8433 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 2 - - - - - - - - - - - - - - X 3 UNITED STATES OF AMERICA, : CR 96 1016(S-1) 4 v. : U.S. Courthouse 5 Uniondale, New York BRUCE W. GORDON, WHO'S WHO 6 WORLD WIDE REGISTRY, INC., : STERLING WHO'S WHO, INC., 7 TARA GARBOSKI, ORAL FRANK OSMAN, LAURA WEITZ, ANNETTE 8 HALEY, SCOTT MICHAELSON, : and MARTIN 9 REFFSIN, : TRANSCRIPT OF TRIAL 10 Defendants. :March 19, 1998 11 - - - - - - - - - - - - - - X 9:30 o'clock a.m.
12
13 BEFORE:
14 HONORABLE ARTHUR D. SPATT, U.S.D.J.
15
16 APPEARANCES: 17 For the Government: ZACHARY W. CARTER United States Attorney
18 One Pierrepont Plaza Brooklyn, New York 11201 19 By: RONALD G. WHITE CECIL SCOTT 20 Assistant U.S. Attorneys
21 For the Defendants: NOR
MAN TRABULUS, ESQ. 22 For Bruce W. Gordon 170 Old Country Road, Suite 600 23 Mineola, New York 11501
24 EDWARD P. JENKS, ESQ. For Who's Who, Sterling 25 332 Willis Avenue Mineola, New York 11501
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8434
1 GARY SCHOER, ESQ. 2 For Tara Garboski 6800 Jericho Turnpike 3 Syosset, New York 11791
4 ALAN M. NELSON, ESQ. For Oral Frank Osman 5 3000 Marcus Avenue Lake Success, New York 11042 6 WINSTON LEE, ESQ. 7 For Laura Weitz 319 Broadway 8 New York, New York 10007
9 MARTIN GEDULDIG, ESQ. For Annette Haley 10 400 South Oyster Bay Road Hicksville, New York 11801 11 JAMES C. NEVILLE, ESQ. 12 For Scott Michaelson 225 Broadway 13 New York, New York 10007
14 THOMAS F.X. DUNN, For MrShortcut, 15 150 Nassau Street New York, New York 10038 16 JOHN S. WALLENSTEIN, ESQ. 17 For Mart
in Reffsin 215 Hilton Avenue 18 Hempstead, New York 11551
19 Court Reporter: Owen M. Wicker, RPR 20 United States District Court Two Uniondale Avenue 21 Uniondale, New York 11553 (516) 292-6963 22
23 Proceedings recorded by mechanical stenography, transcript produced by computer-assisted transcription. 24
25 (Case called.)
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8435
1 THE COURT: Where is Ms. Haley?
2 MR. GEDULDIG: I don't know, Judge. I can't
3 answer that question. I don't know, Judge. I know she
4 sometimes has difficulty when the weather is bad.
5 MR. SCHOER: Judge, with respect to Ms. Garboski
6 --
7 THE COURT: I can't hear you.
8 MR. SCHOER: I'm sorry.
9 With respect to Ms. Garboski, she called the
10 Court and I received a message from your courtroom deputy
11 to call her back and I did. She is most concerned that he
12 will not be mad at her.
13 THE COURT: Me mad at people that are late? How
14 could you ever get that impression, Mr. Schoer? If I've
15 given anybody that view, they are absolutely correct, but
16 I'm not going to be mad at her, of course not. She said
17 her car will not start.
18 MR. SCHOER: Her battery -- she indicated that
19 she has been waiting for 45 minutes for a cab to show up
20 and a half-hour for a mechanic and whichever one comes
21 first she will avail herself up.
22 THE COURT: Tell her I'm not in the least bit
23 angry.
24 MR. SCHOER: She told me that she doesn't want to
25 hold up the trial and she would waive her appearance until
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8436
1 she gets here.
2 THE COURT: And you believe she understands that
3 she has a right to be here, that
she has a right to hold
4 up everything until she gets here.
5 MR. SCHOER: Yes, she has heard Your Honor's
6 instructions throughout the trial. I'm competent that she
7 knows what this is all about.
