1 1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF NEW YORK 4 RANDOM HOUSE, INC., ) 5 ) Plaintiff, ) 6 ) vs. ) 7 ) ROSETTA BOOKS, LLC and ) 8 ARTHUR M. KLEBANOFF, in his ) individual capacity and as ) 9 principal of ROSETTA BOOKS, ) LLC, ) 10 ) Defendants. ) 11 -----------------------------) 12 13 14 DEPOSITION OF EDWARD A. MILLER 15 New York, New York 16 Wednesday, March 28, 2001 17 18 19 20 21 22 23 24 Reported by: JOAN WARNOCK 25 JOB NO. 119763B 2 1 2 3 March 28, 2001 4 1:45 p.m. 5 6 Deposition of EDWARD A. MILLER, held 7 at the offices of Weil, Gotshal & Manges, 8 LLP, 767 Fifth Avenue, New York, New York, 9 pursuant to Notice, before Joan Warnock, a 10 Notary Public of the State of New York. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A P P E A R A N C E S: 3 4 WEIL GOTSHAL & MANGES, LLP 5 Attorneys for Plaintiff 6 767 Fifth Avenue 7 New York, New York 10153-0119 8 BY: R. BRUCE RICH, ESQ. 9 10 KOHN, SWIFT & GRAF, P.C. 11 Attorneys for Defendants 12 One South Broad Street, Suite 2100 13 Philadelphia, Pennsylvania 19107-3389 14 BY: JOANNE ZACK, ESQ. 15 16 ALSO PRESENT: 17 ANKE E. STEINECKE 18 NATALIA PORCELLI 19 20 21 22 23 24 25 4 1 2 IT IS HEREBY STIPULATED AND AGREED, 3 by and between counsel for the respective 4 parties hereto, that the filing, sealing and 5 certification of the within deposition shall 6 be and the same are hereby waived; 7 IT IS FURTHER STIPULATED AND AGREED 8 that all objections, except as to the form 9 of the question, shall be reserved to the 10 time of the trial; 11 IT IS FURTHER STIPULATED AND AGREED 12 that the within deposition may be signed 13 before any Notary Public with the same force 14 and effect as if signed and sworn to before 15 the Court. 16 17 18 19 20 21 22 23 24 25 5 1 2 E D W A R D A. M I L L E R , having been 3 duly sworn by the Notary Public, was examined 4 and testified as follows: 5 EXAMINATION BY 6 MS. ZACK: 7 Q. Please state your name and address for 8 the record. 9 A. Edward A. Miller, 1006 Tower Drive, 10 Edgewater, New Jersey 07020. 11 Q. Mr. Miller, could you just state your 12 full name for the record again. 13 A. Edward A. Miller. 14 Q. You are testifying here as an expert 15 witness, as I understand; is that correct? 16 A. Yes. 17 Q. You're an attorney in private practice; 18 am I right? 19 A. Yes, I am. 20 Q. And where is your office? 21 A. It's located at 575 Lexington Avenue, 22 23rd floor, New York City. 23 Q. And what do you consider to be your area 24 of expertise? 25 A. Well, I've been in the publishing 6 1 Miller 2 business in one form or another since 1972, so I 3 would say -- 4 Q. All aspects of publishing, or are there 5 some aspects that you consider to be expert in or 6 all? 7 A. Well, I wouldn't say all aspects of 8 publishing, but maybe all aspects of publishing 9 law. 10 Q. And you were with Harper & Row from 1972 11 until 1987; is that correct? 12 A. That's correct. 13 Q. Have you testified as an expert before 14 in any other matters? 15 A. I think at one time I gave an affidavit 16 as an expert in a lawsuit. 17 Q. Any other times? 18 A. Not that I remember. 19 Q. And you don't recall ever giving oral 20 testimony as an expert in a lawsuit? 21 A. No, I don't. 22 Q. And the matter in which you gave the 23 affidavit, did that have anything to do with 24 publishing? 25 A. Yes. 7 1 Miller 2 Q. Did it have to do with interpreting a 3 contract? 4 A. No, it didn't. 5 Q. Did it have anything to do with eBooks 6 or electronic books? 7 A. No, it didn't. 8 Q. You never appeared in court to testify 9 in that matter? 10 A. No. 11 Q. Currently, as I understand it, in 12 addition to being in private practice, you serve as 13 general counsel for a publisher; is that correct? 14 A. Yes. 15 Q. That's the Japanese company that you 16 mention in your declaration? 17 A. Yes. 18 Q. And you said you in a limited way 19 represent authors? 20 A. Yes. 21 Q. How many authors have you represented 22 over the years? 