything else she [19J not asking you in the same verbiage what Mr. Dannay asked. I'm [20J wrote I considered to see whether or not I could find a poem in [20J just trying to fmd out from you. Clear your inind for a [21J it. [21J minute.

[22J . Q. I understand what you are describing as the vastly larger [22J It's 25 minutes after lOon Wednesday, July 18. Right [23J pool, but my question, Mr. Silverstein, is can you name the 123J now, the items that you determined right now that were written [24J" works in that vastly largerpool, as you put it, that you [24J by Dorothy Parker, can you tell me any uncollected poems Or (25J determined to be uncollected poems and verses by Dorothy Parker [25J verses that you determined were written by her that 'youleft

Page 220 Page 22~

[lJ that you left out ofNotMuch Fun? Il] out ofNot Much Fun? As you sit here today right now, do you [2J A. I'm saying there are hundreds ofdifferent items. They are (2] remember any? It's a simple question. The answer is yes, I

[3J in Calhoun for the most part. I'm saying all ofthe [3] do, or, no, I don't. [4J noncollected stuffthat she had done before I looked at to [4] THE WITNESS: I collected everything] determined was [5J consider whether it was a poem or not. [5] a poem Of a free verse. [GJ Q. But that's not responsive to my question. I understand (6] THE COURT: All right. Nextquestion. [7J what you are saying, that you looked at all ofthat material, [7] THE WITNESS: That was UIicollected.

[8] and you looked at that material to see ifyou co~ld mine poems [8] MR. DANNAY: I didn't hear his answer. Could that be i9] and verses that had been uncoIlected. But when you were done, [9] just repeated? [10J I'd liketolaiow'thenames ofallofthe worksin the vastly [10] THE COURT: Read the answer, please. [l1Jlarger pool tbatyou determined tobe;uncollecte'dpoems and (11] (Record read) (12) 'verses by DOfothyparker.lhat you left 'alit ofNotMuch Fun. [12] THE WITNESS: And that were written by Doroihy Parker. (13] A. Todo that I wouldhave to go throu.ghalistofevery (13] Q. I would like to refer now to an exhibitthat was put in by

(14) single thing she wrote; go through everything that was [14] the plaintiffyesterday, Plaintifl's Exhibit I ], the bound [15) previo~sly collected" take'those offthe list, and give you a [15] galley. It's Defendant's Exhibit QQQQ. I believe it's the (16] list. Itwould take days to compile thatiist. [16] same exhibit. l17] , THECOURT: Letme ask you a question: Do you [17] THE COURT: We can work from 11 and also QQQQ; , [l8] 'remember,as you sit here today any previously uncollected poems [18] MR. DANNAY: Sorry. Just exce:t:Pts from it. [19] that you are aware ofby Dorothy Parker that you left out of (19] THE WITNESS: Which numberwould that be? [20] NotMuch Fun? [20] THE COURT: It's in volume 2. It's Exhibit I I. [21] MR. DANNAY: That he determined to be poems of-- [21] MR. DANNAY: Should I proceed? Does everybody have it [22J THE COURT: Yes. But jet me ask my own question. If [22] in front ofthem? [23] you don't like them, fine. ' [23] THE COURT: Yes,go ahead. [24] MR. DANNAY: Ifit's a separate question, that's fine. [24] Q. Upder the page that has the title sources -- are you,with( [25] THE COURT: It's not a separate question: [25] me?

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II) A. What page? They're notnumbered, are they? [1) list at the backofthe book. Please understand that this list

[2) Q. Page 253 ofthe galley. [2) provides publication infonnation for all ofMrs. Parker's poems \ [3) A. Mine doesn't have page numbers. [3) and verses, not only those contained in Not Much Fun."

[4] THE COURT: The pages are not numbered. [4) Did I read that correctly?

(5) A. I will fmd it. I will find it. I will fmd it. [5) A. Yes, you did.

[6] Q. We now know what it's called. It's called Sources? [6) Q. Am I correct, Mr. Silverstein, that that sentence does not

[7] MR. RABINOWITZ: It's about ten pages from the back.. [7) say, "This list provides publication information for all of

[B) A. I found it, yes. [B) Mrs. Parker's poems and verses hi her own collections, not only

[9) Q. The first sentence·- we did this yesterday, but just to [9) those contained in Not Much Fun?" Am I correct?

[10) set the scene here -- and I will quote it, "The following is a [101 A. Ofcourse it doesn't say that, IlO.

[111 complete chronological list ofDorothy Parker's poems." (Ill Q. Yes.

[121 Correct? 112J A. It says what it says.

[13) A. That's what it reads, yes. 1131 Q. Is what I read to you what you claim you iIltended to say?

[141 Q. And the list that follows in thebound galley -- and this 114J A. No. What I said yesterday, and what I will say again

(15) is my question, Mr. Silverstein -- the list that follows, is [15J today, is we were scrambling to address a very specific [161 that list identical to the complete chronology list that [16J identifiable problem,and we were not considering any larger,

(17) appears in the published book Not Much Fun? [17J grand,'eloquent statements regarding the comprehensiviness of [IB) A. I don't know. I don't know. I1BJ the collection. We were just trying to make clear regarding

119J Q. Did you make any changes between the galley and the final (19) thatlist, in that specifics context, that the list contained

120J book? [20) bibliographical information for the items not only in That Much

[21) A. Itwas 11 years ago. I might have made some minor [21) Fun but from her previous three original compilations plus her

[22J editorial changes. Idon't know. 122) fourth compilation which was a compilation ofthose original

[231 Q. Did you' make any change in the actual works that were [231 three minus some items, plus the fifth compilation which was;l

[24) listed? I don't necessarily changes in the characterizations (24) compilation ofthe fourth compilation, plus a couple items,and

[25) ofthem or the descriptions ofthein. (25) it was a rats nest, and we were just trying to address the :

Page 224 Page 226

[IJ A. 1very well might have. A lot ofthese items were given [1) confusion that was resulting from the fact that that list did

(2) different titles when they were originally published, and we (2) not conform to Not Much Fun.

[3) were constantly changing those, you know, the original titles (3) Thatwas the sole purpose ofthis letter. It was the

[4] that we put in brackets or in parentheses after the name ofthe (4) sole purpose ofthis entire exchange ofthe corresPondence and

151 item as we put it in this book. So, we were constantly doing [5) several phone calls, and both the explanatory paragraph in the

(6) editorial work, so I simply cannot state categorically this is [6) bound galley, the explanatory paragraph listed in this letter

[7) identical to the list,to the subsequent list. [7) and the explanatory paragraph listed in the March letter and

[B) Q. OK. But you don't know that it isn't ideIltical',and [8) the explanatory paragTl!ph that appeared in the final version of

(9) obviously the lists speak for themselves. [9J' Not Much Fun; It was solely to addJ:essan identifiable

[IQ) A.Exactly,tbeJistsspeak for th~selvt:s. I<:an't cOIWDent [10J confusion ashest we could. That was the only thing on our oD;th~t. [II) ..' . .' . . (11) . minds when we were doing it.

(12) Q..Now I'd like to referto Plaintiirs Exhibit 101, which is [12J .Q. Let me askyou, Mr. Silverstein, the form1!lation tha~ I Sil~erstein's (13) Mr. Jetter'datedMay 17, 1976 to Gillian Blake. (13) readto you, "This list provides publication informatioIl for (14) It'sDefendant's Exhibit V, Plaintiffs ExhibitlOI. [14) all ofMrs~ Parker's poems and verses in her own collections, (151 THE COURT: IIi volume 4, Mr:Silversteilv. [15J not only those contained in Not Much Fun," would that not have \l6) THI;WITNESS: .Thank you, you~Honor. [16J expressed what you testjfied was your intention?

[17) THE COURT: OK. (17) A. Well, I think actually ifyou read the fun sentence with

[IB) THE WITNESS: All right. [lBJ that last clause "not only those contained in Not much Fun" the (19) Q. OK? (19) contextis clear, it is referring to the other compilations,

[201 A. Yes. [20) because the ultimate clause is "not only those contained in Not

[21) Q. I'd like to read -- and I will quote it -- from the letter (21) Much Fun," so what appears before that contradistinguished from

(22) that you suggested sending. "Sir/madam"~- (22) that is her othercompilations. I think it's clear. Could it

.... (23) A. Yes. [23) have been done slightly better in retrospect after 11 years? "'.C' [241 Q. Third sentence, I guess. [24) Yes, perhaps..But I think that the context is very clear if [25] "There has been some confusion regarding the source 125] you read --

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[1) , THE COURT: That's your answer. Go ahead. [1) THE COURT: You are back to Exhibit 2 now? '[2) Next question. [2J .MR. DANNAY: Yes, I'm back to the published book Not {.,~'."'.'.~.'" 13) THE WITNESS: Sorry, your Honor. [3J Much Fun. ..~ .1

[4) Q. But as it reads, is it not, it reads "Please understand [4J THE COURT: All right. Which is in volume I, sir. '"

(5) that this list provides publication infonnation for all of [5J And the heading is on page 245, is that right?

(6) Mrs. Parker's pOems and verses, not only those contained in Not (6) THE WITNESS: 245. [7J Much Fun." That's the way it reads, right? [7) THE COURT: All right. We're at page 245 where it

(BJ A. No, it reads just the way I said it does, unless you have a (BJ reads the complete chronology:

[9) perverse interpretation like you are trying to give to it. [9J What is your questionnow? [10) MR. DANNAY: I just read from your letter. [10J Q. My question is, the first sentence reads, am I correct, in

[l1J THE COURT: Hold it. Wait just a moment. It reads as ' [11] the published book, "This is a chronological list ofall of [l2) it reads in the exhibit. You read from it now several times. [l2J , Dorothy Parker's poems and verses."?

[l3J As it reads in the exhibit is how It reads. [13) A. Yes.

[14J MR. DANNAY: Fine. Thank you, your Honor. [14J Q.Am I correct that the word "all" appears in Defendant's

[15J THE: WITNESS: Yes; sir, your Honor. [15J Exhibit B, Plaintiffs I 0 I, the word "all" appears in your [l'6) Q. Am I correct that the caption in Not Much Fun for that (16J letter, May 17, 1996 letter you senno Gillian Blake, which is

[17J ~section ofthe book, the ~ord "complete" was added to the [17J Plaintiffs Exhibit 101, where it appec.rrs underscored in your [lB) caption and it did not appear in the galley in the caption? [lB) letter? Is that correct? [l9J A. I'm sorry, I didn't understand the question. [19J THE COURT: Is what correct? That the word "all" [20J Q. Well, in the galley that section ofthe book begins with [20J appears? [21) the word "sources," is that correct? [21J MR. DANNAY: That the word all appears in the proposed [22J THE COURT: Are you referring to Exhibitll? [22J letter. [23J MR DANNAY: Yes, the galley. [23J THE COURT: Well, it speaks for itself Obviously the [24J THE COURT: Let's refer to these things by exhibit (24J word "all" appears. It's there. It's in evidence. [25J designations. All right? (25J MR. DANNAY: I know, your Honor. I'm trying to get

Page 228 Page 23l

[lJ InExhibit 11 it reads "sources," correct? [lJ Mr. Silverstein to acknowledge that. (2J THE WITNESS: I don't have it right in front ofme at [2J THE COURT: He doesn't have to acknowledge it. It's

[3J this moment, but I'm almost certaitt it does, but -- [3) in evidence. It's in the book. [4J THE COURT: All right. Ifyou don't have it in front [4J MR. DANNAY: OK. '[5) ofyou. [5] THE COURT: It's there.

(6) MR. DANNAY: Volume 2. (6) Q. Am I correct, Mr.Silverstein, that the first sentence (7J THE COURT: It's in volume L [7J under the complete chronology ofNot Much Fun does not say

[B) THE WITNESS: The bOilnd galley section that lists the [BJ "This is a chronological list ofall ofDorothy Parker's 19) bibliographic data is titled "sources," yes. [9J peoples and verses in her own collections and in this [10J Q.'A.ildthe word "complete"appearsin the first sentence under [10J collection?" [11) "'s~UiceS, "1sthat correct? [IlJ A.Are you talking about the bound galley arthis time? [l2J A. Yes., , [12J , Q. No, I'm talking aboutthe [mal book Not Much Fun. 113J Q. And the word "complete" was added to the NotMuch Fun [13J A. Can you repeat the question? [14) caption for this same list, is that not correct, so it read [14J Q. I'm asking you whetherit is correct that the sentence, the [l5] "the complete chronology"? [15J first sentence in the bound book on page 245, does not say [16J A Thesilme word was put there." Idon't think there is any (16J "This is a chronological list ofall ofDorothy Parker's poems [17J relation between the two though; They-both also have the word , [17) and verses in her own collections and in this collection."? [1"8J "the",,' (1"BJ A. Itsays what it says. [19) Q, In Not Much Fun, am I correct that the captionto that [l9J Q. That's right, OK. It does not say that. Would that have [20J section ofthe book is "the complete chronology"? [20J been a clearer way ofsaying what you intended to communicate

[21J A. Yes; (21J. by that sentence? [22J Q. .And is not the first sentence "This is a chronological list [22) A. I don't know. I thought the original sentence in the bound (23J ofall ofDorothy Parker'S poems and verses? [23J galley was perfectly clear. You know, ifyou're asking if! [24J A. However it reads, it reads. (24J think it would be more clear; I think it's clear enough as it ,j' '\ [25J Q. Well, I'm asking you. You can look at it. [25) is, unless you with willfully trying to come up with a <_1

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II] different interpretation ofit. (I] Penguin out ofsheer desperation for lack ofany substantive

[2] Q. Mr. Silverstein, I think you testified yesterday, is that [2) defenses, and we were not·going to change it because we did not

[3] correct, that the complete chronology as it appears in the [3) think we had done anything wrong, and this is contemporaneous

[4] published book Not Much Fun had never been changed from the (4) evidence that from the very beginning we felt that way. And]

[5] 1996 hardcover edition to the 2001 paperback edition orin fact 15) think that] described my true feelings about the difference

[6] to date. It's been the same over ten years. [6] between ~-

[7] A. Which part? The whole book? [7] THE COURT: All right. The answer is stricken after

[8] Q. The complete chronology section. [8] the first sentence. It's not responsive.

(9) A. Yes, it was not changed, [9] MR. DANNAY: Th;;mk you, your Honor.

(10) Q, And the rest ofthe hook was not changed either, the [10] Q. Mr. Silverstein, can you name all the works that you

[11] contents ofthe book, is that correct? (11) determined to be poems or verses by Dorothy Parker that you

[12] A. Yes. (12) left out ofthe complete chronology list iri Not Much Fun? [13) MR. DANNAY: We would like to offer Exhibit W, (13] A. Can you repeat the question, please? [14] Defendantis Exhibit W. It's an e~mail from Mr. Silverstein to (14) Q. Yes, I will.

[IS] GiIlianBlaIcedated July 9, 200I. [15) Can you name all works that you determined to be poems

[16] THE COURT: Mr. Rabinowitz? (16) or verses by Dorothy Parker that you left out ofthe complete

(17) MR. RABINOWITZ: I'm trying lofmd it. [17) chronology list in Not Much Fun?

[18] THE COURT: Sure. (18] A. Ate you talking about free verses? [19J MR. RABINOWITZ: No objection, your Honor. (191 Q. My question.

[20] THE COURT: All right. W is received. [20) THE COURT: Will you just listen to the question,

[21) (Defendant's ExhibitW received in evidence) [21) please? Ifyou don't understand the question, tell him you

[22] Q.Would you like to reread this e~mail, Mr. Silverstein? [22) don't understand it. Just listen to the question.

(23) A. Do you have any questions? [23] A. The complete chronology list consisted ofall ofher

(24] Q. Yes. At the bottom Of the first page ofthe e-mail where [24) previously collected items plus the items in Not Much Fun.

(25] it begins "Please provide me with detailsabout the cost and [25] Q. And I'm asking you the question: Can you name all works

Page 232 Page 234

[1) logistics involved in inserting an eratum slip into every [1 J that you determined to tJe poems or verses by Dorothy Parker

[2) undistributed copy ofNot Much Fun. The insert should read (2) that you left out ofthe complete chronology list in Not Much

[3] something like this: Mr. Silverstein mistakenly included Day [3] Fun? Do you know them? (4J Dreams in this compihitionofMrs. Parker's Previously 14] A. I did not determine whether any ofher pre~ious compilation

[5] Uncollected Poems. Please be advised that this piece was [5J items were poems or verses. I merely included those items

[6] collected in Mrs. Parker's first compilation Enough Rope in [6J because she had previously collected them.

17] 1926 and was published in several subsequent compilations. (7) The only ones I made any determinations on were Not

18] Mr. Silverstein deeply regrets his oversight for which he alone [8] Much Fun, and those were included.

(9) • is ;respon~ibll::'~ I read th~t correctly, did I not? [9] Q, Mr. Silverstein, I don't think you have responded to my

[lo]A. Yes, you did~ (10) question. I will try it again. I'd like you to name aU .the

[11) . Q.Am lcorrect that in eratum slip was never included in the (11) works that you determined to be poems or verses by Dorothy

[12] . book? [12] Parker that you left out ofthe complete chronology list in Not

(13] A. No, there was none, (13) Much Fun. Do you know ofany?

(14) Q. Did youoevermake any effort to insert an cratum slip to 114} A.] cannot answer the question any better, because] did not

(IS] change the reading ofthe complete chronology? (15) make any determinations regarding any ofher previous

(16] A. Actually I'mgIad you asked that question~ Mr. Dannay. ] (16) compilations.] just accepted those, becauseshe collected

[17] w~ted toinsert andl asked my editor to insert an eratum slip' [17] them that way.

(18] into each ofthe copies still in distribution ofNotMuch Fun (18) THE COURT: Mr. Silverstein, unfortunately -- and] (19) regarding the issueofDay Dreams, because that was my error, 119) don't want to be critical-- but you are answering questions

[20] and I felt it was the only honorable thing for meto do to try [20) that you wished you were asked instead ofwhatyou are being

[21] to correct the record on that. I was willing even to pay for [21] asked.

[22] it. They ultimately refused to do it. [22) You have to listen to the question and answer the

[23) Regarding, however, this paragraph, we all agreed we 0[23) question. Ifyou don't like the question, at some time at a

124] did nothing wrong, we thought the paragraph was perfectly [24] recess you can discuss it with Mr. Rubinstein, and on redirect

[25] clear, we thought it was an issue that was being brought up by [25] he can clear it up to the degree that it's able to be cleared

. TRIAL Min-U-Script® (11) Page 231 - :Page 234 STUART Y. SILVERSTEIN v. July 18, 2007 PENGUIN PUTMAN,INC. Page 235 Page 237

(I] up to your satisfaction. But answer what he is asking you. (1) Q. To cut through, am 1 correct, Mr. Silverstein, that Not

(2) Don't volunteer a lot ofinfonnation and tell us things that (2) Much Fun, therefore, includes every work that you determined.to

[3) are not responsive. . (3) be an uncollected poem or verse by Dorothy ~arker?

14) MR~ DANNAY: Can I read the question one more time? [4) A. Poem or free verse written by Dorothy Parker, yes, that I

[5) THE COURT: Yes, go ahead. [5) detennined, yes.

(6) MR. DANNAY: I will try again. (6) Q. Thank you.

(1) Q. Mr. Silverstein, can you name all works that you·~.termin~d (7) MR. DANNAY: We now have three exhibits, your Honor.

[8] to be poems or verses by. Dorothy Parker that you left out of [8) The Scribner author questionnaire is what is involved. They

[9) the complete chronology list in Not Much Fun? (9) are Defendant's Exhibits CC, DD and EE. The first one, CC, is

lID] A. There were none. [10) also Plaintiffs Exhibit 257, I believe. And EE is Plaintiffs

(11] Q. Thank you. [11) Exhibit 258. But I do not believe that DD ofDefendant's has

(12) MR. DANNAY: I'd like to noW offer as Defendant's [12). been put into evidence by the plaintiff.

(13] Exhibit HHHHH Mr. Silverstein's declaration ofApril 24, 2002.. (13) THE COURT: All right. So what is your question?

(14) THE COURT: My five -- (14) MR. DANNAY: I don't have a question yet. I'mjust

(15) . MR. DANNAY: It's the declaration ofStuart (IS) tryiilgto locate the exhibits, and I would like to put all

[16) Silverstein, and the date again is April 24, 2002. [16) three into evidence, or at least DD, whichis not -

(171' . THE COURT: We n't have the five volume. We end at (17) THE COURT: Let's putDD in. There is no need to (18) four, apparently. [18) clutter the record.

[19) DEPUTY COURT CLERK: Four Js. (19] MR.DANNAY: I understand.

[20) THE COURT: We end at four ]s. The label reads four (20) THE COURT: So you're offering DD.

[21) Js. [21) MR. DANNAY: Yes. I'm just trying to identifY it for

[22) DEPUTY COURT CLERK: Oh, I have it here, Judge. It's (22) the plaintiffs as well.

[23) just mislabeled. [23) THE COURT: DD is an April 16, 1996 letter to (24) THE COURT: No problem. [24) Mr. Lampack, which appears to be unsigned. All right. [25) Do you have it, Mr. Silverstein? You have so many [25) Is there an objection to it? It's on .'

---~------+------:------;' .." ~~ ~~~ -.:_);:1"

[I] books there, I don't know. Do you have HHHHH? II] Mr. Silverstein's letterhead.

[2) THE WITNESS: Yes, I do. [2) MR. RABINOWITZ: No objection, your Honor.

[3) THE COURT: All right. Thank you, Mr. Ryan. [3) THE COURT: All right..DD is received.

[4) Now, you are offering this, I take it? (4) (Defendant's Exhibit DD received in evidence)

L5) MR.DANNAY: Yes, I am. (5) Q. All right. Mr. Silverstein, am I correct that a draft,

[6) THE COURT: What is your position, Mr. Rabinowitz? (6) your frrst draft ofthe Scribner author questionnaire is

[7) MR~ .RABINOWITZ: I have no objection. (7) attached to the letter dated March 22, 1996, Defendant's

(8) MR. DANNAY: Thankyoll. (8) Exhibit CC and Plaintiffs Exhibit157?

(9] THE COURT: All right. HHHHH is received. 19) A. I have no specific knowledge ifthis is precisely it, but I

(10] (Defendant's ExhibitHHHHHreceived in evidence) [10) have no reason to doubt that it is, so I will assume that this [11] Q; Inparagraph tO,the last sent~nce bnparagraph lO,it's on [11) is an accurate copy ofit. ·[li] page 4, immediately before paragraph·11 -- [12) Q. And I'd like to tum your attention to paragraph 19? 113] A. Yes~ [13) THE COURT: Which exhibit'now?

[14] Q .. You wrote in your declaration and 1will read it, "Not Much [14) MR. DANNAY: The March 22, 1996 letter that

[15] Fun did notpurport to include every uncollected poem or free (15) accompanies the initial draft ofthe Scribner author (16) .versewritten by Dorothy Parker~" [16] questionnaire. [17) Did I read thatcorrectly? (17) THE WITNESS: My date is April 16,1996. [18) A. Yes, Youqid. (18) THE: COURT: You are in Exhibit CC which is already in

(19) Q. Thank you. Can you name every work that you ddennined to [19) evidence as a plaintiffs exhibit.

(20] be an uncollected poqm or verSe by Dorothy Parker not included [20) THE WITNESS: I was given DD here, your Honor.

(21) in Not Much Fun? (21) THE COURT: Well, he is going back to.

(22) A. No, because the preceding part ofthis paragraph says that [22) MR. DANNAY: Plaintiffs Exhibit 257 is the same as

(23) they were based on my determinations. This sentence merely [23) Defendant's Exhibit Cc. Will that help? .[24) refers to items thatanyone could have referred to as an [24) THE WITNESS: OK Hold on, please. [25) uncollected poem or free verse written by Dorothy Parker. [25) MR. RABINOWITZ; It's volume 6.

Page 235 - Page 238 (12) Min-U:·Script® TRIAL July 18, 2007 Page 241

17, 1996 which is addressed to Ms. Gillian Blake at Scribner? A. It's an II year old letter, Mr. Dannay. I dl:m't have specific recoliection ofhaving sent it. I know I did send in a questionnaire, but] simply cannot tell you categorically that this is it. Q. Well, it's attached to this exhibit, is it not? A. Again, I cannot tell you categorically this is it. assume it is. THE COURT: Put your question. Q. In paragraph· 19, would you tum to that again. A. Sure. Q. It reads,"Finally, the collection was as complete as I cmild make it (though there is always the haunting possibility that] missed some source somewhere)." Is that correct? A. That's correct. Q. So, in all three versions or copies ofthe Scribner author questionnaire there was no change by you, is that correct? . A. No. Q. And did your agent, Mr. Lampack, who got a copy. that was. attached to the letter to him April 16, doyou know whether he ever suggested any changes in it to you? A. I don't recall any, no. Q. Would you look at the March 22,1996 cover letter to Gillian Blake on Defendant's Exhibit CC, plaintiffs 257.

Page 240 Page 242

[I) A. Yes, I do. (1) A. Sure. Hold on. Go ahead.

[2) Q. Again in paragraph 19. [2) Q. Right. Do you see the paragraph on the frrst page that

[3) A. Yes. [3) says, "Please particularly note..."?

. [4) Q. It read, "Finally, the collection was as complete as I [4) A. Yes.

[5) could make it (though there is always the haunting possibility (5) Q. I will read it to you. "Please particular note, neither

[6) that] missed some source somewhere)." 16) the prologue nor questionnaire drafts are meant to be jacket

[7) A.·Yes. [7) copy. They are being supplied to you for underlying

(8) Q. Correct? No change? [8) information and discussion points; and, re the prologue, so you

[9) A. No. [9) can see what Tysie based her catalogue copy on (yes; I know [IP) 9.AnQ.in QJ.e fmal questionriaire, attached tothe April 17, nO) what you are not supposed to end sentences with). ] hope·they 111) 1996Jetter, the following day, t09ill.ian Blake-- [11) supply some ideas for you. Please use your own language and [12) A. I don't have that in front ofme. . i12) style for the jacket copy."

[13) Q. Plaintiff's 258. [13) Did I read that correctly?

[14) A.Hold on, pleast;. [14) A. Yes.

(15) THE COURT: Which is also Defendant's Exhibit EE. All (15) Q. And is it correct that you were offering the Scnbner

[16) right, 258. [16) author questionnaire to your publisher for information that it

[17] A. All right. I've got it. [I7) CQuid rely on in promoting your book?

(l8) Q. GoUt? [18) A. it was solely for promotional use, yes, thatwas its

(19) A~ Yeah. (19) purpose.

[20) Q. And attached to this letter is the. final Scnbner author [20) Q. But it says they are being supplied to you for underlying

(21) questionnaire that you completed and sent in to your publisher, [21) information and disc).lssiOJi points.

[22J is that correct? [22) THE COURT: It says what it says. You keep reading

[23) A. I don't recall. It probably is, but I simply don't recall [23) from these things. You read from things, and you say is it the

(24) specifically which draft I sent where. [24) same in all three. The fact ofthe matter is ifit's in the [25J Q. Well, there is a draft attached to this letter dated April [25) do·cument, it· reads as it reads.

TRIAL Min-U-Scnpt® (13) Page 239 - Page 242 STUART Y. SILVE~TEINv. July 18,2007 PENGUIN PUTMAN, INC. Page 243 Page 245

[1 J MR. DANNAY: Thank you, your Honor, you're correct. [lJ ofDorothy Parker is, the fourth and final and largest volume

[2J THE COURT: Thank you. [2J ofcolJeeted Dorothy Parker poetry. An extensive introduction ~

13J Q. 'Did you ever write a letter, Mr. Silverstein -- 13J including a startling revelation about Mrs. Parker's earlier f",,1

[4J THE COURT: I love compliments from the counsel. [4J career is also being prepared."

[5J Q. Did you ever write a letter, Mr. Silverstein, or sendan [5J Did I read that correctly?

[6] e-mail to your publisher, or any new or revised Scribner author [6J A. Yes. 17] questionnaire toyour publisher to say that any information in [7J Q. And on page 4, under the section that says who, the second

18J the Scribner author questionnaire was wrong? [8J paragraph --

[9J A. I don't recall any. I might have. I might not have. I (9J A. Yes.

[10J simply have no recollection ofit. Again, this is II years [10] Q. -- it says, and I quote, "The poems that compriseNot Much

[ll] ago. [llJ Fun, The lost Poems ofDorothy Parker, were discovered in the

[12J Q. Did you ever write to your publisher and say, you know, in [12J course ofresearch ofa book about the membcrs ofthe Algonquin

[13J the pprtion that I read to you that the colIection in NotMuch 113J round table, including Mrs. Parker, Mr. Benchlyand Mr. Adams."

[14J Fun is not complete and that I left out ofNot Much Fun works 1 [14J Is that correct?

[151 determined to be uncollected poems and verses by Dorothy [15J A. Yes.

116] Parker? [16J Q. Thank you. [17] A. No. [17J MR. DANNAY:, I'd like to now offer into evidence what [l8J Q. OK. You have'answered it. Thank you. [18J are Scribner's sales handle sheets, Defendant's Exhibit Q, R [19J MR. DANNAY: We'd like to offer Defendant's Exhibit P [19J and S. One is dated spring of1996. I beg your pardon. One [20J into evidence. [20] is dated July 10, 1995, September 5, 1995, October 30, 1995. [21] THE COURT: Is that D as in David? [21] THE COURT: Is there any objection?

[22] MR. DANNAY: No, I'm sorry, it's P as in Peter. [22J MR. RABINOWITZ: No, youi Honor.

[23J Sorry. [23J ,THE COURT: All right. So then we're offering Q, R

[24J THE COURT: Is there any objection, sir? 124J and S, and they lire received.

[25J MR. RABINOWITZ: No,Your Honor. [25J (Defendant's Exhibit Q, Rand S received in evidence)

Page 244

[1] THE COURT: AlI right. Received. I1J o. Do you have these, Mr. Silverstein? [2] (Defendant's Exhibit P received in evidence) [2J A. Yes, I do. [3J Q~ Thisconsists ofa fax page from Peter Lampack to Scribner, [3J Q. OK. Taking Defendant's Exhibit Q first, do you see on the

[4J Tysie Williams? [4] ftrst page it says sales handle?

[5J A. Tysie Whitman. [5J A. Yes. [6J Q. Excuse me. And attached to it is something called Not Much [6J Q. And it says key selling points?

[7J Fun: Lost Poems ofDorothy Parker. Compilation and prologue, .l7J A. Yes. [8J Stuart Silverstein. [BJ O. OK. Now, on the second page let me read this to you. [9J Do you have this now in front ofyou? Do you want to [9J "During the early struggling years ofher career Dorothy Parker

[10] take a,look afit? [10J sold more than 250 poems and verses to popular magazines. lll] "A; Yes, fseeit. 1111 Although she resurrected some ofthem' in her three volumes of [12] o.'Ok. This was>written by yQu,Mr.Silversteini [12] poetry Enough Rope, Sunset Gun and Death and Taxes, all out of

[13J A. Yes. [l3J print, over 100 remained lost for more than half a century.

[14 J Q. And i~ says so on the coverpage,·isthat correct? [14J The existence ofsome ofthese pieces has been known to

[15J A. Yes. [l5J scholars, and a few poems have been cited and quoted in earlier 116]0. OK; Let meread to yolifr()m page 2. Could you tum to [l6J works, hut this is the fITst effort to compile the full

[17J that,third paragraph? 117J inventory ofDorothy Parker's uncollected poetry." (18J A. Yes. (lBI Did I read that correctly?

{19J Q. It reads, "The existence ofsome but only some ofthese (19J A. Yes.

[20J poems arid verses has been knownto scholars and biographers. A [20J Q. That language is based on the material that you supplied

(21 J few ofthese poems have been cited and even quoted in earlier [21J through Mr. Lampack to Scribner thatwas in Exhibit D? [22J works. No one, however,has cataloged the fuII inventory of [22J A.l think in part,not completely. (23J Mrs. Parker's uncollected poetry and verse, or considered [23J Q. But the language about the full inventory, is that -­ [24J compiling and editing it to form a comprehensive and cohesive [24J A., 1 don't recall. Is that language in this exhibit or not? 125J whole until now, and that is wha~ Not Much 'Fun, The Lost Poems [25J Q. Well, look back through Exhibit 9-- Exhibit P. Excuse me.

Page 243 - Page 246 (14) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007 Page 247 Page 249

(1) A.. Are you talking 'about the July 5, 1995 fax from Lampack? [1] been unknoWn to most ofthe general public for more than haifa

(2) Q. Yes. In the third paragmph on p<\ge 2, as I read it, it [2) century, that comprise this volume." Did I read that

[3) says "No one, however, has cataloged the full inventory of [3) correctly?

[4) Mrs. Parker's uncollected poetry and verse, or considered 14) A. Yes,

(5) compiling it and editing it toform a comprehensive and (5) Q. Can you tell me what else there is out in that universe

(6] coh~sive whole until now." (6) besides the "remaining poems and verses"?

[7) A. OK, OK. [7) A. Any items that somebody else might have determined were

[B) Q. And the full inventory language comes right out ofExhibit [B] poems. First ofall, any items that anyone else might have [~) D, does it not, what you supplied to Scribner through your [~] determined were poems, any item,s anyone else might have

(10) agent? [10] .determined were free verses, and any' items that anyone else

[11] A. Without being quibbling about it, it's not quite the same, [11 J might have determined were written by Dorothy Parker that I did

[12] butthe words "full inventory" do come from the first one. [12] not select either as poems subjectively or free verses

[13] Q. And in Defendant's Exhibit R? [13] subjectively or writ,en by Parker subjectively.

[14) A. Yes; [14 J Q. Mr. Silverstein, doesn't the language "theremanning poems

[15) Q. ·Tumto.the second page. [15] and verses, the ones that she failed to collect and whose very

[16) A. Yes. (16) existence has been unknown to most ofthe general public for

(17) Q. Do you see the sentence that reads, "The existence ofsome (17) more than halfa century that comprise this volume" suggest

[lB] ofthese pieces has beeri known to scholars, and a fewpbems . (18) there is nothing left after what is Included in here? [1~] have been cited and quoted in earlier works, but this is the [I~) A. It does nothing ofthe sort. The presumption is it's

[20) first effort to compilethe full inveritory ofDorothy Parker's .' (20) subjective.

[21) uncollected poetry." Did I read that correctly? (21) Q. That's your testimony.

(22) A. Yes. [22) A. Absolutely.

(23] Q~ And in Exhibit S, the same, page 2 -- sorry, the bottom of [23) Q. But I asked whether the natuml meaning ofthe words

[24] page 1, "The existence ofsome ofthese pieces has been known [24) remaining suggest what I read to you.

[25] to scholars, and a few poems have even been cited and quoted in (25) A~ Remaining means that you have to determine what the class

Page 248 Page 250

[lJ e,arlier works but this is the first effort to compile the full. [1] is remaining, and the class that's remaining are subjective [2) inventory ofDorothy Parker's uncollected poetry." Did I read (2) terms.

[3) that correctly? [3] Q. I'd like to tum to Plaintiffs Exhibit 3, the paperback

(4) A. Yes, you did. [4] version. Do you have that?

[5) Q. And in each case the sales document and the sales handle [5] A. Yes, I do. [6] document as it's called for Scribner, was based on the full [6] Q. Tum to the back cover that's reproduced, the very last-­

[7) inve~tory language that you supplied, is that correct? [7] presumably the last page. I will read it.

.1 8 ] A.Yes. [B] "During the early years ofheT career, while [~] Q. Thank you. Do you believe, Mr. Silverstein, thl1t the full [~) struggling to keep bodyand soul apart (as she ruefully put it [101 inventory langullge wasin fac~ a selling-point for Not Muchhn [10] . later), Dorothy Parker wrote more than 300 poems and verses for [11] as was Scribner was concerned? [11]' avariety ofpopular magazines and newspapers. Between 1926

[12] A. Don'tknow. . [12]. iUld 1933 she~ollected most ofthese pieces in three volumes of

[13] Q, I'd like to tum now to Plaintiffs Exhibit2; the [13] poetry, Enough Rope, Sunset Gun, and Death and Taxes. The [14] hardcover edition ofNotMuch Fun? [14) remaining poems and verses·from America's most renowned cynic'

'[15] A. Yes. [15] make up this volume." Did I read that correctly?

[16] Q. I'd like to tum to I believe it's reproduced, the inside (16) A. Yes, you did.

'(17) flap ofthe dust jacket. [17] . Q. That language is very similar ifnot identical to the

[lB) A. Yes. (18) language on the flap copy ofthe hard coveT edition, is that

[19-) Q. Letme just read it and see ifI read it correctly. [1 ~] correct?

[20) "Dorothy Parker wrote more than 300 poems and verses for a [20) A. 'Yes, it is;

(21) variety ofpopular magazines and newSpapers during the early [21] Q. OK. Did you ever request Simon & Schuster in Writing or (22)' years ofher literary career. She collected most ofthese [22) otherwise to revise that statement to say something like, for

(23) pieces in three volumes ofpoetry, Enough Rope; Sunset Gun and (23) example, that some or most ofthe remaining poems and verses, [24] Death and Taxes. It is the remaining poems and verses, the. (24) make up this volume? [25] ones that she failed to collect, and whose very existence has (25) A. No.

TRIAL Min-U'-'Script® (15) Page 247 - Page 250 STUARTY. SILVERSTEIN v. July 18,2007 PENGUIN,PUTMAN,INC. Page 251 Page 253

[lJ Q~ I'd like to read to you a couple ofpassages from your [1 ) the question again: [2J deposition. I think you have said this, and I will cite the [2) Q. Name the items you found ofDorothy Parker's that you ?.~,",'", (3J page, and then I have a questionfor you. [3) determined were her uncollected poems and verses and that you ', ',)

(4J On page 60 ofyour deposition. [4 ) left out ofNot Much Fun.

(5J A. I don't have it in front ofme. (5) A. None.

(6J THE COURT: Let's take a ten-minute recess now. (6) Q. None. Thank you. , . [7J Find the deposition for him so he can have it. (7) Now, I'd like to have the witness lobk at four

[BJ (Recess) [B) exhibits relating to the NAACP agreement. They are Plaintiffs

[9J THE COURT: All right. You may continue. [9') Exhibit 88, Plaintiffs Exhibit 89 and Plaintiffs Exhibit 93

(10) STUART SILVERSTEIN, resumed. [10) and 96. For the record, th~y are the NAACP/Silverstein letter

(l1J CROSS EXAMINAnON (Continued) (11) agreement dated March 15, 1995, a letter amendment March 30,

!.l2J BY MR. DANNAY: (12) 1995, an April4, 1995 letter from Ned Himmelrich to

[13J Q. I would like to readjust a passage, and then I will,foIJow (13) Mr. Silverstein, and an August 8, 1995 letter from Mr. [14J up with a question, from page 60, and page 125 ofyour (14) Himmelrich, the NAACP lawyer, to Mr. Silverstein. (15) deposition. (15) MR. RABINOWITZ: Can I have the number again? [16J A. That was six-zero? (16) MR. DANNAY: The numbers are 88, 89,93 and 96. (nJ Q. Six~one sorry. You'r~ correct, Iapologize, six~zero. (17J Just for the record, they are marked as Defendant's (lBJ Six-zero and 125. Are you with me? [lB) Exhibits nn, ZZZ, 0000 and PPPP. (19J A. Yes. (19J THE COURT: Thank you. (20) Q. Beginning at line 19, your answer reads: [20) THE WITNESS: Mr. Dannay -- can you just go back to (21J "Because in the course ofmy research.to uncover all [21J your last question? I'm not quite sure I understood it. I (22J ,the items I could find ofDorothy Parker's, I went through more [22J want to m"ke sure I give you the right answer. (23) than eight years ofda.ily editions at The World newspaper." [23J THE COURT: No, right now we're just directing your ,[24]. I read that correctly? [24J attention to 88 and the following exhibits. (25) A. Yes, you did. [25J MR. DANNAY: I am just trying to get the exhibits

Page 252 Page 25<.