8 THE COURT: We have another missing defendant.
9 MR. GEDULDIG: I spoke with Ms. Haley the last
10 time she had a problem getting here and she indicated if
11 she had a problem again and she would be hopeful it would
12 not, but apparently it has. As Ms. Garboski, she is
13 prepared to state to the Court that she will waive the
14 trial.
15 THE COURT: I would hesitate to do that except to
16 discuss certain questions of admissibility of evidence
17 which I would like to discuss. Do you think she would
18 waive her appearance during that period?
19 MR. GEDULDIG: I do.
20 THE COURT: It actually happens to do with the
21 defendant Gordon. Do you understand that that would have
22 to do with certain admissibility of evidence, Mr. Schoer?
23 MR. SCHOER: That's fine.
24 THE COURT: Then please be seated.
25 I am concerned about, which I was concerned right
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8437
1 from the beginning of the case, about the interplay of the
2 Gordon civil judgment and in a moment of, I suppose, I
3 would not say weakness, that would be awful for me to say
4 that -- by the way, I would like to have Ms. Barnes
5 removed from the courtroom during this discussion.
6 (Ms. Barnes exits the courtroom.)
7 THE COURT: My first inclination when the
8 government wanted to introduce the Gordon, rather, the
9 Who's Who Worldwide Reed Elsevier judgment against Who's
10 Who Worldwide was no. I felt it was not relevant, and
11 even if it was the probative value was far outweighed by a
12 jury, no matter what my curative charge was, telling them
13 that the burden of proof was different, that it had to
14 deal with a copyright infringement case, the issues
15 weren't the same and yet they'll hear it. This concerned
16 me very greatly. I thought that this kind of evidence
17 would be classic 403, confuse the issues -- here's Ms.
18 Haley -- good afternoon -- I mean, good morning, Ms.
19 Haley.
20 DEFENDANT HALEY: I'm sorry.
21 THE COURT: And so I precluded it.
22 As I said under 403, I thought it was classic
23 unfair prejudice to expect a jury to understand the
24 difference in the burden of proof, the difference in the
25 type of case, all they would know is that a federal judge
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8438
1 told Who's Who Worldwide and Gordon not to do this.
2 I was also concerned with the
time element, this
3 was far late in the name. The judgment was when, in
4 1994?
5 MR. TRABULUS: March 1994, Your Honor. I don't
6 have the exact date.
7 THE COURT: The company closed in March of 1995
8 and they went into bankruptcy shortly thereafter. Much of
9 the evidence of the alleged criminal actions were before
10 that time. So all in all I expressed the view very
11 clearly at that time that I was going to exclude it. And
12 the rule reads and it seems to be classic in this type of
13 evidence, although there are cases and I know there are
14 cases in which they allowed it for specific issues. Every
15 time they allow it they say it is not error or it is not
16 an abuse of discretion. They sort of feathered it all the
17 time. They said we don't like it really, but okay, we'll
18 let it get by because it covered a specific issue in the
19 case.
20 The rule says, although irrelevant, evidence may
21 be excluded if it's probative value is substantially
22 outweighed by the danger of unfair prejudice, confusion of
23 the issues or misleading the jury or by considerations of
24 undue delay, waste of time or needless presentation of
25 cumulative evidence. If there ever were evidence that fit
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8439
1 within 403, my view was originally, and I excluded it,
2 then we would get the Sandra Barnes episode and here's
3 where my moment of weakness occurred.
4 Mr. White and Ms. Scott are very persuasive.
5 Ms. Scott comes up with all kinds of cases all the time
6 and Mr. White uses them to great advantage and being the
7 very good lawyer that he is. And so when I said I would
8 allow the Barnes testimony on the question of good faith
9 or evidence of fraudulent intent or whether it was just
10 doing business as usual, and this case, understand this is
11 a close case, very close case. It's a close case whether
12 these defendants went over the line. I'm going to let it
13 go to the jury, but it's a close case, very close.