23 A. Less than ten. 24 Q. Have you ever negotiated contracts on 25 behalf of an author with a publishing company? 8 1 Miller 2 A. Yes. 3 Q. How many such contracts? 4 A. I think one or two that I recall. I 5 think the other authors that I represented, I 6 didn't negotiate, but I did give the author advice 7 on the provisions of the agreements. 8 Q. And about how many times did you give 9 advice? 10 A. Maybe ten or fifteen times. 11 Q. Did you ever negotiate an electronic 12 rights clause in a contract on behalf of an author? 13 A. Not that I recall. 14 Q. Did you ever give an author any advice 15 about electronic rights? 16 A. I may well have, but I don't have a 17 specific recollection. 18 Q. When you were at Harper & Row, did 19 Harper & Row have any standard form contracts? 20 A. Yes. 21 Q. And did you participate in preparing 22 them? 23 A. Yes. 24 Q. Did they change over time? 25 A. Yes. 9 1 Miller 2 Q. And did you have a number of separate 3 divisions at Harper & Row that had different 4 contracts or did you -- 5 A. Yes. 6 Q. -- just have one standard form contract? 7 A. No. We had different contracts. 8 Q. For the different divisions? 9 A. Yes. 10 Q. What were the divisions in the 70's, 11 and, if it changed, in the 80's? 12 A. Well, I recall that we had a publishing 13 agreement for the trade department. We had a 14 publishing agreement for the college department. 15 And I think we probably had a different publishing 16 agreement for the school department. And it's 17 possible that basic books had its own form, but I 18 don't really recall. Basic books was a separate 19 sort of division at that time. 20 Q. Were there any other divisions that had 21 their own contract? 22 A. Not that I recall. 23 Q. And the trade department, was that in 24 the business of publishing trade books? 25 A. Yes. 10 1 Miller 2 Q. And what was the college department? 3 A. College department published college 4 textbooks. 5 Q. What about the school department? 6 A. School department published materials 7 for elementary and high school. 8 Q. What about the basic books department? 9 A. Basic books published scholarly trade 10 books. 11 Q. Did Harper & Row, while you were there, 12 have a department that published fiction? 13 A. The trade department. 14 Q. Do you recall any particular changes 15 that occurred in the form contract in the trade 16 department over the years you were there? 17 A. Yes. 18 MR. RICH: Of any type, covering any 19 subject? 20 Q. Anything that you can recall. 21 A. Yes. 22 Q. What changes? 23 A. Well, there was sort of a major change 24 in the form of the agreement. When I first came, 25 we had something called the blue form. And after I 11 1 Miller 2 had been there for several years, we devised a new 3 standard form that was basically a completely new 4 agreement. 5 Q. What time period was this? 6 A. I would say it was probably in the late 7 70's, between '75 and '80. 8 Q. And you were general counsel at that 9 time? 10 A. Yes, I was. 11 Q. Were you the one that thought there 12 should be a new form? 13 A. I think -- I think most of the people 14 thought there should be a new form, most of the 15 people in the legal department. 16 Q. Were you active in devising the new 17 form? 18 A. Yes, I was. 19 Q. And you participated in discussions 20 about it? 21 A. Yes. 22 Q. What was different between the old form, 23 the blue form, and the new form you set up? 24 MR. RICH: Well, he did testify it was a 25 completely new agreement, so it's an awfully 12 1 Miller 2 broad question. 3 Q. Well, it was an agreement for trade 4 books; right? 5 A. Yes. 6 Q. So what was completely different about 7 it? 8 A. I think the warranty clause was 9 substantially revised. I think the subsidiary 10 rights clause was rather substantially changed. 11 And I'm sure there were a lot of other changes, but 12 I'd really have to go through it.