[lJ Q. Thank you. Onpage 125, line 20, "When J went through [1) before the witness.

[2J trying to find as many poems and versus as I could, etc.; in [2) THE COURT: He hasn't asked you a question yet. Now (3J doing research] was also going through Not So Deep As a Well, [3J the question.

[4J which was her first compilation'ofher previous books of-- it (4 ) THE WITNESS: No, I was talking about the previous [5J was a collection ofher previous three books ofcompilation." (5J questionbefore these exhibits. I'm not sure I understood. (6J A. I'm sorry. Oh, yes, OK. [6] THE COURT: Wait a minute. What he is saying now is (7J Q. Did I read thatcorrectly? [7J something different. I didn't understand it. He is saying (8J ' A. Yeah. Yes, you did. [BJ that the previous question on another subject, he didn't [9J Q. OK.' Did you include in Not Much Fun every item that you [9J understand the question, or he may have answered it incorrectly

~[101 forind that YQU detennined to be an uncollected pOem or verse by [10J unintentionally.

(11) DbrothyPiri'kei?! ' [11) THE WITNESS: I just want to make sure I answer the

[l2i A. 'No,'! indiJdedeveryitem I deteimined was a verse -- a [12J question you are askingknowingly. That's all I'm trying to !.l3J fre~verseor'a j>oeniwritten by DorothyParkerthat had not (13) do. ,I just want to make sure. (14J beenprevionsly collected. [14J MR. DANNAY: But] don't know which question you are [lS] Q; And my 'question to you, Mr. Silverstein is this: Name the (15) referring to. Do you want it read back?

(l6J items you found ofDorothy Parker's that yC?u determined were [16J THE WITNESS: Well, that all of t~e pOems and verses?

[l7J her uncollected poems andverses and that you leflout ofNot (17J , ,You,used two extracts from my deposition, and you said did you

!.lB) MuchFun~ [lBJ collect all ofthe poems and verses. It would be easier ifthe !.l9J MR. RABINOWITZ: Asked and answered, your Honor. [19) clerkjust read it back.

[20]. THE COURT: Ifyou can answer it. [20J MR. DANNAY: Well, I believe -- you can have the (21J A. Are you asking the previously collected ones? Is that what [21) record read back ifyou want. Ifyour Honor wants to permit (22) you're asking for? [22J that, that may be the easiest thing to do.

(23) Q. I willread it again? [23J But I said to you name the items that you found of [24J A. Please. [24} Dorothy Parker's that you determined were her uncollected poems [25J ,THE COURT: He doesn't understand the question, so put (25J and verses and thllt you left out ofNotMuch Fun.

Page 251- Page. 254 (16) Min.,U-ScriJlt® TRIAL STUARTY. SILVERSTEIN v. .PENGUINPUTMAN, INC. July 18, 2007 Page 255 Page 257

[I) THE COURT: And your answer was none. [1) poems that you were to provide would be something other than a

[2) THE WITNESS: Yes, none that] had detennined to be . (2) complete list ofDorothy Parker's poems?

[3) poems or verses written by Dorothy Parker, yes, OK. Now I 13) A. No, this document expresses precisely what we agreed to.·

[4) understand. That was my answer. OK. [4) Q. OK. And you provided that, is that co~ect?

IS) THE COURT: And now we're with 88. Go ahead. IS) A. Yes.

(6) THE WITNESS: I apologize. [6) Q. I'd like to tum to Plaintiffs Exhibit 99 in evidence.

(7) THECOURT: That's all right. Go ahead. [7) MR. .RABINOWITZ: What number? [B) Q. OK. Do you have Plaintiffs Exhibit 88 in front ofyou? IB) MR. DANNAY: 99. It's a March 25, 1996 letterfrom

(9) A. Yes, I do. [9) Stuart Silverstein to Ned Himmelrich,the attorney for the

[10) Q. I'd like you to tum, please, to paragraph 8 on page2. [10) NAACP.

(11) A. All right. [11) MR. RABINOWITZ: No objection. (12) MR. DANNAY: These are all in evidence, am] correct, [12) THE COURT: Well, it's in evidence. [13) your Honor? [13) MR. DANNAY: Well, it's in evidence.

[14) THE COURT: Yes. (14) I just want to make sure thewitness has it. Do you

[15) MR. DANNAY: Thank you. [l5) have it?

[16) Q. Let me read it to you, paragraph 8, "Listings Provided: [16) THE WITNESS: Yes. [17) Within 30 days after the publication oftbe book, you shall [17) Q. This letter reads, am I correct, "Dear Ned, per our many [IB) provide the NAACP with a complete record of: [IB) discussions on the subject, and in accordance with paragraph 8 [19) . "a. A complete list ofDorothy Parker's poems, [19) ofour Jetter agreement dated March 15, 1995 granting . [20) indicating the owner ofeach poem; [20) permission to reprint certain Dorothy Parker poems, enclosed (21) "b. The names ofthe publications in which each poem [21) please find copies (both paper and floppy) ofmy chronological [22) was first published and the date ofpublication, aDd; [22) and alphabetical list ofDorothy Parker'spoems and verses. (.23) "c. Where applicable, the copyright number, renewal (23) Please note that these lists contain exhaustive publication and [24) number, registration date and copyright renewal date for each [24) copyright infonnation. Also per that paragraph ofour [25) poem." [25) agreement, please note that While these lists are as accur~te

Page 256 Page 258

[1) Did I read that correctly? [1) as I can provide, ] make no warranties or representations as to

[2) A. Yes, you did. [2) the accuracy ofany ofthe infonnation they contain."

[3) Q. And ifyou will look, please, on page 3 ofPlaintiffs 88, (3) Did I read that correctly?

(4) the agreement, there is a paragraph 12 called "Miscellan·eous". [41 A. Yes, you did.

[5) A. Yes, there is. [5) Q. And did you in fact-- and attached to this lettenire two [6) Q. And it says in paragraph ]2, am ] correctly reading this, [6] master lists, is that correct? The first one says master list

(7) about nearly halfway down, "This agreement shall not be (7) chronological? [B) altered, modified or changed, except in writing, signed by all [B) A. Not in the copy I have in front ofme, no, but I'm not

(9) ofthe parties." Did I read that correctly? [9) disputing it. I'm juSt saying all I have as this exhibit is

[lo)A,¥es, youdid~ (10) this Jetter.

(11) Q"And then toward the end ofthat long paragraph, in (11) THE COURT: OK. There is J.lO list attached to my

(12) paragraph] 2, miscellaneous, it says, "This agreement contains [l2) exhibit 99 either.

[13) the entire understanding ofthe parties." [13) . MR. DANNAY: Then we wi)) have to offer Defendant's

(14) A.. Yes; it does. (14) Exhibit X into evidence which has the lists, your Honor. I

[15) Q. DidI read that correctly? [15) apologize. I thought we had putthat in.

[16) A~Yes, you did. [16) THE COURT: AlI right. ]s there any objection, since

(17) Q. OK. This agreement was amended in writing; am] correct, (17) we already have 99 in? [IB) to add three poems and then to correct the first line ofthe [lB) MR. DANNAY: I assumed the letter was --

(19) letter, the Robert Benchly item? (19) MR. RABINOWITZ: I'm trying to fmd it, yourHonor.

[20) A. Three items, yes. [20) No objection, your Honor.

[~1) Q. Yes, and to correct the first line ofthe Robert Benchly [21) THECOUIU: AIl right. Then the list is in evidence,

(22) item? . [22] together with Defendant's Exhibit--

[23) A. Yes, I see, it's number 89. [23) MR. DANNAY: There are two lists, your Honor. There

[24) Q. OK. pid you ever amend the agreement orseek to amend the [24) is a chronological list and an alphabetical list.

[25) agreement to provide that the complete list ofDorothy Parker's [25) THE COURT: Let me finish, please, so I can get it in

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[1) the record. Thank you. [1) the NAACP in connection with the license agreement was $275,

[2) MR. DANNAY: Sorry. (2) consisting ofa $250 payment under the main agreement and then .i,.,..,',.."!,•.,.'."".::,.,'.".'.•.•.'.'.• [3) THE COURT: The list is in as analtachment to Exhibit (3) an amendment which added$25?]

[4) ~, and Exhibit X is received. OK. Go ahead. [4J A. No.

[5) (Defendant's ExhibitX received in evidence) (5) Q. Would you explain what the payment was?

[6) Q. You have those before you now, both lists? (6) A. The other consideration was that the--

[7) A. Yes, I do. [7) Q. I asked you formoney, the money that you paid.

[B) Q. Thank you. The complete chJ;onology in Not Much Fun, the [B) A. You said asked for consideration.

[9) 'published book, lists all ofthe poems listed on the complete [9) THE COURT: You did use the word consideration.

[10) list ofDorothy Parker's poems that you provided to the NAACP (10) MR. DANNAY: OK.

[l1J in accordance with your agreement with the NAACP, is that (11) THE COURT: What do you want to know?

[12) correct? (12) , What was the total amount ofmoney you paid the NAACP?

[13) A. I have no specific recollection. I have no reason to doubt [13) THE WITNESS: ]t was $275 in monetary consideration.

(14) it, but I do not recall it specifically. [14) Q. And was that a one-time payment?

115) Q. OK, they speak for themselves. [15] A. I don't recall whether or not there was one check or two

[16) Going back to the agreement which is Plaintiffs 88, [16) checks. [17) do you stiIJ have that in front ofyou? [17) Q. Did you ever pay them any royalties? [IB) A. Yes, I do. Go ahead.- [IB) A. No, I didnot. ' [19) Q. In paragraph 1, am I correct that it says that the NAACP [19) Q.. OK. Tumingback to Defendant's Exhibit X, with the lists

[20) , grants you, "the nonexclusive license to use the works in a [20) attached to it. '

[21) book currently titled Not Much Fun"? (21) A. Yes. [22) A. Yes, it does. [22) Q. Am 1correct, Mr. Silverstein, that in fulfillment ofyour

[23) Q. And in paragraph lOon thefollowing page, reservation of [23] obligation to the NAACP you provided them with copies ofthese [24) rights, am I correct that it read, "Reservation ofRights: . All [24) complett? lists?

(25) rights given to the works that the NAACP may have, not [25) A. Yes, I did.

Page 260 Page 26~

[1) expressly granted to you hereunder, are hereby reserved to the [I) Q. Did you ever state in writing to the NAACP that these

(2) NAACP for its use and disposition." Did] read that correctly? [2) chronological and alphabetical listsofDorothy Parker's poems 13J A. Yes, you did. [3) and verses were something other than or less than the complete (4) Q. Am J correct, Mr. Silverstein, that the NAACP did not grant [4) list ofDorothy Parker's poems, as you were required to provide [5) to you the exclusive right to publish the uncollected poems of [5) under the agreement?

(6) Dorothy Parker or in fact any exclusive right? [6) A. The agreement required me to give them a list that I had

(7) A. Yes, they did. They granted me exclusive rights to publish [7) come up with for the copyright information, so any ofthe items

IB] my compilation, and it's in paragraph 2. [B) on it that were not previously collected would have been those

(9) Q, Would you please read to me the language that you find that 19) that I 'selected as poems or verses. That's inherent in it.

[IO) grants you an'exdusiveright, betause I don'.see it. [10) Anyway, that's it. Go ahead. (11), A. ''The NAACP recogniZes that you are the owner ofthe book." '(11) Q. I don't think you answered my question. I will state it [12) The bookis' a,compilatioIi. [12) again.

[13) Q. Is that a grant to you ofsome right? (13) A. Sure.

[I4) A. Yes, it's the NAACP recognizingtJiatT have a legal right (14) Q. Did you ever state in writing to the NAACP that the [IS) to publish aconipil~tioribasedon this. . [IS) chronological and alphabetical lists ofDorothY'Parker's poems

[16) Q. In paragraph 1 it says, "You are hereby granted the (16) and verses were something other than orless than the complete

(17) nonexcJusive license to Use the works as defined below in a (17) list ofDorothy Parker's poem~ that paragraph 8 required you to

[IB) book currently titled Not Much Fun." Is that correct? lIB). provide?

[19) A. Yes. 119) A. Yes, I did.

[20) Q. Thank you. Did you ever request exclusive rights ofthe (20) Q. Where did you do that?

(21) NAACP-- [21) A. Ifyou see at the top ofthe master list it says

(22) A. No. (22) copyrighted 1994, 1995, 1996, Stuart Weiss Silverstein. That

(23) Q. -- in any ofthe works that you licensed? (23) would indicate original work. which would indicate (24) A. I'm sorry. No, I did not. (24) subjectivity.

[25) Q. Am I correct that the total consideration that yoU paid to (25) MR DANNAY: Well, I must say I move to strike.

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[1) don't understand it. [1) A. No. I'm notsure o~that factually. The Saturday Evening

[2) THE COURT: The applicationis granted. (2) Post has been asserting the rights to, at least atthattime,

[3) Remember what} said about 45 minutes ago? Just [3) to] 8 or 19 ofthem. l'mnot sure how many ofthe other ones

[4) answer what you are asked. Don't reformulate the question in [4) the NAACP is asserting copyrightto, so I simply can't answer

[5) your own mind and answer some other question. Just answer what (5) that question. } don't know.

[6) he asks you. (6) Q. Let me ask you this question: Ifthe NAACP were to take

(7) 'MR. DANNAY: Should} ask the question again? . (7) the Dorothy Parker publishing operation in-house instead of

18) THE COURT: Sure, go ahead. [8) licensing it to Penguin, and ifit were to publish its own

[9) MR. DANNAY: } will try once more. 19J Complete Poems volume just like the Penguin Complete Poems

[10) Q. Mr. Silverstein, did you ever state in writing to the NAACP, [10) volume, would you regard that as an infringement ofthe

[11) that thesechronological and alphabetical lists ofDorothy (11) compilation copyright in what you regard as your selection of

(12J Parker'spoems and versus were something other than or less [12) the uncollected poems and verses in Not Much Fun?

[13) than·the complete list ofDorothy Parker's poems that you were [13) A. Yes, I do. Yes, I would.

(14) required to provide under the agreement? [14) Q. Yes, you would. OK. And you would have the same answer

(15) A. Besides the copyright notices, no. [15) even'though the NAACP granted you only nonexcJusiverights?

[16) MR. DANN~Y: I don't understand the copyright notices, [16] A. The NAACP granted me explicit rights in my book in

[17) but} will move on. [17) paragraph 2 ofthe licensing agreement, and the NAACP

[18) THE COURT: That's his answer. [18) explicitly contemplated that possibility.

[19) MR. DANNAY: That's his answer, OK. (19i MR. DANNAY: ) move--

[20) Q. Am I correct, Mr. Silverstein, that the complete chronology [20J THE COURT: That's his answer to your question. You

(21) in Not Much Fun does not list any uncollected poems orversus [21 J may disagree witlYhis answer, but it's his answer to your

(22] ofDorothy Parker that are not also reprinted in Not Much Fun? [22J question. ,

[23) Do youwant that read back? [23) Q. Are you testifying, Mr. Silverstein, that the NAACP as you

[24) A.No. It's essentially ambiguous. It contains those items [24) see it would not have the right to publish its own collection

(25) that I subjectively selected as poems or verses, yes it [25) ofcomplete poems without getting a license or a payment from

Page 264 Page 266

11) contains all ofthose, ~ut it does not contain any others that [1) you?

12) I did not ~ubjectively-- ' [2) A. No, that's not what I'm saying. They would have to come up [3) MR. DANNAY: } move to strike. His answer is [3) with their own compilation. 14) nomesponsive. [4} Q. Ifthey published a complete poems volumein the same

(5) THE COURT: No, that applicationis denied. That [5) manner that Penguin did, would that not be coming up with their

[6) answer C?xplains what he believes is the appropriate ans"Yer to [6) own compilation ifthey came up with that?

[7) your question. Application denied. Next question. [7) A. Well, Penguin published theirs by photocopying mine, so]

(8) Q. Does the complete chronology in Not Much Fun. the published [8) assume ifthey published Penguin's they would bephotocopying

'[9J book, list all ofthe poemstha(are listed p:p.thecomplete [9) Penguin's. (lQJ , .list ofDorothy Parkerpoems,that yo'Uprovided to the NAACP in [10J Q. The NAACP licensed Penguin the write to publish the [,l'1J accordance with your agreeinentwiththem? (11) Complete Poems, is that correct?

[12) A. l,haven't compared the list in ]2 years. 1 would, assume it (12) A. -Can you repeat the question, please? (13) probably does, but'} cannot state categoncaUy that it does. [13) Q. The NAACP, as you have found outin the litigation, (14),. And also 1would have to say poems and free verses, not just (14) licensed Penguin the right to publish'Complete Poems, is that [15J poems, you know, to make it a complete answer. [15) correct? (16J This is 12 years ago. I assumeit'stbe same, but 1 (16) A. 'I have seen documents to that effect, and 1 have no doubt (17), can not categorically state it is. (17) that it is true. [18J Q, Can'you tell me, Mr. Silverstein, can you name the works or (18) Q. And it included the uncollected poems and verses, correct? [19) every work that you determined to be an uncollectel;1poem or (19) A. It included several items that I selected to be in part of 120J verse by Dorothy Parker that you left out ofthe complete list '[20) my compilation, but, no, it ~as not the uncollected poems of

[21) you provided to the NAACP? (21) Dorothy Parker. It was several items to which they had

(22), A. I cannot recall any items thatJ did not determine to be a (22) copyright that were not previously collected by them or by [23) poem or a verse or something that was previously collected. [23) Penguin. (24) Q. The NAACP is the principal copyright owner ofthe Dorothy (24) Q. But the NAACP licensed Penguin the right to publish

[25) Parker poems, is that correct? [25) Complete Poems, including uncollected poems and verses as

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[1) listed in Not.Much Fun's complete chronology, is that con:ect? [1) else that needs to be covered on that.

[2) A. I assumethat the NAACPlicensed Penguin to publish [2) .I'd like to tum to Exhibit U and offer itinto 0"-., ~is ~e [3) whichever poems and verses to which they had copyright rights. [3J evidence. is Stuart Silverstein letter ofOctober 9, r:.7) [4J Q. Do you think that the act itselfin authorizing Penguin (4) 1995 to Tysle WhItman. . '"..-

[51 amounted to an infringement by the NAACP ofyour selection (5) MR. RABINOWITZ: No objection.

[6) copyright in the uncollected poems and verses? (6) THE COURT: No objection? All right. Received, thank P) A. No, I doubt that you disclosed to them that you were going (7) you.

[8) to photocopy somebody else's copyrighted work an reprint it. [8) (Defendant's Exhibit U received in evidence)

[91 MR. DANNAY: So your answer is-- [9) Q. Tum to page 2 ofthe Defendant's Exhibit U, paragraph that

[101 A. lam answering your question.. I don't think that they [10) says "Please also be aware..."

[111 could possibly have contemplated that Penguin would act in the (11) A. Yes.

[121 way that Penguin did act. [12) Q. it reads, "Please also be aware that the index to the MS

(13) Q. So you do not believe the NAACP in authorizing Penguin (13) "-- that's the manuscript--

[14) committed an act ofcopyright infringement. (14) A. Yes. [15) A. No, I don't believe that they would have imagined that you [15) Q. "Please be also be aware that the index to the MS is

[161 would do what you have done with it. [16) probably the most comprehensive inventoryofMrs. Parker's

[17) Q ..Ifthe NAACP were to'publish a volume ofParker poems, for [17) poetry and verse yet compiled. TheNational Association of

[181 example, onecollection ofher, say,Enough Rope, together with [18) Colored People (NAACP) which owns and administers her

[19] theBate Verses, would thatiriyourview infringe your (19) copyrights has requested an expanded version with copyright

[201 selection copyright? [20) records to use as its own principal reference."

[211 A. I don't know. I would have to ask my attorneys. [21 ) Did I read that correctly?

[221 Q. I'd like you to tum back to Exhi~it W, Defendant's Exhibit [22) A. Yes, you did.

[23] W, the e-mail oOuly 9, 2001. [23J Q. Is there any mention in anyof the~e documents relating to [24] A. W, did you say? [24) the NAACP, or to your publisher referring to the NAACP, that a [25) THE COURT: Yes. [25) Parker free verse is not really poetry in your mind?

Page 268 Page 27(

[1) Q. Yes. [1 ) A. Just where you read right now, Mrs. Parker's poetry and

(2) A. OK. I have it. Yes. [2) verse, it contradistinguishes verse from poetry.

[3) Q. Let me 'read this to you and see ifI read it correctly. [3j Q. And you believe that that would be understood to include

[4 J "Dear Gillian, let me recapituiate the mains P?ints I was [4) frf::e verst: and your view that free verse is not really poetry?

[5) . trying to make dutlng our telephone conversation earlier this [5J A. There's an explicit distinction drawn there, counselor.

(6) afternoon. I learned today that Penguin's responses to our [6) Q. Mr. Silverstein, does it say anywhere in these documents

[7) interrogatories revealed that one ofthe poems contained in Not [7) that the Parker free verse is not really poetry? Does it say

[8] Much Fun, titled DayDreams, pages 132-33, originally appeared [8) that? [9] in Dorothy Parker's first collection Enough Rope published in (9)· A. Yes, poetry and verse. In basic English, in QJe basic (10) 126, pages 63,64. Was} appalled? Thatwould be condemnation [10) language, and in usage ofEnglish, when youputtwo tetnls

[11) bYundetstateJDeD.l;Iputa vast aJDouilt ofdetail-intensive "(11) ; togetherwith an "and" in betweenor 'an "or" in between you are

(12) re~ch into the preparation oftheNMF manustript. I thought (12) contradistinguishing them, you are saying they are different,

(13) I had gotten ever)'ti-Jingrigbt, TheNAACP, which owns the (131 apples and orimges, brothers and sisters.' When yousay poems

[14) copyright rights to Parker's poems, evidently agreed~' It [14) and verses, you are saying that they are differentthings.

[15) demanded the copyrightlists that I hadprepared for NMF as a [151 THE COURT: Thank you. Yo\! have given him his English

[16) condition for granting a license to SOme ofher poems, and [16) lesson. Next question.

(17) those liSts are the NAACP's primarY reference for determining [17] . Q. Mrs. Parkerused poems and verse interchangeably, did she

(18) the copyrightstatus ofParker's poetry. But I was wrong. I (18) not? (19) learned today that] had made a mistake, Day Dreams had been [19) A. No. [20) • collected previously in EnoughRope. I just missed it." [20] .Q. She did not?

[21) Did I read that correctly? [21J A. No.

(22) A. Yes. Please goon~ [22J Q. How did she use them, in your understanding?

(23) Q. Did I read what I read? [231 A. Well, I know ofat least one instance when she was asked

[241 A. Yes. [24) about her poems and she said, no, not poems, verses. :- ~':\

(25) Q. Thank you. I am sure your attorney will cover.anything [2'5) Q. I'm going to read from page ]47 ofyour deposition. Please ,.,~.I

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(I) turn to it. Do you see line21? [1 ) THE COURT: I wasjust going to say you are both

.l2) A. Urn-hum. [2) leaving out Constant Reader. OK, go ahead. [3) "Q. As you said, Dorothy Parker frequently referred to her own (3) A. And I think there might have been another one she used for [4) poetry as verses? [4) the New Yorker, and I can't simply remember whatit is. Go

[5) "A. Yes, she did." 15) ahead.

(6) A. Exactly. I said she once had her poetry refemid to as [6) Q. No, let me tum to Defendant's Exhibit Y, which I would

(7) poetrY, and she said, no, verses. [7) like to offer -- no, it's already in as Plaintiffs Exhibit 84.

[B) Q. I'd like you to tuni to ExhibitT. [B) Excuse me. (9) A. Do I know what thatis? (9) THE COURT: All right, Plaintiffs Exhibit 84, which [10) . Q. I withdraw iliat.OK. Page 146 ofyour deposition. (10) isY [11) A. Yes, go ahead. 111) Q. Do you have iliat there?

[12) Q. On page 146, at line 23: ('12) A. Yes, I do. (13)' "Q. You refer to both ofher collections as collections ofher. [13) Q. On page 2 it reads "lfthe NAACP is a~are ofthe existence [14) verses? [14) ofany other poems written by Mrs. Parker that meet'the above

[15) "A. She refers to iliemthat way. [IS) criteria, i.e., uncollected and copyrighted,1 wouid most

(16) "Q. That was going to be my next question. Thank you. But (16) appreciate being informed oftheir existence and would be most (17) you did in yo~r book referto the two collections as (17) willing to secure permissions 011 similar terms." [lB) collections ofher verses, is that correct? lIB) Have I read that correctly?

(19) "A. I adopted her language, sure. (19) A. Yes, you did. .

[20) "Q..Would it be fait to say that Sunset Gun and Death and [20) Q.Did the NAAC;P make you aware ofany other suchpoems?

(21) Taxes contain what most people would say are both poems and [21) A. I don't recall. They might have. They might have. I

[22) verses? (22) simply don't recall: I know that the Saturday Evening Post was

(23) "A. I can't speculate what most people would SflY. [23) very helpful in that regard. Ijust.simply do not recall. The [24) "Q. How about you? (24) NAACP's record, as] recall, were in shambles, so] just don't

(25) "A. Well, sure, because most people, including me, who do not [25)' know.

Page 272 Page 274

(I J have Ph.Ds in English literature do not much distinguish [1 ) Q. And did the phrase any other poems refer to the poems on

(2) between poem and verse. Ofcourse fr.ee verse is a completely 12) pages 1 and 2 ofthis letter?

(3) different issue which is what the Hate Verses are. So, yes, (3) A. Well,] think they would be distinguished from the ones on

(4) they are generally used interchangeably. (4) this letter.

IS) "Q. As you said, Dorothy Parker frequently referred to her own (5) Q. Well, did iliey refer to a grollp iliat includes the letter [6) poetry as verses. [6) from DoroiliyParker to Ogden Nash? [7) "A. Yes, she did." (7J A. Yes, as listed by me, yeah. It also lists From the Ladies.

IB) Did lreadthat correctly? (B) Q. I'd like to offer as Defendant's Exhibit Z an April 4, 1995 19)A. Yes, you did. . (9) letter from Stuart Silverstein to ilie Lampack agency.

(l0) q. C,lID;YOU tell !1?e,;MJ:.Silverstein,allofilit:pennames or [10) A. Excuseme. What number would that be? [11) pseudonyms that Dorothy Parker used oras many as you know? [11) Q. Z, Defendant's Exhibit Z.

(12) A. I know oftwo, perhap~ three. She used Henriette Russo'for [12) A, ] do have iliat already?

. [13)ilie first Hate Verse,] believe it Mis Woman, for Vanity Fair. [13) Q. ] don't think it's a plaintiffs exhibit.

[i4) She apparently used Helen Wells, which is a play on hell on 114 ) A. Well, you've given me a lot ofstuffhere.

[15) wheels, forSaturdayEv,~ing Post. And she might have used [l5) DEPUTY COURT CLERK: Z as in zebra?

. (16) . "Squidgein the New York World. [16) MR. KJELLBERG: Z as in zebrll, yes..

117)Q~ And she often used ilie initials DP? (17) THE .COURT: Is iliere any objection to Exhibit Z?

[lB) A. Occasionally s~. No, let me rephrase that. Some ofher [lB) MR. RABINOWITZ: No, your Honor.

'[19) items in Life Magazine were signed with a tag line DP. I don't (19) THE COURT: All right. Exhibit Z is received.

[20) know ifshe putthose iliere oran editor put iliem there. ] (20) (Defendant's Exhibit Z received in evidence)

[2H simply don't know. (21) MR.OANNAY: I'm offering this into evidence.

[22) Q. And Dorothy Rothschild, her birth name, was thatused? (22) THE COURT: Yes, iliereis no objection to Z:

[23) A. Yes, before she got married. [23) Q. This letter reads - do you have it in front ofyou,

(24) Q; Any oilier name!; that you can think of! [24) Mr. Silverstein? 125) A. Constant Reader. 125) . A. Yes, I do have it. Theletter dated April 4, 1995.

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[l) Q. Yes. It says, "Dear Debbie, per our talk ofthis morning, [l) THE COURT: Is that that handWritten thing on hotel [2) OT afternoon, as the case may be, enclosed find a copy ofthe [2] station~~~ 13) letter Dorothy Parker sent to Robert Benchly in September 1920. (3) DANNAY: To my knowledge it is, yes.,f) (4) It maybe bad poetry but it's poetry, so I'm including it." (4) THE COURT: OK, fine, that's all I want to know. I'm

(5) Did head that correctly? [5] not a student ofDorothy Parker, so I didn't know whether she

16) A. Yes, you did. (6) my have written other letters to Mr. Benchly~ Go ahead. [7) Q. And when you said in the letter "including it" you meant in (7) MR. DANNAY: I'd like to go back to Defend;mt's

[B] Not Much Fun, is that correct? IB) Exhibit T and offer that into evidence. I don't believe that

[9) A. Yes, I did. 19) we have done that.

110) Q. Isthere any work that, you determined to be an uncollected 110] THE COURT: No, you did not offerT. You started to Ill) poem or verse by Dorothy Parker that you considered bad poetry [11) talked about T, and then you changed direction.

112) and that you left out ofNot Much Fun for that reason? 112) MR. DANNAY: Yes.

[13) A. Yeah. As I mentioned yesterday, I was right on the line (13) THE COURT: We are going back to Tnow.

114) with regard to the standardized song sheet. It had certain [14.1 MR. DANNAY: I would just like to-- 115) elements ofpoetry, including rhyme,etc., and I just didn't [15) THE COURT: Is there anyobjection to T?

116) likl;: it, ,so I didn't put it in. There might have been more. I [16) MR.' RABINOWITZ: I'm looking fOf it, your Honor. 1l7) just can't recall specifically. [17) THE COURT: All right. T is received. lIB) But as I saidyesterday, I was drawing distinctions 'lIB] (Defendant's Exhibit T received in evidence) 119) between certain things I was shoe homing in because I wanted 119] Q. Am I correct, Mr. Silverstein, ,that Not Much Fun contains [20) to put them in, although I could have determined subjectively (20) all ofthe uncollected Dorothy Parker poems and verses that are

121) that' they weren't poems ifI wasn't as fond ofthem. Actually (21) listed in the complete chronology in Not Much Fun? (22) Imenti~nedyesterday this was one ofthem, I wanted this item [22) A. As I repeatedly stated earlier, so long as you add the [23) in the book, because a year earlier the Dorothy Parker movie [23) stipulation that I determined they were poems or free verses [24) had come out, the central theme was Dorothy Parker's unrequited [24) written by Dorothy Parker that have previouslybeen 125) love affair with Robert Benchly, so this was one ofthe items I [25) uncollected, yes.

Page 276 Page27t

[1) referred to yesterday I wanted to shoe hom into the book and, (1) MR. DANNAY: I don't believe that's responsive, your

(2) yes, it was bad poetry. (2) Honor.

[3) THE COURT: Let,me ask something, because the exhibit (3) THE. COURT: I believe it is. Next question.

(4) here, Z inmy copy, there is a reference to an enclosure. Now, (4) Q. Does Not Much Fun contain all Of the uncollected Dorothy [5) I don't have the enclosure behind my Exhibit Z. Is this the IS) Parkerpoems and verses listed in the complete list you

[6) poem that was written? Or was this the writing? I'm not going [6) provided to the NAACP?

[7) to characterize it. is this thewriting that Dorothy Parker [7) A. rm not absolutely certain that the two lists were [B) ,did from some resort in Maine, several pages in her rB) identical, but given the same stipulation I gave in the (9) handwriting? Is that what isattached to Z? i9] preceding answer, lbelieve so.

,(10) THE WITNESS: Are you asking me, your Honor? (10) . Q. Does the complete chronology in Not Much Fun list any (11) "[MEteuRT: -No,I'in asking Mr. Danilay, because he Ill] uncollected poems or verses ofDorothy Parker that are not

[l2) offered theexhlbit. ' (l2] reprinted in Not Much Fun?

[13) THE WITNES5:Sorry, your Honor. [13) A. Given the samestipulation, no.

(14) THE COURT: Did you hear me? (14) MR.l>ANNAY: OK. I'd like to offer into evidence

(15) MR.:DANNAY:Yes. [15] Exhibit HHHH, which is the Simon & Schuster/Silverstein [l6) THECOUiU:Well, is it or not? [I6i publication agreementfor Not Mu~h Fun, dated June 30; 1995.

[17] MR.DANNAY: Isitattached'tothiscopy? [17] 'THE COURT: Unless I misheard you, J thought YOllsaid [lB] THE COUR:T:' I'm asking. What I'rn trying to find out lIB) HHH?

[l9] is there is a reference to an enclosure. [19) THE WITNESS: Quadruple H.

120) MR. DANNAY: We never received that. (20) MR.DANNAY: FourHs. Sorry.

[21) THE'COURT: OK. Well, I didn't know that, and "I don't 121) THE·COURT: So you are offering quadruple H. Is there

(22) know that other than now,because thereis nothing behind Z. (22) any objection?

(23) All rm trying to :fmdout is whatis the reference to. [23) MR. RABINOWITZ: No, your Honor.

[24] MR. DANNAY: The reference is to the letter Dorothy (24) THE COURT: All right. It's received.

[25) Parker sent to Robert Benchly. (25) (Defendant's Exhibit HHHH received in evidence)

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[1) Q. I would like to direct your attention to paragraph 41. 11) a sighed contract.

[2) It's on page - well, it has a Bates number of080 at the [2) MR. DANNAY: Wemay have the wrong number for the

[3) bottom. [3) plaintiffs. We'll check that.

[4) . A. I have it, yes. 14] THE COURT: AIl right. Maybe you do.

lSI Q. Do you have it? It says in part, does it not, [5) MR. DAJI,JNAY: We will offer·into evidence GGG. I'm not

[61 Mr. Silverstein, "All statements iii the literary work asserted (6) sure ifit has a number.

[71 as facts are true and are based upon reasonable research for (7) MR. RABINOWITZ: I think it may be 95. IBI accuracy, to the best ofthe author's knowledge." [B) MR. DANNAY: 95?

19J A. Yes. 19) THE COURT: This is the thing that refers toa

[10) Q. And the literary work is Not Much Fun, is that correct? [10) holographic copy. It'sExhibit95. All right, fme.

Ill) A. Yes. Ill) MR. DANNAY: My apologies.

[12) MR. DANNAY: I'd like to offer into evidence Exhibit (12) THE COURT: That's all right. No problem. Whatis

(13) SS ofthe defendants, a SHversteinletter dated July 5,1995 (13). the question?

[14) to Tysie Whitman. (14) Q. The question is: This letter ofyours to Ned Himmelrich,

[15) THE COURT: Is there any objection to SS? 115) the NAACP lawyer, refers to a holographic copy ofDorothy

(16) MR. RABINOWITZ: I'm reading it, your Honor. One [16J Parker's 1920 letter to Robert Benchly, con-ect?

[17J moment~ N~ objection, yourHonor. [17J A. Well, it's a fax, but yes.

(lB) THE COURT: Received. [lal . Q. And the way it's characterized in the permission agreement

[19) (Defendant's Exhibit SS received in evidence) [l9i is "the poem containedin an unpublished letter from

(20) Q. I caIl your attention to the language, Mr. Silverstein. It [201 Mrs. Parker to Robert Benchly dated September 1920." Is that .

. [211 $ays, "Per our conversation ofthis afternoon, attached please 121) correct?

(22) Tmd copies ofnine poems and one free verse diatribe by [22) A. Yes, that's what it says here, right.

[23) Dorothy Parker." [231 MR.DANNAY: I'd like to offer into evidence

(24) Did I read that correctly? (24) Defendant's Exhibit HHH. It's Mr. Silverstein's faxed letter,

'[25) A. Yes, you did. 125) I think it's undated but it has a Bates number.

"Page 280 Page 282

11J Q.. And then in the next paragraph it begins, "This selection II) THE COURT: Now this is HHH.

[2) is a cross section ofMrs. Parker's lostpoetry. Is that (2) MR.DANNAY: HHH. It's a fax letter.to PeterLarnpack,

[3) correct? [3) hIS agent. [4J THE WITNESS: Yes, urn-hum. [4) THE COURT: Is there any objection to that? lSI Q. So, this is at least one place where you have referred to a [5) MR. RABINOWITZ: I'mtrying to find it, your Honor.

[6) three verse diatribe as lost poetry, is that con-ect? [6J THE COURT: All righL AU right. It's in the volume (7) A. It's just a truncation ofspeech. It was very clear from (7) ~at begins AAA to 1111. [B) the preceding paragraph what I was trying to do. 1 was just (BJ MR. RABINOWITZ: No objection.

19) saving a word, that's all. [9) :rHE COURT: All right. Received.

[10) Q•. I'~ liketo refer~gaintoP]~illtiffs~hibit9), [10) (Defendant'sExhibit HHH received'in evidence)

[11) Mr. Silverstein's lettei' of Jun~ 30-, 1995 to Mr. HimineJrich. . [11) Q. Doyou have this in front ofyou?

(l2) A. This is number 93, you said? [12] A. Yes, I do. [13J THE COURT: 95 I think he said. [13) Q. In the second paragraph it reads, "In the course offurther

[14) , MR. DAt.,jNAY:" No, 93- (14) research·1 have learned that nine poems.contained in Not Mubh

(l5) THE COURT: lthought be said 95. All right. .115) Fun that were originaUy thought to be uncollected did appear (16) A. I have it. [l6) in Rope and Gun but were not compiled in Well." [17J Q. The leiter refers to a holographic copy ofDorothy Parker's [17} A. That's Correct. [lBJ 1920 letter toRobert Bencbly, correct? [lB) Q. And then you requested at the end ofthe letter, "Please

[19) A. No. . [191 delete these poems from your drafts ofNot Much Fun. Thanks."

[20) THE COURT: Wait a minute..What exhibit are we [20J. Is that correct? (21) talking about? [21) A. Yes, yes.

[22) MR. DANNAY: It's Defendant's GGG, but it's [22J Q. This is the produCt ofyour research?

(23). Plaintiffs Exhibit 93, I believe. [231 A. Yes, it is. [24) THE COURT: 93 is a one paragraph letter except that (24) MR. DANNAY: I'd like to offer into evidence Exhibit (25) there is a "I look forward to hearing from you" that refers to [25) uuu. It's an internet posting ofJune 20, 1999, a

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[1) question-and-answer session with Mr. Silverstein. [lJ The record gets twice as long as it has to be.

(2) MR. RABINOWITZ: No objection, your Honor. [2J MR. DANNAY: My question really, your Honor, was..,. ~

[3) Q. Do you have that? (3) THE COURT: What is the questiOn?()

(4) A. Yes, I do. [4J MR. DANNAY: The question was whether that's an

(5) THE COURT: All right. Ifthere is no objection, it's [5J accurate reproduction ofthe questions and answers with

(6) received. [6J Mr. Fitzpatrick. PJ (Defendimfs Exhibit UUU received in evidence) [7) THE COURT: OK. Is it?

[8J Q. Who conduded this interview with you? [8J THE-WITNESS: Yes.

[9') A. Kevin Fitzpatrick, who is sitting in the ftrst row back (9) THE COURT: Fine. . (10) there. [10) MR. DANNAY: I'd like to offer Defendant'sExhibit

(11) Q. Thank you. On the second page ofthis exhibit, I'd like to [l1J RRRR.