14 Now, when I decided I would allow the Barnes
15 testimony in if there was evidence of custom and usage and
16 we found in the in camera testimony that not only Marquis,
17 and I'll call them that notwithstanding what they want to
18 be called because I don't know how to pronounce the other
19 one, Marquis Who's Who used lists, I assume they are
20 mailing lists, they didn't call them that, but they are
21 association lists, Dun & Bradstreet lists. While the
22 witness testified that she didn't know about custom and
23 usage no doubt they were a major player and they put them
24 in a brochure which they mailed out to potential
25 customers. My goodness, that's why I allowed it. And Mr.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8440
1 White very astutely said, well, Your Honor, if they will
2 do that I want to have the right to bring in the fact that
3 Gordon and Who's Who Worldwide at least they were told not
4 to do this which would show -- which would nullify their
5 lack of intent, fraudulent intent, to show that
6 notwithstanding the use of mailing lists and also as we
7 find out nomination letters by Marquis Who's Who, they
8 were definitely told not to do this even though it was in
9 March of 1994 after much of the criminal activity had
10 taken place -- the alleged criminal activity.
11 I said, well, I'll not let the judgment in but if
12 we redact it in a certain way I'll let you say that a
13 judge told Mr. Gordon in Who's Who Worldwide
not to do
14 certain things.
15 Then an equally astute lawyer brought up another
16 point which I didn't think about. And Mr. Trabulus said
17 well, if you'll talk about Mr. Gordon and Who's Who
18 Worldwide being told by one judge they can't do it, how
19 about the fact that they were told by another judge they
20 didn't commit a crime by doing it?
21 Well, that was even later in the day, later in
22 the game in 1995. It might bear on some part of the money
23 laundering count. Then Mr. White equally astute -- that's
24 three astutes, said if you'll do that I want to bring up
25 the fact that the Second Circuit told the Judge to go fly
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8441
1 a kite, he was dead wrong.
2 MR. WHITE: Actually, I didn't say that.
3 MR. TRABULUS: It was actually I would have to
4 say that the Second Circuit said that it had to be
5 considered, reconsidered, not that it was wrong.
6 THE COURT: You can interpret it any way you want
7 to interpret it. That would open up in lay language a
8 real can of worms. Can you make a lay jury, if we have
9 trouble understanding what happens, can you imagine a lay
10 jury parsing out this sort of thing as relatively simple,
11 notwithstanding all of this -- I know Mr. Trabulus'
12 request to charge, I'll have to spend a year looking at
13 them and deceiving them, but this is a relatively simple
14 mail fraud case. Can you imagine putting this into the
15 mix? Well, I can't do that. I've changed my mind,
16 Mr. White. I cannot in good conscience or under the law
17 and in view of 403 give them a statement, any judgment,
18 that Who's Who can't do it when I myself told them there
19 was no crime in doing it. And the Second Circuit said "we
20 don't know." That's what they said.
21 So I'm going to, notwithstanding my previous
22 ruling, decline to permit you to do that and I've given a
23 lot of thought about this. I just think that it would be
24 totally confusing, misleading and prejudicial and would
25 also unfairly single out Gordon and Who's Who Worldwide in
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8442
1 this case when we all know in truth that everybody knew
2 about that judgment. I mean, everybody knew they won the
3 case, Who's Who, Reed, won the case and it is a matter of
4 public record. Anybody can go and take a look at that
5 judgment and see what that federal judge said, just like
6 what I said. For all of those reasons and mainly 403, I
7 will exclude it.
8 MR. WHITE: Your Honor, frankly, obviously Your
9 Honor's change of heart takes us by surprise. Will yo
u at
10 least give me the opportunity sort of to collect our
11 thoughts and later try to explain why I think Your Honor's
12 reasoning at least on this point is not correct?
13 THE COURT: Sure.
14 MR. WHITE: And would not be confusing.
15 THE COURT: Sure. I told you you could always
16 bring that to my attention before the jury is discharged.
17 Even after a verdict you can bring it to my attention.
18 MR. WHITE: Your Honor, you left out in your
19 chronology the very first time it was raised pretrial Your
20 Honor looked at the defendants and said, well, why isn't
21 that relevant to their intent?
22 THE COURT: It shows you how wrong you can be at
23 times, right? Didn't Shakespeare say "to err is human and
24 to" something "is devine." Didn't he say that?