[12J read this. Tell me ifI'm reading it correctly: . [12J THE COURT: All right, quadruple R.

[13J "I have read that there were some uncollected poems; (13) THE WITNESS: Do I have a number for that?

[14J but to see them particularly in·such a natural topical setting [14) MR.DANNAY: No.

[15J had a strange effect. I started to compile them and" -- then (15) THE COURT: You're directing his attention to it. Are

(16) there is a question -~ "How long did Not Much Fun take you, and [16J you offering it in evidence?

[17J where did you begin? Y2ur answer: (17) MR. DANNAY: We're trying to locate-- [18J "A. As descnbed just above, I started with the old Life [18J THE COURT: All right. While we're trying to find it,

(19) microfibns issue by issue. There were no indices, so there was [19J could you clear something up for me, Mr. Silverstein?

(20) no other way to find them all. Then I went through Vanity Fair (20) MR. DANNAY: We just found it, your Honor.

[21J and The New Yorker, which did not have indices, which made that (21) . THE COURT: Still, let me getthis clear. In your

[22) part ofthe job vastly easier, though in both instances there [22J testimony, you referred yesterday -- and I think today -- to

(23) were syhonymous pieces which tobedetected and disinterred. (23) Life Magazine, right? .

(24) Then the Saturday Evening Post with the same problem and [24J THE WITNESS: Yes, your Honor. [25J several other magazines. Frank Adams' Conning Tower which [25J THE COURT: Is that the Life that is published by Time

Page 284 Page 28l

[1) appeared in the New York Tribune 1914, 1921 and The New York (lJ Incorporated, or is thata magazine called New York Life, or is [2) World 1922-31 was particularly difficult because it was a daily [2J it both?

[3J column which meant there was a hell ofa lot ofit, and because [3J THE WITNESS: To make it as short as possible, there [4) it was unindexed, so I was compelled to check every damn one. [4 ) was a humor satire magazine published in New York City from . [5J Ip. all, the excavation consumed about18 months. [51 1883 to 1936 called Life. Henry Lewis bought it when it was

[6J "What led you to discover the plagiarism scandal with . [6J failing just to get the title, and in 1936 he adapted the title [7) FDA? [71 for his new picture magazine, so they are two separate [8J "Again, as described just above, I was forced to go [8J magazines.

[9J through every column to checkfor poems. While 1did not find [9J THE COURT: But wa:s the original one that Lewis Ford

(10) anyofthoseintheTribunecolumils, that is, from 1914 through (10J called.New York Life?

[l1J 2;i, I did t'indtbatHttle Adams nugget." ..' [l1J THE WITNESS: It was generally called Life, but it's

112) Didi read that correctly? [12J often referred to in the literature as N~w York Life just to

(13) A. No, you made one mistake. . (13J give geographical attachment to it. (14) THE COURT: You know, you don't -- that.is completely (14) THE COURT: Thank you. Now you are at the stage where

(151 impr()peras to£000 to ask a question that way. There has [15J you have RRRR, and what do you wantto do with it?

. (16) never been an objection, I haven't observed it. All you have [16J MR. DANNAY: I would like to offerit into evidence.

(17) to dois to referhim to the paragraph, ask him to read it to 117) MR. RABINOWITZ: Your Honor, without any foundation as

(181 himselfand thenask him the question. You don't have to ask [18J to what this even is, I am hard pr~sed to evaluate it.

[191 every time dId I read it correctly. What's in the exhibit is [l9J THE COURT: Is that an objection?

[201 in the exhibit. [20J MR. RABINOWITZ: My objection isthat there is no

[21) Direct him to what you want to ask him aboutaiJd have [2·1) foundation whatsoever for it.

[22) him read it, andtJien ask him. Ifthere is something (22) THE COURT: Objection sustained, because I don't know

[231 inconsistent, or there is something that you feel in some way (231 what it is either.. (24) is germane, ask him about it. But don't read it paragraph (24) Q. Mr. Silverstein, have you ever seen this review ofyour( ).

[25) after paragraph and then say did I read it correctly. (25) book Not Much Fun on line'from the Constant Reader book shop? '<;

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[lJ It's something that wa$ apparently put there by Kevin (1 J Q. Ano that item, as we established, the poem is News Item, is 12J Fitzpatrick ofthe Dorothy Parker Society. [2J that correct? [3J THE COURT: I mean, now you are testifying. [3) A. Yes. (4J MR.DANNAY: It's what's indicated. (4) Q. And it reads, ifI have it correctly, "Men seldom make (5J THE COURT: But you don't testify. You are not up (5) passes at girls who wear glasses?" [6J here; you are the lawyer. [6) A. Yes. [7J Do you know what this is, these two pages? ,[7)Q. Is that a poem, in your view? IB]. THE WITNESS: Yes, I do, your Honor. [B) A. It could go either way. I like it so lwould call it it [9J THE COURT: All right. What are they? (9) poem, but it could go either way. It's a wise crack [10) THE WITNESS: These are two pages from [10) Q. OK. Defendant's Exhibit YYY, a letter dated March 7, 1995

[11] Mr. FitzPatrick's Dorothy Parker website. (11) from Mr. Silverstein to Joy Weiner ofthe legal department of [12J THE COURT: All right. Now that we know where they (12J the New Yorker. [13J are from, is there still an objection? 113J A. I have it. [14J MR. DANNAY: No. (141. Q. This reads, "Dear Ms. Weiner, perourconversation ofthis

[15J MR. RABINOWITZ: No, your Honor. [IS) afternoon I am preparing a book tentatively tjtled Not Much [16J THECOURT: I'm asking Mr. Rabin()witz. He is the one [16) Fun: The Lost Poems ofDorothy Parker, a compilation of (17J who objected. Isffiere still an objection? [17J previously uncollected poems by Mrs. Parker. J hav~ found two [lB) MR~,RABINOWITZ: No, your Honor. [lBI verses that she included in book reviews in the New Yorker as [19J THE COURT: OK. Then they are received into evidence. [19J follows." Then you give the date for one, November I2, 1927, [20J (Defendant's Exhibit RRRR received in evidence) [20) page 112, Christopher Morely goes hippety hoppety hippety (21J Q. Now in the review ofNot Much Fun, your book, it says, [211 hoppety hop; whenever I ask her politely to stop, he says he (22) "highly recommended." Do you see that? 1221 can't possibly stop, [23J A. Yes. [23J You refer to that -- and it is, isit not -- a poem; [24J Q."lfyou have the Portable Dorothy Parker, you also need to [241 as part ofyour compilation ofpreviously' uncollected poems? [25) own Not Much Fun: The Lost Poems ofDorothy Parker. This [25) A. Yes, I did collect it.

Page 288 Page 290

11) comprises all ofthe work Parker left out ofher earlier [1 J Q. And it's a verse that appeared in the book review, correct? [2J collected editions." (21 A. Yes, it did. (3] And I ask you, Mr. Silverstein, did you provide that Q. And the other one that's mentioned is dated May 30; ]93 J,

[4) information to Mr. Fitzpatrick? [4) 'at page 66 ofThe New Yorker and it reads, "Theodore Dreiser

[5) A. No. [5J should ought to write nicer?" [6] Q. This was written on his own without any discussion with [6J A. Yes. [7) you? [7J Q. And that's a poem in your previouslyuncolJected poems by (BJ A. Yes. [BJ Mrs. Parker? [9) Q.Thank you. I don't believe it's in.evidence, Defendant's (9J A. Yes. I reluctantly concluded.it was a poem. IIOJ XXX,Mr.Silverstein'sletter datedJrine 3,1996 to Gillian [101 Q.And that too was a verse that was found in the book.revlew, 1111. BlilkeandLi,zaMaslowatScnonet, [llJ is that correct? 1121 THE COURT: Thisis not in evidence.. [12J A: Yes. [13) Is there an offer ofit? 113J Q; Excuse me. Before I leave this letter, you requested 114J MR.DANNAY: Yes. I'm sorry. ' ' I14J nonexclusive'pennission to use these verses in Not Much Fun, is 115J MR;RABINoWrtz: No objection, your HonoL (l5J that correct? (161 THE COURT: Allright. XXX is received. [16J A. Yes. 117) (Defendant's Exhibit XXX received ill'evidence) I17J THE COURT: You have not offered it. [lBJ Q. Do you see in the nexttolast paragraph on this page there 11BJ MR.DANNAY: No, I thought I had ofIeredthis. fi9J is it reference to that rhyming wise crack about passes and [19J THE COURT: lknow you assumed it. That's why I 120J glass? 120) wanted to bring it to yout attention. [21 J A. Yes, judge Keenan referred to it yesterday. 1211 MR. DANNAY: We offer it. [22JQ. Yes; And 'then there is a reference by you thai 'Yas Dorothy [221 MR. RABINOWITZ: No objection. ',[23J Parker's most famous poem and it appeared in her most acclaimed [23J THE COURT: ,All right. Triple Y is received. ',. [24J poetry collection. [24J (Defendant's Exhibit YYY received in evidence) (25) A. Yes. [251 Q. Plaintiffs Exhibit 89, could we put that before you, it's

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[1.) also Defendant's Exhibit ZZZ. It's Mr. Silverstein's letter [lJ by Franklin P.Adams for Mrs. Parkers' benefit- are in fact (2) dated March 30, 1995 to Ned Himmelrich. [2J various forms ofprose, and you maywishto correct your J~) (3) A. I found it, yes. Thank you. [3) records·accordingly." '" (4) Q. This is the letter agreement that amends the March 15, 1995 [4) Did you tell Mr. Pettinga that you had come to the [5J permission agreementwith the NAACP, is that correct? [5J conclusion based on your research that certain items were (6J A. It is what it is. It appears to state that, yeah. [6Jprose, not poems, and that he should correct his records?

[7) Q. And it refers to the poem contained in the book review [7J A. The letter speaks for itself. It's 13 years old. I have (BJ written by Mrs. Parker that appeared in The New Yorker issue [BJ no idea. I have independent recollection ·ofany ofthis.

[9) dated November 12, 1927, is that correct? The first line [9) THE COURT: But he didn't ask you about the letter. [10) Christopher Morely. [10) He asked you did you tell Pettinga that.

[11) A. Yes. [l1J THE WITNESS: The letter says I did, I guess, but I [12) Q. And that'sa poem that was contained in that book review, [12J have no recollection ofit.

[13) is that correct? (13) THE COURT: OK, thank you.

[14) A. That was an item that I concluded was a poem that was (14) MR. DANNAY: Thank you. (15) contained within that book review. [15) Q. The last paragraph on page 1 ofthis exhibit reads, and 1 [16J Q. But the letter states it's a poem contained in the book (16J quote, "As to the size ofthe print run, my literary agent, [17J review, is thatcorrect? [17J Peter Lampack, has infonnedme that there is no accurate way to [lBJ A. It speaks for itself. - [lBJ determine this figure at this time in the publishing process. [l9J Q. OK. And the Theodore Dreiser item is referred to in this [19J This compilation will appeal to the literary, not the mass [20J letter as the poem contained in the book review written by·· . [20) market, and the market will becorrespondingly limited." [21J Mrs. Parker that appeared in the New Yorker issue dated May 3~, [21J Was that your view ofthe market for Not Much Fun? [22J 1931. [22J A. That was our conclusion ofthe value ofthe market. We (23) A. Same answer, it speaks for itself. [23J were hoping it would be more, but that's what we thought it [24) Q. And the third item is the poem contained in an unpublished [24J would be limited to, just as the language says. [25) letter from Mrs. Parker to Robert Benchly dated September 1920, [25J Q. And you wrote that in other letters did you not, as well,

Page 292 Page 29·

[1J "Some children here..." Correct? [1) . is that correct? [2) A. Yes. [2J A. I do not recall. [3J Q. And this is the letter, am I correct, that increasedtbe [3J Q. Take a look at Plaintiffs Exhibit 84, which is Defendant's .I4J payment to the NAACP from $250 to $275 for using these three [4 J Exhibit Y. [5J works, is that correct? [5) A. Yes. The December 5, 1994 letter? [6J A. Yes. [6) Q.. Well, I just read it to you from Plaintiffs Exhibit 83. (7) Q. And So a permission fee of$25 was paid for the poems [7J I'm asking you to look at Plaintiffs Exhibit 84 for the same (BJ contained in the bookreviews and the poem contained in the [BJ language and confirm that it appears there. [9J unpublished letter, is that correct? [9J MR. RABINOWITZ: That's your Exhibit number what? [10J A~ Well,t4at was the morietaryconsideration, yes. [10J MR. DANNAY: Y. [11.] ·0. Thatwasthemonetary consideration. So that comesto (11) A. Yes: [12J $8.33 per poem. Can you tell me how that figure waS arrived [12J THE COURT: What he is referring to is the first at? . .. [13J [13J paragraph. (14] A~] asked Ned Hirnmdrich what they wanted and that's what he [14) A. Yes, it does refer here to it, yes. .. [15J told me. [15J MR. DANNAY: We would like to pfferinto evidence [16J Q. Tum to Plaintiffs Exhibit 83. It's Defendant's Exhibit [16J . Defendant's ExhibitsKKKK., LLLL andMMMM, allofwhich are [17J JJJJ, Mr. Silverstein's lettt;r dated December 5, 1994 to Steve [l7J correspondence ofMr.Silyersteinwith·Mr. Pettinga ofthe [lBJ Pettingaofthe Saturday Evening Post Society. [lBJ Saturday Evening Post Society. . .. (1·9J . A. Yes, 1have it . [191 THE COURT:· It starts with the January 22, 1995 [20J Q ..OK. .. In the frrst full paragraph that follows the list of [20) letter. [21J works from Rosemary to Tri~let, you wToteto him, "Thank you [21) THE WITNESS: Yes, sir. [22J for cataloguing your full Parker holdings to me during our [22J THE COURT: Any ()bjection, Mr. Rabinowitz? [23J telephone discussion. 1 must inform you, however, that those [23J at it. MR. RABINOWITZ: ~orry,your Honor. I'm ~t:lllo~king .C) [24) works are Dot included in the above list·-- with the exception [24J [25J ofMen I'm Not Married To, which was individually copyrighted [25J THE COURT: OK..When you know your posll1on, Just let "-

Page 291 - Page 294 (26) Min-U-Script® STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18, 2007 Page 295 Page 297.

[lJ me know. [lJ A. It was that list.

[2J MR. RABINOWITZ: Four Ks, four Ls and four Ms? (2J Q. Thank you.

[3J THE COURT: Yes, [3J Refer to Plaintiffs Exhibit 96, please. This is

[4J MR. RABINOWITZ: No objection. [4J Defendant's Exhibit PPPP. Do you have that in front ofY01.i?

[5J THE COURT: All right. Received. [5J A. Yes,] do.

[6J (Defendant's Exhibits KKKK., LLLL·and MMMM received in [6J Q. This is a letter agreement amending the original agreement

(7J evidence) [7) with the NAACP, is that correct? [BJ Q. Am I correct, Mr. Silverstein, that these letters reflect [BJ A. It is what it is.

(~J that you received only nonexcluSive rights from the Saturday [~J Q. Well, let me read it then. "Our original agreement refers [10J Evening Post Society for the works that you used? [10J . to a poem dated September 1920, "Some children here..."The

[l1J A. You're correct. [llJ addendum identifies the first line ofthis work and the line by

[l2J Q. I'd like. to refer to Plaintiffs Exhibit 92, which is [12J which it should be identified in our agreement,as "Greetings [13J Defendant's Exhibit NNNN. [l3J to all from the pine-scented woo

[l4J THE COURT: 92 is in evidence. OK. [14J Is·this agreement one that you entered into, an

[15J MR.DANNAY: Yes, it is. [l5J amendment you entered into to the agreement, in order to

[16J Q. Do you have ~at? [16J correctly state in your view the first line ofthe poem, the· [17J A. Yes, I do. [17J Dorothy Parker letter to Robert Benchly item?

[lBJ Q. The second sentence says, "Again, that material consists [lBJ A. I have no specificrecollection, but it makes sense.

[l~J only ofa letter inverse from Dorothy Parker to Robert [l~i Q. And it was referred to as the poem contained in an

[20J Benchly, five pages, on "The Birches" (Maine) letterhead circa [20J unpublished letter from Mrs. Parker to Robert Benchly, is that

[21J November 1920." Is that the way that Mr. Halligan, the [21J correct?

[22J archivist at Boston University, who made that letter available [22J A. Yes, that's the language that's in the letter, yes. [23J to you, referred to the Dorothy Parker to Robert Benchly [23J . MR. DANNAY: The last item Iwould like'to put into [24J letter, namely material that consists only ofa letter in [24J evidence, I believe is Exhibit WWWW.It·stitIedplaintiffs [25J verse? [25J supplemental objection and answers to defendant's second set of

Page 296 Page 298

[lJ A. It speaks for itself. I can't read his mind. Iassume [1 J interrogatories, something I referred to generally yesterday or [2J that this letter reflects what he wanted to say. [2J I didn't have the title ofthe document. It contains [3J Q. OK, thank you. The copyright holder ofthat item though is [3J information that Mr. Silverstein provided and verified [4J the NAACP, is that correct? [4J concerning unit sales ofNot Mm:h Fun and royalties paid.

[5J A. Unclear, He says so, but it's unclear. The physical [5) MR. RABINOWITZ: No objection, your Honor. [6J letter was held by the library. He says the copyright was held [6J THE COURT: All right, received. [7J . by the NAACP. I'm not sure whether it was or was not. The [7J (Defendant's Exhibit WWWW received in evidence) [BJ amounts involved was so small; i wasn't going to get into an [BJ MR. DANNAY: Ifwe can put that in, I don't need to~­ [~J investigatiol1 al.di1;pute over it,.and so I just agreed to assume [~J UtE COURT: OK. You want to offer it into evidence; [l.OJ that~e1'JMCPb~fd a copyright~o it, whether or not itdid. [10J you are not going to ask Mr. Silyerstein about it. [l1J .Q. I would~ like to refer to Plairitiffs Exhibit 93, which is [llJ MR.DANNAY: I would like to take a short break.

[l2J Defend~t·sExhibitOOOO. [12J THE COURT: Well, ifwe are going to take a short

[13J Do you have that? [13J break, let's break for lunch. We will resume at 2:1O. Thank . [l4J. A. April 4, 1995 fax? [14J you. [l5J Q. Yes, from Me. Himmelrich to you. [15J (Luncheon recess) [16J A. Yes. [16J (Continued on next page)

[17J Q. It ~ays, "Dear Stuart, th;mk you for your signed contract, [17J

[lBJ· . payment check, and addendum to the agreement- Please let me [lBJ [l~J know when I cail expect to receive the'list and the computer [19J [20J disk containing the catalog ofMs. Parker's works asprovided [20J [21J in the agreement." [21J (22J Did you provide that catalog ofMrs. Parker's works? [22J [23J A. Yes, I did. [23J [24J Q. And that was the complete list that was referred to in your [24J

[25J agreement with the NAACP? . [25J

TRIAL Min-U-Script® (27) Page 295 - Page 298 STUART Y. SILVERSTEIN v. July 18, 2007 . PENGUIN PUTMAN, INC. Page 299 Page 301

[1) . AFTERNOON SESSION [1) BY MR. RABINOWITZ:

[2) 2:10 p.m. (2) Q. Mr. Silverstein, do you recall this ~o~ing when Mr. Dannay / ....•~.'. . [3) [3) THE COURT: You may proceed. showed you what was marked as Exh)bIt XX, and that was an,':.. J .~ [4) MR. DANNAY: Thank you. [4) excerpt from the Reader's Guide to Periodical Literature?

[5) Counsel have agreed and stipulated I think that three [5) A. Yes, I do.

[6) exhibits that I overlooked this morning from Scribner, the [6) Q. And do you recall that he was asking you about that

(7) publisher, Defendant's Exhibit ZZZZ, EEEEE and FFFFF, will be (7) document in the context ofhow that periodical, how that work

[B) admitted into evidence. Is that right, Mr. Rabinowitz? [B) had classified the letter to Ogden Nash, correct?

[9) MR. RABINOWITZ: Yes, it is. [9) A. That's correct.

[10) THE COURT: All right. Received. Thank you. [10) Q. And he pointed out that the Guide to Periodical Literature

[11) (Defendant's Exhibit ZZZZ, EEEEE and FFFFF received in [ll) had classified, had called the letterto OgdenNash a poem,

[12) evidence) [12) right?

[l3) MR. DANNAY: I have no questions on these, but Iwould (13) A. Correct.

[l4) just like to get them in evidence. [14) Q. OK. And then you pointed out, I believe, that the item

[15) THE COURT: All right, rIDe. Received. [15) above was called Inventory and that that had been classified in

(16) STUART SILVERSTEIN, resumed. [16) that issue ofperiodical literature, immediately above the Nash [17) CROSS EXAMINATIb~ (Continued) (17) item, as a verse, correct? [IB) BY MR. DANNAY: [IB) A. Yes, classified as a verse, not a poem.

[19) Q. Mr. Silverstein, I believe I have only one question left [19) Q. And do you know how Dorothy Parker classified that item

[20) for you, I hope. I want you to just ~swerthis question: [20] titled inventory?

[21) Is it correct that Not Much Fun, at the time it was [21) A I believe it was contained in a book titled Enough Rope,

[22) completed, contained all ofthe works you found that you [22) which on its title page -- I don't have it in front ofme -­

[23) classified asuncolleeted'poems and verses by Dorothy Parker? [23) calls it a collection ofpoems. (24) I think a yes or no could do it. [24) Q. Please look at Plaintiffs Exhibit 2, which was your copy [25) A. No, because I have made the distinction between verses and [25) ofNot Much Fun?

Page 300 Page 302

[1) free verses several times, and I'm not going to agree or [1) A. Yes.

[2) disagree to a question that does not have that phrase put in [2] Q. And ifyou look atpage 250, which is in the ljst ofpoems

(3) that fashion. [3) at the end, can you tell me ifyou can tell from the list that [4) Q. Ifthequestion had been poemsand free verses, it would (4) you compiled how Dorothy Parker classified the Inventory piece?

[5) have been correct, is th~t what you're telling me? (5) A. I have to correct you. It's a list ofpoems and free

[6) A. rm saying that the final draft ofNot Much Fun contains [6) verses. (7) all ofthe items that I determined subjectively were written by (7) Q. Sorry?

[B) Dorothy Parker and were poems or free verses. [B) A. I said I have to correct you. It's a list ofpoems and [9) MR. DANNAV': I have a secoridquestion. I'm sorry: [9) free Verses. You said it was a list ofpoems. [10) lwili change my questionbecause I want to make [10) Excuse me. On 250, Inventory- is the third item on [11) absollltelysure YOll>have answerdfif [II) that page, and it'is described as having appeared in the [12) . ,Is it'correct that Not MuchFti!1~tthe'time it was (12) original compilation ofEnough Rope and again in the subsequent

[l3) compIetedcoiltail1bdallofthe works you found that you [13) compilationNot So Deep as a Weli.

[l4) cIassifiedasuncollected poems arid free Verses by Dorothy '(14) Q. And what was Dorothy Parker'sclassification ofthe items' [15) Parker? 115) contained in those volumes?

[16) A. Same answer. It's the same question; yOll get the same (16) A. I'm not sure ifit would be Dorothy Parker or ifit's.her

[17) answer. [17) publisher, but the title page for that book said it was a [IB) THE COURT: Whichis what? (IBj· collection ofpoems. [19) THEWITNESS: Which is the final draft ofNot Much Fun [19] Q. OK. Could you look at Exhibit 79, Mr. Silverstein, which

[20) contained anthose items which I subjectively determined were [20) is your letter to Jane von Mehrenin the manuscript. It's in

[21) poems or free verses writteJ;l by Dorothy Parker. [21) volume 4.

[22) MR. DANNAY: Thank you. That's all I have. [22) A. Yes, I have it.

[23) THE COURT: Thank you. Redirect. . [23) Q. You heard Mr. Dannay ask you a series ofquestions this

[24) MR. RABINOWITZ: Thank you, your Honor. [24) morning about language that appeared in various questionnaires

[25) REDIRECT EXAMINATION [25) that you had contributed to, language that appeared in the

Page 2.99 - Page 302 (28) Min-U-Script® TRIAL STUART Y.SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007 Page 303 Page 305

[1) complete chronology ofNot Much Fun. You testified yesterday [lJ a. Why were you asking for that?

(2) that Exhibit 4, this cover letter and the actuallllanuscript of [2J A, Because it was my mistake, and] should bear the cost for

(3) Not Much Fun, was delivered by you to Jane von Mehren, right? [3J it, and] wanting to correct it. [4J A. The cover letter, the prologue and the manuscript, yes. [4J Q. Why did you not, as Mr. Dannay suggested,request that the

(5) Q. And whilt appeared on the bottom ofevery single page of (5) complete chronology paragraph be rephrased in an eratum sheet

[6) that manus~ript? [6J or otherwise?

[7) A. There was what they call technically a running foot, which. [7J A. Because] felt we had done nothing wrong. I thought it was

(8) is a line oftype that appears in the same place on every page. [8J a pretext being brought up by Penguin because they had no

[9J It's automaticaJJy instaJJed in digital typesetting equipment. (9) better legal defenses. And] was perfectly wiJJing to make

[lOJ a.What does it say? [1OJ amends for what] thought] had done wrong or in error, but]

(11) A.]t reads, "Not Much Fun: The Lost Poems ofDorothy Parker [11) wasn't going to try to correct something that did not need [12J - Compilation, C ~ a circle, 1994, S.Y. Silverstein". [12J correction. [13J Q.. What did you intend to communicate by placing that notice? [13J Q. It turns out the exhibit was Exhibit 88, ] wasjust looking [14J A.] was publicly declaring as clearly as ] could that] was [14) in the wrong volume. ]fyou go to Exhibit 88 ofthe [15J asserting the compilation copyright on that manuscript -- on [15J plaintiffs exhibit. (16J the contents ofth~ manuscript. [16) THE COURT: 88. (17) Let me rephrase that. On the selection contained in [17J MR. RABINOWITZ: 88.

[l8J that manuscript. . [18J a. Do you have that document, Mr. Silverstein? [19J a: I'm going to direct your attention next to Exhibit 88. ] (19j A. Yes,] do. [20J wiJJ come back to that one in a moment. ] have to find the [20) Q. That is a letter from the NAACP to you dated March 15th of (21) right exhibit. [21) 1995, is that right?

[22) Look at Exhibit W; Mr. Silverstein, which is a (22) A. It's essentially the permissions agreement that we executed [23) defendant's exhibit. [23) for the right to license some ofMrs. Parker's poems. [24J A. OK.] found it. (24) Q. And Dennis Hayes signed that document on behalfofthe [25) a. Do you have Exhibit W? [25J NAACP?

Page 304 Page 306

[1) A. Yes, it's an e-mail from me to Gillian Blake at Simon & [lJ A. It purports to be bis signature, yes. [2J Schuster, Scribner, dated June 9, 2001. [2J Q. Did you have discussions with anybody at the NAACP about [3) Q. And that was the e-mail that you discussed earlier [3J this agreement? (4) concerning your request that Scribner issue.an errata sheet to [4J A. Yeah, I think it was pretty cut and dried what they're [5J be placed in unsold volumes ofNot Much Fun, is that right? [5J usual -

[6J A..An eratum sheet, yes. [6) THE COURT: That's not an answer. [7J a. And that was to correct an error that you had made in [7J Read the question to him. [8J includiJig Day Dreams as an uncoJJected poem when in fact . [8J You are a very intelligent fellow. You knqw you are [9J Mrs, P3rkerhadalready (;ollectedit, isn'tthat right? [9J supposed to answer the question. corr~ct. [leJ A.. That's . . . .110J Please read the question to him. [l.lJ Q. Could you read the second to last short paragT~ph on the· [l1J (Record read) 112J page that begiils legally? [12J THE COURT: Now, there are three possible answersto [13J A. "legaJJy. But we are better than that. ] do notgovem my [13J that question, or four: One, yes; two, no; three, I don't

[14J conduct merely by the blurred outer boundaries ofthe law but [14J remember; or, four, ] don't know. [15) by 11 vastly higher mora]standard. ] think you do likewise and [15J . What is the answer?

[l6} so does Scribner (Despitethe popular conception, I do believe [16J THE WITNESS: Yes. [17} that companies haveso:uls). Not Much Fun isa compilation of [17J . THE COURT: Thank you. (18J the lost, thatis,thepreviously uncoJJected poems ofDorothy [18.J Q. With whom did you discuss this agreement or letter before

119J Parker. Day Dreams was coJJe<;ted previously and, therefore, [19J it was sent? [20J does not belong there, and while we cannot rip those pages.out [20J A. Ned Himmelrich. [21J ofevery undistributed copy ofNMF, we can provide notice." [21J Q. And did you first approach Mr. Himinelrich?

[22J a. Then the next sentence says, "Pleaseprovide me with [22J A. I first approached the NAACP. "I'm not sure whom] spoke [23J details about the cost and logistics involved in inserting an [23J to. They referred me to Mr. Himmelricb.

.[24) . eratum slip into every undistributed copy ofNot Much Fun." [24J Q. And the discussions about this agreement were with Mr. [25) .A. That's correct. [25J Himme1rich, is that right?

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[l) A. Yes, that's correct. [lJ document?

[2J Q. And what did you tell him you wanted to' be included in this [2J A. Because in my opinion, and in my agent's opinion, and in my .,,-",,\.

(3) agreement, ifanything? [3J editor's opinion, there was no promotional value whatever in "" -.':.:;., [4) A. I told him 1 wanted the permission to use certain items [41 that information. Noone would have found it ofany interest,

[5) written by Mrs. Parker to which the NAACP either held cOPYright [5J and no one would have bought the book based on that -- or,

[6) or arguably held copyright, for the purpose ofincluding them (6) excuse me, J shouldn't say no one. There is always someone who

[7) in a compilation thatI was at that time preparing. [7) can do something for some reason. But that is nothow it

[BJ Q. And did you discuss with Mr. Hirrimelrich that you would be (B) should be targeted.

(9) publishing the compilation? [9) Q. Were you intending to miSlead or conceal any information?

[lOJ A. Yes. [10) A. No. No. We were just trying to provide that information [IlJ Q. And-- Ill) which was most likely to effectively promote the book to the (12) A. Well, that Scribnerwould be publishing, yes. [.12) general pllblic and the target demographics. [13J Q. Did you discuss with Mr. Himmelrich that the NAACP would [.13] Q. Ifyou look at three separate drafts, ce, DD and EE, the [14J re~ognize your rightS in your book as belonging to you? [14] earliest is March22nd of1996, the latest is April 17th of [15J A. Yes. [l5] . 1996. So all three of those transpired within less than a [16J Q. And then this agreement or letter in the first sentence of [16J month, right? [.17J paragraph 2 says what? _ [17] A. The dates speak for themselves. . [lB) A. It says the NAACP recognizes that you are the owner ofthe [lB] Q. Look at Exhibit WWWW.

[.l9J (19] book. . . MR. DANNAY: Sorry. Could you repeat that? [.20J Q. Now, yOll provided a list ofDorothy Parker's worksto the [20] THE COlJRT: He ~ants him to look at quadrupl~W: [.21i NAACP, is that right? 121] THE WITNESS: OK.

[.22J A. I provided certain publication and copyright data in a (22] Q. Mr. Silverstein, those are your supplemental interrogatory (23J list, yeah. [23] answers,. is that correct? . [.24J . Q. We looked at that as Exhibit X. Could you look at that [24] A. Yes, they are, and, yes; it is. [.25J again, please. (25) Q. And does your signature appear on the verification page

Page 308 Page 31l

[1] A. I have it. [1] that's numbered 8? [2] Q. \\That appears right underneath the title on the front page, [2] A. Yes, it does.

(3] under where it says master list? . [3] Q. Did you prepare this document?

[4] A. Three copyrightnotices dated 1994, 1995, 1996, Stuart [4) A. Yes, I did:

[5] Weiss Silverstein. [.5] Q. Go to interrogatory answer number lAo [6] Q. What did you intend to indicate with that copyright notice? [6] A. Yes. [7J A. That was asserting copyright. . [7) Q. The question thatis being answered is "State the total [B] Q. ·As to what? IB] number ofcopies ofNot Much Fun printed, distriQuted and/or (9] A; As to the composition. Well, the one partthat was [9] sold in the United States and throughout the'world in each [.10J copyrightable was the corriposition ofthe items that were in Not 110] s~JDiannual period from 1996 to the present." Correct? [.1l]MuchFun, because thatwas the only part that was original and IllJ A. Yes. [l2] . was subject to copyright. .. [.12J Q. And there is an answer there with numbers for each period? [.l3] . Q.Mr. Danilay questioned you this momin~ about some (13) A. Yes. [.14) questionnaires that you had submitted. Do you recall those? [14] Q. Did you prepare those? [.15J . A. Yes. [15] A. Yes, I did. [l6] Q .. Can we look at those as CC, DDand EE. You are welcome to [16] Q. Andfroin what original data did you compile or prepare

[.l7J look at them ifyou like. What was the purpose ofyour [.17! those numbers? [.lB] completion or contribution to those documents? What did you [lB] A.' The royalty statements I received from my agent, which he [.19] understand the documents to be for is whatlmean. [19} had received from the various publishers. [20] A.They were solely for promotional purposes. That is what [20] Q. And did you verify under oath that those numbers are

[21] they were sent to me for, and that is what they were intended [21]. .accurate? .

[.22) to be used for. [22] A. Yes. I went through the statementsmyselfto gle:an the [.23) Q. Why did you not, as Mr.Dannay suggested this morning, (23] answers., [.24J include an explanation ofpreeisely what methodology you (24J Q. Interrogatory answernumber 2A, the questionis: State the!")

[25] utilized and what your classification decisions were for that [.25) dollar am~unt ofall royalty payments plaintiffreceived for ':;',,-~/

Page 307- Page 310 (30) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18, 2007 Page 311 Page 313

[1) sales ofNot Much Fun in the United States and throughout the [1] having been duly sworn, testified as follows:

[2) world, in each semiannual period from 1996 to the present. [2) THE COURT: Ms. von Mehren, ifyou just move closer to '- [3} Who prepared the specific dollar number figure answer [3} the microphone and keep your voice up. OK.

[4) that appears after the question? (4) THE WITNESS: Sure.

[5) A. The dollar figures came from the cuver letters I received [5) DIRECT EXAMINATION (6) from my agent, but they also corresponded to the figures that [6} BYMR. MICKUS:

[7} appeared in the royalty statements, asfar as I recall. [7) Q. Good afternoon, Ms. von Mehren. Where are you presently

[B} Q. But who wrote these numbers down? [B) employed?

(9) A. I prepared this list based on the data that was sent to me [9] A. Random House Publishing Group. [10} from my agent and from him by the publishers -- [10] Q.What is your position there?

[11) Q. And did you swear under oath -- [11} A. I am the vice president and publisher oftrade paperbacks.

[12) A. -- to him from the publishers. Excuse me. [12} Q. And what are your duties and responsibilities in that

[13} Q. Did you swearunder oath on the verification that the [13] position?

[14) nUmbers were accurate? [14] A. lam responsible for all ofthe trade paperbacks that are

[15) A. Yes, to the best ofmy ability. I'm not an accountant,but [IS} published byRandpm House Trade Paperbacks, Ballantyne Trade.

[16) I did the beSt I could. [16] Paperbacks, One World, Presidio, Vallard and the Entire Modern

(17) MR. RABIN'OWITZ:That's all I have, your Honor. [17] Library.

[IB) THE COURT: Thank you. Any recross? (IB) Q.. That would include fiction and nonfiction?

[19) MR.DANNAY: Just one moment. [19]"' A. That's correct.

(20) MR. RABINOWITZ: And, your Honor, during the break I [20} Q. Prior to your employment at Random House, you were employed

[21) did contact Ms. von Mehren who said she would be available this [2I} by Penguin from 1994 to 2005?

[22} afternoon, and I asked ifshe would head down and leave me a . (22) A; That's correct.

(23) message back at my office telling me she was doing that. So [23} Q. And you worked as an executive editor from 1994 until 1997 [24J when we are done here, we will check. (24) with Penguin?

(25) , THE COURT: Very well. We will give yona little [25] A. I believe those are the correct dates.

Page 312 Page 314

[1) recess. [1) Q. And as an associate publisher from 1997 until 2000?

[2) MR. DANNAY: I just want to confer for just one [2) A. Urn-hum.

[3} minute, your Honor. [3J Q. And after that -- [4) THE COURT: Sure. [4] THE COURT: That means yes, right?

[5] MR. DANNAY: No further questions. [5) THE WITNESS: Yes.

[6) THE COURT: All right. We will take a ten-minute [6) THE COURT: Thank you. Try and say yes or no.

[7} recess, unless the lady is in the witness room, in which event [7l Q. And after that as the editor in chiefand associate [B} we can just start. Butifshe is not here, fme, we will take (B] publisher from 2000 until 2005 when you departed from Random [9] a rec;ess._ [9) House, is that correct?

(10)" ·.i'IIJR;'MJ1SlfliPWJTZ: I can check. [10} A. Correct. p·I]·..-nfE.CqURT: Youcari step down,ML Silverstein.. Thank [11] Q. And as the executive editor, Kathryn Court was your [121 youvery much, (12) supervisor, is that right? (13) - .. THE WlrN~SS: Thank you, your Honor. [13] A. That'scorrect.

[14} (Witness excused) [14) Q. And your business as the executive editor included among

[15] THE COURT: Ifyou would like to stay at counsel [15l otherthings, I'm sure, acquiring books, both hardcovers for (16) table, yoware welcome to. . [16} Viking and paperbacks for Penguin, and the scheduling and (17) THE WITNESS: Thank you, your Honor. (17) supervising and production ofthe titles underboth ofthose (Ill] MR: RABINOWITZ: She is not there. [IB] imprints, is that correct? [19] THE COURT: Use the telephone. We will recess, and [19] A. Yes. [20) . then tell Mr. Ryan. [20] Q. And in that regard you were responsible for, my [21} (Recess) (21) understanding, what is known as the front list and the back [22} [22) list, is that correct? .123) [23] A. Yes. [24] JANE VON MEHREN, [24) Q, And the front list is comprised oftitles that are actively [25] called asa witness by the plaintiff, (25) promoted, and the back list is comprised oftitles that are no

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[1) longer actively promoted, is that right? [1) MR. MICKUS: Your Honor; we move for the admission of (2) A. No. The front]ist is new books, and depending on what [2) int~~~d~~~RT: :'~ (3J publisher, it's usually the books that have been published in [3J 64 It's in volume 3.

[4) the last ]2 months, and back list is considered books that are [4J THE WITNESS: I think it's 4 actually.

[5J older than that. 15J THE COURT: ] stand corrected. Thank you very much. [6J Q. As an executive editor, you would from time to time pursue [6J MR.DANNAY: No objection.

[7J books that would ofcourse be profitable both for front list (7J THE COURT: OK. 64 is received. ,18J purposes and for back list purposes, is that right? [8J (PlaintiffsExhibit 64 received in evidence)

[9J A. Yes. [9J Q. Ms. von Mehren, could you please turn to page 22 and 23 in [IOJ Q. And as an associate publisher in 1997 you were involved in [IOJ the Penguin Authors Guide.

(11) managing the lists ofthe books that were produced and the (l1J THE COURT: Sorry. Could I have the page again? The

[l2J running ofthe department in general? (12) lady has them but I don't. [l3) A. Yes.' [I3J MR. MICKUS: 22 and 23.

[l4 J 'Q. And when you became the editor in chief, your ,[I4J THE COURT: Thank you.