25 MR. WHITE: I would also -- I mean, I'd like the
OWEN M. WICKER, RPR OFFICIAL COURT REPORT
ER 8443
1 chance to make sort of a more detailed argument, but I
2 would also point out Mr. Trabulus' slight of hand trying
3 to say, oh, if you let in Magistrate Jordan's order we'll
4 have to let yours in. They are not equivalent. The first
5 reason being Magistrate Jordan found it wasn't a crime,
6 just found it was misleading. Your Honor's opinion found
7 it was misleading too. You used that word, it was
8 misleading.
9 THE COURT: But no crime.
10 MR. WHITE: But no crime.
11 THE COURT: What are we here for, misleading
12 things or criminal things?
13 MR. WHITE: No. If, Your Honor, if a judge, any
14 judge had determined something was criminal, I wouldn't
15 ask you to instruct the jury to that effect but certainly
16 you tell them that a judge told Mr. Gordon it was
17 misleading, that's relevant, they can draw an inference of
18 that for intent. So in that respect your opinion and
19 Magistrate Jordan's are not.
20 THE COURT: I'll give you an opportunity to let
21 you do that. But I've given it considerable thought. It
22 would raise such a can of worms, such misleading, and
23 divert this jury completely from what they should know.
24 "Was this false representations with intent to deceive to
25 obtain money or property?" That's what this case is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8444
1 about, that part of the case is about.
2 Now, shall we proceed, Mr. Schoer?
3 MR. SCHOER: Yes, Judge, we can proceed.
4 THE COURT: And you are sure that Ms. Garboski
5 has approved our proceeding without her?
6 MR. SCHOER: Yes, I've spoken to her on the
7 phone.
8 THE COURT: And there is no guarantee when she
9 will be here?
10 MR. SCHOER: That's
right.
11 THE COURT: If no one else objects.
12 MR. WHITE: I don't object, I want to make one
13 comment though. Mr. Neville gave me a stack of documents
14 he apparently intends to use today. I think it is clear
15 he is going far afield and is not following Your Honor's
16 instructions as far as custom and usage.
17 THE COURT: Mr. White, I've very diligently
18 objected to him going far afield, you haven't been.
19 MS. SCOTT: We objected initially, Your Honor.
20 THE COURT: You have to keep objecting.
21 MR. WHITE: Your Honor, I understand that. There
22 is a certain trial tactic to not be objecting to this kind
23 of evidence on the part of the government.
24 THE COURT: Okay.
25 MR. WHITE: But that presupposes that Mr. Neville
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8445
1 will follow your instructions which he has repeat
edly
2 ignored.
3 THE COURT: Mr. White, I am the last person in
4 the world to obstruct your trial tactics and if it is your
5 trial tactics to let him to get into these totally
6 irrelevant matters that are prolonging unnecessarily the
7 trial and raising issues that have nothing to do with this
8 case, don't object. I'm not going to let him do it
9 though.
10 MR. WHITE: That's my point. That's fine. I'm
11 not objecting because I was assuming Mr. Neville would
12 follow your instructions.
13 THE COURT: But he hasn't. What will you do,
14 remain silent?
15 MR. WHITE: Well, all right, I'll object more.
16 But I had to rely on the fact that Mr. Neville would
17 follow your instructions.
18 THE COURT: We're going around in circles now.
19 Let's bring in the jury.
20 Mr. Neville, you stay to the point, and the point
21 is the knowledge
about the mailing lists and that's why I
22 allowed this witness to testify. I'm not getting into the
23 running of their business and otherwise, how much money
24 they make and everything else. I'll not retry the other
25 case.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8446
1 Do you understand, Mr. Neville?
2 MR. NEVILLE: Yes, I do understand.
3 THE COURT: Okay. Should I mention anything to
4 the jury that Ms. Garboski has car trouble? They'll not
5 see her.
6 MR. SCHOER: You can.
7 THE COURT: And that she was nice enough to say
8 to proceed without her.
9 MR. SCHOER: That's fine.
10 THE COURT: Ms. Barnes, step up.
11 (Sandra Barnes resumes the stand.)
12 THE COURT: Ms. Barnes, it's our practice in the
13 Eastern District to rise when they enter the courtroom and
14 leave. You remained seated yesterday beca
use you didn't
15 know that.