[l5J responsibilities changed a little bit, and you were then (I5J Q. OK. This section ofthe book is titled Part 1bree:

[I6J responsible for certain acquisition decisions? [I6J Security Permissions and Other Clearances. Do you see in the

[17} A. Yes. (17) first paragraph it explains that "In the preparation ofa

[l8J Q. And as the editor in chiefofPenguin, a book could not be (I8J manuscript several legal issues must be considered. This

[l9J published under that imprint without you knowing about it, is [19J manual, however, deals primarily with issues ofcopyright that

[20J that right? [20J arise when you are using someone else's work." [2IJ A. Yes. [2IJ Do you see that, Ms. von Mehren?

[22J Q. And ifyou were interested in pursuing a particularbook or [22J A~ I do.

[23J a particular project, you could discuss that project with [23J Q. Would you drop down. into the next section which is titled 124J Kathryn Court, and the two ofyou would then make a decision [24) permissions and guidelines., [25J about whether or not to pursue a certain project? [25) A. Yeah.

Page 316 Page 31~(:.)

[1 ) A. Correct. [1] Q. And the second fuJI paragraph, would you please read after

(2) Q. Now, editors in your department understand when tlJey [2] the word "text".

[3) receive manuscripts that ifthey contain a copyright notice or [3J A, "Here is a set ofguidelines to follow to determine what (4) a compilation copyright notice, that that means the author is [4] reprinting ofcopyrighted text exceeds fair use and requires

[5] asserting ,some type ofownership in a particular work, isn't [5) permission clearance. [6) that right? (6) "Permission is needed for the use ofthe following:

(7) A. I would think so. (7) 250 ormorewords ofprose in all instances; extract that

(8) , Q. And one ofthe responsibilities ofan editor is to identify [8) comprise ]0 percent or more ofthe work ofprose from which [9) potentia] issues such as copyright or other types ofownership [9) they are taken,notwithstanding, A, above (ifthe extract comes (10) problems, is that right? [10) from a short story, essay or the like this ]0 percent criterion

(ll) A: It's one ofthething~tbatyou would look for;' [l1J applies to that indiVidual work and not the collective work

(l2] Q~And'if suchan issue were to come up, 'is one ofthe [121 where itmay have appearei:J);one or more lines ofpoetry."

[l3) responsibilities ofan editor tobriOgthatkind ofan issue to II3J Q. And is that your understanding ofPenguin's policies at the

(l4) the attention ofthe legal department at Penguin? (14) time you were employed by the company? [15) A. Yes. (15) A. Yes.

[16) Q. There are a couple ofbinders infront ofyou. I would (I6J Q. And ifyou would drop down into the paragraph that begins

1I7J liketoditect your attention frrstto Exhibit 64, which is a (17) with collections on the middle ofpage 23. Would you please (lSJ document entitled Vikirig Penguin Authors Guide. It should be (18) read that paragraph into the record. [l9) at tab number 64. Do you have it? (19) A. "No material shou]dbe usedin work such as anthologies, [20) A. Yes, I do. (20) compi]ations,collections, digests, reprints or readers (with 121) Q. Do you recognize this document? [21) the possible exception ofa collection ofquotations) without (22) A. Yes. [22) the written consentofthe right's proprietor and with giving [23) Q. 'And while you were at Penguin you had seen this do~ment; (23) offull credit to the author, title, publisher and copyright [24J is that correct? ' (24) notice ofthe work. ;~') [25) A. Yes. (25) Q. And while you were editor at Penguin, that was also your '~,~-

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[1') understandiiJg ofPenguin's policies, is that correct? (1) A. Yes. . [2) . A. Yes. [2) Q. I'd like to ask you a few questions about how you met \."\-:. [3) Q. Now, other than the written guidelines that wejust went (3) Mr. Silverstein and the circumstances in which you obtained a

[4) over, you're not aware ofany other verbal guidelines that were 14) copy ofhis manuscript for Not Much Fun.

[5J in place while you were employed at Penguin, is that right? (5) Now, you fIrst spoke with Mr. Silverstein on the [6) A. Well, there would be a question ofwhether or not the work [6J telephone when he contacted you about the previously

[7) was in the public domain. 17J uncollected poems ofDorothy Parker and a compilation he was [B) Q. And ifthe work was in the public domain, how would that [B) working on, isn't that right?

[9) change the guidelines or the pri~ciples that you would follow? 19) A. Yes.

[10) A. Well, ifit was in the public domain you wouldn't need to 110) Q. And you later met with Mr. Silverstein? [11) get permission. Ill) A. Yes. [12) Q. Would there still be fair usage used ifthe work was in the [12) Q. And that meeting was at your offices here in New York City,

[13) public domain? 113J is that correct? '.[14) A. Not that I'm aware of. [14) A..Yes. [15) Q. Now, other than these explicit guidelines that are set [15) Q. And that meeting was in late 1994?

[16) forth in the offers.guide, you,generally understood that it [16) A. I wouldn't remember the date.

[17]" would be improper to use a copyrighted work or a work over 117) Q. Was it in 1994? [lBi which an author advanced the copyright or some kind of lIB) A. I have no idea. [19) protection without securing permissions from that author, is 119) Q. And the meeting between yourself and Mr. Silverstein. 120) that right? 120) related to a manuscript that he had previously disc~ssed with

[21) MR. DANNAY: I object to the question. 121) you, is that right?

[22) THE COURT: The objection is sustained. The question 122) A. Yes.

[23) is leading. 123) Q. And that manuscript dealt with the previously uncollected [24J Q.Ms. von Mehren, in the event that you were to receive a 124) poems ofDorothy Parker, is that correct? [25) manuscript that explicitly contained some kind ofcopyrighted 125) A. Yes.

Page 320 Page 322

list on it, what would you do? 11) Q. And prior to the meeting at your offices in NewYork City

A. Can you repeat the question? I didn't hear the mumble at [2) with Mr. Silverstein, you in fact received a copy ofthe

the end. 13J' manuscript from him, is that correct?

MR. MICKUS: Can you read the question .back, please. [4] A. I believe so.

(Record read) [5) Q. And when you read -- and when you received that manuscript,

A. In what context? 16) you read it at the time?

Q. Well, in the context ofa manuscript that was submitted, 17) A. Yes. forexamp)e, with a compilation ofpoetry. Ifit contained a IB) Q. lfyou could, tum to t.ab 79 in the binder in front ofyou,

compilation copyright notice on the bottoJJl; what would you do [9) This is a June 6, 1994 Cover letter to you from Mr. Silverstein as' at;leqitQ.t:",of Penguin? 110) which encloses a prologue and then a manuscript for his book

A. And what was I doing - I'm not sure whatcontext you are [11) Not MuchFun.

asking me. (12) A. Urn-hum.

Q. Let me back up and move into a different line of [13) Q. Do you recall receiving that letter on or about June 6,

questioning. I thirik. it will be easierifwe actually take it [14) 1994? iil thecontexi ofthis case. [15) A. Yes.

Now,one more questionwith regard to the Authors [16) MR. MICKUS: Plaintiffmoves for the admission of

Guide. It explains, and you readinto the record, the fair use 117) Exhibit 79, your Honor. exception, which prohibits again, and I am quoting "the use of [lB) MR.DANNAY: ] thought it was in evidence, your HonOT.

250 or more words ofprose'in all instances, extracts that [19) I don't have any objection. comprise 10 percent or more ofa work ofprose in which they 120) MR. MICKUS: .It very well maybe.

are taken, etc., or one or more lines ofpoetry." [21) THE COURT: It is in evidence.

Now, other than in compliance with the fair use 122) MR. MICKUS: Very good.

exception, Penguin would not republish material on which. a 123) THE COURT: Correct.

copyright explicitly was asserted withoilt obtaining necessary 124) Q.. Does this refresh your recollection as 'to when your meeting

permissions, isn't that right? [25) with Mr. Silverstein would have taken phice,that is, late

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[IJ I994? [1 J that he was copyrighting the compilation.

, [2} A. Yes. [2J Q. Now, the editorial meeting, the first editorialmeeting,

.--~ ,~,; ... , . :"".' , [3} Q. Now, when you first discussed this manuscript ofwith (3J during which you presented the manuscript, you said that ~~:'.f)".:. [4} Mr. Silverstein in your office, you felt this book -- I should (4] Michael Millman and Kathryn Court were both there, is that

[5} say that you thought this manuscript presented an interesting [5) correct?

[6] idea and that itwould be worth pursuing, isn't that correct? [6} A. I believe so. [7J A. Yes. [7} 'Q. And what other employees ofPenguin would have also been at '

[BJ Q. And following the meeting with Mr. SilversteiiJ you attended [B} that meeting?

[9J one ofthe Penguin weekly editorial meetings, during which-v'ou [9} A. It's the entire VikinglPenguin editorial department, and

[10} discussed his manuscript with other ofthe editorial team at [10} usuallythe subrights director.

[ll} Penguin? [ll} Q. And ifyou were to bring a project into a meeting like this [12} A. Yes. [I2} and there was a decision to move forward, would you necessarily

[13} Q. And Mr. Michael Millman was at that editorial meeting, is [I3J be responsible for the project from that time on, or would it [14} that correct? [14} be possible that somebody else would be responsible instead of [IS} A. Yes. [IS} you?

[I6} Q. And in 1994 what was Mr. Millman's title? [16} A. It is possible thatsomebody else would be responsible. [17} A. Probably senior editQ.I. [17] Q. And would that depend on the title and the nature ofthe [IB} Q. Was he responsible for any particular division or line of [IB] book and which line oftitles the book would most likely fit?

[19} Penguin books? [19] A. No. [20} A. He mainly worked on, Penguin classics. [20] Q. How would a determination be made as to who would be [21 } Q..And was Kathryn Court present at that meeting as well? [21] responsible for the book?

(22) . A. Yes. [22] A. It would have really been my decision about whether or not [23} . Q. What was her title at the time? [23] I wanted to work on the project or whether or not I felt [24} A. Publisher and editor in chief. [24] somebody else was better suited or had more time, something [25} Q. Again, she was your immediate supervisor, is that correct? [25] like that.

Page 324 Page 32l

[I] A. Yes. [I] Q. And I assume that that decision would be made based upon [2] Q. Now, during this weekly editorial meeting, you presented [2] your interest. Ifyou were particularly interested in tlJe book

[3] this manuscript as a potential new project for Penguin, isn't [3] itself or the autlJor, you would more or less keep it as a [4] that right? [4] project as opposed to allowing somebody else to work with it. [5] A. Yes. [!;] A. Partly, yes, and partly a function oftime. [6] Q. And did you bring a copy ofthe manuscript with you to the [6] Q. Now, prior to this weekly editorial meeting, did you show [7J meeting? [7] this manuscript to Michael Millman?

[B]A. Probably not. [B] A. I don't recall. [9] Q.I would ask youjust for a second'to thumb through Exhibit [9J Q. Did you show tlJis manuscript to Kathryn Court?

[10] . 79 and tellmeifyouseethe running footon the bottom of rio] A. ,I don't recall.

[u] each page thatsays Not MuchFun, the"lost poems ofnorotlJy [llJ Q. Did you show this manuscript to aIlyone else at Penguin?

[12] Parker compilatit>Dcopyright 1994, S.Y; SilveTstein. Do you [12J A. I don't recall. [13] see that on each ofthe pages? [13] Q. After,tlJe editorial meeting, when tlJere was discussion of [14) A. Yes. [14] ,the book, did you share the manuscript with Mr. Millman? [IS] Q. And did you see that copyright notice when you received the [IS] A. Yes. [16] manuscript in June of1994? '[16] Q. And in what context did you sharetlJe context witlJ [17] A~ 1 couldn't be sure. [17] Mr. Millman? [18] ',Q. As a senior editor or senior person on,tlJe editorial side [IB.! A. That he was somebody who knew something about Dorpthy [19] ofPenguin at the time, you understood that copyright notice to [19] Parker and tlJat he was 'an obvious person to take a look at tlJe [20] mean that Mr. Silverstein was asserting a copyright for his' [20] manuscript. [21] compilation in tlJis book, istlJat correct'? [21] Q. And did he seem interested attlJe timeofthat discussion? [22] MR.DANNAY:Objection. [22] A. We had -- the resolution ofour conversations about it was [23] THE COURT: Sustained. [23] that we felt tlJat publishing tlJese poems that had never been [24] Q. What was your understanding ofthat'copyright notice? [24] collected on tlJeir own didn't make sense for our publishing [25] A. As I look at it now, what I would say is tlJat he was saying [25] program.

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,~~~;.~~.... [1) Q. So after the first editorial meeting and your discussion -­ 11) Q. Now, on the third full paragraph ofthis letter you state 12) first,"strike that. Let me back up. 12) that Penguin needs "some further assurance as to the PD status [3) Did you also discuss the manuscript with Kathryn Court [3i ofthese works." Is that right?

[4) after this editorial meeting? 14J A. Yes.

15) A. Probably. Probably. (5) Q. What did you mean by PD status? [6) Q. Do you recall any type ofmeeting along those lines? [6) A. Public domain.

[7) A. I can't say that I do. . (7) Q. ,So at the time you received Mr. Silverstein's manuscript in [B) Q. Now, after discussing the proposal, it's my understanding [B) the summer of 1994, you were concerned about the copyright

19) thatPenguin more or less decided that it would prefer to (9) status ofsome ofthe works that were included in the

110) publish what it called a more complete poem book as opposed to 110) manuscript?

[11) Mr. Silverstein's book as a stand~alone volume, is that [11) A He had assur~ me that they were in the public domain and 112) correct? (12) that --and I was asking him for proofof that. [13) A. That's correct. [13) Q. Now, you conclude this letter by stating, "I'd like to

114) Q. Would you please tum to tab 80 in the binder in front of (14) continue to proceed here and will await more information from [15) you. Tab 80 is an August 4, 1994 letter from you to Stuart (15) you." Is that right?

[16) Silverstein. Do you recognize this letter? (16) A. Urn-hum? l17j A. Yes. [17) THE COURT: Yes, right? lIB) MR. MICKUS: Plaintiffs move for the admission of-­ [IB) THE WITNESS: Yes.

119) THE COURT: It is in evidence. 119j Q. Did you eventually receive a reSponse from Mr. Silverstein (20) MR. MICKUS: Very good. Thank you, your Honor. [20) or his agents after you sent this letter in August of 1994?

121) THE COU~T: OK. 121) A. Yes. ' (22J Q. I would liketo direct your attention to the secorid [22) Q. Could you please tum to tab 81 in the volume in front of (23) paragraph ofthat letter. Would you please read the first full 123) you.

[24) sentence ofthat paragraph. i24) THECOURT: 81 is also in evidence. OK. Go ahead.

[25) A. "I wanted to touch base with you about the Dorothy Parker 125) Q. Peter Lampa~kwas or is Stuart Silverstein's agent: .

Page 328 Page 330

[1 J poems since I realize the gears must appear to grind very [1) correct?

12) slowly here." 12J A. Yes.

(3) Q. And when you talk about the gears grinding slowly, are you 13) Q. You have worked with Mr. Lampack on this and o[her projects

[4) referring to the fact that, you know, approximately two months [4) in the past, is thatright? (5) had passed since you received a manuscript and the date ofthis [5) A. Yes. , - 16) letter? (6) Q. Now, this letter is in response to your August 4, 1994

(7) A. Yes. (7) letter, is that right?

[B) Q. And this was the first letter that you sentback to IB) A. Yes.

[9) Mr. Silverstein after having received his manuscript in Juneof 19] Q. And in this letterMr. Lampackencloses a copy ofa

(I'!) l~~rt? 110) self-explanatory report from the Library ofCongress concerning

(iI) A. Y~s. (11) an expedited copyright search that you had asked for in [12) Q. Could you please read the first sentence in the second (12) relation to the copyright status ofcertain ofthe items in [13) paragraph. (13) Mr. Silverstein's manuscript, is that right?

(14) A. "In any case, as I mentioned to you, we are inclined to 114) A. Yes" [15) think about doing a selected or collected volume rather than [15) Q. And as you see in that fITSt paragraph ofthis Jetter it 116) simply theworks you sent to us. In trlJth, ifthe.book has ariy (l6) states "Before Stu expends further S\1ms in a speculative

[17) new poems in it, itwill generate attention and coverage. 117) manner, he and 1would like to know whether you are prepared to

[IB) Thus, there is n~treally a worry about losing coverage by not lIB) make a convincing offer for the above-mentioned anthology." Do

(19) publishing them on their own.", , (19) you see that?

(20) Q. When you use the word,"we" in the'first line, are you (20) A. Yes.

,(21) referring to your conversations with Michael Millman and 121) Q. Ms. von Mehren, let mejust back up one secOnd to Exhibit

[22) Kathryn Court with regard to whether or not Penguin would [22) 80 again. I want to ask you one more question about this

[23) pursueMr. Silverstein's manuscript as a stand-alone book? (23) letter. I see on the bottom that Michael Millman and Kathryn

(24) -,. " A. Yes. I'm referring to we as a publisher, but they would (24) Court are both copied on this letter?

(25) have been included in the discussions. (25) A. Yes.

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II} Q. You copied Michael Millman and Kathryn Court because you [1} A. No, no, probably not.

12J had previouslydiscussed MLSilverstein's manuscript with (2) Q. When you say probably not, is that because there was ,.,~ 13} them? [3} already a decision to puisue the manuscript at least inpart?\,•.. ·) [4) A. Yes. [4J A. No. It's just thatthings get presented at the meeting, ""

15) Q. And both Mr. Millman and Ms. Court had expressed interest IS} and then as other people are reading and research is being [6] in the manuscript? 16) done, or whatever you need to do as you make the steps to

17] A. The conversation about the manuscript really involved the (7J acquire a book, doesn't necessarily get reported on at every

[B} three ofus, and so I was apprising them ofwhat I was saying IB) single meeting. So you could bring something up in one meeting [g) to Mr. Silverstein. [gJ and then not talk about it for another month or another two

[1O} Q. You wanted to make sure that they knew you were 110) months, or you could talk about it the next week. You'don't

Ill} corresponding with Mr. Silverstein or his agent along the lines [llJ necessarily keep talking about somethIng.

112} ofpursuing his manuscript, is that right? 112} Q. So between June of'94 and August '94, the manuscript is

113) A. Yes. 113} presented one time.

114} Q. Now, with regard to your request from Peter Lampack about 114J A. Probably.

(l5J making a convincing offer, did Mr. Penguin eventually offer [IS} Q. Can you please tum to tab 82. This is an October 28, 1994

[16J Mr. Silverstein any kind ofrole, or did he -- strike that. [l6) letter from yO\} to Peter Lampack again.

(l7} Did Penguin eventually offer to purchase 117J A. Yes.

[lB} Mr. Silverstein's manuscnpt? lIB} Q. You see in the first sentence you again state that "We have

(lg} A. We decided that, as I had stated in the first letter, that 11gJ had numerous discussions now about Stuart Silverstein's project

[2O} we really felt that we should do eithera selected or a [20J Not Much Fun: The Lost Poems ofDorothy Parker." Do you see (21) cOmplete poems ofDorothy Parker and do it in the Penguin [21') that? [22) classics line, and we then offered to have Mr. Silverstein edit [22} A. Yes.

[23} . that compilation,thatbook. [23J Q. Again the we is referring to yourself and Michael Millman [24} Q. So at the time ofyour August 4, 1994 letter -- which again (24) and Kathryn Court, is that correct?

[25} is Plaintiffs Exhibit 80 -- you and Mr. Millman and Ms. Court 125) A. Yes.

Page 332 Page 33,<,

[1) had already made a decision that Penguin would rather pursue a II} Q. And in the third full paragraph you state, "Our feeling is 12) more complete volume and incorporate the uncollected poems as [2} that it doesn't make sense to publish this" --referring to Not [3} opposed to publishing a stand-alone volume as Mr. Silverstein's [3) Much Fun -- "as a stand-alone volume, but rather that we would [4) manuscript. [4} want to do a collected poems that included these lost poems."

[5) A. I can't be sure that we made that decision back in August. [5J. Is that right?

[6) I don't recall when we made that decision, but we certainly 16J A. Yes. [7} were talking alongthose lines, that for us, that probably [7) Q. So at this point on October 28, 1994 you are describing IB) doing a selected or collected made more sense for us as a [B) what would later become Penguin's Complete Poems book, is that [9} . publisher. [9} right?

[lO) Q; And Mr. Millman Was particularlyinvolved in these 110J A. Yes. Ill) dis~ussionsbeca~sethisbook":~whether it was (11) Q. And you offer in the next paragraph that Mr. Silverstein (l2) Mi: SilVerstein's manuscnptior a

indudedthematerials in Mr,Silverstein's manuscript - would [13J permissions and perhaps also select the other poems to be

[14J . fall under thePenguin'classicsline? I14J included in the book."

[l5) A.·Yes. [15J Is that right? (l6J Q; AridMr. Millman also fell iIi below Kathryn. Court iIi terms [H;J A.Yes.

117 ), ofresponsibilities? [17) Q; And when you talkabputselecting the other poems to,be lIB]' A.Yes. . . .' . lIB) ·included in the book, you would' thus be relying on UgJ Q. Now, it's my understanding that the editorial meetings at 119} Mr. Silverstein to infact select certain items to be included

[20} which you first discussed Mr. Silverstein's manuscript are 120) in a collected poems bookthat Penguin would publish, is that l~l) weekly meetings, is thatright? . (21) right? [22) A. Yes, (22) A.Yes.

[23) Q. So between the first editorial meeting in June of 1994 and [23J Q.Andin the next paragraph Penguin offers Mr. Silverstein { ..... ,) 124) your coirespondence to Mr. Silverstein in August of 1994, was [24} $2,000 for this effort, is that correct?

125] the manuscript presented at any subsequent editorial meetings? 125J A. Yes. \",...J

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[1) MR: MICKUS: Do you have a notation that Exhibit 82 [1) A. Yes.

[2) has been introduced into evidence yet? [2) Q. And you would have learned of-- you would have learned of

[3J THE COURT: What did you say? [3) that fact based on like anintemal publishing schedule ofsome

[4) MR. MICKUS: I want to check ifExhibit 82 is in [4) kind?

(5) evidence. [5) A. Yes.

[6) THE COURT: Yes, it's in evidence. Yes. [6) Q. And when you saw the Complete Poems project on the internal

[7) MR. MICKUS: Thank you. [7) publishing schedule, that was referriJigtothe discussions with

[8) Q. Now, aside from the editorial, weekly editorial meetings, [8) Michael Millman and Kathryn Court and yourself about a complete

[9) did you have any other discussions about Mr. Silverstein's -[9) poemsbook,which included both the previously collected

(10) manuscriptbetween June of 1994 and October of 1994? [10) Dorothy Parker items and the uncollected Dorothy Parker items,

[11) A. I would think so. [llJ is that right?

[12) Q. And with whom would you have had those discussions? [12) A. It simply referred to the book that we ended up publishing.

[13) A. MiChael Milhhan arid Kathryn Court. (13) A schedule doesn't refer back to discussions, I'm afniid.

(14) Q. And what would you have discussed with Michael Millman and [14 ) Q. But you weren't surprised to see the title Complete Poems

[15) Kathryn Court? Knowing now that by October 28, 1994 Penguin [15) pop up on the internal publishing schedule, were you?

(16) had decided to crea~ its own collected poems book that would (16) A~ No.

[17) include the poems that wen~ in the Not Much Fun manuscript, (17) Q. And this is because you and Mr. Millman and Ms. Court had

[18) what would you have been discussing at that point? (18) previously discussed not only Mr. Silverstein's manuscript of­

[19) A. What we would have been discussing is we would have been [19j uncollected items but a more complete set that would

1201 discussing this project and should We proceed or should we not [20J incorporate both previously collected and uncollected items, is

[21) proceed; and i{we weren't going to proceed with the Not Much [21) thatright?

[22) ,Fun manuscript as it existed, was there something else that we (22) A. Yes.

[23) would want to have Mr. Silverstein do. [23J Q. So, at the time that you saw the pilblication schedule,

[24) Q. And with regard to-those discilssions, whatwas Mr. [24J including Complete Poems, you understood the nature ofthat

[25) Millman's opinion? [25) book or what it would be, isn't that right?

Page 336 Page 338

[lJ A. He felt that having a collected poems for the classics made [1) A. Yes.

[2) sense for the publishing house. [2) Q. Now, Mr. Millman eventually supervised the preparation of

[3J Q. And he also thought that that collected poems that he was 13) the Complete'Poems manuscript and the publication ofthat book,

[4) describing would inClude both the previously collected Dorothy 14) isn't that right?

[5) Parker items as well as the uncollected Dorothy Parker items, 15) A. Yes.

[6) isn't that right? [6J Q. And it's your understanding that Professor Coleen Breeze

[7) A. Yes. [7) was hired as the outside editor for Complete Poems?

[8) Q. And Kathryn Court agreed with that approach? [8) A. Yes. [9) A. Yes. [9) Q. And Ms. Breeze, Professor Breeze, worked with Mr. Millman (10) Q. And you also agreed with that approach, is that right? [10) to create the manuscript fOfthat book? (11) A. Yes. [11) A. Yes.

[12) Q.Now, Mr. Silverstein did not infactaccept the $2,000 [12) Q. Andit is also your understanding that Professor Breeze in

[13) offer to participate as more or less the outside editor of [13J part used the Not Much Fun bookpublishe~ by.Simon & Schuster

[14) Complete Poems, is thafright? [14) to create the manuscript for Complete Poems?

[15) A. No. 115J A. Yes.

(16) Q. And you later learned that Mr. Silverstein published his (16) Q. And it's your understanding that she did that by purchasing

(17) book with Scribner? (17) a copy ofthe book itselfand manually cutting and copying

[18) A. Yes. [18) pages out ofthe Not Much Fun that was published by Simon &

[19) Q. Do you recall when you learned that? (19) Schuster, isn't that right?

_ (20) A. No.' - (20) A. According to Ms, Rich in the New York Times, that's how I

[21) Q. Would you have learned that from Peter Lampack? [21) know that information. I wouldn't know it othei-wise.

[22)­ A. Possibly. (22) Q. And?

(23) Q. And you also later learned that Penguin in fact moved [23J MR. DAN NAY: I move to strike the answer ifthat's the (24) forward with its Complete Poems project prior to its actual 124) case.

(25) publication date; is that right? ' (25) THE COURT: Could you read me the question and the

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11) answer, please. [1) Michael MiJlman about the promotion ofComplete Poems or the

[2) (Record read) [2) marketing ofComplete Poems, did you ever discuss with them the

[3) THE COURT: The answer is stricken. It's clearly 13) fact that the three ofyou had previously reviewed·

[4) hearsay. 14) Mr. Silverstein's manuscript which included the uncollected

[5) Q. During the preparation schedule and publishing ofthe [5) poems that were later collected in Penguin's Complete Poems

(6) . Complete Poems book, did you have any interaction with Michael [6) book?

[7) Millman about that project? 17) MR. DANNAY: Objection. Misstates-­

[B) A. Apart from when it would be actually published, probably (B) THE COURT: Objection overruled.

l!r] not. [!r) A. No.·

110) Q. And when you say aside from knowing when it would actualIy [10) Q. Whynot?

Ill) bepublished, that's because certain ofyourresponsibilities [11) A.' I don't think that in talking about how we were going to

112) had to dowith promotion and marketing ofnew titles, is that [12) promote the book that came -- it just didn't come up, because

[13) . correct? [13) what we were selling was Collected Poems.

[14) A. Yes. [14) Q. WelI, certainly you had to know what was included in

[15) Q. And as a result it would be important for you to know what [15) Penguin's Complete Poems book in order to market the book,

[16) the publication schedule was, that is, when the book would be [l6) isn't that right?

[17) completed. [17) A. WelI, except we're marketing Dorothy Parker. I mean that's

[lB) A. Yes. [lB) what we're marketing, Dorothy Parker.

[1!r) Q. Now, when you had those discussions -- strike that. [H) Q. Can you take volume 6 in front ofyou and open to Exhibit

[20] Did you also have those discussions with Kathryn 120) 260; please. Do you recognize Exhibit 260 as one ofthe

[21) Court? 121) Penguin catalogs that we just described? [22) A. Yes. [22) A. No.

[23) Q. And that's because Kathryn Court ultimately made decisions [23) Q. What is Exhibit 260? [24) about how books were promoted and advertised or whether they [24) A. This is a Penguin Classics catalog. I would not have been (25] were used at sales conferences, is'that right? [25) involved in putting this together.

Page 340 Page 34.

11) A. Yes. (1) Q. Who would have been involved in putting this together? [2)Q. And from time to time Penguin would also include its new [2) A. The academic marketing department. (3) titles for each year in a catalog, is that right? 13) Q. Have you ever seen this bookbefore? [4) A. Yes. ·[4) A. Yes.

[5) Q. And part ofyour responsibility was the preparation ofthat [5) Q. And why would you have seen this book ifyou weren't

[6) catalog? [6} responsible for putting it together? [7) A. Yes. 17) A. Because once it was published I would have had copies ofit

[B) Q. And did you oversee the text that went into those catalogs? [B) to give to people and to have on my shelfas a reference.

(9) A. Yes. [9) Q.OK. So--

[10]Q~ So you reviewed the copy ofthe catalogs before they went [10} MR. MICKUS: Your Honor, we move to al,lmit Exhibit 260

[11] out the door. Ill) into evidence.

[12) A. Yes. [12) MR.DANNAY: No objection. [l3) Q; And just t~ backtrack, you were aware in 1996, when Simon & • [13) THE COURT: Received. (14) Schuster published Not Much Fun: The Lost Poems ofDorothy 114] (Defendant's Exhibit 260 received in evidence)

[IS} Parker, is that correct? [15) Q. So these catalogs were distributed to retailers?

[16} A. Yes. [16) A; Yes. [17)Q, And PengUin's Complete Poems book didn't come out until [17) Q. Obviously the idea is to induce or convince people to buy [IB) 1999, is thatcorrect? [lB) new titles coming out in a particular year ofthe catalog? [1!r] A. Yes: 119) A. WelI, this is.a complete listing ofthe classics, so the [20) .a. And you now understand that the Compiete Poems book that [20) idea was more to show that Penguin Classics had this incredible 12.1 ) was published in 1999 included the previousiy colIected poems [21] breadth and depth ofclassics, as opposed to really focus 9n [22) ofDorothy Parker as well as the uncollected poems ofDorothy [22) the newbooks. [23) Parker, is that right? [23} Q. Can you turn to thethird page ofthat exhibit. On the , , [24] A. Yes. [24·) left-hand side there is a section titled contents. Do you seer)

[25} Q. When you were having discussions with Kathryn Court and [25) th~ ~J

Page339 - Page 342 (38) Min-U-Script® TRIAL STUARTY. SILVERSTEINv. PENGUIN PUTMAN, INC. . July -18,2007 Page 343 Page 345

[1) A~ Yes. [1) A. Yes.

[2)' Q. And just above title index it says new titles for 200I, [2) Q. And again it states that it is the fIrst complete edition

[3) which begins at page 267. [3) which includes "a hundred other previously uncollected works."

[4J A. Yes. [4) Is iliat right?

[5) Q.. So new titles for 267 refers to all titles or just the new [5) A. Yes.

[6J titles for that year? [6) Q. And ifyou flip back to ilie third page ofthis exhibit,

[7J A. New titles for that year. [71 again on the left-hand side, under contents, it states that'

[S) Q. And ifyou would, tum to page 157, which is the last page [S) this catalog includes the new titles for 2003. Is that right?

[9) ofthat exhibit. (9) A. Yes.

[lO) Do you see the section on the right-hand side where it [10) Q. Ifyou were to look at the manuscript that you received in

[ll) describes Complete Poems? [111 1994 from NT. Silversteinand compared it to ilie table of [12) A. Yes. (12) contents for Complete Poems, would you be able to determine [13) Q. Can you please read the one sentence description ofthat [l3) wheilier or not all ofthe poems in Mr. Silverstein's book in

[14) book into the record. [14J fact appear in Penguin's Complete Poems book?

[l5) A."The fIrst complete edition ofParker's poetry brings [15J A. I don't know. [16) together all ofthe poems published in Enough Rope, Sunset Gun [16] Q. Now, it's correct that Penguin makes a higher profit rate .

[17) and Death and Taies, along with 100 oilier previously [17) on books that are in the public domain - strike that -- books

[IS) uncolleCted works." [IS) that include material which is in the public domain, because (19) Q. And the reference to the 100 other previously uncollected [19j Penguin doesn't have to pay royalties on books like iliat, is [20) works is a reference to the section in that book titled Poems [20J iliat correct? [21) Uncollected by Parker, is iliat right? [21) MR. DANNAY: I object.

[22) A. 1can't say that 1have looked at the book closely enough [22) THE COURT: Well, the cost ofproducing a book in the

[23) to know. [23) public domain -- a book, ilie contents ofwhich are in the

[24) Q. And you recall iri 1994, when you received Mr. Silverstein's [24) public domain, is cheaper than producing a book where you have

(25) manuscript, thathis manuscript focused exclusively on ilie . [25) to pay royalties.

"\ )---~-~----'------+------Page 344 Page 346

[1] previously uncollected poems ofDorothyParker, isn't that [1] THE WITNESS: The royalty is an added cost. It's not

. [2) right? [2] a production cost, but it'S an added cost.

[3) A. Yes. [3] THE COURT: It's an added cost..

[4) Q. Now, when this catalog states that it includes the first [4J Q. And books that are in Penguin~s Classics line, they

[5) Gomplete editionwhich included 100 other previously [5) generally fall within public domain material; is that correct?

[6) uncollected works, that's not true, is it? Because this [6) A. Some do, some don't.

(7). catalog came out years after Mr. Silverstein's book came oilt in [7J Q. And the ones that do are, therefore, highly profitable or

[S) 1996, isn't that right? ISJ profitable for Penguin, isn't that correct?

[9J A, Yes. But I have to be hOJ1t:st,l don't know enough about 19J MR. DANNAY: I object.

[ID) the, co~t~J;lts.ofMr.,$ilverstein's.bookand thS contents of lIOJ THE COURT: Well, jfshe knowsl wiJl Jet her answer.

Ill) COinpletePoems to knowwhethertbe IOO'uncoJleded poems that [llJ lfshe doesn't know, she seems an intelligent young lady, she

[12) are me,ptioned here are the sanie poems. I wouldn't know. (12) can tell me she doesn't know.

[13) Q.While we were on this exhibit, can you turn to 261. Is [13J A. It's very complicated to answer the question. That's all I

(14) this also an example ofa Penguin Classics catalog that yOU [14) would say. ] mean it depends how many books sell, youknow, I

[15J would have been aware ofbut.not involved in producing? [l5) mean it'sjustvery complicated. [16J A. Yes. . (l6) THE COURT: An right. That's the lady's answer.

[l7J Q. But youwould have nonetheless seen this catalog? (17J Q. Are Penguin Classics backlist items? [lS) A. Yes. (lSJ A. Many ofthem are, yes.

[19J MR. MICKUS: We move to add admit 261 into eviclence. (19J Q. And backlistitems, unlike new titles; are -- strike that.

[20) MR. DANNAY: No objection. [20J Backlisted items are more profItable than new titles,

[21J THE COURT: Received. [21J is that correct?

122J (Plaintiffs Exhibit 261 received in evidence) [22) A. Yes.

[23J Q. Ifyou tum, please, to the last page in this exhibit. (23) Q. And that's because there is no involvement ofan advance,

[24 J There appears to be the same description ofthe Complete Poems [24) or new promotion, or certain other costs that~are associated

[25) book. Is that correct? [25) with front-list titles?

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[lJ A. Yes. [lJ . and that was an idea that came up at a meeting that I was at, VJ Q. Could you turn to Exhibit 286, which is in volume 6. [2J and the marketing'director was at, and the publicity director

13J A. I don't have a 286. [3) was at, and various others, probably Kathryn Court as well. So

[4J MR. MICKUS: Your Honor, may I? [4) it was that sort ofthing, overall efforts.

[5J THE COURT: Sure. [5J Q. More strategy--

[6J Q. Do you recognize this article? [6J A. More strategy.

[7J A. Yes. [7J Q. -- as opposed to execution.

[8J Q. And can you tell me what it's titled? [8J . A. Yeah.

[9J A. Backlist to' The Future. [9J Q. Whi]e you were at Penguin --strike that.

[10) Q. Whois it written by? 110J When you were first hired at Penguin,You were trained

(llJ A. Rachel Dinad,ia. [llJ with regard to copyright or trademark issues, were you?

[12J Q. And you are quoted -- strike that. This article appeared [12) A. No.

[13J in the New York Times book review on July 30th of2006? [13) . Q. And as you were promoted at Penguin from positionto

[14J A. Yes. [14) position between 1994 and 2005, you never received any training

[IS) Q. And you were contacted for quotes for this article, isn't 115J with regard to copyright or other simi]ar"issues, is that

[16J that right? [16J right? [17J A. Yes. [17J A. No. [18J Q. And in this article you state that "When you are selling a [18J . MR. MICKUS: Your Bonor, may I have a moment? [19) backlist book, each dollar is ahnost twice as valuab]e." Is [19J THE COURT: Yes; you may. [20) that correct? . [20) I'm not sure I understand what the answer to the last [21) A. Yes. (21) question meant. Could you read the question and the answer to 122) Q. And that's because backlist items again don't have the same 122J that last one. The answerwas no; I just want to hear the

123J type ofadditional cost that front-list titles do, is that 123J question. [24J rIght? [24J (Record read) 125J A. Yes: (25J THE COURT: I don't know whether you are answering--

Page 348 Page35l

[lJ Q. And you are also quoted as saying "Because there are so [lJ well, did yOU receive any training? That's what I want to [2J many fewer costs associated wit:!J each sale, that much more of (2J know. The question is a double negative with a-- [3J what you bring in is going straight to the bottom ]ine."]s (3J THE WITNES~: Right, right. No.

[4J thatright? 14J THE COURT: The answer is you didn't receive training.

(5J A..Yes. (5) THE WITNESS: No, I did not receive training. [5J Q. That's for the same reasons, isn't it, the difference [5] THE COURT: Thank you very much. [7J between front and backlist titles? [7J BY MR. MICKUS:

[8J A. Yes. [B) Q. I just want to back up and ask a few more questions about [9J MR. MiCKUS: Your Honor, we move for the admissjon of '[9J the publication schedule ofPenguin's Complete Poems book. [10J ExhiJ?it 286 into evidence. [10J When you saw that Complete Poems was going to be [111' MR.DANNAY:N.0 objection~ (llJ published and you talked with MichaeIMiJlman about that book

(12} THE: COURT: Received, 112J and Kathryn Court aboutthat book, at ]east'with regard to the

(13J (P]aintiff's Exhibit 286 received in evidence) (13J promotion ofthat book, you never raised the iSsue ofhaving

(U) Q. Just to back up fora second with regard to the calendar [14J .previously received Mr. Si]verstein'smanuscript, did you? [15J logs that We reviewed. Was Complete Poems the type ofbook, . [15J A. No. [15J the type oftitle that would have come under yoUr [15) Q. And you understood that the Complete Poems book would [17J •responsibilities in terms ofpromoting the book? [17J indude previous]y collected Dorothy Parker items and . [18J A..I would have been somewhat .involyed butnoi-" I would have (iBJ . previously uncollected Dorothy Parker items, isn't that right? [19J been involvedmore in the sense ofthe overallprogram as [19J A. Yes. '[20) opposed to the individual titles on the classicslist. [20J Q. And where did you think that the information regarding the (21J Q, OK. When you say you would have been more in~olved in the (21J previously uncollected Dorothy ParkeritelJls was 'coming from?