16 THE WITNESS: I didn't know that, Your Honor.
17 THE COURT: All right.
18 (Jury enters.)
19 THE COURT: Good morning, members of the jury.
20 Please be seated.
21 I have to tell you that you did a good job
22 getting here. I had to speak to the lawyers about some
23 matters and we're sorry we had to delay until now. Your
24 patience is exemplary. Every time I go in to see you
25 there are smiles on your faces or most of your faces.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8447
1 I want to tell you that the defendant Tara
2 Garboski had car trouble, can't start her car and is
3 waiting for a cab or a car service to take her here, and
4 although she has a constitutional right to be present
5 during every part of the trial, she said no, go ahead, I
6 waive my appearance. And her lawyer, Mr.
Schoer, has
7 communicated that to me.
8 Is that correct, Mr. Schoer?
9 MR. SCHOER: Yes.
10 THE COURT: So we'll go ahead. So when you see
11 that she is not here, believe me she wants to be here.
12 You may proceed.
13 (Continued.)
14
15
16
17
18
19
20
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8448 Barnes-direct/Neville
1 S A N D R A B A R N E S , having been previously sworn
2 by the Clerk of the Court, was examined and testified as
3 follows:
4 DIRECT EXAMINATION
5 BY MR. NEVILLE: (Continued.)
6 Q Ms. Barnes, do you remember yesterday we were talking
7 about mailing lists and the use of mailing lists by your
8 company?
9 A Yes.
10 Q And we spoke about various other public corporations
1
1 that your company did business with to rent lists?
12 A Yes.
13 Q And we spoke about a place called Concept One in
14 Cattown, New York?
15 A Yes, we did.
16 Q And in the contention of the mailing lists and the
17 fact that your company -- withdrawn.
18 When you dealt, when your company dealt with
19 Concept One in renting these lists, was it a secretive
20 thing, was it a top secret thing?
21 A I don't know what you mean.
22 Q Let me ask you this. If somebody at Concept One,
23 somebody who works there and puts together compilations of
24 names for mailing lists that your company used, if they
25 were to tell their loved ones or friends that Marquis
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8449 Barnes-direct/Neville
1 Who's Who uses mailing lists, they wouldn't be breaking
2 rulings?
3 A It's my understanding list
brokers are supposed to
4 have some integrity and don't discuss what the clients ask
5 for.
6 Q Was there any contract or any sort of document in
7 writing that holds list brokers to silence?
8 A I don't know. I don't know.
9 Q You also, as publisher and --
10 THE COURT: Uhm, not be offended if he calls it
11 Marquis or Marcus or anything else.
12 THE WITNESS: No, librarians, some call it
13 Marquis and Marcus.
14 THE COURT: Okay.
15 BY MR. NEVILLE:
16 Q Isn't the correct French pronunciation a silent S,
17 Marquis?
18 A We pronounce it Marcus.
19 Q Now, your job as publisher and president of Marquis
20 Who's Who, you signed off on purchase orders for these
21 mailing lists, didn't you?
22 A Yes.
23 Q And I'll show you what has been marked as Defendant's
24 Exhibit FL for Identification.
25 I'll ask you to look at
what has been marked as
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8450 Barnes-direct/Neville
1 Defendant's Exhibit FL for Identification, and ask you if
2 you recognize that?
3 A It is a purchase order and it has my signature, yes.
4 Q Now, look at each one. There are various documents
5 there, just page through them quickly.
6 Does each and every one have your signature on
7 the bottom?
8 A (Perusing.) Yes.
9 Q So as the publisher and president of Marquis Who's
10 Who, you had knowledge of these purchase orders.
11 Obviously you signed them also, correct?
12 A It was a practice to sign off on dollars that were
13 spent by the company, so, yes, I signed because we were
14 spending money.
15 Q By signing it at bottom that connotes you had
16 reviewed it and approved it and --
17 A No.
18 Q No.
19 A No.
I just look at dollar amounts and make sure they
20 fall within the guidelines.
21 Q So wouldn't that be called approving it?
22 Okay. I'll withdraw that.
23 Were these purchase orders kept in the course of
24 regularly conducted business activity at Marquis Who's
25 Who?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8451 Barnes-direct/Neville
1 A Yes.
2 Q Was it in the regular practice of that business
3 activity at Marquis Who's Who to maintain those documents?
4 A Purchase orders, yes.
5 MR. NEVILLE: I offer them, Your Honor.
6 THE COURT: Any objection?
7 MR. WHITE: Yes, Your Honor.
8 THE COURT: What ground?
9 MR. WHITE: Foundation and relevance.
10 THE COURT: What is wrong with the foundation,
11 Mr. White?
12 MR. WHITE: Number one, he hasn't described who
13 prepared them.
14 THE COURT: Who
prepared them? Overruled.
15 What else?
16 MR. WHITE: And relevance.
17 THE COURT: No. Overruled.
18 Defendant's Exhibit FL, Fox Lion, in evidence.
19 (Defendant's Exhibit FL received in evidence.)
20 BY MR. NEVILLE:
21 Q Ms. Barnes, these purchase orders lists, actual
22 lists, if you will, that your company rented for a dollar
23 amount that your company used to send out mailings?
24 A They may or may not have used them. These are -- it
25 is an order that was placed.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8452 Barnes-direct/Neville
1 Q But the fact that you signed off on these purchase
2 orders means that indeed Marquis Who's Who paid money to a
3 list broker and got these different lists?
4 A Not necessarily because that would have been paid by
5 an invoice.
6 Q Okay.
7 Well, when you signed off at the
bottom -- when
8 you said you signed off at the bottom it meant that you
9 had looked at this and you had to put your name on a
10 document which would allow money to be released from the
11 company to pay a list broker, right?
12 A Not necessarily. It is money that would have been
13 expended if the order went through and if we used it -- as
14 any purchase order. We don't pay from a purchase order,
15 you pay from an invoice.
16 Q Now, McMillan owned Marquis Who's Who at one time?
17 A Yes.
18 Q Before or after Robert Maxwell?
19 A Before.
20 Q So a purchase order through the McMillan directory,
21 Marquis Who's Who, that doesn't mean that something is
22 being purchased?
23 A Doesn't mean that it was delivered and that you paid
24 for it.
25 Q Fine.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8453 Barnes-direct/N
eville
1 You're saying just by looking at this purchase
2 order that we don't know whether in fact Marquis Who's Who
3 received the list of the economist subscribers, 5,500 of
4 them, in the amount of $750?
5 A No, we don't know.
6 Q You don't know that. Okay.
7 But this is the kind of thing that would be
8 produced at McMillan, when McMillan owned the company to
9 rent these lists?
10 A That would be the initial step.
11 Q There would be -- withdrawn.
12 Some purchase orders in fact were brought to
13 fruition, if you will, and money was paid and lists were
14 rented and mass mailings were sent out, no?
15 A Yes.
16 MR. NEVILLE: May I publish this to the jury,
17 Your Honor?
18 THE COURT: Yes.
19 BY MR. NEVILLE:
20 Q Now, other mailing lists that you used, you testified
21 to were of different associations; is that ri
ght?
22 A We do use association lists.
23 Q I'm going to ask you to take a look at what has been
24 marked as Defendant's Exhibit FJ, and ask you if you
25 recognize it?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8454 Barnes-direct/Neville
1 Take your time. Page through it.
2 A (Perusing.) I recognize that this is a document
3 prepared by somebody at my company.
4 Q Well, is it a document that concerns lists?
5 A It's a document that concerns how data mailings are
6 put together.
7 Q And what are data mailings?
8 A Data mailings are mailings that are used to collect
9 data on people.
10 Q Can you just look at that document in its entirety
11 and can you describe with a general title what that
12 document is or what those documents are? I mean, if
13 somebody put that on your desk as publisher of Marquis
14 Who'
s Who with a Post-it, they may say, Ms. Barnes, please
15 review this and what would it be called?
16 A I really don't know what it would be called. It's
17 something that somebody has put together.
18 Q Well, what does it include?
19 A It has association lists that are mailed, directories
20 that are used, educational information.
21 THE COURT: Well, don't tell us what it has.
22 Do you know what that is, is the question? Is it
23 a receipt, is it an invoice, is it a telegram?