[22J overall program,can you describe that a litt]e bit for me so I (22J A. I don't know. [23J understand what you mean by that. [23J Q. After the first editorial meeting in June of 1994 when you [24) A. For example, at one point we decided that we were going to (24J dIscussed Mr. Silverstein's manuscript, did you provide Mr. 125J have this seriesofevents called Penguin Classics Presents, [25J Millm~ with a copy ofthe Not Much Fun manuscript? .

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(I) A. Yes. [1) Q. OK. And what would you have understood - or what did you

12) Q. And during the course ofthe production and eventual [2) know about what her responsibilities were in connection with

[3) publication ofPenguin's Complete Poems book you never raised [3J the Complete Poems volume?

[4) the issue at any point about the existence ofMr. Silverstein's 14J A. Nothing really.

15) manuscript, is that right? (5J Q.What would an editor ofsuch a volume normally do?

[6) A. No. [6J A. An editor ofsuch a volume normally would be responsible

[7] THE COURT: When you say no, does that mean he is [7J for finding the material that was going to be put into the IB) wrong? You see, he asks the question with a negative, and then [BJ book, putting it together into a manuscript, using some sort of

[9) he asks the question.is that right, andyou say no. Do you 19J logic that that person caine up with, and then getting whatever (10) mean he is wrong, or do you mean that it was never discussed? (10J permissions were necessary, and probably writing an

(11) THE WITNESS: It was never discussed. Ill) introduction.

(12] THE COURT: Thank you. [I2J Q. And the necessary permissions, to the extent permissions

113] THE WITNESS: Thank you. 113J were necessary, in a book called Dorothy Parker Complete Poems, [14) Q. And when you understood that the Complete Poems book would (14) where would those necessary peimissions be attained from, if [15) include both the previously collected Dorothy Parker items and (15J you know? [l6) the previously unc<.?!lected Dorothy Parker iteinS, and you also (16) A. The estate or another publisher, if another publisher still

117) understood that you had already received in 1994 (17) had the work in print that was --

lIB) Mr. Silverstein's book which included the previously [lB) Q. OK. And in yourjudgment would Mr. Silverstein have any

(19) uncollected items, you didn't mentionto anybody that Penguin 119i copyright interest in the Dorothy Parker poems?

[20J already had that infoTmation, that it had previously considered [20J A. No. [21) it, is that right? [21) Q. In the October 2, 1994.letter which is Plaintiffs 82, the

[22) A. That's correct. [22J letter to Peter Lampack -- do you have that letter in front of

[23) Q. And you never raised this as an issue even after Complete 123J you still? (24J Poems was in fact published, is that right? [24] A. Yes. (25) A. !bat's correct. 125) Q. In the third paragraph you said, "Our feeling is that it

Page 352 Page 354

II) MR. MICKUS: I have nothing further right now, Judge. (I) doesn't make sense to publish this as a stand-alone volume but, 12) THE COURT: Thank you, Mr. Mickus. 12J rather, we would want to do a collected poems that included

[3) All right, Mr. Dannay. Itwill be better ifwe fmish (3) these lost poems."

[4J with the lady, so let's get started. [4) Can you elaborate what you meant by "it doesn't make

(5) CROSS EXAMINATION· [5J sense". What were the reasons for it not making sense, ifyou

(6) BY MR. DANNAY: ( 6 J remember what your thinking was at that time.

[7 ) Q. Ms. von Mehren, whose poems were these that made up (7) A. Well, 1think we felt that because we had The :portable IBJ Complete Poems? [B) Dorothy Parker, which was part ofthe classics list, that it [9J A. Dorothy Parkefs, (9) would miike sense to publish Dorothy Parker pOl(ms on the 11.0J .Q• .. ~ight. And whose poems werethesetbat made up. any group [10) . classics list. But we wouldn't want to just do sort ofa .

[llJ ofUncollected pOems? [11) series ofpoetry that had been found in various magazines and

[12J A.Dorothy Parker. [12) things like that that didn't have a sort ofcoherent reasoning [131 Q. Where woultJ youordinarilygetpermission, ifpermission [13) for being pulled together.

[14 J wereneeded, to publish Dorothy Parker's poems? [14) Q. Wr;:re the reaSons, w.ould they include economic, or literary,

[15J A. From her, or ifshe was not alive, her estate. (15) or both, or others? [16J Q. Did you at any time believe that Mr. Silverstein had a [16) A. Literary mainly. 1think that, you know, we felt that

(1.7) copyright interest in Dorothy Parker's poems? [17) doing a collected poems we would be able to present all of (1.B) A. No. [IB) Dorothy Parker's poetry or the broad range ofher poetry from [19J . Q. Did you know who the editor was ofthe Complete Poems [19) the very best to, you know, perhaps 'the not so good, but you (20) volume? [20) would still have the best poernsthere, and probably that the [21) A. 1 knowher name. (21) best poems had already been collected, so that having the

[22J Q. And what was her name? [22) uncollected poems might not showcase her work as a poet in the

: [23) A. Coleen Brice. [23) best way. , [24) Q. Brice or Breeze? [24) Q .. At that time were you aware ofany other project at Penguin

(25) A. I'm not sure. [25) involving a Dorothy Parker volume that was in the works

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[IJ obviously other than The Portable? [lJ THE COURT: Thank you. All right. Any redirect?

[2) A. We had a biography ofher on the list, on the Penguin. 12J REDIRECT EXAMINATION

[3) backlist, not the classics, but. [3) BY MR. MICKUS:

[4] Q. Were there any other volumes that you were aware ofthat 14J Q. Ms. von Mehren, Exhibit 79 is the June 1994 letter [5J involved material written by Dorothy Parker? Were you aware of [5J manuscript you received from Mr. Silverstein. Could you open

[6] any at that time? [6J it back up to that exhibit.

(7) A. I don't think so. [n A. Yes.

[B) Q. Could you explain the word collected, exactly what that [BJ Q. And on the bottom ofeachone ofthose pages it says

[9) means in the publishing business? [9) compilation copyright 1994, S.Y. Silverstein, isn't it right? [10) A. Collected are things that have been pulled together and [10J A. Yes.

(11) published together essentially. [IlJ Q. And compilation copyright refers to the selection ofthe [12) Q. Well, could it include a complete volume? [12) items that are included in thatbook, not necessarily to the (13) A. Yes. [13J ownership ofthe items themselves, isn't it right? [14) Q. When you see a copyright notice on a work, is it your [14) MR.DANNAY: Objection. [15J assumption that the copyright that's being asserted applies to (15J THE COURT: Objection overruled. Well, nO,wait a (16J each and everything in the book? [16J minute. Sustained. It's leading. Excuse me. [17J MR. MICKUS: Obiection, your Honor. It's a leading [17J Q. What IS your understanding ofa co~pilatio~ copyright as [lBJ question. [lBJ opposed to a copyright for an individual item in a compilation? [19J THE COURT: It's cross-examination. You always lead [19) . A My understanding ofthe compilation copyright is that it [20J on cross-examination. Ifyou don't lead, you're not [20) refers to the arrangement ofthe material. [21J cross-examining. 121J Q. So, it doesn't refer to the ownership ofthat material. (22) THE WITNESS: Could you repeat the question? [22] A. That's correct. [23J MR.DANNAY: Could we have it read back? [23] Q. Now, you have been in the publishing industry now for 23 [24J THE COURT: Sure. [24J years, is that right? (25) (Record read) 125] A. Yes.

Page 356

11J A. I thinkI have to read the copyright notice, you know. [1) Q. And have you ever been involved in another project in which

[2) Q.Well, supposing you were collecting public domain stories [2) a publisher photocopied material with a compilation copyright

[3J and there was a copyright notice on the book, what would be (3) asserted on it and then republished that material without [4J your assumption about the scope ofthe copyright notice? [4J securing permissions from the author? [5) A. Oh, I would assume that it eitherhad to do with the [5J MR. DANNAY: Objection. [6J introduction or, well, ] suppose, you know, the·way something [6J THE COURT: Sustained, because she doesn't know that (7J had been put together. [7] it was photocopied. All she learned it from was an article in

[BJ Q; But not necessarily the public domain stories. [B} The New York Times, which is hearsay. You can't get in through

[9J A. No. . . [9) the backdoor which you are not allowed to get in through the (10) Q.; fuPlaintifl's82you say that editors ofvolumes such as (10) front door..Next question.

[111 theserlonDiinyoreceive6nly it nominil] reetor their work, about (11) Q. In your 23years ofexperience, have you ever photocopied it 112 J'$2',000'. Ciln 'you explain that interms ofthe practice or (12J copyrighted work and republished it without securing the . [13J custom at Penguin at that time? [13) necessarY pennissions? [14) A. Yes. The volumesthilt were published by Penguin classics [14} MR. DANNAY: .Objection. [15 )aIwayshad an editor who was responsible for writing the (15) THE COURT: You are assuming a state offactsnot In 116) introduction, providing notes and puttingtogetberthe materiill [16) evidence. That it's a necessary permission, that's a legal [17Jthat would be-published, i1nd thilt was their responsibility, and 117} conclusion. Sustained. [IB) they were paid on a work-for-hire basis. [lB) Q. In order to use work that has a copyright asserted on it, [19}· Q. And there was a flat sum ofmoney, $2;000? [19) are you required to get permission from the author? [20) A. That's Correct. . [20) MR.DANNAY: Objection. It calls for a legal (21J rQ. Were any royalties paid to editors for doing this work? [21) conclusion. [22J A.. ·No. [22J THE COURT: Well, ofcourse about a third ofthe [23) MR. DANNAY: Just give me one moment, your Honor. [23J questions asked ofthe young lady have called for a legal ...~ [24) THE COURT: Sure. [24J conclusion, but nobody objected, as we]) as about 90 percent of )

[25} MR. DANNAY: I have no further questions. Thank you. [25J Mr. Mickus's questions were leading and nobody objected. C <.,,,,JI'

Page 355 - Page 358 (42) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007 Page 359 Page 361

[1) But since you are objecting, I will sustain the [1) INDEX OF EXAMINATION (2) objection. You're objecting now, I will sustain the objection. [2) Examination of: Page

(3) Q. Ms. von Mehren, at the beginning ofyour examination this [3) STUART y. SILVERSTEIN

(4) afternoon you explained that one ofthe responsibilities ofan [4) CroSs By Mr. Dannay 194

(5) editor is to recognize copyright issues, is that right? 15) Redirect By Mr. Rabinowitz...... 303 [6) A~ Yes. (6) JANE VON MElIR.EN' [7J Q. And when you said recognizing copyright issues, what did· (7) Direct By Mr. Mickus...... 315 [S) you mean by that? [S) Cross By Mr. Dannay ...... 354 (9) A. When you are working ona manuscript and material is being [9) Redirect By Mr. Mickus...... 359

(10) used that is not in the public domain and doesn't fall within (10) PLAINTIFF EXHIBITS

(11) the provisoes offair use, then you need to alert the author or [11) Exhibit No. Received

[12) the editor ofthe book that they need to clear up permission. (12) 64 319

113) Q. Why is that? [13) 261 346

[14) A. Because ofthe copyright, ifit's not in the public domain. [14) 286 350

[15) Q. You can't use it without the required permissions. [15) DEFENDANT EXHIBITS

(16) A. Yes. [16) Exhibit No. Received

(17) Q. And you wouldn't use a copyrighted work without obtaining [17) E 202

[IS) the necessary permissions, would you? [IS) XX "" 208

[19) A. Excuse me? I didn't hear the question. [19j FFF ...... •...... 210

[20) Q. You would not use a copyrighted workwithout obtaining the (20) K ; 220

[21) necessary permissions; is that right? (21) W 233 [22) MR. DANNAY: I object to the form ofthe question. (22) HHHHH 238

[23) THE COURT: It's leading. Sustained. You can't ask a [23) DD , 240

(24) question that -- I was not saying anything until there were [24) P' 246

(25) objections. Now, the direct examiner is not permitted to lead. [25) Q, R and S 247

Page 360 Page 362

(1) The question that ends in "isn't that correct" or "isn't that 11) X 261

(2J right" is clearly leading, and so it's improper. (2) D' 271

(3) MR. MICKUS:' Well, Ms. von Mehren, I have no more (3) Z 276

[4) questions. Thank you. [4) T 279

[5) MR. DANNAY: Would you just give me a moment, please? 15) HHHH 280

(6) THE COURT: Yes. 16) SS 281

[7) MR. DANNAY: No further questions. Thank you. (7) HHH 284

[SJ THE COURT: Thank you, Ms. yon Mehren. You are [S) UUU ; ; : 285

(9) excused. [9) RRRR 289

[10) THE WITNESS: Thank you. , (10) XXX 290

Ill) THE COURT: Watch your step getting down. There are [11) yyy 292 [12) aUkind ofobstacles. " (12) K.KKK, LLLL and MMMM 297

[13) (Witness excused) [13) WWWW 300

[14) , THE COURT: All right. Doyou have other witnesses [14) ZZZZ, EEEEE and FFFFF 301

[15) today, or are we finished for the day? All right. Remember, [15) 260 344

(16) tomorrow we arejust working until noontime. Let's start at [16)

[17) 9:15. That will give you a couple ofextra minutes. 9:15 [17)

[IS) tomorrow morning. Thank you very much. Have a nice evening. [lSj

(19) MR. DANNAY: Thankyou, your Honor. [19)

120) MR. RABINOWITZ: Thankyou, your Honor. (20)

[21) THE COURT: Could I see counsel in the robing room, " [21)

(22) just the lawyers, please, for a moment. [22)

[23) (Trial adjourned to July 19,2007 at 9:15 a.m.) (23)

[24) (24)

[25) (25)

TRIAL Min-U-Script® (43) Page 359 - Page 362 .·.:.{"'./1 '. ;7

This Page Intentionally Left Blank STUARTY. SJLVERSTEIN v. PENGUIN PUTMAN, INC. July 18, 2007

1926232:7;250:11 23271:12;317:9,13; 327:15;330:6;331 :24 $ 1927289:19;291:9 318:17;357:23;358:11 400219:11 A 1929206:6;207:22 233361:21 41 279:1 $2,000334:24;336:12; 1931 207:1 ;290:3;291 :22 238361:22 42213:6 AAA282:7 356:12,19 1932206:6,8;207:22 24235:13,16 43200:8 ability 3 I 1: 15 $25261 :3;292:7 1933250:12 240361:23 45263:3 able 234:25;345:12; $250261 :2;292:4 1936286:5,6 245 229:5,6,7;230:15 452209:12,17 354:17 $275261:1,13;292:4 194361:4 246361:24 453209:11,12,23 above 207: 13;273:14; $8.33292:12 1968200:23 247361:25 283:18;284:8;292:24; 1976224:13 25221 :22;257:8 5 301: 15,16;318:9;343:2 0 1994262:22;292:17; 250246:10;302:2,10; above-mentioned· 294:5;303:12;308:4; 318:7;320:19 5218:25;245:20;247:I; 330:18 080279:2 313:21,23;321:15,17; 253223:2 279: 13;292:17;294:5 absolutely 217:15;278:7; 322:9,14;323:1 ,16;324:12, .257237:10;238:8,22; 300:11 1 16;327:15;328: I0;329:8, 241:25 6 Absolutely 249:22 20;330:6;33I :24;332:23, 258237:11;240:13,16 academic 342:2 1 229:4;247:24;259:19; 24;333:I5;334:7;335:10, 260341 :20,20,23;342:) 0, 6238:25;322:9,13;341 :19; accept 336:12 260:16;274:2;293:15 10,15;343:24;345:11; 14;362:15 347:2 accepted 234:16 10221 :22;236:1 I,ll; 349: I4;350:23;351 :17; 261344:13,19,22;361:13; 60251:4,14 acclaimed 288:23 245:20;259:23;318:8,10; _ ·353:21 ;357:4,9 362:1 63268:10 accompanies 238:15 320:20 1995245:20,20,20;247:1; 267343:3,5 64 268:10;316:17,19; accordance 257:18; 100246:13;343:17,19; 253: 11 ,12,12,13;257:19; 271362:2 317:2,7,8;361 :12 259:II;264: I] 344:5,11 262:22;269:4;274:8,25; 276362:3 66290:4 According 338:20 101224:]2,14;229:15,17 278:16;279:13;280:11; 279362:4 accordingly 293:3 11222:14,17;20;223:21; 289: I0;291 :2,4;294:19; 28 333: 15;334:7;335;15 7 accountant 311:15 226:23;227:22;228: I; 296:14;305:21 ;308:4 280362:5 accuracy 200:25;20] :2; 236:12;241:2;243:10 1996229:16;231:5; 281362:6 7289:10 258:2;279:8 112289:20 237:23;238:7,I4,17;239:3, 284362:7. 73199:13;200:2 accurate 238:] 1;257:25; 1162ll:8 6,22;240:11 ;241:1,24; 285362:8 79208:25;210:8,17; 285:5;293:17;310:21 ; 118211:8;212:11 245: 19;257:8;262:22; . 286347:2,3;348:10,13; 302:19;322:8,17;324:10; 311:14 12256:4,6,12;264:12,16; 288: 10;308:4;309: 14,15; 361-:14 357:4 accurately 216:6 289:1 9;29I:9;3 I5:4 310: I0;311 :2;340: 13;344:8 289362:9 acknowledge 230: 1,2 121193:17,17;196:2; 1997313:23;314:1;315:10 29206:8 8 acquire 333:7 2J1:9 1999282:25;340:18,21 290362:10 _acquiring 314:15 122219:1 1A310:5 292362:11 8199:15,17,18;253:13; acquisition 3I5: 16 125251 :14,18;252:1 297362:12 255: 10,16;257:18;262:17; act267:4,11,12,14 126268:10 2 2A 310:24 310:1 actively 314:24;315:1 13293:7 80327:14,15;330:22; actress 200:14 132-33268:8 2 194: 18;222:20;228:6,7; 3 331:25 actual 223:23;303:2; 146271:10,12 229: I;244: 16;247:2,23; 81 329:22,24 336:24 147270:25 248: 13;255:10;260:8;- 3 194: 18;213:8;250:3; 82333:15;335:1,4;353:21; actually 211 :16;217:17; 15253:] 1;257:19;291:4 265: 17;269:9;273:]3; 256:3;288:10;317:3 356:10 226:17;239:7;317:4;

157343:8 1.. 274:2;301 :24;307:17; 30 245:20;253:I 1;255:17; 83292:16;294:6 320:14;339:8,10 15th305:20 353:21 278:16;280:11;290:3; 84273:7,9;294:3,7 Actually 2] 6:24;232:] 6; 16237:23;238:1.7;239(22; 2:10298:13;299:2 291:2,2] 88253:9,]6,24;255:5,8; ·275:21 24]:2] 20 252: 1;282:25 . 300 219:11 ;248:20; 256:3;259:] 6;303:]9; Adams 245:13;284:11; 17 217:22;224:13;229:16; 2000314:],8 ·250:10;362:13 305:13,]4,16,17 293:] 240:]0;241 :1 2001231:5,]5;267:23; 301362:14 89253:9,16;256:23; Adams' 283:25 171218:7 304:2;343:2 303361:5 290:25 adapted 286:6 17th 309:14 2002235:13,]6 30th 347:13 add 2]2:6;256:] 8;277:22; 18193:23;203:1;221:22; 2003345:8 315361:7 9 344:19 265:3;284:5 . 2005217:22;313:2]; 319361 :12 added 205:18;227:17; 1873206:i5 314:8;349:14 344362:15 9 231 :15;246:25;267:23; 228:13;261 :3;346:1 ,2,3 1883286:5 2006347:13 34636]:13 269:3;304:2 addendum 296:] 8; 19193:23;202:24;238:12; 2007360:23 350361:14 9:15360:]7,]7,23 297:] ] 239:] 3,16;240:2;241:10; . 202361:]7 354 361:8 90358:24 additional 347:23 25] :20;265:3;360:23 20836]:18 359361:9 92 295: 12,14 address 225:15,25;226:9 1914284:1,10 2127]:];284:1I 93253:9,16;280:10,12,14, addressed 24]:] 1920275:3;280:18; 21036]:19 4 23,24;296:11 adjourned 360:23 28] :]6,20;291 :25;295:21; 22238:7,14;239:3,6; 94333:]2,]2 administers 269:]8 297:10 24] :24;294:19;3] 7:9,13 4224:15;236:12;245:7; 95280:13,]5;281 :7,8,10 admission 317:1;322:16; 1921 284:1 220361:20 253:12;274:8,25;296:14; 96 253: I0, 16;297:3 327:18;348:9 . 1922-31 284:2 22nd 309:14 302:2] ;303:2;317:4; 99257:6,8;258:12,17 admit 342:]0;344:]9

TIDAL Min-U..script® (1) $2,000 - admit STUART Y. SILVERSTEIN v. July 18,2007 PENGUIN PUTMAN, INC. admitted 299:8 258:24~62:2,] 5;263: I] approached 306:22 automatically 303:9 besides 249:6 adopted 27] :19 altered 256:8 apjuopriate 264:6 available 295:22;311:2] Besides 263:]5 advance 346:23 although 275:20 approximately 328:4 avoid 201 :11,]9 best 205:9;226: I0;279:8; advanced 3]9: 18 Although 246:] ] April 235:13,]6;237:23; await 329:] 4 3] 1:]5,16;354:]9,20,21,23 " advertised 339:24 always 239:17;240:5; 238: 17;239:22;240:10,25; aware 199:6;212:2; better 226:23;234:14; :~ advertisement ]94:9; 241:13;309:6;355:19; 241 :21 ;253:] 2;274:8,25; 220: 19;269:10,12,] 5; 304: 13;305:9;325:24;352:3 206:2 356:]5 296:]4;309:14 273: 13,20;3] 9:4,14; Beyond 2]9:11 advised 232:5 ambiguous 263:24- archivist 295:22 340: 13;344:15;354:24; bibliographic 228:9 affair 275:25 amend 256:24,24 area 197:22 355:4,5 bibliographical 225:20 afraid 337:] 3 ;amended 256: 17 arguably 307:6 bibliography199:20; aftemoon"268:6;275:2; amending 297:6 argue 20] :18' -B 218:2 279:2] ;289:1 5;311 :22; amendment 253:] I; arguing 201:17,22 binder 322:8;327:14 313:7;359:4 261:3;297:15 arise 317:20 back-195:16;205: 12; binders 316:16 again 215:10,20;216:12; amends 291 :4;305:10 arrangement 357:20 213:18;223:7;225:1 ;229:1, Bio-bibliography 225:14;234:10;235:6,16; American 198:14;199:1, arrived 292:12 2;238:21 ;239:23;246:25; 199: 10;202:20 241:10;252:23;253:] ,15; 7;200:5;216: 15,21 article 200:19,20,24; 250:6;253:20;254:15,19, biographers 244:20 262:12;263:7;280:10; America's 250:] 4 347:6,12,15,18;358:7 _ 21 ;259:16;261:19;263:23; biography 208:] ;355:2 302:12;307:25;317:11; among 314:14 aside 193:18;335:8; 267:22;277:7,13;283:9; Birches 295:20 320: 18;330:22;331 :24; amount 261 :12;268:II; 339:10 303:20;311 :23;314:21,25; birth 206:17;272:22 333:16,18;345:2,7;347:22 310:25 asserted 279:6;320:24; 315:4,8;320:4,13;327:2; bit 315:15;348:22 Again 205:7;2]3:2;240:2; amounted 267:5 355:15;358:3,18 328:8;330:21 ;332:5; Blake 224:13~29:16; 241 :7;243:10;284:8; amounts 296:8 asserting 196:17;265:2, 337: 13;345:6;348:14; 231 :15;240:11 ;241 :1,25; 295:18;323:25;333:23 and/or 310:8 4;303:15;308:7;316:5; 350:8;355:23;357:6 288:11;304:1 agency 274:9 angry221:8 324:20 Back 239:24 blurred 304: 14 agent 241 :20;247:1 0; answered 204:8;243:18; associate 314:1,7;315:10 backdoor 358:9 body 250:9 282:3;293:16;310: 18; 252: I 9;254:9;262: II; associated 346:24;348:2 backlist 346:17,19; book 194:5,17;200:11,13; 31 I :6,10;329:25;331 :11 300: 11 ;31 0:7 Association 269:17 347:19,22;348:7;355:3 202:2,10;203:12,17,20,23, agents 329:20 anthologies 318:19 assume 238:10;241:8; Backlist 347:9 24;204:10,14;208:21 ; agent's 309:2 anthology 330: 18 264:12,16;266:8;267:2; Backlisted 346:20 209:9,15;210: 12,13,21,24, ago 218:1 ;223:21 ;243:11; apart 250:9 296:1,9;326:1;356:5 backtrack 340:13 25;211:3,6,8,10,16,17;18, 263:3;264:16 Apart 339:8 assumed 25&: 18;290:19 bad 275:4,11 ;276:2 23;212:3,7,8,11,12,23,25; agree 300:1 apologies 281: 1I assuming 358:15 Ballantyne 313:15 2I 3:2,5;218:5,9;2]9:9; agreed 232:23;257:3; apologize 251: 17;255:6; assumption 355:15; base 198:9;327:25 223: 17,20;224:5;225: I; 268: 14;296:9;299:5;336:8, 258:15 356:4 based 193:1;214:4; 227:17,20;228:20;229:2, 10 appalled 268: 10 assurance 329:2 236:23;242:9;246:20; 1] ;230:3,]2,15;231 :4,7,10, agreement 253:8,1 I ; apparently 235: 18; assured 329: 1] 248:6;260:15;279:7;293:5; 11 ;232:12;242: 17;245:12; 256:4,7,12,17,24,25; 272:14;287:1 attached 238:7;239:8,22; 309:5;311 :9;326: i ;337:3 255:17;259:9,21 ;260:11, 257: 19,25;259:11,16; appeal293:19 240: 10,20,25;241 :6,21; basic 270:9,9 12,18;264:9;265:16; 261 :1,2;262:5;6;263:14; appear 204:3,10;211 :9, 244:6;258:5,1 I ;261 :20; basis 196:3;356:18 271: 17;275:23;276:I; 264:11 ;265:17;278:16; 10,17,23;212: 11 ,12,22; 276:9,17;279:21 Bates"279:2;281 :25 286:25,25;287:2] ;289: 15, 281:18;291:4,5;296:18,21, 227: 18;282:] 5;309:25; attachment 259:3;286:13 bear 305:2 18;290:1,10;291 :7,12,15, 25;297:6,6,9,12,14,15; 328: 1;345:14 attained 353:]4 became 315:14 16,20;292:8;301 :21; 305:22;306:3,18,24;307:3, Appear211:18 attended 323:8 become 334:8 302:]7;307:] 4,] 9;309:5, ]6 appearance212:1 attending 334:12 beg 245:19- 1];315:18,22;317:15; ahead-.193:3;201:23; appeared 193:] 1;206:2; attention 238:]2;253:24; Beg 194:12 322:10;323:4;324:21; 215:19;222:23;227:1~ 226:8;268:8;284:1;288:23; 279:1,20;285:15;290:20; begin 283:17 325:18,18,21 ;326:2,14; - . , 235:5;239:5;242:1 ;255:5,7; 290: I ;291 :8,21 ;30t~11,24, 303:19;316:14,17;327:22; beginning 233:4;359:3 327:10,11 ;328: 16,23; 259:4,] 8;262:] 0;263:8; 25;303:5;3] ] :7;3] 8:] 2; 328:17 Beginning 25] :20 33] :23;332: 11 ;333:7; 271:] 1;273:2,5;277:6; 347:]2 attomey 257:9;268:25 begins 227:20;231:25; 334:8,]4,] 8,20;335:] 6; 329:24 appears 207:23;208:25; attomeys 267:2] 280:] ;282:7;304:] 2; - 336:17;337:9,]2,25;338:3, alert 359:1 ] _223: ]7;226:2];228:10; attribution 198:5 3]8:]6;343:3 10,] 3,]7;339:6,] 6;340:17, Algonquin 245:12 229:14,i 5,]7,20,21 ,24; August 253:13;327:15; behalf 305:24 20;341 :6,I 2,15,15;342:3,5; alive 352:1_5 231:3;237:24;291 :6;294:8;- 329:20;330:6;331 :24; behind 276:5,22 343:14,20,22;344:7,10,25; alleged 195:5,12;204:21; 303:8;308:2;31 1:4;344:24 332:5,24;333:12 believes 264:6 345:13,14,22,23,24; 205:4 apples 270:13 author 237:8;238:6~15; belong 304:20 347:13,19;348:15,17; alleging 197:8 applicable 255:23 239:9,2] ;240:20;241:17; belonging 307:14 350:9,11,12,13,]6;351 :3, allowed 358:9 application 263:2;264:5 242: 16;243:6,8;316:4; below 260:17;332:16 14,18;353:8)3;355:16; allowing 326:4 Application 264:7 318:23;319:18,19;326:3; Benchly 194: 10;208:23; 356:3;357:12;359:12 almost228:3;347:I 9 applies 318: 11 ;355: 15 358:4,19;359:11 245: 13;256:19,21 ;275:3, books 212: 10;236: 1; alQne 232:8 appreciate 273:16 authorizing 267:4,13 25;276:25;277:6;280:18; 252:4,5;314:15;315:2,3,4, along 327:6;331:11; apprising 331:8 author's 279:8 281: 16,20;291 :25;295:20, 7, I 1;323:19;339:24; 332:7;343:17 approach 306:21 ;336:8, Authors 316:18;3]7:10; 23;297:17,20 342:22;345:17,17,19; " alphabetical 257:22; 10 320:16 benefit 293:] 346:4,14 admitted - books (2) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007

Boston 295:22 Can ]96:25;200:4;205:11, checks 261:]6 closely 343:22 226:] 9,22;232:7;234: 16; both 197:20;210:13; 12;207:10;208:4;216:12; chief 314:7;315:14,18; closer 313:2 318:20 226:5;228:17;257:21; 230:13;233:13,15,25; 323:24 clutter237: 18 compile 220:16;246:16; 259:6;271 :13,21 ;273:1; 235:4;236: 19;249:5; children 209: I;292: I; coherent 354:12 247:20;248: 1;283: 15; 283:22;286:2;314:15,17; 253:15;264:18;266:12; 297:10 cohesive 244:24;247:6 310:16 315:7;325:4;330:24;331 :5; 272: 10;292: 12;308:16; Christopher 289:20; Coleen 338:6;352:23 compiled 214:18;216:22; 336:4;337:9,20;351 :15; 320:2,4;-333: 15;341:19; 291:10 collect 248:25;249:'1 5; 269: 17;282: 16;302:4 354:15 342:23;343: 13;354:4; chronological 223:1 1; 254:18;289:25 compiling 219:1 ;244:24; hottom 209:24;210:1; 356:12 228:22;229:11;230:8,16; collected 213:19;214:22; 247:5 231 :24;247:23;279:3; candidates 219:2 25(:21 ;i58:7,24;262:2,15; 215:8;219:9,12,19;220:15; complaint 205:2 303:5;320:9;324:10; caption 227:16,18,18; 263:1 I 221 :15;222:4;232:6; complete 223:11,16; 330:23;348:3;357:8 228:14,19 chronology 223: 16; 233:24;234:6,16;245:2; 227:17;228:10,13,15,20; bought 286:5;309:5 career 245:4;246:9; 228:15,20;229:8;230:7; 248:22;250: 12;252:14,2 I; 229:8;230:7;231 :3,8; bound 222:14;223:14; 248:22;250:8 231 :3,8;232: 15;233:12,17, 262:8;264:23;266:22; 232: 15;233: 12,16,23; 226:6;228:8;230:11,15,22 carefully 203:11 ;213: 15 23;234:2,12;235:9;259;8; 268:20;288:2;304:9,19; 234:2,12;235:9;239:16; boundaries 304:14 case 204:20;248:5;275:2; 263:20;264:8;267:1 ; 326:24;328:15;332:8; 240:4;241 :12;243:14; brackets 224:4 320:15;328:] 4;338:24 277:2] ;278: I0;303:1;305:5 334:4,20;335:16;336:] ,3,4; 255:1 8,19;256:25;257:2; breadth 342:21 cases 214:]5 circa 295:20 337:9,20;340:21 ;341:5; , 259:8,9;26] :24;262:3,1 6; , break 298:1 1,13,13; catalog 296:20,22;340:3, circle 303:]2 350: 17;35 I: 15;354:2,17, 263:13,20;264:8,9,15,20; 3lJ:20 - 6;341 :24;342:18;344:4,7, circumstances 321:3 21;355:8 265:25;266:4;267~ I; Breeze 338:6,9,9,12; 14,17;345:8 cite 251:2 Collected 34]:13;355:10 277:21;278:5,10;2%:24; , 352:24 cataloged 244:22;247:3 cited 244:21 ;246:15; collecting 356:2 303:] ;305:5;327: 10; Brice 352:23,24 catalogs 34Q:8,1O; 247:19,25 collection 203:7;225:18; 331 :21;332:2,12;337:8,19; Bridge 194:22;195:4,5,7, 341 :21 ;342:15 City 286:4;321 :12;322:1 230: 10,17;239:1 6;240:4; 342:19;343:15;344:5; 16,20 catalogue 242:9 claim 194:8,10,] 5,16,20, 241 :12;243:13;252:5; 345:2;355:12 bring 290:20;3]6:13; cataloguing 292:22 21;1 95:i ,3,8,11 ,15;196:4, 265:24;267: 18;268:9; Complete 201 :25;202:4; 324:6;325:II ;333:8;348:3 categorically 211 :5; 12;13,]4,20,24;197: I,13; 288:24;301:23;302: 18; 203: 16,25;204:1,]4;265:9, brings 343:15 224:6;241 :4.,7;264:13,17 201 :3,9,] I,] 1,19,24;202:1; 318:21 9;266:11,14,25;334:8; broad 354:18 categorization 193:9; 204:18,21,25;205:3;225:13 collections 225:8; 336:14,24;337:6,14,24; brothers 270: 13 207:16 claimed 193:22;194:1,3; 226:14;230:9,17;271:1,3, 338:3,7;14;339:6;340:17, brought 205: 19;232:25; categorizes 200:7 213:21 13,17,18;318:17,20 20;341:I ,2,5~15;343: 11; 305:8 CC 237:9,9;238:8,18,23; claiming 193:12;195:7, collective 318: 11 344:11 ,24;345:12,14; business 314:14;355:9 241 :25;308: 16;309: 13 13;196:9,] ];197:3,12,]4, collects 193:16 348: 15;350:9,10,16;351 :3, buy 342:17 central 275:24 17;207:17 Colored 269: 18 14,23;352:8,] 9;353:3,13 century 246: 13;249:2,17 class 249:25;250:1 column 209:18;210:1; completed 217:8;240:21; C certain 193:12;195:12; classics 323:20;331 :22; 284:3,9 299:22;300: 13;339:17 201 :19;221 :];228:3; 332:14;336: I;342: 19,21; columns 284:10 completely 246:22; calem~ar 348:14 257:20;275:14,1 9;278:7; 348:20;354:8,10;355:3; coming 266:5,;342:18; 272:2;284:14 Calhoun ]97:6;199:6,10; 293:5;307:4,22;315:16,25; 356:14 350:21 completion 308:18 200:4,5;202: 15;21 0:24; 330:12;334:19;339:1 I; Classics 341 :24;342:20; comment 224:10 compliance 320:22 211:10,17,18,23;212:2,12, 346:24 344:14;346:4,17;348:25 committed 267:)4 complicated 346:13,15 23;220:3 certainly 332:6;341: 14 classification 200:6; communicate 230:20;, compliments 243:4 call 207:14;279:20;289:8; change 202: 19;223:23; 202:20;302:14;308:25 303:13 comply 203:6 303:7 232:15;233:2;240:8; classified)97:6,7;207:4, companies 304:17 composition 195:6; called] 93:24;20~:22; 241:18;300:10;319:9 7,11,23;209:8;210:6,12,13, company318:14 308:9,10 223:6,6;244:6;248:6;256:4; changed 203:21;23]:4,9, 15,2~;211 :17;212:12; compare 221 :14 compounding 215:16,18 286:1,5,10,11;301:11,15; 10;256:8;277:11 ;315:15 299:23;300;14;301 :8,11, compared 264:12;345:11 comprehensive 244:24; 312:25;327:10;348:25; changes 223:19,22,24; 15,18,19;302:4 compelled 284:4 247:5;269:16 ' 353:13;358:23 241:22 classifies 200:5 compilation 194:20; comprehensiyiness calls 226:5;301:23;358:20 changing 224:3 clause'226:18,20 195:1,2,6,12;196:15,19; 225:17 came 266:6;311 :5;341:12; characterization 199:6 clear 225:18;226:19,22, 197:4;201:25;203:7; comprise 196:18;245:10; 344:7,7;349:1;353:9 characterizations 24;230:23,24,24;232:25; 205:17;225:22,22,23,24, , 249:2,17;318:8;320:20 can 194:19;199:11; 223:24 234:25;280:7;285:19,21;' 24;232:4,6;234:4;252:4,5; comprised 314:24,25 205:10;207:11;211:7; , characterize 198: 19; 359~12 260:8,12,15;265: 11 ;266:3, comprises 288:1 212:7;9;216:13;219:23; 199: 1;202:8,9;276:7 Clear 22 1:20 6,20;289:16,24;293:19; computer 296:19 221 :5,24;222:17;228:25; characterized 216:24; clearance 318:5 302:12,13;303:15;304:17; conceal 309:9 233:10;234:24,25;235:7; 281:18 Clearances 317:16 307:7,9;316:4;320:8,9; conception 304:16 242:9;251 :7;252:20; characterizing,199:3; cleared 234:25 321 :7;324:12,21;325:1; concerned 248:1 1;329:8 253:20;254:20;258: I,25; 202:18 clearer230:20 331 :23;357:9,1l ,17,18,19; concerning 298:4;304:4; 264: 11,18;272:24;296:19; cheaper 345:24 clearly 303:14;339:3; 358:2 330:10 298:8;302:3,3;304:21 ; check :261 :15;281:3; 360:2 Compilation 244:7; conclude 329:13 309:7;312:8,10,11;344:13; 284:4,9;296: I8;3 I 1:24; clerk 207:12;i5;254:19 303:12 concluded 217:1 1;290:9; 346: 12;347:8;348:22 312:10;335:4 Cl.ERK 235:19,22;274:15 compilations 225:21; 291 :14

TRIAL Min-U-Sciipt® (3) Boston - concluded STUART Y. SILVERSTEIN v. July 18, 2007 PENGUIN piJTMAN~INC. conclusion 193:7; 326:16,16 250:15;251 :24;252:7; 283:5;284:14;285:3,7,9,12, 205:8,]2;206:4;208:]2,17; 201 :14,16,20;205:1,7; continue 251 :9;329:14 256:1,6,9,15;258:3;260:2; 15,18,21,25;286:9,]4,]9, 209:]4;2]3:2,4;214:16,20, 217:17;293:5,22;358:17, Continued 251:1]; 268:3,2];269:21;272:8; 22;287:3,5,9,12,16,19; 25;215:3,14,20;216:7,12; 21,24 298: 16;299:17 273:18;275:5;279:24; 288: 12,16;290:17,19,23; 217:20,25;218:18;220:21, ~~,,",',",' "",-, conclusions 199:5 .contract 281 :1;296: 17 283:12;284:] 2,19,25; 293:9,13;294:] 2,19,22,25; 24;222:8,18,21 ;227:10,14, " -.~ conclusive 198: II contradistinguished 289:4;297:16 295:3,5,14;298:6,9,12; 23;228:6;229:2,21,25; condemnation 268: I0 226:21 corresponded 311 :6 299:3, I0, 15;300: 18,23; 230:4;231:13;233:9;i35:4, condition 268:16 contradistinguishes correspondem;e 226:4; 305:16;306:6,12,17; 6,12,15;236:5;8;237:7,14, conditions 216:5 270:2 294:17;332:24 309:20;311:18,25;312:4,6, 19,21 ;238: 14,22;239:24; conduct 304:14 contradistinguishing corresponding 331:II 11,15,]9;313:2;314:4,6; 243:1,19,22;245:17; conducted 283:8 270:12 correspondingly 293:20 317:3,5,7,11,14;319:22; 251: 12;253:16,25;254: 14, confer 312:2 contributed 302:25 cost 231 :25;304:23;305:2; 322:21,23;324:23;327:19, 20;255: 12,15;257:8,13; conferences 339:25 . contribution 308:] 8 345:22;346: I,2,2,3;347:23 21 ;329: 17,24;335:3,6; 258:13,18,23;259:2; confirm 211:7,11,]2; conversation 268:5; costs 346:24;348:2 338:25;339:3;341 :8; 261: I0;262:25;263:7,9,16, 294:8 279:21 ;289: 14;331:7 cough 209:2 342:13;344:21 ;345:22; 19;264:3;265:19;267:9; conform 226:2 conversations 326:22; counse1201:14;243:4; 346:3,10,16;347:5;348:12; 274:21 ;276:]5,17,20,24; confusion 224:25;226:1, 328:21 312:15;360:21 349: 19,25;350:4,6;351 :7, 277:3,7,] 2,14;278:I ,]4,20; 10 convince 342:17 Counsel 218:9;299:5 12;352:2;355:19,24; 279:12;280:14,22;28] :2,5, Congress 330: I 0 convincing 330:18; counselor 270:5 356:24;357: I,15;358:6,15, 8,11,23;282:2,24;285:2,4, connection 261: I;353:2 3,31:]5 count 200:25;211 :7,8; 22;359:23;360:6,8,11,14, 10,14,17,20;286:16;287:4, Conning 283:25 Cooper 200:23 2]2:10 21 14;288:]4;290:] 8,21; consent 318:22 copied 203: 19;330:24; couple 225:24;251: I; cover 217:1;218:2,4; 293:14;294:10,15;295:15; consider 220:5 331:1 316:16;360:17 241:24;244: 14;250:6,18; 297:23;298:8,11 ;299:4,13, consideration 260:25; copies 232:18;241:17; course 210:25;211:15;' 268:25;303:2,4;311 :5; 18;300:9,22;309:19; 261 :6,8;9,13;292:1 0,11 257:21 ;261 :23;279:22; . 225:I 0;245:12;251 :21; 322:9 311:19;312:2,5;317:6; considered 219:20; 310:8;342:7 272:2;282:13;315:7;351 :2; coverage 328:17,18 319:21 ;322: 18;324:22; 244:23;247:4;275:II; copy 201:12;208:4;232:2; 358:22 covered 269:1 338:23;341 :7;342:12; 315:4;317:18;351 :20 238:11 ;239:21;241:20; court]93:7;196:9 crack 288:19;289:9 344:20;345:21 ;346:9; considering 225:16 242:7,9,12;250:] 8;258:8; Court 314:11;3]5:24; create 335:16;338:10,14 348:11 ;352:6;355:23; consist 219:7 275:2;276:4,17;280:17; 323:2] ;325:4;326:9;327:3; creative 205:21 356:23,25;357:14;358:5, consisted 233:23 281 :10;15;301 :24;304:21, 328:22;330:24;331:1,5,25; creativity 193: 12,22; .14,20;359:22;360:5,7,19 consisting 261:2 24;321 :4;322:2;324:6; 332: 16;333:24;335:13,] 5; 194:15,21 ;196:9,12;201 :3, Dannay's 221:]5 consists 197:5;202:24; 330:9;338: 17;340: I 0; 336:8;337:8,17;339:21,23; 9;205:23 data 228:9;307:22;3] 0:16; 218:6;244:3;295:18,24 350:25 340:25;349:3;350:12 credit 318:23 311:9 Constant 272:25;273:2; copying 338:17 COURT ]93:3,6;194:25; Crisscross 194:5 date 23] :6;235:16;238:17; 286:25 copyright194:16,20; 199:17,22,25;201:22; criteria 198:9;214:8; 255:22,24,24;289:19; constantly 224:3,5 195:1;196:13,19;204:21; 202:5,22;205:9,]4;206:7, 273:15 321:16;328:5;336:25 consumed 284:5 205:4;255:23,24;257:24; 11;208:7,10,14,16,20; criterion 31 8: I0 dated 217:2] ;224:13; contact3] 1:21 262:7;263:]5,16;264:24; 209:13,16;213:3;214:18, critical 234:19 231:15;238:7;239:3,6; contacted 321:6;347:15 265:4,11 ;266:22;267:3,6, 22;215:2,4,13,15;2] 6:9,13, criticism 219:10 240:25;245:19,20;253:I]; contain 257:23;258:2; 14,20;268:14,15,18; 17;218:3,6,11,14,16,19,22; cross 280:2 257:19;274:25;278:16; 264:] ;271 :21;278:4;316:3 269: 19;296:3,6,] 0;303:15; 220:17,22,25;221 :4,1 0,18; Cross 361 :4,8 279:13;28] :20;288:10; contained 225:3,9,19; 307:5,6,22;308:4,6,7,12; 222:6,10,17,20,23;223:4; CROSS 251:II;299: 17; 289:]0;290:3;29]:2,9,2], 226:15,] 8,20;227:6;268:7; 316:3,4,9;317:19;318:23; 224:IS,17;227:1,1 1,22,24; 352:5 25;292:17;297:10;304:2; 281 :19;282:14;291:7,12,· 319:18;320:9,24;324:12, 228:4,7;229: I ,4,7,19,23; cross~examination 305:20;308:4 15,16,20,24;292:8,8; 15,19,20,24;329:8;330:II, 230:2,5;231 :16,18,20; 355:]9,20 dates 309:17;313:25 297:19;299:22;300:13,20; 12;349:] 1,15;352:17; 233:7;20;234:18;235:5,14, cross-examining 355:21 David 243:21 3()1:21;302:IS;303:17; 353:]9;355:]4,15;356:I ,3, 17,19,20,22,24;236:3,6,9; currently 259:21 ;260: 18 Davies 200: 14 319:25;32~:8 4;357:9,] 1,17,18,19;358:2, 237: 13,17,20,23;238:3,13, custom 356:13 Dawn 194:5 containing 296:20 18;359:5,7,14 18,2] ;239:23;240:15; cut 237:1;306:4 day 240: II ;3(j0:]5 contains 193:17;256:12; copyl'ightable 308:10 24] :9;242:22;243:2,4,21, cutting 338:17 Day]93:] 8;232:3,]9; 263:24;264:I ;277:19; copyrighted 262:22; 24;244:1;245:21,23;251 :6, cynic 250:14 268:8,19;304;8,]9 298:2;300:6 267;8;273:15;292:25; 9;252:20,25;253:] 9,23; days 220:]6;255:17 . contemplated 265:18; 318:4;319:17,25;358:12; 254:2,6;255: I ,5,7,14; D DD 237:9,11,]6,17,20,23; 267:11 359:17,20 .257:12;258:11,16,21,25; 238:3,4,20;239:23,24; contemporaneous copyrighting 325: I 259:3;261 :9,11;263:2,8,18; daily 251 :23;284:2 308:16;309:13;36]:23 233:3 copyrights 269:19 264:5;265:20;267:25; damn 284:4 deals 3]7:19 cpntending 204:20 corrected 213:9,13;31(:5 269:6;270:15;273:1,9; Dannay 221 :19;232:16; dealt 321 :23 contents 194:17;231:11; correction 305:12 274:]5,17,19,22;276:3,11, 239:23;241 :2;253:20; Dear 257:] 7;268:4;275:1; 303:16;342:24;344:10,10; correctly'207:3;225:4; ]4,16,] 8,21 ;277:1 ,4,10,13, 276: II ;301 :2;302:23; 289: 14;296:17 ; 345:7,12,23 232:9;236:17;239:19; 15,17;278:3,17,21,24; 305:4;308:13,23;352:3; Death 246:12;248:24; context 225:19;226:19, 242:13;245:5;246:18; 279:15,18;280:13,15,20, . 361:4,8 250:13;271 :20;343:17 24;301 :7;320:6,7,11 ,15; 247:21 ;248:3,19;249:3; 24;281 :4,9,12;282:] ,4,6,9; DANNAY 193:2,4;199: 19; Debbie 275:1

conclusion - Debbie (4) Min-U:Script® TRIAL STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18, 2007

Debutante 195:25 described 233:5;283:18; 321 :20;323:3;10;331 :2; 271 :3;272:5,11 ,22;274:6; editions 251 :23;288:2 December 292: 17;294:5 284:8;302: 11 ;341 :21 332:20;335:14;337:18; 275:3,11,23,24;276:7,24; editor 232:17;272:20; decided 217:16;327:9; describes 343:11 350:24;351:10,11 277:5,20,24;278:4,11 ; 313:23;314:7,J 1,14;315:6, 331:19;335:16;348:24 describing 219:22;334:7; discussing 327:8; 279:23;280:17;281 :15; 14,18;316:8,13;318:25; " decision 198:8;315:24; 336:4 335:18,19,20 287:2,11,24,25;288:22; 320: I0;323:17,24;324:18; 325:12,22;326: I;332:1,5,6; , description 343:13; discussion 242:8,21; 289: 16;295:19,23;297:17; 336:13;338:7;352:19; 333:3 344:24 288:6;292:23;326:13,21; 299:23;300:8,14,21 ; 353:5,6;356:15;359:5,12 decisions 205:22;308:25; descriptions 223:25 327:1 301 :19;302:4,14,16; editorial 207:18;223:22; 315:16;339:23 deselection 201:13 discus~ions 257:18; 303:11;304:18;307:20; 224:6;323:9.10,13;324:2, declaration 217:21 ; designations 227:25 306:2,24;328:25;332: II; 321 :7,24;324: 11 ;326: 18; 18;325:2,2,9;326:6;13; 235:13,15;236:14 desperation 233:1 333:19;335:9,12,24;337:7, 327:25;331 :21 ;333:20; 327:1,4;332:19,23,25; declaring 303:14 despite 203:5 13;339:19,20;340:25 336:4,5;337:10,10;340:14, 335:8,8;350:23 Deep 252:3;302: 13 Despite 304:16 ' disinterred 283:23 22,22;341 :17,18;344:1; editors 316:2;356:10,21 deeply 232:8 detail-intensive 268:11 disk 296:20 350:17,18,21 ;351 :15,16; editor's 309:3 DEFENDANT 361:15 details 231:25;304:23 displays 197:19 352:9,12,14,17;353:13,19; EE 237:9,10;240:15; defendants 279:13 detected 283:23 disposition 260:2 354:8,9,18,25;355:5 308:16;309:13 defendant's 297:25; determinati.on 211:13, dispute 296:9 double 350:2 EEEEE 299:7, II ;362: 14 303:23 15;217:16;221:1,5,14; disputing 258:9 doubt 238:10;259:13; effect 20I:1;266:16; Defendant's 199:9; 325:20 distinction 205:20;270:5; ·266: 16;267:7 283:15 200: I;206:II ,12;207:25; - determinations 214:2; 299:25 down 209:4,21;256:7; effectively 309: II 208:15;218:24;222:15; 234:7,15;236:23 distinctions 275: 18 311 :8,22;312: II ;317:23; effort 232:14;246:16; 224:14;229:14;231 :14,21; determine 215:25;234:4; distinguish 272:1 318:16;360:11 247:20;248:1 ;334:24 235:12;236:10;237:9,11; 249:25;264:22;293:18; distinguished 203: 11; DP 272:17,19 efforts 349:4 238:4,7,23;240:15;241 :25; 318:3;345:12 274:3 draft 198:24;217:2;238:5, eight 251 :23 243:19;244:2;245:18,25; determined 198:24; . distributed 310:8;342:15 6,15;239:8,11 ;240:24,25; either 198:11,19;231:10; 246:3;247:13;253:17; 213:16,20,24;214:10; , distribution 232: 18 300:6;19 249: 12;258: 12;286:23; 258:13,22;259:5;261 :19; 215:6,8,22;216:2,3,4,19; division 323: 18 drafts 242:6;282:19; 289:8,9;307:5;331 :20; 267:22;269:8,9;273:6; 217:4,6;219:5,15,25; document 242:25;248:5, 309:13 356:5 274:8,11,20;277:7,18; 220:11,21 ;221 :23;25; 6;257:3;298:2;301 :7; dramatic 201:I elaborate 354:4

278:25;279: 19;280:22; 222:4;233:11 115;234:1,II; 305:18,24;309:1;310:3; drawing275:18 'elements 275:15 281 :24;282:I0;283:7; 235:7;236:19;237:2,5; 316:18,21,23 drawn 270:5 Elinor 198:6 285:10;287:20;288:9,17; 243: 15;249:7,9,1 0,11; documentary 198:10,11 Dreams 193:18;232:4,19; eloquent 225:17 289:10;290:24;291:1 ; 252:10,12,16;253:3; documents 266:16; 268:8,19;304:8,19 else 21O:17;219:19;249:5~ 292:16;294:3,16;295:6,13; 254:24;255:2;264:19; 269:23;270:6;308:18,19 Dreiser 290:4;291:19 7,8,9,10;269:1;325:14,16, 296:12;297:4;298:7;299:7, 275: I0,20;277:23;300:7,20 dollar 31 0:25;311 :3,5; dried 306:4 24;326:4,J 1;335:22 11;342:14 determining 268: 17 347:]9 drop 317:23;318:16 else's267:8;317:20 defenses 233:2;305:9 diatribe 279:22;280:6 domain 319:7,8,10,13; duly3]3:1 e-mail 231:14,22,24; defined 260: 17 diatribes 198:19,21; 329:6,11 ;345:17,18,23,24; during 21O:25;2J I :15; 243:6;267:23;304:1,3 definition 214:4 216:25 346:5;356:2,8;359: I0,14 248:21 ;268:5;292:22; employed 313:8,20; definitions 214:13 difference 233:5;348:6 done 219:9;220:4,9; 311 :20;323:9;324:2;325:3; 318: 14;319:5 degree 234:25 different 220:2;224:2; 226:23;233:3;267:16; 351:2 employees 325:7 delete 282:19 231:1 ;254:7;270:12,14; 277:9;305:7,10;311 :24; 'During 246:9;250:8;339:5 employment 313:20 delivered303:3 272:3;320:13 333:6 dust 248:17 enclosed.257:20;275:2 demanded268:15 difficult 215: 16;284:2 door 340:1);358:10 duties 313:12 encloses 322:10;330:9 d~JJ;logrClJ)~ip~ 309:12, digests 318:20 Dorothy 194:8,9;200:11, enclosure 276:4,5,19 denied 200:12,17,19; , digital303:9 I 15,17;201 :4,5;206:17,21; E end 235:17,20;239:15; 201:6;264:5,7 Dinadja 347:1] 208: I;209:18;21 0:5,9; 242:I0;256:II;282:18; Dennis 305:24 direct 215:15;279: I; 212:22;213:17,24;214:1, earlier 244:21;245:3; 302:3;320:3 departed 314:8 303:19;316:17;327:22; 11,19;215:6,9,23;216:4,20, 246: 15;247:19;248: I; ended337:i2 department 289: II; 359:25 ' 23;217:9,13,18;219:6,15, 268:5;275:23;277:22; ends 360:1 315:12;316:2,14;325:-9; Direct 284:21 ;361:7 25;220:12,19;221 :2,24; 288: 1;304:3 EnUlish 270:9,10,15; 342:2, DIRECT 313:5 222:12;223:11 ;228:23; earliest 309:14 272:1 depend 325:17, directing 253:23;285:15 229:12;230:8,16;233:11, .early 246:9;248:21 ;250:8 enough 230:24;343:22; depefl~ent 215:18 direction 277:11 16;234:I,II;235:8;236:16, easier 254: 18;283:22; 344:9 depending 315:2 director 325: 10;349:2,2 20,25;237:3,4;243:15; 320:14 Enough 207:13;232:6; depends 207:15;346:14 disagree 265:21 ;300:2 244:7;245:1,2,11 ;246:9,17; easiest 254:22 246: 12;248:23;250:13; deposition 202:14;251:2, disclosed 267:7 247:20;248:2,20;249:11; easily 198:7 267: 18;268:9,20;301:21; 4,7,15;254:17;270:25; discover 284:6 250:10;251 :22;252:11 ,13, economic 354:14 302:12;343:16 271:10 discovered 245: II 16;253:2;254:24;255:3,19; edit 331:22 entered 297:14,15 depth 342:21 discuss 234:24;306:18; 256:25;257:2,20,22; editing 244:24;247:5 entire 199:10,20;210:25; DEPUTY 235:19,22; 307:8,13;315:23;327:3; 259: I0;260:6;262:2,4,15, edition 202:20;231 :5,5; 213:5;218:2;226:4;256:13; 274:15 341:2 17;263:11,13,22;264:10, 248:14;250: 18;343:15; 325:9 describe 348:22 discussed 198:21 ;304:3; 20,24;265:7;266:21 ;268:9; 344:5;345:2 Entire 313:16

TRIAL Min-U-Script® (5) Debutante - Entire STUART Y. SILVERSTEIN V., July 18, 2007 ~ENGUIN PUTMAN, INC. entitled 3] 6:] 8 example ]97:14,]5,19; 281 :10,24;282:]0,24; fair202:] 2;207:6;2] 3:23; 228: I0,22;229:] 0;230:6, entitles 196: 12 2]4:6,]5;250:23;267:] 8; 283:7;285:] 0;287:20; 27] :20;318:4;3] 9: 12; 15;23] :24;232:6;233:8; entries 209:20 320:8;344:]4;348:24 288:] 7;289:] 0;290:24,25; 320:J7,22;359:1] 237:9;238,:6;242:2;246:3,4, entry 210:1 excavation 284:5 291:] ;292:]6,]6;294:3,4,6, Fair 272:] 3;283:20 ]6;247:]2,20;248:];252:4; f equipment 303:9 exceeds 3] 8:4 7,9;295:12,13;296:] 1,12; faith 221 :16,18 255:22;256: 18,2] ;258:6; eratum 232:1,1 ],14,]7; except 202:9;205: 17; 297:3,4,24;298:7;299:7,11 ; fall ]97:23;332:]4;346:5; 268:9;272: 13;283:9;291 :9; 304:6,24;305:5 214:3;256:8;280:24;34]:17 301 :3,24;302: 19;303:2,19, 359:10 292:20;294:] 2;297:] 1,16; errata 304:4 exception 2]4;3;292:24; 22,25;305:]3,14;307:24; familiar 208:2 306:2],22;307:16;316:] 7; error 202:] 7;232:19; 318:2] ;320: 18,23 309:18;3]6:17;3]7:8; famous 207:]4;288:2~ 3] 7: 17;32] :5;323:3;325:2; 304:7;305:] 0 excerpt 206:5;208:5,25; 322:]7;324:9;~30:21 ; far 207:5;248:] 1;311:7 327:1,2,23;328:8,12,20; Esquire 200:23 30]:4 331 :25;335:1 ,4;341 :19,20, fashion 300:3 330:15;331:19;332:20,23; essay 318:10 excerpts 199:12,14; 23;342:JO,J4;344:22; fax 239:7;244:3;247:1; 333:18;343:15;344:4; essentially 263:24; 208:4,J 1;209:11;213:4; 347:2;348: I0,13;357:4; 28 J: 17;282:2;296: J4 ' 345:2;349: I0;350:23 305:22;355:11 222:18 361:ll,16 faxed 281:24 First 249:8 established 289: I exchange 226:4 exhibits 217:24;237:7,15; FDA 284:7 fit 325: 18 estate 352:] 5;353:16 excluded 197:3,13; 253:8,24,25;254:5;299:6 fee 292:7;356:11' Fitzpatrick 283:9;285:6; etc 193:24;252:2;275:15; 201:24 Exhibits 237:9;253:18; feel 284:23 287:2;288:4 320:21 excluding 197:18;201:4, 294: 16;295:6 feeling 334:1;353:25 Fitzpatrick's 287:11 evaluate 286: 18 9 EXHIBITS 361:10,]5 feelings 233:5 five 235:14,17;295:20 even 232:21;244:21; exclusion 196:21;197:22 existed 335:22 fell 332:16 flap 248:17;250: I8 247:25;265: 15;286:18; exelusive 260:5,6,7,10, existence 244:19;246:14; fellow 306:8 flat 356:19 35] :23 20 247:17,24;248:25;249:16; felt 232:20;233:4;305:7; flip 345:6 evening 360:18 exclusively 343:25 273:13,16;351 :4 323:4;325:23;326:23; floppy 257:21 Evening 213:12;265:1; excuse 196: 16;204: 19; expand 214:4 331 :20;336: I;354:7,16 focus 195:19;342:21 272:15;273:22;283:24; 309:6 expanded 214:14;269:19 few 208:18;244:21; focused 343:25 292: 18;294:18;295:] 0 Excuse 196:25;2ll :14; expect 296:19 246:15;247: 18,25;321 :2; focusing 193:10 event 312:7;319:24 212:6;217:23;244:6; expedited 330: II 350:8 Folklore 198:14;]99:1,7; events 348:25 246:25;273:8;274: I0; expends 330:16 fewer 348:2 ' 200:5;2J6:16,21 eventual 351 :2 290:13;302:10;311 :12; experience 358: II FFF207:25;208:15,21; follow 251 :13;318:3; eventually 329: 19; 357:16;359:19 explain 193:4;207:10; 209:14;210:12;361:19 319:9 331 :15,17;338:2 excused 312:14;360:9,13 261:5;355:8;356:]2 FFFFF 299:7,11 ;362:14' following 206:23;223:10; everybody222:21 executed 305:22 explained 359:4 fiction 313:18 ' 240:1] ;253:24;259:23; evidence 198:10,11; execution 349:7 explains 264:6;317:17; Fiend 194:22;195:4,5,7, 318:6;323:8 199: II,]9;200: 1;206: 12; executive 313:23;314: II, 320:17 16,20 follows 223:]4,15; 208:6,15;21 0:24;2J 8:23, 14;315:6 explanation 308:24 fifth 225:23 289:19;292:20;313: I 24;229:24;230:3;231 :21; exhaustive 257:23 explanatory 226:5,6,7,8 figure 292:12;293:18; fond 275:21 233:4;236:] 0;237:12,16; exhibit206:15;209:13,l4; explicit 265:16;270:5; 311:3 foot 303:7;324:10 238:4,19;243:20;244:2; 222:13,16;227:12,13,24; 319:15 figures 311 :5,6 forced 284:8 245: 17,25;255:12;257:6, 238:13,19;241 :6;246:24; explicitly 21 6:24;265: 18; Figures ]98:14;199:1,7; Ford 286:9 12,13;258:14,21 ;259:5; 258:9,12;274: 13;276:3,12; 319:25;320:24 200:5;216:15,21 forget 199: II 269:3,8;274:20,2] ;277:8, 280:20;283:11 ;284:19,20; expressed 226: 16;331:5 ' final 217:16;223:19;226:8; form 211 :24;244:24; 18;278:14,25;279:12,19; 293:] 5;303:2] ,23;305:13, expresses 257:3 230:12;240:I0,20;245: I; 247:5;284: 15;359:22 281:5,23;282:10,24;283:7; 15;342:23;343:9;344:13, expressly 260:1 300:6,19 forms 293:2 285: 16;286:1 6;287:19,20; 23;345:6;357:6 extensive 245:2 Finally 239:16;240:4; formulation 226: 12 288:9,lZ,17;290:24; , Exhibit 194:18;199:9,1 5, extent 353:12 24]:12 forth 208:4;319:16 294:15;295:7;14~297:24;'" 17;200:1;206:4,12;207:25; extra'360:17 find 194:19;208:9;219:20; , forward 280:25;325:12; 298:7,9;299:8,12,14;317:2, 208:15,21;210:12,25; extract 318:7,9 ' 221:20;223:5,5,5;231 :17; 336:24 8;322:] 8,21;327:19; 213:3,4;217:20,24;218:3,6, extracts 254:17;320: 19 251 :22;252:2;257:21; found 194:4;223:8; 329:24;335:2,5,6;342:11, 11,14,16,17,19,22,24; 258:19;260:9;275:2; 252:10,16;253:2;254:23; 14;344:19,22;348: I0,) 3; 222:14,15,20;224:12,14, F 276:18,23;279:22;282:5; 266:13;285:20;289:17; 358:16 14;227:22;228:1;229:.1,15, 283:20;284:9,11;285:18; 290: I0;291 :3;299:22; evidently 268:14 17;231:13,14,21;235:13; face 203:17 ' 303:20 300: 13;303:24;309:4; exactly 198:20;211 :21; 236:10;237: 10,11 ;238:4,8, fact 197:24;202:18;203:5; Find 251:7 354:11 217:15;355:8' 8,18,22,23;240:15;241 :25; 204:24;205:22;226: I; finding 208:22;353:7 foundation 286:17,21 ' 'Exactly 224: I0;271:6 243:19;244:2;245:18,25; 231 :5;242:24;248:I0; fine 193:3;199:17;2]8:11; four 194:3;216:1;235:18, examination 359:3 246:3,21,25,25;247:8,13, 258:5;260:6;293:1 ;304:8; 220:23,24;277:4;281 :I0; 20,20;253:7;295:2,2; Examination 361:2 23;248:13;250:3;253:9,9,9; 322:2;328:4;334:19; 299:15;312:8 306:13,14 EXAMINATION 251: II; 255:8;257:6;258:14,22;, 336:12,23;337:3;341 :3; Fine 193:6;199:25;227:14; Four216:15,21 ;235:19; 299:17;300:25;313:5; 259:3,4,5;261 :19;267:22, 345:14;351:24 285:9 278:20;295:2 352:5;357:2;361:1 22;269:2,8,9;271 :8;273:6, facts 279:7;358: 15 finish 258:25;352:3 fourth 225:22,24;245: 1 " examine 206:13 ,i 7,9;274:8,11,17,19,20; factually 265: I finished 360:15 Frank 283:25 \. examined 210:24 276:5;277:8,18;278:15,25; failed 248:25;249:15 first 194:22;200:24; Franklin 293:1 examiner 359:25 279:12,19;280: I0;23; failing 286:6 208:17;218:8;223:9; .free 193:23;198:19;

entitled - free (6) , Min-U-Script® TRIAL STUARTY. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18, 2007

202:23,23;203:5,11,13; 19;226:6;227:18,20,23; 248:5 21 ;221 :9;224:]6;227:3,14, 203:9;204:22,22;205:5,5, 204:5;2l4:];2] 5:9;21 6:]; 228:8;230:1I,23 hcimdwriting 276:9 . 15;229:25;23 I:] 9;233:9; 24;232:3,n ;234:5,8; ." --~~ .. 222:5;233: I8;236:] 5,25; gave 214:15;217:2;278:8 handwritten 277:1 237:7;238:2,20;243:] ,25; 236:20;249:18;252:12; 237:4;249:10,]2;252:13; gears 328: 1,3 happy 214:25 245:22;252: 19;254:2I; 266: I8,] 9;289:18;292:24; 264:14;269:25;270:4,4,7~ general 203:6;249:1,16; harangues 198:21; 255:13;258: 14,1 9,20,23; 307:2;314:14;328:25; 272:2;277:23;279:22; 309: I2;315: I2 216:24 274:18;276:10,13;277:16; 329:9;332:13;334:4,14,18, 300:1 ,4,8,14,21 ;302:5,9 generally 272:4;286:1 I; hard 250:18;286:18 278:2,23;279:16,17;282:5; 19;337:9;340:21 ;341 :4,14; frequently 271 :3;272:5 298:];319:16;346:5 hardcover 231 :5;248: 14 283:2;285:2,20,24;286:17; 344:5;351:18;354:2;357:12 Fresh 208:] generate 328:17 hardcovers 314: 15 ! 287:8,15,18;288:15; includes 237:2;274:5; front 212:25;222:22; geographical 286:13 hate 193:23;203: I,17; 294:23;298:5;300:24; 344:4;345:3,8 228:2,4;239:25;240:12; germane 284:24 204:13 311:17,20;312:3,13,17; including 201 :7;245:3, 244:9;251 :5;255:8;258:8; gets 285:1 Hate 267:19;272:3,13 317:I;322:J 7, 18;327:20; 13;266:25;271 :25;275:4,7, 259:17;274:23;282: 11; GGG 280:22;281:5 haunting 239:17;240:5; 342:10;347:4;348:9; 15;304:8;307:6;337:24 297:4;301 :22;308:2; Gillian 224:13;229:16; 241:13 349: 18;355:I7;356:23; inclusion 193:23;194:16 314:21,24;315:2,7;3 I6: 16; 23 I: 15;240:]1 ;24 I:1,25; Hayes 305:24 360:19,20 inconsistent 284:23 322:8;327:14;329:22; 268:4;288:10;304:1 head 31 1:22 honorable 232:20 incorporate 332:2; 341:19;348:7;353:22; girls 289:5 heading 200:6;229:5 hop 289:21 337:20 358:10 given 224:1~8:20; hear 202:17;21 1:4;222:8; hope 242:10;299:20 Incorporated 286: 1 front-list 346:25;347:23 259:25;270:15;274:14; 276: 14;320:2;349:22; hoping 293:23 incorrectly 254:9 fulfillment 261 :22 - . 278:8 359:19 hoppety 289:20,2 I increased 292:3 full 213:2;226:17;244:22; Given 278:13 heard 212:2 I;302:23 hom 276:1 incredible 342:20 246:16,23;247:3,8,12,20; gives 199:6 hearing 280:25 homing 275:19 indented 209: 1,20 248:1,6,9;292:20,22;318:1, giving 318:22 hearsay·339:4;358:8 hotel 277:1 independent 215:18; 23;327:23;329: 1;334: I glad 232:16 Hearst 200: 14 house 336:2 293:8 Fun 193:g,16;194:18;19, glass 288:20 Hearst's 200: I2 House 313:9,15,20;314:9 index 209:23;21 0:15,17, 23;195:10;196:21 ;197:4; glasses 289:5 held 296:6,6,10;307:5,6 Hs 278:20 20;269:12,15;343:2 198:23,25;200:8;202:24; glean 310:22 Helen 272:-14 humor 286:4 . INDEX 361:1 203:4;204:J 6;205:25; Glyri198:6 .heIl272:14;284:3 hundred 345:3 indicate 197:24;205:23; 207:8;210:2];211:10; goe~ 207:5;2] 9:2;289:20 Hell 208:1 hundreds 220:2;221: 17, 212:2;262:23,23;308:6 213:17,25;214:12,18; good 22J :16,1 8;322:22; help 238:23 17 indicated 287:4 215:7,24;216:22;217:7,8; 327:20;354:19 helpful 273:23 indicating 255:20 219:1,6,16;220:1,12,20; Good 313:7 Henriette 272:12 I· indication 205:20 221 :7;222:1;223:1 7;225:3, govern 304:13 Henry 286:5 indices 283:19,21 9,21 ;226:2,9,15,18,21; grand 225:17 hereby 260:1,16 idea 293:8;321: I8;323:6; individual 195:7,8,9,10, 227:7,16;228:13,19;229:3;. grant 260:4,13 . hereunder 260: 1 342:17,20;349:1 13;196:5,17,17;3]8:1 ]; 230:7,12;23] :4;232:2,18; granted 260:1,7,16; HHH 278: 18;281:24; ideas 242:1 I 348:20;357:18 233:12,17,24;234:3;8,13; 263:2;265: I5,16 282: 1,2,1 0;362:7 identical 205: I7;223: 16; individually 193:13; 235:9;236:15,21 ;237:2; granting 257:]9;268:16 HHHH 278:]5,25;362:5 224:7,8;250: I7;278:8 195:4;292:25 243:14,]4;244:7,25; gr",nt5 259:20;260: 10 ~HHHH 235:13;236:1,9, identifiable 225: I6;226:9 induce 342: 17 245:11;248:10,14;252:9, Greetings 297:12 10;361:22 identified291: I2 industry 357:23 18;253:4;254:25;259:8,2I; grind 328:1 Higgledly 198:3 identifies 297:1 I inform 292:23 260:18;263:21,22;264:8; grinding 328:3 higher 304:15;345:16 identify 237:21 ;316:8 information 225:2,7,20; 265:12;268:8;275:8;12; grpup 274:5;352:10 highly 287:22;346:7 .ie 273:15 226:]3;227:5;235:2;242:8, 277:19,21 ;278:4,10,12,16; Group 313:9 Himmelrich 253:12,14; 11I1253:18 16,21 ;243:7;257:24;258:2; 279:J 0;282: 15;19;283:] 6: guess 224:24;293:1 1 257:9;280:11;281:14; imagined 267:]5 262:7;288:4;298:3;309:4,9, 286:25;287:21,25;289:] 6; gues120Q:13 291 :2;292:I4;296:15; immediate 323:25 10;329:14;338:21 ;350:?0; 290:14;293:21;298:4; guide 319:16 306:20,21,23,25;307:8,13 ' immediately 236:12; 351:20 299:2] ;300:6,] 2,19;' .Guide 206:5,7;207:3,8;]2, himself284:18 30]:]6 informed 273:16;293:17 301 :25;303:] ,3,]] ;304:5; 13,16,17,]9,22;301 :4,10; hippety 289:20,20 important 339:] 5 infringe 267:] 9 17,24;308:1 ];310:8;3] I:]; 316:18;3] 7: 10;320:17 . hired 338:7;349:10 imprint 315:19 infringement20]:1I; 32 I:4;322: I];324: I I; guidelines 3] 7:~4;318:3; hold ]93:7 imprints 314:18 204:21 ;205:4;265:10; 333:20;334:3;335:17,22; 319:3,4,9,15 Hold 227: I 1;238:24; improper 284: I5;319:17; 267:5,14 338:1 3,18;34Q:14;350:25 Gun 195:24;246:12; 240:]4;242:1 360:2 -inherent 262:9 function 326:5 248:23;250: 13;271 :20; holder 296:3 inadvertently 205: 18 in-house 265:7 Fun's 267:1 :282:16;343:16 holdings 292:22 inclined 328:14 initial 238:15 further.282: 13;3 I2:5; holographic 280:17; include 193:23;195:20, initially 193:]6;206:2 . 329:2;330:16;352:1; H 281:10,15 22,24;20I:12;204:23; initials 272:17 356:25;360:7 honest 217:15;344:9 216:25;236: I5;252:9; insert 232:2,14,17,17 Future 347:9 half 246:13;249:1,17 honor 200: 13,16 270:3;308:24;313: 18; inserting 232:1;304:23 halfway 256:7 Honor 198:6;202:6;21; 335: I7;336:4;340:2; inside 248:J6 G Halligan 295:21 . 205:8;206: I0;208:5,1 3,1 8; 345:18;350:17;351:I5; inspected 2] 1:6 hand 212:16 209: I4;213:2;214:1 6,20; 354:14;355:12 installed 303:9 galley 222:15;223:2,14, handle 245: I8;246:4; 215:21 ;21 6:7,12;21 8:15, included 196:3;I99: 12; instance 195:5;196:5;

TRIAL Min-U-Script® (7) frequently - instance STUART Y. SILVERSTEIN v. Juiy 18,2007 PENGUIN PUTMAN, INC.

270:23 19;291 :8,21 ;301 :16;304:4; 328:22;330:23;331:1; lawyer 253:14;281:15; Lewis 286:5,9 instances 194:1,7; 316: 12,13;350:13;351 :4;23 33:2: 16;333:24;335:13,15; 287:6 library 296:6 195:J2;216:1 ;283:22; issues 316:9;317:18,19; 336:8;337:8;339:20,23; lawyers 360:22 Library 313:17;330:10 318:7;320:19 349:11,15;359:5,7 340:25;349:3;350:12 lead 355: 19,20;359:25 license 259:20;260:17; Instances 194:11,13 item 193:24;195:9,10; Keenan 288:21 leading 319:23;355:17; 261:1 ;265:25;268:16; I 'instead 234:20;265:7; 196:7;197:6,8,9,10,13; keep 242:22;250:9;313:3; 357: 16;358:25;359:23; 305:23 325:14 200: 18,21;201 :4,9,12,24; 326:3;333:11 360:2 licensed 260:23;266: 10, intelligent 306:8;346:11 202:10;203:1 ;205:18; Keep 202:5 learned 268:6,19;282:14; 14,24;267:2 intend 303: 13;308:6 207:4,7,13,23;209:4; Kevin 283:9;287:1 336:16,19,21,23;337:2,2; licensing 265:8;17 intended 225: 13;230:20; 210:12;213:8;215:8;224:5; key 246:6 358:7 lied 200:20,21,22 308:21 252:9,12;256:19;22; kind 201 :19;316:13; . least 198:12;201:4,5; Life 272:19;283:]8; intending 309:9 275:22;289:1 ;291:14,19, 319:18,25;331:16;337:4; 207:7;210:20;2]] :8; 285:23,25;286:],5,]0,] ], intention 226:] 6 24;296:3;297:]7,23; 360:12 237:] 6;265:2;270:23; ]2 interaction 339:6 301: ]4,]7,19;302:] 0; KJELLBERG 274: 16 280:5;333:3;350:] 2 lifetime 200:] 7 interchangeably 270:] 7; 357:]8 KKKK 294:]6;295:6; leave 2]4:]9;216:19; liked 2]4:5 272:4 Item 289:1 362:12 290:13;3]1':22 likely 309:] 1;325:18 interest 309:4;326:2; items ]95:12,14;]97:6; knew 326:18;33]:]0 leaving 273:2 likewise 304:]5 331 :5;352:17;353:19 198:5,7;202:24;211 :]6; knowing 3]5:19;339:]0 led 284:6 limit 203:6;2]4:4 interested 20]:1;315:22; 2]2:2;2] 3:]9;2] 6:];21; Knowing 335: 15 left 213:]7,25;2]4:] 1; limited ]93:8;2]4:]4; 326:2,21 217:9;2]9:11,11;220:2; - knowingly 254: 12 215:7,23;2] 6:5;21 7:5; 293:20,24 interesting 323:5 221:] 7,23;224:] ;225:20, knowledge 238:9;277:3; 219:6,] 6;220:] ,12,19; line 251 :20;252:] ;256:] 8, internal 337:3,6,15 23,24;233:24,24;234:5,5; 279:8 22] :6,25;233:12,16;234:2, 21 ;271:1,]2;272:19; internet 282:25 236:24;249:7,8,9,10; known244:20;246:14; 12;235:?;243: ]4;249:1 8; 275:13;286:25;29] :9; interpretation 227:9; 251 :22;252:16;253:2; 247:] 8,24;314:21 252: 17;253:4;254:25; 297:11,]],] 6;303:8; 231:] 254:23;256:20;262:7; knows 346:10 264:20;275: 12;288: I; 320:13;323:18;325:] 8; interrogatories 268:7; 263:14;264:22;266:] 9,21; Ks 295:2 299:]9 328:20;331:22;332:]4; 298:1 272:19;275:25;293:5; left-hand 342:24;345:7 346:4;348:3 interrogatory 309:22; 300:7,20;302:]4;307:4; L legal 201 :]4,]6,20;205:], lines 3]8:]2;320:2]; 310:5 308:10;330:]2;334:] 9; 7;260:] 4;289:] ];305:9; 327:6;33]:1 ];332:7 Interrogatory 3]0:24 336:5,5;337:10,10,] 9,20; label 235:20 3] 6:14;317:18;358:16,20, list 209:21 ;220:13,]5,16, interview 283:8 346: 17,]9;20;347:22; labored 202:12 23 ]6;223:1],]4,]5,]6,16; interviews 200:22 350:]7,] 8,21 ;35] :15,16, lack 233:] legally 304:]2,]3 224:7,7;225:],] ,7,] 9,] 9; into]99:11,] 9;208:6; 19;357:]2,13 Ladies 198:6,] 3;274:7 less 262:3,16;263:]2; 226:],13;227:5;228:]4,22; :~ 232:1,18;237:12,]6; lady 3]2:7;317:12;346:11; 309: ]5;326:3;327:9;336: 13 229: I];230:8,16;233:] 2, 243:20;245:] 7;258:]4; J 352:4;358:23 lesson 270:]6 17,23;234:2,12;235:9; 268: 12;269:2;274:2]; lady's 346:] 6 letter ]94:10;205:24; 255: 19;256:25;257:2;22; 276:] ;277:8;278:14; jacket 242:6,]2;248:]7 Lampack 237:24;241:20;. 206:20;20;208:22,23,25; 258:6,] 1,2] ,24,24;259:3, 279: 12;28] :5;23;282:24; Jane ]98:]8;217:1,2; 244:3;246:21 ;247:] ;274:9; 209:5,8;2] 0:13;2] 7: I; ]0;262:4,6,17,21 ;263:13, 286:] 6;287:19;294:]5; 302:20;303:3 282:2;293:] 7;329:25; 224:] 3,2] ;226:3,6,7; 2] ;264:9,] 0,]2,20;278:5, 296:8;297:] 4,] 5,23;298:9; JANE 3]2:24;36]:6 330:3,9;33]:]4;333:] 6; 227:] 0;229:16,] 6,] 8,22; ]0;292:20,24;296:] 9,24; 299:8;304:24;3] 7:2,23; January 206:6,8;207:], 336:21 ;353:22 237:23;238:7,]4;239:3,6,8, 297: I;302:2,3,5,8,9; 3] 8:16, 18;320:13,] 7; 22;294:]9 language 242: 11 ;246:20, 22;240: II,20,25;24] :2,2], 307:20,23;308:3;3] ]:9; 325:] ];335:2;340:8; JJJJ 282:7;292:] 7 23,24;247:8;248:7,] 0; 24;243:3,5;253:10,] 1,]2, 3]4:2] ,22,24,25;315:2,4,7, 342:]] ;343:14;344:]9; job283:22 249:14;250:] 7,18;260:9; ]3;256:] 9;257:8,]7, 19; 8;320:J ;348:20;354:8,] 0; 348:10;353:7,8 Joy289:] 1 270:10;27] :]9;279:20; . 258:5,] 0,18;269:3;274:2,4, 355:2 intro~uced335:2 Js235:]9,20,2] 293:24;2?4:8;297:22; 5,9,23;25;275:3,7;276:24; listed ]94:22;2]3:9; introduction 245:2; judge 288:2] 302:24,25 279:13;280:] 1,17,18,24; 223:24;226:6;7;259:9; 353:] ];356:6,16 Judge 235:22;352:I larger ]94:4;211:25; 28]:]4,]6,] 9,24;282:2,18; 264:9;267: I;274:7;277:2.]; inventory244:22;246:17, judgment203:13;353:18 2] 9:2,5,7,22,24;220:11; . 288:]0;289:]0;290:]3; 278:5 .23;247:3,8,]2,20;248:2,7, JUly 22]:22;231 :] 5; 225:]6 29]:],4,]6,20,25;292:3,9, listen 213:15;2]6:10; 10;269:16;30] :20 245:20;247:] ;267:23; largest 245:] ]7;293:7,9,11 ;294:5;20; 233:20,22;234:22 Inventory207:14;301: 15; 279: 13;347:] 3;360:23 last 2] 8:6;226:] 8;236:] ]; 295:]9,22,24,24;296:2;6; listing 342:19 302:4,10 June 206:6,8;207:22; 250:6,7;253:2];288:18; 297:6,] 7;20,22;301:8,]]; Listings 255:]6 .investigationaI296:9 278:16;280:] 1;282:25; 293:]5;297:23;304:]]; . 302:20;303:2,4;305:20; lists 210:2;224:9;'10; involved 202:2;203:21 ; 288:] 0;304:2;322:9,13; 3]5:4;343:8;344:23; 306:]8;307:] 6;322:9,] 3; 228:8;257:23,25;258:6,]4, 232:] ;237:8;296:8;304:23; 324:16;328:9;332:23; 349:20,22 327:] 5,16,23;328:6,8; 23;259:6,9;26]:19,24;· . 315:10;33] :7;332:10; 333:] 2;335:1 0;350:23; late 321:]5;322:25 329:],]3,20;330:6,7,9,]5, 262:2,]5;263:] ];268:]5, 34] :25;342:1;344:]5; 357:4 later] 98:23,24,24;202:] 5; . 23,24;33] :]9,24;333:16; ]7;274:7;278:7;3]5:1 ] 348:] 8,] 9,2];355:5;358: I 2]6:2;2]7:6;250:10; 353:2],22,22;357:4 literary 248:22;279:6,]0; involvement346:23 K 32] :]0;334:8;336:]6,23; Letter 207:7 293:] 6,]9;354:]4 involving 354:25 34]:5 letterhead 238:] ;295:20 Literary 354:] 6 J issue 205:16;207:]; Kathryn 3]4:] 1;3]5:24; latest 309: ]4 letters]94:8;277:6; literature 272:] ;286:] 2; 232:19;25;272:3;283:]9, 323:2];325:4;326:9;327:3; law 304:14 293:25;295:8;311 :5 30]:]6

instances - literature (8) Min-U-Script® TRIAL 'SlUARTY. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007

literature 206:5,8,25; managing 315:1J means 249:25;314:4; minus 225:23 Mrs 193:10;206:17;225:2, 207:22;301 :4;10 manner 266:5;330:17 316:4;355:9 minute 221:2 I;254:6; 8;226: I4;227:6;232:4,6; litigation 211 :1,16; manual 317:19 meant 242:6;275:7;284:3; 280:20;312:3;357:16 244:23;245:3,13;247:4; 266:13 manually 338:'1 7 349:21 ;354:4 minutes 221 :22;263:3; 269: 16;270:1,17;273: 14; little 284: I 1;31,1 :25; manuscript 198:16,17; meet 214:8;273:14 360:17 280:2;281 :20;289:17; 315:15;348:22 268: 12;269: 13;302:20; meeting 321:12,15,19; miscellaneous 256:.1 2 290:8;291:8,21,25;293:1 ; livid 200: I5 303:2,4,6,15,16,18;3 I7:18; ,322:1,24;323:8,13,2 I; Miscellaneous 256:4 296:22;297:20;304:9; Liza 288:1 I 319:25;320:1;321 :4;20,23; 324:2,7;325:2,2,8,1 I; misheard 278:17 305:23;307:5 ' LLLL ,294: I6;295:6; 322:3,5,10;323:3,5,10; 326:6,13;327: I,4,6;332:23; mislabeled 235:23 much 226:18;272:1; 362:12 324:3,6,16;325:3;326:1,9, 333:4,8,"8;349: 1;350:23 mislead 309:9 312:12;317:5;348:2;350:6; locate 237:15;285:17 II,J4,20;327:3;328:5,9,23; meetings 323:9;332:19, missed 239: 18;240:6; 360:18 logic 353:9 329:7,J 0;330: 13;331 :2,6,7, 21,25;335:8 241 :14;268:20 Much 193:13,16;194:18, logistics 232: I;304:23 12,18;332:4,12,13,20,25; Mehren 198:18;2 I7: I,2; Misstates 341 :7 19,22;195:IO;J 96:21;

logs 348:15 333:3,12;335:10,17,12; 302:20;303:3;311 :21; ! mistake 268:19;284:13; 197:4;1 98:23,~5;20a:8; long 207:8;256:1 I; 337:18;338:3,10,14;341:4; 313:2,7;317:9,2 I;319:24; 305:2 202:23;203:4;204:16; 277:22;283:16;285:1 343:25;25;345:I0;35(): 14, 330:21 ;352:7;357:4;359:3; mistakenly 232:3 205:25;207:8;210:21 ; longer 315:1 24,25;351 :5;353:8;357:5~ 360:3,8 mistress 200:14 211 :10;213:17,25;214:12, look 199:,8,18;207:13; 359:9 MEHREN 312:24;361:6 MMMM 294:16;295:6; 18;215:7,23;216:22;217:7, 228:25;241:24;244:10; manuscripts 316:3 members 245:12 362:12 8;219: I,6,16;220:I,12,20; 246:25;253:7;256:3; many 211:16,21;235:25; Men 195:24;212:22; Modern 313:16 221 :7;222:1 ;223:17;225:3, 280:25;294:3,7;301:24; - 252:2;257:17;265:3; 213:11;289:4;292:25 modernist 193:24 9,20;226:2,9,15,21 ;227:7, 302:2,19;307:24;308:16, 272:11;346:14;348:2 mention 212:14,15; modified 256:8 16;228:13,19;229:3;230:7, 17;309:13,20;3I6: 11; Many 346:18 269:23;351:19 , moment 193:18;197:5; 12;231:4;232:2,18;233:I2, 324:25;326: I9;345:1 0 March 226:7;238:7,14; mentioned 219:18; 208:8,19;218:1 ;227:1 i; 17,24;234:2,8,I3;235:9; Look 193:24;203: I; 239:3,6;241 :24;253:11,11; 275: 13,22;290:3;328:14; 228:3;279: 17;303:20; 236:14,21 ;237:2;243:13, 218:25;303:22;309: 18 257:8,19;289:10;291:2,4; 344:12 31 I:19;349:18;356:23; 14;244:6,25;245: I0; looked 21 1:2;220:4,7,8; 305:20;309: I4 merely 203:21 ;234:5; 360:5,22 248:10,14;252:9,18;253:4; 307:24;343:22 Marion 200:14;208:2 236:23;304:) 4 morietary261:13;292: I0, 254:25;259:8,21 ;260: 18; looking 209:23;277:16; . marked 253:17;301:3 message 311 :23 , II 263:21,22;264:8;265:12; 294:23;305:13 market 293:20,20,21,22; met 321 :2,10 money 261:7,7,12;356:19 267:1;268:8;275:8,12;' Looking 239:21 341:15 methodology 308:24 Moriity 212:14 277: 19,21 ;278:4,1 0,12,16; losing 328:18 marketing 339:12;341 :2, Michael 323:I3;325:4; month 309:16;333:9 279:10;282:14,19;283:16; lost 245:11 ;246: 13;280:2, 17,18;342:2;349:2 326:7;328:21;330:23; months 284:5;315:4; 286:25;287:21 ;25;289:15; 6;304: 18;324: II ;334:4,12; married 272:23 331: I;333:23;335: 13,14; 328:4;333:I0, 290: 14;293:21 ;298:4; 354:3 Married 212:22;213:11; 337:8;339:6;34.1: I;350: II moral 304:15 299:21 ;300:6,12,19; Lost 244:7,25;287:25; 292:25 Mickus 352:2;361:7,9 more 201:1;214:5;230:24; 301 :25;303:1 ,3,11 ;304:5, 289:16;303:11 ;333:20; Maslow 288:11 MICKUS 313:6;317:1,13; 235:4;246: I0,13;248:20; 17,24;308:11;310:8;311:1 ; 340:14, mass 293:19 320:4;322:16,20,22; 249: I,17;250: I0;251 :22; 321:4;322:11;324:1 I; lot 224:1 ;235:2;274:14; master 258:6,6;262:21; 327:18,20;335:1,4,7; 263:9;275:16;293:23; 333:20;334:3;335:17,21 ; 284:3 308:3 342: I0;344: 19;347:4; 318:7,8,12;320:16,19,20, 338:13, I8;340:14;350:25 love 243:4;275:25 material 220:7,8;246:20; 348:9;349:18;350:7;352:I; 21 ;325:24;326:3;327:9,10; mumble 320:2 Love 212:15 295:18,24;318:19;320:23; 355: 17;357:3;360:3 329: 14;330:22;332:2,8,12; must 262:25;292:23; Ls295:2 34'.5: 18;346:5;353:7;355:5; Mickus's 358:25 336:13;337:19;342:20; 317:18;328:1 lunch 298: 13 356:16;357:20,21;358:2,3; microfilms 283:19 346:20;348:2,19,21 ;350:8; myself 31 0:22 Lunch~on 298: 15 359:9. ' microphone 313:3 360:3' materials 332:13 middle 318:17 More 349:5,6 N M matter 242:24 ' might 194:4;212:9; Morely 289:20;291 :10 may 251 :9;254:9,22; 223:21 ;224: I;243:9,9; morning 275:1;299:6; NAACP 253:8,14;255:18; Madonna 200:13,16 259)5;265:21 ;275:2,4; 249:7,8,9,11 ;272:15;273:3, 301:2;302:24;308:13,23; 257:10;259:10,11,19,25; magazine286:I,4,7 281 :'2,7;293:1;299:3; 21,21 ;275:16;354:22 360:18 260:2,4,11,14,21 ;261 :1,12, MagazIne 200:23;272:19; 318:12;322:20;347:4; Millman 323: I3;325:4; ,most 207: 14;2lJ :21; 23;262: I,14;263:1 0; 285:23 349:18,19 326:7,14,17;328:21 ; 220:3;248:22;249:1,16; 264: I0,21 ,24;265:4,6,15, magazines 246:10; May 208:8;217:22;224:13; 330:23;331:1,5,25;332: I0, 250:12,14,23;269:16; 16,17,:23;266: I0,13,24; 248:21;250: 11 ;283:25; 229:16;290:3;291 :21 16;333:23;335:13,14; 271:21,23,25;273:15,16; 267:2,5,13,17;268:13; 286:8;354: II maybe 21 1:24;219:10 337:8,17;338:2,9;339:7; ,288:23,23;309:11;325:18 269:18,24,24;273:13,20; main 261:2 Maybe 281:4 341:1;350:11,25 move 217:20;262:25; 278:6;281:15;291 :5;292:4; Maine 276:8;295:20 Meade 208:2,21;209:8,15; Millman's 323:16;335:25 263:17;264:3;265:19; 2%:4,7,10,25;297:7; mainly 323:20;354:16 210:11,21 mind 221 :20;263:5; 313:2;3 I7: 1;320: I3; 305:20,25;306:2,22;307:5, mains 268:4 mean 2I1 :24;287:3; 269:25;296: I 325:12;327:18;338:23; 13,18,21 makes 215:1 6;297:18; 308:19;324:20;329:5; minds 226:U 342:10;344:19;348:9 NAACP/Silverstein 345:16 341:17;346:14,15;348:23; mine 220:8;266:7 . moved 336:23' 253:10 making 196:14,20; 351:7,10,10;359:8 ' Mine223:3 moves 322:16 NAACP's 268:17;273:24 331:15;354:5 meaning 200:11;249:23 minor 223:21 movie 275:23 name 206: 18;209:18;

TRIAL Min-U-Script® (9) Literature - name STUART Y. SILVERSTEIN v. July 18, 2007 PENGUIN PUTMAN, INC.

211 :24;219:4,14,23;224:4; 255:1,2 344:20;348: 11 ;359:2,2 276:21 ;277:4;278:14; ought 290:5 233:10,15,25;234:10; None 253:5,6 Objection 194:24,25; 285:7;287:19;289:10; ours 194:18 235:7;236:19;254:23; , nonetheless 344:17 202:21 ;286:22;324:22; 291 :19;292:-20;293:13; out 213:17,25;214:12,19; 264:18;272:22;352:21,22 nonexclusion 197:23 341:7,8;355:17;357:14,15; 294:25;295:14;296:3; 215:7,23;216:2,5,19;217:5, Name 252:15;253:2 nonexclusive 259:20; 358:5,14,20 298:9;301 :14;302:19; 16;219:6,16;220:1,12,19; namely 295:24 260:17;265: 15;290:14; ,objections 359:25 303:24;309:21 ;313:3; 221 :6,20;222:1 ;233:1 ,12, names 220: I 0;255:21; 295:9 objective 198:9 317:7,15;327:21;329:24; 16;234:2,12;235:8;243:14; 272:10,24 nonfiction 313:18 obligation 261 :23 342:9;348:21 ;353:1,18 246:12;247:8;249:5; Nash 194:9;205:24; non-free 199:4 observed 284:16 old 241 :2;283:18;293:7 252:,17;253:4;254:25; 206:21 ;207:7,23;274:6; nonpoem 199:4 obstacles 360:12 older 315:5 264:20;266:13;273:2; 301:8,11,16 nonpoems 203:4,9,13; obtained 32f:3 omitted 198:23 275:12,24;276:18,23; National 269: 17 204:22;205:5 obtaining 320:24;359:I 7, orice 263:9;271 :6;342:7 288:1 ;301 :10,14;304:20; natural 249:23;283:14 nonresponsive 264:4 20 one 195:17;196:10;197:6, 305:I 3;338:I 8;340: 11 ,17; nature 201 :20;325:17; nonselection 197:9,21, obvious 326:19 7;198: I2;200:19;201:5; 342:18;344:7,7 337:24 22 obviously 202: I 1; 203: 1;205:18;207:14; Out 219:13 nearly 256:7 noontime 360:16 203:17;212:3,10;224:9; 212:12;217:7;235:4;237:9; outer 304:14 necessarily 207: 11 ; nor 242:6 355:1 244:22;247:3,12;258:6; outside 336:13;338:7 223:24;325:12;333:7,11; normally 353:5,6;356:11 Obviously 229:23;342: I7 261:15;267:18;268:7; over 193:14;207:18; 356:8;357:12 notation 335:1 occasion 201:5;202:15 270:23;273:3;275:22,~5; 231 :6;246:13;296:9;319:4, necessary 216:5;320:24; note 242:3,5;257:23,25 Occasionally272:18 279:22;280:5,24;284:4,13; 17 353:10,12,13,14;358:13, nQtes 356:16 occasions 202: 11 286:9;287:16;289:19; overall 348:19,22;349:4 16;359:18,21 notice 303:13;304:21; October 245:20;269:3; 290:3;297:14;299:19; overlooked 299:6 Ned 253:12;257:9,17; 308:6;316:3,4;318:24; 333:15;334:7;335:10,15; , 303:20;308:9;309:4,5,6; overruled 194:25;341:8; 281 :14;291:2;292:14; 320:9;324:15,19,24; 353:21 311:]9;312:2;316:8,11,12; 357:15 306:20 355:14;356:1,3,4 off 212:16;220:15 318:12;320:16,21 ;323:9; oversee 340:8 need 193:4;237:17; notices 263:15,16;308:4 offer 199:10,19;206:4; 330:21,22;333:8,13; oversight 232:8 287:24;298:8;305:11; notwithstandklg 318:9 208:5;217:20;218:17; 341:20;343:13;348:24; oversimplification 319:10;333:6;359:11,12 November 289:19;?91 :9; 231 :13;235:12;243:19; 349:22;356:23;357:8;359:4 207:]8 needed 318:6;352:14 295:21 245:17;258:13;269:2; One 245:19,19;279:16; own 214:4,14;220:22; needs 269: 1;329:2 nugget 284:11 273:7;274:8;277:8,10; 306:13;313:16 225:8;226:14;230:9,17; negative 204:8;350:2; number 193:12;209:20; 278:14;279:12;281 :5,2:?; ones 212:9,19;213:20,22; 242:11;263:5;265:8,24; 351:8 2I0:2,8,1 7;213:8;222:19; 282:24;285:10;286:16; 2]6:19;234:7;248:25; 266:3,6;269:20;271:3; neither 242:5 253:1 5;255:23,24;256:23; 288:13;290:21 ;294:]5; 249:15;252:21 ;265:3; 272:5;287:25;288:6; nest 225:25 257:7;274:10;279:2; 298:9;330:18;33I:15, 15, 274:3;346:7 326:24;328:19;335:16 new 202:20;243:6;286:7; 280: I 2;281:2,6,25;285:I 3; 17;334:1 1;336:13 one-time 261 :14 owner 255:20;260:1I; 315:2;324:3;328:17; 294:9;310:5,8,24;311 :3; offered 276:12;290:17, only 195:5;208:18;212:19; 264:24;307:I 8 339: I 2;340:2;342:1 8,22; 316:19 18;331:22 225:3,8,20;226: I 0,15,18, ownership 316:5,9; 343:2,5,5;345:8;346:19,20, numbered 218:7;223:1,4; offering 236:4;237:20; 20;227:6;232:20;234:7; 357:13,21 24 ! 310:1 242: I 5;245:23;274:21; 244:19;265:15;295:9,19, owns 268:13;269:18 New 272:16;273:4;283:21; numbers ]93:15;209:21; 278:21 ;285:1 6 24;299:19;308:11 ;337:18; 284:1,1 ;286:1 ,4,10,12; 223:3;253:16;3I 0:12,]7, offers 319:16;334:23 356:11 p 289: 12,18;290:4;291 :8,21; 20;3Jl:8,14 offhand 212:7 0000 253:18;296:12 321:12;322:1 ;338:20; numerous'333: 19 office 3] 1:23;323:4 open 341:19;357:5 page 198:22;]99: 13; 343:7;347:13;358:8 offices 321:12;322:1 opea:-ation 265:7 200:2,4,8,24;206:15; , News 289:1 0 often 1'00:20,22;272:17; opinion 201:15;202:19; 208:16,25;209:11,17,20, newspaper251 :23 286:12 203:9;309:2,2,3;335:25 23,24;210:17;21 1:2,5; newspapets 248:21; oath 310:20;31 I:lJ,13 Ogden 194:9;205:24; opposed 326:4;327:10; 213:6,8;218:7,8;222:24; 250:lJ object 31 9:21 ;345:21; 206:2I ;207:7,23;274:6; 332:3;342:21 ;348:20; 223:1,3;229:5;7;230:15; next 216:18:271:I 6;280:1; 346:9;359:22 301 :8,i I 349:7;357:18 231 :24;236:12;242:2; 288:18;298:16;303:19; objected 218:20;287:17; OK 194:3,14;195:3,8,]5, oranges 270:13 244:3,]4,16;245:7;246:4,8; 304:22;317:23;333:]0;' 358:24,25 ] 9;.196:20; 199: 17,25; order 203:21 ;297: 15; 247:2,15,23,24;250:7; 334:lJ,23 ' objecting 359:1,2 201: 11;203:9,] 6;204:2,5, 341 :15;358:] 8 251:3,4,]4,]4;252:]; Next222:6;227:2;264:7; objection ] 99:20,22; ]0;206:20;207:6;209:23; ordinarily 352:13 255:10;256:3;259:23; 270:16;278:3;358:]0, 206:8;208:7,] 3;218:19,21; 21 0:8,20;2] 2:1,5,25; original 198:15;209:5; ,269:9;270:25;271:I 2; nice 360:18 231:19;236:7;237:25; 2]3:14;216:15;217:19; 224:3;225:21,22;230:22; 273:13;279:2;283:11; nicer 290:5 238:2;243:24;245:21 ; 218:1] ;219:4;224:8,17,19; 262:23;286:9;297:6,9; 288:18;289:20;290:4; nine 279:12;282:14 257:11;258:1'6,20;269:5,6; 230:4,19;238:24;239:15, 302:12;308:1] ;310:16 293:15;298:16;301:22; NMF 268:12,15;304:21 274: 17,22;277:15;278:22; 21 ;243:18;244:12,] 6; originally 224:2;268:8; 302:2,11,17;303:5,8; NNNN 295:13 279:15,17;282:4,8;283:2,5; 246:3,8;247:7,7;250:21 ; 282:15 304:12;308:2;309:25; nobody 358:24,25 284:16;286:19,20;287:13, 252:6,9;255:3,4,8;256:I 7, others 212:17;214:5; 31 7:9,lJ ;318:17;324:1 1; ~. nominal 356:II ' 17;288:I 5;290:22;294:22; 24;257:4;258:I 1;259:4,1 5; 264:1 ;349:3;354: 15 342:23;343:3,8,8;344:23; noncollected 220:4 295:4;297:25;298:5;317:6; 261:10, I 9;263: 19;265:14; otherwise 250:22;305:6; 345:6 none 232:13;235:10; 3I 9:22;322: I 9;342:I 2; 268:2;27I:10;273:2; 338:21 Page 223:2;271 :I 0;36I :2

Name - Page (10) Min-U-Script® ' , TRIAL STUARTY. SD..NERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007

pages 208:18;209:12; 350:17,18,21 ;351 :15,16; Penguin's 266:8,9;268:6; pine-scented 297:13 211:10;213:20,21;214:19; 210:2;223:4,7;268:8,1 0; 352:I2;353:1 3,1 9;354:8,9, 318:13;3I9:1 ;334:8; place 280:5;303:8;319:5; 216:3,23;217:4,9,13,18; 274:2;276:8;287:7,10; 25;355:5 340:17;341:5,15;345:14; 322:25 219:1,5,10,15,25;220:8,11, 295:20;304:20;324:13; Parker's 213: 11 ;223: I 1; 346:4;350:9;351 :3 placed 204:13;304:5 18,21 ;221 :6,24;223:11; 338: 18;357:8 225:2,8;226:14;227:6; people 201 :7;213:21; placing 303:13 225:2,8;226:14;227:6; paid 260:25;261:7,12; 228:23;229:12;230:8,16; 271 :21 ,23,25;333:5;342:8, plagiarism 284:6 228:23;229;12;230:16; 292:7;298:4;356: 18,21 232:4,6;244:23;245:3; 17 plaintiff222: 14;237:12; 233:11,15;234:1,5,l}; paper 257:21 246:17;247:4,20;248:2; People 269:18 310:25;312:25 235:8;243:15;244:20,21 ; paperback 231 :5;250:3 251 :22;252:16;253:2; peoples 230:9 Plaintiff 322:16 245:10;246:10,15;247:18, paperbacks 313:11,14; 254:24;255: 19;256:25; per 257:17,24;275:1; PLAINTIFF 361:10 25;248:20,24;249:6,8,9,12, 314:16 257:2,22;259: I0;262:2,4, 289: 14;292:12 plaintiffs 237:22;281:3 14;250: I0,I4,23;252:2,17; Paperbacks 313:I5,16 15,17;263:12,13;268:9,14, Per 279:21 plaintiffs238:I9;241:25; 253:3;254:16,18,24;255:3, paragraph218:25;226:5, 18;269:16;270:1;275:24; percent 318:8, I0;320:20; , 274:13;297:24;305: 15 19;256: 18;257:1,2,20,22; 6,7,8;232:23,24;236:11,11, 280:2,17;281:16;288:23; 358:24 Plaintiffs 327:18 259:9,10;260:5;262:2,4,9, 12,22;238:12;239:13, 16; 296:20,22;302:14;305:23; perfectly217:15;230:23; Plaintiffs 222:14;224:12, 15,17;263:12,13,21,25; 240:2;241: I0;242:2; 307:20;343:15;352:9,14, 232:24;305:9 14;229:15,17;237:10,10; 264:9,10,14,15,25;265:12, 244:17;245:8;247:2; 17;354:18 perhaps 199:11 ;211 :24; 238:8,22;240:13;248:13; 25;266:4,18,20,25;267:3,6, 255:10,16;256:4,6,11,12; Parkers' 293:1 226:24;272:12;334:I3; 250:3;253:8,9,9;255:8; .17;268:7,14,16;270:13,17, 257:18,24;259:19,23; part 195:6;201 :24;204:18; 354:19 256:3;257:6;259: 16;273:7, 24,24;271 :21 ;273:14,20; 260:8,16;262:17;265:17; _r 205:3;220:3;231 :7;236':22; period 216:17;310:10,12; 9;280: 10,23;290:25; 274: I,1;275:21 ;277:20,23; 269:9;279: I;280:1,8,24; 246:22;266:19;279:5; 311:2 292:16;294:3,6,7;295:I2; 278:5,11 ;279:22;282:14, 282:13;284:17,24,25; 283:22;289:24;308:9,1 I; periodical 207:21;301 :7, 296: 11;297:3;301 :24; 19;283:13;284:9;289:17, 288:18;292:20;293:15; 333:3;338:13;340:5;354:8 16 317:8;331:25;344:22; 24;290:7;292:7;293:6; 294:13;304:11;305:5; Part 317:15 Periodical 206:5,7; 348:13;353:21 ;356:10 299:23;300:4,8,14,21; 307:17;317:17;318:1,16, participate 336:13 207:22;301 :4,1 0 play 272:14 301 :23;302:2,5,8,9,18; 18;327:23,24;328:13; particular 242:5;315:22, permission 257:20; Playing 198: 1;202:7 304:18;305:23;321:7,24; 329:1 ;330:15~334:1 ,11,23; 23;316:5;323:18;342:18 281:18;290:14;291 :5; please 202:5;205:13; 324:11;326:23;328:1,17; 353:25 particularly 242:3; 292:7;307:4;318:5;319:11; 206:13;208:16;213:15; 331 :21;332:2;334:4,4,12, parameters205:2 283: 14;284:2;326:2;332:1 0 352:13,13;358:16,19; 218:25;219:14;222:I0; 13,17,20;335:16, 17;336:I, pardon 194:12;245:19 parties 256:9,13 359:12 233:13,21 ;238:24;240:14; 3;337:9;340:2I,22;341 :5; paren 206:18 partly 326:5 Permission 318:6 255: 10;256:3;257:21,25; 343:16;344:1,11,12; parentheses 224:4 Partly 326:5 permissions 273: 17; 258:25;260:9;266:12; 345:13;352:7,10,11,14,17; Parker 193: 10; 194:8,9; passage 251 :13 305:22;317:24;319:19; 279:21 ;297:3;307:25; 353:19;354:2,3,9,17,20,21, 200: 11,17;201 :4,5;204:4, passages 251 :I 320:25;334:13;353:10, 12, , 317:9;318:1,17;320:4; 22 11 ;206:17,21 ;208:1; passed 328:5 12,14;358:4,13;359:15,18, 327:14,23;328:12;329:22; Poems 201 :25;202:4; 209:18;210:5,9;212:22; passes 288:19;289:5 21 333:15;339:1;341 :20; 203:16,25;204:1,4,10,14; 213:17,22,25;214:2,11,19; Passionate 212:15 Permissjons 317: 16 343:13;344:23;360:5,22 232:5;244:7,25;245:11; 215:6,9,23;216:4,20,23; past 330:4 permit 254:21 Please 205:14;213:6; 265:9,9;266:11,14,25; 217:10,14,18;219:6,15,25; pay 232:21;261 :17; permitted 359:25 225:1 ;227:4;231 :25;232:5; 287:25;289:16;303: II; 220:12,19;221 :2,24; 345:19,25 person 324:18;326:19; 242:3,5,11 ;252:24;257:23; 333:20;334:8;336:14,24; 222:12;233:11,16;234:1, payment 261 :2,5,14; 353:9 268:22;269: I0, 12,15; 337:6,14,24;338:3,7,14; 12;235:8;236:16,20;25; 265:25;292:4;296:18 personal 214:4,14 270:25;282:18;296:18; 339:6;340:14,17,20;341:1, 237:3,4;243:I6;244:7; payments 310:25 perverse 227:9 301 :24;304:22;306:10 2,5,13,15;343:11,20; 245:1,2,11,13;246:9; PO 329:2,5 Peter 243:22;244:3;282:2; plus 225:21,23,24;233:24 344:11,24;345:12,14; , 248:20;249:11,13;250:10; , pen,z72:10 293:1 7;329:25;331: 14; pm 299:2 348:I5;350:9,1 0,f6;351:3, 252:0,13;255:3;757:20; Penguin201 :12,19,2.1, 333:16;336:21;353:22 poem194:22;202:18,19; 14,24;352:8,19;353:3,i3 260:6;263:22;264:10,20, 24;202:1 ;203:16;204:22, Pettinga 292:18;293:4, 206:23;207:4,7,23;210:12, poet 354:22 25;265:7;266:21;267:17; 23;205:5,22,23;233:I; 10;294:17 14;212:22;213:10,11,16, , poetry 21 0:2,5,8,15,1 8, 269:25;270:7,17;271 :3; 265:8,9;266:5,7,10,14,23, PhOs272:1 24;214:1,11;215:6,9,23; 20;244:23;245:2;246:12, 272:5,11;273:14;274:6; 24;267:2,4,11,12,13;305:8; phone 226:5 216:1,20;219:20;220:5; 17;247:4,21;248:2,23; 275:3,11,23;276:7,25; 313:21,24;314:16;315:18; photocopied 202:1; 221 :13,14;222:5;236:15, 250:13;268:18;269:17,25; 277:5,20,24;278:5,11 ; 316:14,18,23;317:10; 358:2,7,11, 20,25;237:3;252:10,13; 270: 1,2,4,7,9;271 :4,6,7; 279:23;281 :20;287:2,11, 318:25;319:5;320:10;23; photocopy 267:8 255:20,21,25;264:19,23; 272:6;275:4,4,11,15;276:2; 24;25;288: 1;289:16;17; , 323:9,11,19,20;324:3,19; photocopying 266:7,8 272:2;275: 11;276:6; - 280:2,6;288:24;318: I2; 290:8;29i :8,21,25;292:22; 325:7;326:11;327:9; phrase 195:15;274:1; 281 :19;288:23;289:1,7,9, 320:8,21 ;343:15;354:1 I, 295:19,23;297:17,20; 328:22;329:2;331:15,1 7, 300:2 23;290:7,9;291 :7,12,14,16, 18,18 299:23;300:8,15,21 ; 21;332: 1,14;334:20,23; phrases 215:18 20,24;292:8,12;297: 10, 16, point 207:19;217:7; 301:19;302:4,16;303:11; 335:15;336:23;340:2; physical 296:5 19;301 :11,18;304:8;327:10 248: 10;334:7;335:18; 304:9,19;307:5;321 :7,24; 341 :21 ,24;342:20;344:14; picture 286:7 Poem 237:4 348:24;351 :4 324:12;326:19;327:25; 345:16,19;346:8,17; piece 213:9;232:5;302:4 poem/nonpoem205:19 pointed 301:10,14 331 :21 ;333:20;336:5,5; 348:25;349:9,I0,1 3; pieces 246:14;247:18,24; poems 193:9,13,17; points 242:8,21 ;246:6; 337:10,10;340: 15,22,23; 351:.1 9;354:24;355:2; 248:23;250:12;283:23 196:3,18;203:11,18; 268:4 341 :17,18;343:21;344:1; 35,6:13,14 Piggledy 198:3 204:22,23;205:6;207:14; policies 318:13;319:1

TRIAL Min~U-Script® (11) pages - policies STUART Y. Sll.-VERSTEIN v. July 18,2007 PENGUlNPUTMAN, INC. politely 289:21 19;344: 1,5;345:3;350:14, protection 196:9;197)7; 307:6;308:17 279:16;281 :7;282:5;8; pool 219:2,5,7,12,14,14, 17,18,21 ;351 :15,16,18,20 319:19 purposes 308:20;315:8,8 283:2;286:17,20;287:15, 19,23;24;220:II Previously 232:4 provide 231:25;255:18; pursue 315:6,25;328:23; 18;288:15;290:22;294:9, pop 337:15 primarily 317: 19 256:25;257: 1;258:1 ;262:4, 332:1;333:3 23;295:2,4;298:5;299:9; ~~ popular 200:15;246:1 0; primary 268: 17 18;263:14;288:3;296:22; pursuing 315:22;323:6; 300:24;30I:I ;305:17; " 248:21;250:11;304:16 prihcipaI264:24;269:20 304:21,22;309:10;350:24 331:12 311:17,20;312:10,18; Porch 195:8,22 principles 319:9 provided 257:4;259: I 0; put 196: 12;203:8,21; 360:20 Portable 287:24;354:7; print 246:13;293:16; 261 :23;264:10,21 ;278:6; 208:4;210:24;214:7; Rachel 347:11 355:1 353:17 296:20;298:3;307:20,22 215:20;216:2,25;217:6; raised 350:13;351 :3,23 portion 209:1 ;243:13 printed 310:8 Provided 255:16 219:24;222:13;224:4,5; Randolph 200:12 pos,tion 236:6;294:25; prior 322: I ;326:6;336:24 provides 225:-2,7;226:13; 228:16;237:12,15,17; Random 313:9)5i 20; 313:10,13;349:13,14 Prior 313:20 227:5 250:9;252:25;258:15; 314:8 possibility 239:17;240:5; probably 240:23;264: 13; providing 356:16 268:II;270: I 0;272:20,20; range 354:18 241:13;265:18 269: 16;332:7;333: I ,2; provisoes 359:II 275: 16,20;287:1;290:25; rate 345:16 possible.219:2;286:3; 339:8;349:3;353:I 0;354:20 pseudonyms 272: II 297:23;298:8;300:2;353:7; rather 193:17;328:15; 306:12;318:21 ;325:14,16 Probably 323:17;324:8; -public 249: 1,16;309:12; 356:7 332:1;334:3;354:2 possibly 267:11 ;289:22 32~:5,5;333:14 319:7,8,10,13;329:11; Put 201:22;215:15,18; rats 225:25 Possil>ly336:22 problem 225:16;235:24; 345:17,18,23,24;346:5; 241:9 re 242:8 Post213:12;265:2; 281 :12;283:24 356:2,8;359: I 0,14 putting 193:18;212:1; read 193:1;205:12;14,15; 272: 15;273:22;283:24; problems 316:10 Public 329:6 341 :25;342: I ,6;353:8; 211 :2,5;213:17;216:13,14; 292:18;294:18;295:10 _ proceed 222:21 ;299:3; publication 225:2,7; 356:16 222:11 ;224:21 ;225:4,13; posting 282:25 329:14;335:20,21 ,21 226: 13;227:5;255:17,22; 226:13;17,25;227:10,12; potential 316:9;324:3 process 207: 18;293: 18 257:23;278:16;307:22; Q 228:14;232:2,9;235:4; PPPP 253:18;297:4 produced 315:11 336:25;337:23;338:3; 236:14,17;239:15,19; practice 356:12 - producing 344:15; 339:16;350:9;351 :3 QQQQ 222:15,17 240:4;242:5,13,23;243:13; preceding 236:22;278:9; 345:22,24 publications 255:21 quadruple 278:21; 244:16;245:5;246:8,18; 280:8 product 282:22 _publicity 349:2 285: 12;309:20 247:2,21 ;248:2,19,19; precisely238:9;257:3; production-314:17; publicly 303:14 Quadruple 278: 19 249:2,24;250:7,15;251:1, 308:24 346:2;351 :2 publish 260:5,7,15;265:8, quarrel 197:5 13,24;252:7,23;254:15,19, preface 215:13 Professor 200:4;202:15; 24;266: I 0,14,24;267:2,17; question-and-answer 21 ;255: 16;256:I ,9,15; prefaced 200:24 338:6,9,12 327:I 0;334:2,20;352:14; 283:1 258:3;259:24;260:2,9; prefer 327:9 profit 345:16 354:1,9 questionnaire 237:8; 263:23;268:3,3,21,23,23; preferences 214:5,14 profitable 315:7;346:7,8, published 207:8,16; 238:6,16;239:9,22;240:10, 269:21 ;270:1,25;272:8; preparation 268:12; 20 210:21 ;223:17;224:2; 21 ;241 :4,18;242:6,16; 273:18;275:5;279:24; 317:17;338:2;339:5;340:5 program 326:25;348: 19, 229:2,11 ;231 :4;232:7; 243:7,8 283:12,13;284:12,17,19, prepare 310:3,14,16 22 255:22;259:9;264:8;266:4, questionnaires 302:24; 22,24,25;294:6;296:1 ; prepared 198:16;245:4; prohibits 320: 18 7,8;268:9;285:25;286:4; 308:14 297:9;304:11;306:10,11; 268: 15;311 :3,9;330: 17 project 315:23,23,25; 313: 15;315:3,19;336: 16; quibble 207:20 318:1,18;320:4,5,17;322:5, preparing 289":15;307:7 324:3;325:11,13,23;326:4; 338:13,18;339:8,11; quibbling 247:11 6;327:23;328:12;338:25; present 262:14;310:10; 333: 19;335:20;336:24; 340: 14,21 ;342:7;343:16; quite 194:1;200:15,19,22; 339:2;343:13;349:21 ,24; 311 :2;323:21 ;354: 17 337:6;339:7;354:24;358:I 350:11;351:24;355:11; 203:17;214:9;247:11; 355:23,25;356:1 presented 323:5;324:2; projects 330:3 356:14,17 253:21 Read 216: I 0;222: I 0; 325:3;332:25;333:4,13 prologue 198:21;217:1; publisher 240:21 ;242: 16; quotations 318:21 306:7 presently313:7 242:6,8;244:7;303:4; 243:6,7,12;269:24;299:7; quote 223: I 0;224:21; Reader 272:25;273:2; Present~ 348:25: 322:10 302:17;313:11;314: I ,8; 245:10;293:16 286:25 president313:11 promote 309:II;341 :12 315:3,10;318:23;328:24; quoted 244:21;246:15; readers 318:20. Presidib313:16 promoted 314:25;315:1; 332:9;353:16i I6;358:2 247:19,25;347:1 2;348:1 Reader's 206:5,7;207:3, pressed286:18 - 339:24;349:13 Publisher 323:24 quotes 347:15 ·8,12,'12,16,17,19,21 ;301:4 presumably 250:7· .- promoting 242:17; publishers 31 0: i 9; quoting 320:18 _ reading 196:2;207:3; presumption 249:19 348:17 311:10,12 232: 15;242:22;256:6; . prete)i[t 305:8 . promotion 339:12;341:1; publishing 265:7;293: 18; R 279:16;283:12;333:5 prettY306:4 346:24;350:13 307:9,12;326:23,24; reads 218:25;223:13; prevIous 225;2J ;234:4, promotional 242:18; 328: 19;332:3;336:2;337:3, Rabinowitz 231:16; 227:4,4;7,8,11,12,13,13; 15;252:4,5;254:4,8 308:20;309:3 7,12,15;339:5;355:9; 236:6;287: 16;294:22; 228:I ,24,24;229:8,10; - previOUSly 193:17;196:3; proof 329:12 357:23 299:8;361:5 235:20;241 :12;242:25,25; 211:9;214:22;219:8,8,18; proposal 327:8 Publishing 313:9 RABINOWITZ 194:24; 244:19;247:i7;251 :20; 220:15,18;221 :6,15; proposed 229:21 pull 334:12 199:14,24;202:21 ;206: I 0; 257:17;269: 12;273:13; -- 233:24;234:6;252: 14,21; proprietor 318:22 pulled 354:13;355:10 208:8,II;13;217:23;218:1, 274:23;282:13;289:4,14; 262:8;264:23;266:22; prose 199:2;200:7; purchase 331 :17 4,8,13,15,21 ;223:7;231 :17, 290:4;293:15;303:1 I 268:20;277:24;289:17,24; 202:12,19;213:9;293:2,6; purchasing 338:16 19;236:7;238:2,25;243:25; realize 328:1 290:7;304: 18,19;321 :6,20, 318:7,8;320:-19,20 purport 236:15 245:22;252:19;253:15; really200:25;209:12; B;331:2;336:4;337:9,18, protectable 193:12;22; purports 306:1 257:7,1 1;258:19;269:5; 21 1:8;269:25;270:4,7; W;340:21 ;341 :3;343:17, 194: 15,21 ;196:21 ;197:3 purpose 226:3,4;242:19; 274: 18;277:16;278:23; 285:2;325:22;328: 18;

~olitely - reaDy (12) Min-U-Script® TRIAL STUART Y. SILVERSTEIN v. PENGUIN PUTMAN, INC. July 18,2007

331 :7,20;342:21 ;353:4 Redirect300:23;361 :5,9. repeatedly 277:22 reviewed 340:10;341:3; 246:12;248:23;1:50:13; Really 207:10 REDIRECT 300:25;357:2 rephrase i 96:25;272:18; 348:15 267:18;268:9,20;282:I6; reason 205:19;238:10; refer 222:13;224:12; 303:17 reviews 194:6;211.:8; 301 :21 ;302:12;343:16 259:13;275:12;309:7 227:24;271 :13,17;274:1 ,5; rephrased 305:5 219:9;289: 18;292:8 Rosemary 292:21 reasonable 279:7 280:10;284: 17;289:23; report 201:5;330:10 revise 250:22 Rothschild 206:18; reasoning 354:12 294:14;295:12;296:11 ; reported 333:7 revised 243:6 272:22 reasons 348:6;354:5,14 337; 13;357:21 representations 258:1 rhyme 200:16;275:15 round 245:13 recall 198:20;212:10,14, Refer297:3 reprint 257:20;267:8 rhyming 288:19 row 283:9 16,18,19;240:23~23; reference 268:17;269:20; reprinted 263:22;278:12 Rich 338:20 royalties 261: 17;298:4; 241 :23;243:9;246:24; 276:4;19,23,24;288: 19,22; reprinting 318:4 righU93:1,3,25;195:7,8; 345: 19,25;356:21 259:14;261 :15;264:22; 342:8;343:19,20 reprints 318:20 196:21 ;197:3,12;199:23; royalty31 0: 18,25;3 I 1:7; 273 :21 ,22,23,24;275: I7; referred 200:13;236:24; reproduced 202:2; 202:24;206:11 ;207:13; 346:1 294:2;301 :2,6;308:14; 271 :3,6;272:5;276:1.;280:5; 248: 16;250:6 208: 14,20;213;3;218:12, RRRR 285: 11 ;286: I5; 311 :7;322:13;326:8,10,12; 285:22;286: 12;288:21; reproduction 285:5 16,22;221 :4,23;222:1 ,6; 287:20;362:9 327:6;332:6;336:19;343:24 291 :19;295:23;296:24; republish 320:23 224:18;227:7,25;228:2,4; Rubinstein 234:24 recapitulate 268:4 297:19;298:1;306:23; republished 358:3,12 229:4,5,7;230:19;231 :20; ruefully 250:9 receive 296:19;316:3; 337:12 request 250:21 ;260:20; 233:7;236:3,9;237:13,24; run 293:16 319:24;329:19;350:1,4,5; referring 210:18;226:19; 304:4;305:4;331 :14 238:3;5;239:5,6;240:16,17; running 303:7;315:12; 356:11 227:22;254:15;269:24; reql,lested 269: 19; 244:1 ;245:23;247:8;251 :9; 324:10 received 199:25;200:1; - 294:12;328:4,21,24; 282:18;290:13 253:22,23;255:7,11; Russo 272: 12 206:11,12;208:15;218:22, 333:23;334:2;337:7 . require 202:4 258:16,21 ;260:5,6,10,13, Ryan 236:3;312:20 24;231 :20,21 ;236:9,10; refers 206:25;236:24; required 262:4,6,17; 14;265:24;266:14,24; 238:3,4;244:2;245:24,25; 271: 15;280:17,25;281 :9, 263: 14;358:19;359:15 268:13;269:6;270:1;273:9; S 259:4,5;269:8;274:19,20; 15;291 :7;297:9;343:5; requires 197:20;318:4 . 274:19;275:13;277:17; 27{j:20;277: 17,18;278:24, 357:11,20 reread 231 :22 278:24;280: 15;281 :4, I0, Safe 198:1;202:7 25;279:19;282:10;283:6,7; reflect 295:8 research 245: 12;251 :21; 12,22;282:6,6,9;283:5; sale 348:2 287:19,20;288:16,17; reflects 196:8;296:2 252:3;268:12;279:7; 285:12,18,23;287:9,12; sales 245: 18;246:4;248:5, 290:23,24;295:6,9;298:6,7; reformulate 263:4 282: 14;22;293:5;333:5 288: 16;290:23;295:5; 5;298:4;311:1;339:25 299:11;310:18,19,25; refresh 322:24 reservation 259:23 298:6;299:8,10,15;301:12; same 194:3,10;195:9; 311:5;317:7,8;322:2,5; refusal 197:9 Reservation 259:24 303:3,21 ;304:5,9;305:21, 198:3,5;200:20;221:19;' 324:15;328:5,9;329:7; refused 232:22 reserved 260:1 23;306:25;307:21 ;308:2; 222: 16;228:14,16;231 :6; 342:14;343:24;344:22; regard 265:10,11;273:23; resolution 326:22 309:16;312:6;314:4,12; 238:22;242:24;247:11,23; 345:10;348:13;349:14; 275:14;314:20;320:16; resort 276:8 315: 1,8,20;316:6,I0;319:5, 264:16;265:14;266:4; 350:14;351 :17;357:5 328:22;331 :14;335:24; responded 234:9 20;320:25;321 :8,21 ;324:4; 278:8,13;283:24;294:7; Received 244:1;269:6; 348:14;349:11,15;350:12 response 329: 19;330:6 329:3,15,17;330:4,7,13; 300:16,16;303:8;344:12, 279: 18;282:9;295:5; regarding 224:25;225: 17, responses 268:6 331: 12;332:21 ;334:5,9,15, 24;347:22;348:6 299:10,15;342:13;344:21 ; 18;232: 19~234: 15;350:20 responsibilities 313: 12; 21 ;336:6,10,14,25;337:11, Same 209:14;291:23; 348:12;361:11,16 Regarding 232:23 315: 15;316:8,13;332:17; 21,25;338:4,19;339:25; 300:16 receiving 322:13 registration 255:24 339: 11 ;348:i 7;353:2;359:4 340:3,23;341: 16;343:21; San 200:12 recess 234:24;251:6; regrets 232:8 responsibility 340:5; 344:2,8;345:4,8;346:16; satire 286:4 298:15;312:1 ,7,9,19 related 321 :20 356:17 347:16,24;348:4;349:16; satisfaction 235:1 Re.cess 251 :8;312:21 relating 253:8;269:23 responsible 232:9; 350:3,18;351 :5,9,21,24; Saturday206:25;213:12; recognize307:14; relatic;m 228:17;330:12 313:14;314:20;315:16; . 352:1,3;357:1,9,13,24; 265:1;272:15;273:22; . 316:21 ;327:16;341:20; relevant208:4 323:18;325:13,14,16,21; 359:5,21;360:2,14,15 283:24;292:18;294: ~ 8; 347:6;359:5 relt;J:ctalitly290:9' 342:6;353:6;356:J 5 . Right 221 :22;242:2;350:3; .295:9 recognizes 260:II; rely242:17 responsive 214:17; 352:10 save 196:2 307:18 relying'334:18 216:8,9;220:6;233:8;235:3; right-hand 343:10 saving 280:9 recognizing 260:14; remained 246:J 3 278:1 rights 193:8;195:3,13,16; saw 200:13;209:4;213:9; 359:7 remaining 248:24;249:6, rest 218:9;231:10 196:] 7;259:24,25;260:7, 337:6,23;350:J 0 recollection 241 :3; 24;250:1,1,14,23 restate 205:11 20;265:2,15,16;267:3; saying 195:11,17,19,22, 243: I0;259:13;293:8,12; Rem~ining 249:25 result 339:15 268:14;295:9;307:14 24;1 96:5,J 0,14,18;197:19; 297:18;322:24 remaiming 249:14. resulting 226:1 right's 318:i2 198:1,3,5,7;200:24;214:13; recommended 287:22 . remember 212: 16; resume 298:13 Rights 259:24 220:2,3,7;230:20;254:6,7; record 232:21 ;237:18; 220:18;221 :7,10;222:2; resumed 251:10;299:16 rip 304:20 258:9;266:2;270:12,14; 253:10,17;254:21 ;255: 18; 273:4;306:14;321:16;354:6 resurrected 246:11 Robert 194:10;208:23; 300:6;324:25;331 :8;348: I; 259:1;273:24;285: i; Remember 263:3;360: 15 retailers 342:15 256: 19,21 ;275:3,25; 359:24 318:18;320:17;343:14 renewal 255:23,24 retrospect 226:23 276:25;280:18;281: 16,20; scandal 284:6 Record 205:15;216:14; renowned 250:14 revealed 268:7 291 :25;295:19,23;297:17, scene 223:10 222: 11 ;306: 11 ;320:5; repeat 214:25;230:13; revelation 245:3 20 schedule 337:3,7,13.;15, 339:2;349:24;355:25 233:13;266:12;309:19; . review 286:24;287:21; . robing 360:21 23;339:5,16;350:9 records 269:20;293:3,6 320:2;355:22 290: 1,10;291 :7,12,15,17, role 331:16 scheduling 314:16 recross 311 :18 Repeat 215:2,4 20;347:13 room 312:1;360:21 . scholars 244:20;246:15; redirect 234:24;357:1 repeated 222:9 Review 206:25 Rope 207:14;232:6; 247:18,25

TRIAL Min-U-Script® (13) Really - scholars STUART Y. SILVERSTEIN v. July 18, 2007 PENGillN PUTMAN, INC.

Schuster250:2 1;304:2; sense 297:] 8;326:24; 257:9;260:4;26] :22; somewhat 348:] 8 344:4;345:2,7 338:13,19;340:14 332:8;334:2;336:2;348:] 9; 262:22;263:] 0,20;264:] 8; somewhere 239:] 8; States 310:9;3] 1:]

Schuster/Silverstein 354: 1,5,5,9 265:23;269:3;270:6; r 240:6;24] :]4 stating 329:13 278:15 sent 229:]6;240:21,24; 272:10;274:9,24;277:] 9; . song]96:22;] 97:4;1 8,23; stationery 277:2 ,( :: scope 356:4 24] :3;275:3;276:25; 279:6,] 3,20;283:] ;285: 19; 214:7;275:]4 status 268:] 8;329:2,5,9; scrambling 225:]5 306:] 9;308:21 ;3] ]:9; 286:24;288:3;289:] ]; sorry 227:] 9;243:22; 330:]2 Screenwriter 212:15 328: 8,] 6;329:20 294: 17;295:8;298:3,] 0; 247:23;251:17;252:6; stay 3]2:]5 Scribner 237:8;238:6,15; sentence 223:9;224:24; 299:] 9;30] :2;302:] 9; 260:24;288:14;300:9 step 312:] 1;360:1] 239:8,2] ;240:20;241:] ,17; 225 :6;226:17;228: 10,22; 303:] 2,22;305:18;308:5; Sorry 202:6;215:3,]4; steps 333:6 242:] 5;243:6,8;244:3; 229: 10;230:6,] 4,15,21,22; 309:22;3]2:] ];321:3,5,]0, 222:] 8;227:3;243:23; Steve 292: 17 246:2] ;247:9;248:6,1]; 233:8;236:] 1,23;247:]7; ]9;322:2,9,25;323:4,8; 259:2;276:] 3;278:20; still 209:23;232: 18; 288:1] ;299:6;304:2,4,16; 295: 18;304:22;307:1 6; 324:12;20;327:] 6;328:9; 294:23;302:7;309: 19; 259:17;287:]3,17;294:23; 307:12;336:17 327:24;328:] 2;333: 18; 329:]9;331:9,] 1,16,22; 3]7:11 319:]2;353: ]6,23;354:20 Scribner's 245:] 8 343:13 332:24;334:11,]9,23; . sort 249:19;349:4;353:8; Still 285:2i search 330: 11 sentences 242:10 335:23;336:12,1 6;345: 11; 354:]0,12 stipulated 299:5 second 209: 17;210: 1; separate.204: 13;220:24, 352:16;353:] 8;357:5,9 soul 250:9 stipulation 277:23;278:8, 245:7;246:8;247:15; 25;286:7;309:] 3 SILVERSTEIN 25] :10; souls 304:] 7 13 282: 13;283:] ];295:18; September 245:20; 299:16;361:3 source 208:2];21 1:25; stop 289:21,22 297:25;300:9;304:] 1; 275:3;281 :20;291 :25; Silverstein's 193:8; 224:25;239:18;240:6; stories 2]9:10;356:2,8 3] 8: 1;324:9;327:22; 297:10 224:] 3;235:13;238: I; 241:]4 story 318:10 328: 12;330:21 ;348:14 seRes 302:23;348:25; 280:1 ];28] :24;288:10; sources 222:24;227:21 ; straight 348:3 section 202:3;204:2,10, 354:11 29] :1;292:] 7;327:] 1; 228:1,9,]1 strange 283:]5 14;212:12;227:] 7,20; session 283:] 328:23;329:7,25;330:13; . Sources 223:6 strategy349:5,6 228:8,20;231:8;245:7; set 223: 10;297:25;318:3; 331:2,18;332:3,12,13,20; speak 212:10;224:9,10; stricken 233:7;339:3 280:2;3] 7:]5,23;342:24; 319:]5;337:19 333:19;335:9;337:18; 259: ]5;309: 17 strike 262:25;264:3; 343:10,20 setting 283:14 341 :4;343:24;344:7,1 0; speaks 229:23;29]: 18, 327:2;331 :16;338:23; secure 273:17 seven 212:8 345:] 3;350:] 4,24;35 1:4,] 8 23;293:7;296: ] 339:19;345:]7;346:] 9; securing 319: 19;358:4, several 2]2:6,]6;226:5; Simeon 200:13 specific 195:12;214:]5; 347:12;349:9 12 227:] 2;232:7;266: ]9,21; similar 250:] 7;273:] 7; 2] 9:] 8;225: 15;238:9; struggling 246:9;250:9 Security3]7:16 276:8;283:25;300:] ;3]7:1 8 349:15 24] :3;259:13;297:] 8;3]]:3. Stu 330:]6 seek 256:24 shall 255: 17;256:7 Simon 250:2];278:]5; specifically 2]2:18,19; Stuart 214:] 0;235:] 5; seem 326:21 shambles 273:24 304:1 ;338:] 3,] 8;340: 13 240:24;259:14;275:] 7 244:8;257:9;262:22;269:3; seems 346:11 share 326:14,16 simple 2]4:9;215:10,12, specifics 225:19 274:9;296:] 7;308:4; seldom.289:4 sheer 233:] 15,]9;222:2 speculate 271 :23 327:]5;329:25;333:] 9 select 196:6,6;197:24; sheet ]96:22;197:4,18,23; simply 207:21 ;215:20; speculative 330:16 STUART 25]:10;299:16; 198:24;202:10;2] 4:2; 214:7;275:14;304:4,6; 224:6;240:23;24] :4; .speech 280:7 361:3 217:1 ],12;249:]2;334:13, 305:5 243:10;265:4;272:21; spoke 306:22;32]:5 student 277:5 19 sheets 245:] 8 273:4,22,23;328:16;337:12 spring 245:19 . stuff 215:]3;220:4;274:]4 selected 197:] 1;]98:8; shelf 342:8 single 220:14;303:5; Squidge 272: 16 style 242:]2 202:3;203:3,5,17;219: 1; shoe 275:19;276:1 333:8 SS 279:13,15,]9;362:6 subject 254:8;257:18; 262:9~263:25;266:] 9; shop 286:25 Sir/madam 224:22 stage 286:]4 308:]2 328:15;33] :20;332:8 short 219:9;286:3;298:11, sisters 270:13 stand 213:9,13;3]7:5 subjective 194:2,7,] 1,13; selecting 197:10;334:17 ]2;304:1 ];318:10 sit 220:18;22] :5,7;222:] stand~alone 327:]]; ]95:5,1 ],13,15,18,20,22, selectionI93:~;194:2,7, show 199:1 1,15;205:20; sitting 283:9 328:23;332:3;334:3;354:1 24;]96:4,6,10,11,15,18; 11,13;14,16;] 95:6;] 3,16; 326:6,9,] ];342:20 six 197:6,1;2]2:8 standard 304: 15 ]97:10,] ],16;]98:8,10; 196:4,6,lS,] 2,19;] 97:8-,] 4, showcase'354:22 . Six-one251 :17 standardized 196:22; 205:21 ;2]4:2;22]:13; 15,16,]7,20,20,21;198:10; showed 30] :3 six-zero 25] :]6,17 197:4,23;214:7;275:14 249:20;250:] 201:13;203:19,20,20; .side 324:18;342:24; Six-zero 251:]8 start 312:8;360:1 6 Subjective ]94:14 204:19,21 ;205:4,16,17,22; 343:] 0;345:7 size 293:]6 started 277:10;283:15,] 8; subjectively]97:25; 265:11;267:5,20;280:] ; signature 306:] ;309:25 slightly 226:23 352:4 2]3:]9;2] 5:8,25;2t6:4; 303:17;357:1 ] signed 256:8;272:19; . slip 232:1,] 1,]4,17; startling 245:3. 249:12,13,] 3;263:25; selections ]95:] 7 28] :1;296:17;305:24 304:24 starts 294:19 264:2;275:20;300:7,20 selective ]95:11;]96:15, Silverstein 200:8;201:3; slowly 328:2,3 state 21 J:5;216:12;224:6; subjectivity.197:] 3,20; 16;205:21,21,2] 206:J3;207:6,20;208:22; small 296:8 262:1,11,14;263:10; 262:24 self-exlilanatory330:10 209:17;210:11;212:20; Society 287:2;292:18; 264:] 3,1 7;291 :6;297:1 6; submitted 308:14;320:7 sen 346:14 213:]4;214:10;217:21 ; 294:18;295:10 329:] ;333:18;334: I.; subrights 325:10 .selling 246:6;248: 10; 219:23;223:15;224:] 5; sold 246:10;310:9 347:18;358:15 subsequent224:1;232:7; 341 :13;347:1 8 225:6;226:12;230:1,6; sole 226:3,4 State 310:1,24 302:12;332:25 semiannual 3]0:10; 231 :2,14,22;232:3,8; solely 226:9;242:18; stated 277:22;331: 19 substantive 233:1

311:2 233:] 0;234:9,18;235:7,16, 308:20 statement 21 3:23;25(}:22 suggest 249:17,24 ·c send 241:3;243:5 25;237:1 ;238:5;243:3,5; somebody 249:7;267:8; statements 225:17; suggested 224:22; ) sending 224:22 244:8,] 2;246:] ;248:9; 325:14,16,24;326:4,18 279:6;310: 18,22;3] 1:7 24] :22;305:4;308:23 senior 323:17;324:1 8,18 249: ]4;252:1 5;253: I3,] 4; someone 309:6;3]7:20 states 29]:16;330:] 6; suited325:24

Schuster -suited (14) Min-U-Script® TRIAL STUARTY. SILVERSTEIN v. PENGUIN PUTMAN,INC. July 18, 2007 sum 356:19 312:]9;321:6 260:] 8;268:8;289:] 5; turns 305: 13 270:3;3] 9:] 6;324:] 9; summary 202:]2 telling 2]9:]7;300:5; 297:24;301:20,2];317:] 5, twice 285:] ;347:19 337:24;350:16;351 :]4,17; summer 329:8 311:23 ' 23;342:24;343:20;347:8 two 194:4,5,8;2] 1:8; 353:1 sums 330:16 ten 223:7;231:6 titles 224:2,3;314:17,24, 2]2: 16;228:17;254:]7; undistributed 232:2; Sunset 246:12;248:23; tendered 218:9 25;325: 18;339:12;340:3; 258:5,23;261:15;270:10; 304:21,24 250: I3;27I:20;343:I6 ten-minute 25] :6;3 I2:6 342:18;343:2,5,5,6,7; 271:] 7;272: 12;278:7; unfortunately 234:18 supervised 338:2 tentatively289:15 345:8;346:19,20,25; 286:7;287:7,10;289: 17; unindexed 284:4 supervising 314:17 terms 250:2;270:10; 347:23;348:7,20 306: I3;315:24;328:4;333:9, unintentionally254: I0 supervisor 314:12; ,273: I7;332: 16;348: 17; today 220:1 8;22] :5,7; type 303:8;316:5;327:6; unit 298:4 323:25 356:12 222:1 ;225:15;268:6,1 9; 347:23';348:15,] 6 United 310:9;3I I:I supplemental 217:21; testified 198:14;209:5; 285:22;360: I5 types 316:9 universe 249:5 297:25;309:22 2I4:6;226:16;231 :2;303:1; together 204:13;258:22; typesetting 303:9 university 209:5 supplied 198:18;242:7, 313:1 267:18;270:1 1;334:12; Tysie 242:9;244:4,5; University295:22 ' 20;246:20;247:9;248:7 testify 287:5 34] :25;342:I,6;343: 16; 269:4;279:14 unknown 249:1,16 supply 242:1 I testifying 265:23;287:3 353:8;354:13;355: 10,1 I; unless 199:15;227:8; support 196:13 testimony 193:11,2 I; 356:7,16 U 230:25;312:7 suppose 356:6 197:2;2]2:21 ;249:21; told 203:3;292:15;307:4 Unless 278:17 supposed 203:7;242:10; , 285:22 tomorrow 360:16,18 ultimate 226:20 unlike 346:19 306:9 Thanks 282: 19 top 262:21 Ultimately 232:22;339:23 unpublished 281: 19; supposing 356:2 - theirs 266:7 topical283:14 um-hum 280:4 291 :24;292:9;297:20 sure 21J:15,17;253:21,22; theme 275:24 total 260:25;261:12;310:7 Um-hum 271:2;314:2; unrequited 275:24 254:5,11,13;257:14;265:1, Theodore 290:4;291:19 toto 195:2;196:18 322:12;329:16 unsigned 237:24 3;268:25;271 :19,25;281 :6; therefore 197:12;237:2; touch 327:25 unclear 296:5 unsold 304:5 296:7;300:11;302:16; 304:19;346:7 toward 239:15;256:11 Unclear 296:5 up 199:8;202:5;205:19; 306:22;314:15;320:1 ]; thinking 202:2;354:6 Tower 283:25 uncollected 193:17; 230:25;232:25;234:25; 324:17;331: 10;332:5; third 244:17;247:2; tracked 209:4 196:3;202:3;204:3;21 I:9; 235:1;250:15,24;251 :14; 349:20;352:25 291 :24;302: I0;329: I; trade 313:1 1,14 213:16,24;214:1 1;215:6, 262:7;266:2,5,6;285:19; Sure 208:]0;231 :18; 334: I;342:23;345:6; Trade 313:15,15 22;2]6:20,23;217:4,9,13; 287:5;305:8;313:3;316:12; 241:1 1;242:1;262:13; 353:25;358:22 trademark 349: I 1 219:5,8,15,25;220:9,11,18; no: 13;327:2;330:21; , 263:8;3 I2:4;313:4;347:5; Third 224:24 trained 349:10 221 :6,24;222:7;236:15,20, 333:8;337:12,15;341 :12; 355:24;356:24 though 228:17;239:17; training 349:14;350:1,4,5 25;237:3;243:]5;244:23; 348: I4;349:1;350,:8;352:7; surprised 337:14 240:5;241: 13;265': I5; transpired 309: 15 246:17;247:4,21 ;248:2; 10;353:9;357:6;359:12 sustain 359:1,2 283:22;296:3 Trial 360:23 252:] 0,] 7;253:3;254:24; upon 198:9;279:7;326:1 sustained 286:22;319:22 'Though 200:14 Tribune 284:1,10 260:5;263:21 ;264:1 9; Upon 1,98:6;200:13 Sustained 202:22; thought 202:4;212:20; Triolet 292:21 265: 12;266:18,20,25; usage 270:10;319:12 324:23;357:16;358:6,17; 214:24;217:24;218:9; Triple 290:23 267:6;273: 15;275: 10; use 195: I5;203:20; 359:23 230:22;232:24,25;258:15; true 221:3;233:5;266:17; 277:20,25;278:4, I I; 242: I1,18;259:20;260:2, swear 31 I:] I,13 268: I2;278:17;280:15; 279:7;344:6 282:15;283:13;289:17,24; 17;261:9;269:20;270:22; sworn 313:1 282:15;290:18;293:23; truncation 280:7 290:7;299:23;300:I4; 290: 14;307:4;318:4,6; SY 303:12;324:12;357:9 305:7,10;322:18;323:5; truth 328:16 304:8,18;321 :7,23;332:2; 319: 17;320: I7,18,22; synonymous 283:23 336:3 try 232:20;234:10;235:6; 336:5;337:10,19,20; 328:20;358:18;359:I 1,15" , three 198:5,7;225:21,23; 263:9;305:11 340:22;341 :4;343:18,1~; 17,20 T 237:7,16;241: 17;242:24; , Try 314:6 344:I,6,11 ;345:3;350:18, Use 312:19 246:II;248:23;250: I2; trying 197:] ;201 :18; 21;351:]6,19;352:11; , used 205:22,23;254:]7; tab 316:]9;322:8;327:14; 252:5;256:18;272::1 2; 208:8;22I:16,20;225:18, 354:22 270:17;272:4,11,12,14,15, 329:22;333:] 5 280:6;292:4;299:5;306: I2, 25;227:9;229:25;230:25; Uncollected 204:4,11; 17,22;273:3;295:10; Tab 327:15 13;309:13,15;331:8;341 :3 231 :17;237:15,21;252:2; 232:5;343:2] 308:22;318:] 9;319: 12; table 194:17;245:13; Three 256:20;308:4; 253:25;254: ]2;258:19; uncover 25 1:21' 338:]3;339:25;359:] 0" 3]2:16;345:11 317:15 268:5;276:18)3;280:8; undated 281 :25 using 292:4;3 I7:20;353:8 tag 272:19 throughout 203: 12; 282:5;285:17,18;309:10 under 194:15;200:5,7; usual 306:5 ' , talk 275:1;328:3;333:9,10; 310:9;311:1 turn 200:2,9;202:7,23; 206:20;210:8;228: I0; usually 315:3;325:10. 334:17 thumb 324:9 205:24;207:25;209:11; 230:7;245:7;261 :2;262:5; utilized 308:25 talked 277:I 1;350: 11 thus 334:18 213:6;238: 12;239:13; 263: 14;308:3;310:20; UUU 282:25;283:7;362:8 talking 230:1 1,12;233:18; Thus 328:18 241: I0;244:16;248:13,16; 31 I:] 1,13;314:17;315:19; 247:1 ;254:4;280:21 ;332:7; times 227:12;300:] 250:3;255:10;257:6; 332:14;345:7;348:16 V 333:1 1;341:1] Times 338:20;347:13; 267:22;269:2;27]:] ,8; Under 222:24 target 309: 12 358:8 273:6;317:9;322:8;327:14; underlying 242:7,20 Vague 194:24 targeted 309:8 title 203:23;204:2;222:24; 329:22;333:15;342:23; underneath 213:10; Vallard 313: 16 Taxes 246:12;248:24; 286:6,6;298:2;301 :22; 343:8;344:13,23;347:2 308:2 valuable 347:19 250:13;27]:21 ;343:17 302:17;308:2;318:23; Turn 206:15;247:]5; underscored 229: 17 value 293:22;309:3 team 323:10 323:]6,23;325:17;337:14; 250:6;269:9;292: 16 understatement 268: I 1 Vanity 272: 13;283:20 , technically 214:8;303:7 343:2;348:16 turning,198:14 U11derstood ]93: ]],13, variety248:21;250:j 1 telephone 268:5;292:23; titled 194:4;228:9;259:21; Turning 26] :19 21 ;2] 7:3;253:21 ;254:5; various 209:20;2] 9:9;

TRIAL Min-U-Script® STUART Y. SILVERSTEIN v~ July 18, 2007 PENGUIN PUTMAN, INC.

293:2;302:24;310:19; 334:3;341:19;347:2; withdraw 204:19;215:14; 300:]3;307:20;328:16; young 346:] ];358:23 349:3;354:] ] 352:20;353:3,5,6;354:1,25; 271:10 329:3,9;343:] 8,20;344:6; YYY 289:]0;290:24; vast 268:11 355:12 within 29]:]5;309:]5; 345:3;354:25 362:] ] vastly 2]9:2,4,7,22,24; Volume 228:6 346:5;359:10 world 310:9;311 :2 & 220:] 0;283:22;304: ]5 volumes 246:lJ ;248:23; Within 255:17 World 251 :23;272:16; Z 1: verbal 3]9:4 250:] 2;302:] 5;304:5; without 265:25;286:17; 284:2;313:16 verbiage 22] :] 9 355:4;356:10,]4 288:6;315:] 9;3] 8:21; worry 328:] 8 zebra 274:]5,16 verification 309:25; volunteer 235:2 319:19;320:24;358:3,]2; worth 323:6 ZZZ253:]8;29]:] 3)]:13 von 198:18;2]7:1,2; 359:15,17,20 write 200:] I;201:7;243:3, ZZZZ 299:7,] 1;362:14 verified 298:3 302:20;303:3;3] ]:2]; Without 247:11 5,12;266:10;290:5 verify 3]0:20 3]3:2,7;317:9;21;319:24; witness 199:]];205:]2; writer 200:20,21 verse 193:24;]94:10; 330:2] ;352:7;357:4;359:3; 253:7;254:] ;257:14;312:7, writing 200:12,] 7;20] :6; 198:]9; 199:4;200:] 2,] 5; 360:3,8 25 250:2] ;256:8,17;262:1 ,14; 202:23,23;207:] 5;213:] 6, VON 312:24;36]:6 Witness 3]2:14;360:13 263: I0;276:6,7;353: 10; 24;214:],]] ;2]5:6,9,23; WITNESS 202:6;205:] I; 356:]5 216:] ,20;222:5;236:] 6,20, W 22] :3,8,11 ;222:4,7,]2,]9; writings 221:1 25;237:3,4;244:23;247:4; 224:16,]8;227:3,]5;228:2, written 193:9;198:]2; 252:10,]2,]3;264:20,23; wait 357:]5 8;229:6;236:2;238:17,20, 200:23;213:2];214:] ; 269:] 7,25;270:2,2,4,4,7,9, Wait 227:] 1;254:6;280:20 24;239:];253:20;254:4,] ], 215:9;216:4;221 :23,25; ]7;272:2,2;275:)];279:22; wants 254:2];309:20 ]6;255:2,6;257: 16;26] :] 3; 222: 12;236:16,25;237:4; 280:6;290:];]0;295:1 9,25; waR"anties 258:] 276:10,13;278:19;280:4; 244:12;249:] 1,13;252:13; 30]:17,]8 Watch 360:] ] 285:8,] 3,24;286:3,] ]; 255:3;273:]4;276:6;277:6, Verse 272:13 way]98:1] ;205:23; 287:8,] 0;293:] ];294:21; _ 24;288:6;291 :8,20;300:7, verses ]93:23,24;]94:5; 207:12,] 7;217:] ;227:7,8; 300:] 9;306: 16;309:2]; 21 ;307:5;3] 8:22;3] 9:3; 203:],5,12,13,18;204:5,5, 230:20;233:4;234:] 7; 3]2:] 3,17;313:4;3]4:5; 347:I0;355:5 13;21] :9,]0;213:20,2]; 267:]2;271 :]5;281:] g; 317:4;329:] 8;346:] ;350:3, wrong 212:20;218: I0; 2]4: 19;2]6:3,23;2] 7:5,9, 283:20;284:15,23;289:8,9; 5;351:] ],13;355:22;360: 10 232:24;233:3;243:8; 13,] 8;2]9:] ,6,] 5,25;220:9, 293:] 7;295:2] ;354:23; witnesses 360:14 268: 18;281 :2;305:7,]0,]4; ]2;221 :25;225:3,8;226:]4; 356:6 Woman 272:13 35]:8,10 227:6;228:23;229:] 2; wear 289:5 wonder 2 f] :7 wrote 219:1 ],17,20;- 230:9,]7;233:] ],]6,]8; website 287:)] woods! 297:13 220:]4;22] :12;236:]4; 234:1,5,] 1;235:8;243:]5; Wednesday 22] :22 word 227:] 7,21 ;228:] 0, 248:20;250:] 0;292:2] ; 244:20;246:]0;248:20,24; week 333:10 ]3,16,17;229:] 4,15,19,2], 293:25;311 :8 249:6,] 0,] 2,] 5;250:] 0,] 4, weekly 323:9;324:2; _ 24;26] :9;280:9;318:2; WWWW 297:24;298:7; -~ 23;252:] 7;253:3;254: 16, 326:6;332:21 ;335:8 328:20;355:8 309:18;362:13 ]8,25;255:3;257:22;262:3, - Weiner 289:] ],]4 wording] 98:20 Wyatt 200:23 9,] 6;263:25;264:]4; Weiss 262:22;308:5 -words 247:]2;249:23; 265: 12;266:] 8,25;267:3,6; welcome 308:]6;3]2:]6 3] 8:7;320:] 9 X 270:]4,24;271 :4,7,]4,] 8, Wells 272:14 work ]98:15;213:]5,23; 22;272:6;277:20,23;278:5, weren't 275:2] ;335:21; 2]4:10;215:5,22,25;2]9:8, XX 206:4,4,] 1,]2;301:3; ]];289:] 8;290:] 4;299:23, 337:]4;342:5 9;222:] 7;224:6;236:] 9; 361:18 25;300:1,4,8,] 4,2i ;302:6,9 what's 204:2;287:4 237:2;262:23;264:] 9; XXX 288:10,]6,]7;362:10 Verses 267:]9;272:3 What's]96:24;203;23; 267:8;275:] 0;279:6,] 0; version 226:8;250:4; 284:]9 288:];297:] 1;30] :7;3] 6:5; Y 269:19- whatsoever 286:21 317:20;318:8,1],1] ,]9,24; ver'Siolls241:17 _ wheels 272:]5 3]9:6,8,]2':17,17;320:20; year 24] :2;275:23;340:3; versusJ 93:18;252:2; whenever 289:2] 325:23;326:4;353:] 7; 342:]8;343:6,7 263:]2,21 ';, whichever 267:3 354:22;355:]4;356:11,21; years 223:2] ;226:23; vice313:lJ Whitman 244:5;269:4;- 358:]2,18;359:] 7,20 23] :6;243: I0;246:9; view 215:13;267:]9; _ 279:]4 worked 313:23;323:20; 248:22;250:8;25] :23; 270:4;289:7;293:21 ;297:16 whole 194:20;199:]5; 330:3;338:9 264:] 2,16;293:7;344:7; Viking 314:16;3]6:18 205:] 6;231 :7;244:25;247:6 work-for-hire 356: 18 357:24;358:1 ] Viking/Penguin 325:9 whooping 209:] working 3:?1:8;359:9; yesterday 193:11;]97:2; Virtually ~ I]:22 whose 248:25;249:]5; 360:]6 ]98:] 5;203:3;209:6; Virtually 21 1:23 352:7,10 works]93:9,10;194:3,4; 212:21 ;2]4:3,6;222:14; voice 202:5;313:3 willfully 230:25 204:3,22;205:5;212:2,11; 223:9;225:14;231 :2; volume 222:20;224:15; William 200:12 219:4,]4,24;220:10; 275:13,] 8,22;276:1; 228:7;229:4;235:17; Williams 244:4 223:23;233:]0,15,25; 285:22;288:21 ;298:1;303: I 238:25;245:] ;249:2,] 7; willing 232:2];273:17; 234:] ];235:7;243:14; -York 272:16;284:],1; 250: 15,24;265:9,1 0;266:4; 305:9 244:22;246:]6;247:19; 286:1,4,10,12;32] :]2; 267:] 7;282:6;302:2]; wise 288:]9;289:9 248: I;259:20,25;260:17, 322:1;338:20;347:13;358:8 305: 14;317:3;327:] ]; wish 293:2 23;264:] 8;292:5,2] ,24; Yorker 273:4;283:2]; 328:15;329:22;332:2,3,12; wished 234:20 295: I0;296:20,22;299:22; 289:12,18;290:4;29] :8,21

vast - ZZZZ (16) Min-~-Script®