24 THE WITNESS: No, it's just a document --
25 THE COURT: Is it a menu to the nearest
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8455 Barnes-direct/Neville
1 restaurant?
2 THE WITNESS: It's a document that was put
3 together by somebody in Marquis Who's Who as a data
4 mailing. It describes--
5 THE COURT: It's not a regular document like an
6 inv
oice, ledger?
7 THE WITNESS: No.
8 THE COURT: Memorandum.
9 THE WITNESS: No. It's a compilation of certain
10 documents.
11 THE WITNESS: Yes.
12 THE COURT: You recognize them as Marquis'
13 documents?
14 THE WITNESS: Yes, because they have the name
15 Marquis at the top.
16 THE COURT: Okay.
17 BY MR. NEVILLE:
18 Q Have you ever seen anything that looks like that?
19 A I didn't see this until today.
20 Q Have you ever seen any other documents that are
21 similar?
22 A To the entire document?
23 Q Just in general, those documents?
24 A Two pieces of the document.
25 Q Which two pieces?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8456 Barnes-direct/Neville
1 A The listee buyer occupation.
2 MR. NEVILLE: What I will do, if I may, separate
3 out --
4 THE COURT: Before you
do that lay a foundation.
5 You may not have to separate it.
6 BY MR. NEVILLE:
7 Q This document, this listee buyer occupation analysis,
8 is a document that you are familiar with or that you were
9 familiar with as publisher of Marquis Who's Who?
10 A Yes.
11 Q And even though you yourself may not have actually
12 made or compilated this, you certainly are familiar with
13 it and know what it all means?
14 A I'm familiar with it.
15 Q You probably have seen many, many, maybe even
16 hundreds of these listee occupation and analysis
17 information?
18 A I don't know if I've seen hundreds.
19 Q The document is familiar to you?
20 A It's familiar.
21 Q Was that document important to you as publisher and
22 president of Marquis Who's Who in terms of listee
23 identification and analysis and revenue and all of those
24 issues you testifi
ed about yesterday?
25 A Pieces of it. It doesn't include everything that you
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8457 Barnes-direct/Neville
1 need in order to make determinations.
2 Q But it would be a document that you would use, one of
3 the other documents you would use to make your decisions,
4 your executive decisions as president and publisher?
5 A It's a document that the information is used to put
6 the indexes at the back of the books by occupation.
7 Q Now, that listee buyer occupation analysis is kept in
8 the course of regularly conducted business activity of
9 Marquis Who's Who?
10 A Yes, they are in the published books. The break down
11 of how many there are.
12 Q But this document itself is a document that is kept
13 in the regularly conducted business of Who's Who?
14 A We do have that information.
15 Q
And was it the regular practice of your business at
16 Marquis Who's Who to make and maintain those documents?
17 A Periodically.
18 MR. NEVILLE: I offer them, Your Honor. I offer
19 this one page. I'm sorry, that's what I was getting to
20 earlier. I would like to offer the one page that
21 Ms. Barnes identified.
22 THE COURT: Show it to counsel.
23 MR. WHITE: Your Honor, may I ask the witnesses
24 some questions here?
25 THE COURT: Sure.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8458 Barnes-voir dire/White
1 VOIR DIRE EXAMINATION.
2 BY MR. WHITE:
3 Q Do you know who prepared this?
4 A No.
5 Q Do you know how it was prepared?
6 A No.
7 Q So you don't know whether the process by which this
8 was gathered was some reliable process or some unreliable
9 process?
10 A I didn't prepare it and I di
dn't see who prepared it.
11 Q So you have no idea whether the information here or
12 how it was compiled?
13 A No.
14 Q The date on this is all -- let me show it to you,
15 August 7, 1995; is that right? Am I reading that
16 correctly?
17 A Yes.
18 MR. WHITE: Your Honor, I have, again, a
19 foundation and relevance objection.
20 THE COURT: May I see it?
21 Objection sustained on relevance.
22 MR. WHITE: Thank you.
23 THE COURT: And perhaps on foundation. But
24 mostly relevance.
25 Go ahead.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8459 Barnes-direct/Neville
1 BY MR. NEVILLE:
2 Q That document, Ms. Barnes, was a document you would
3 use to analyze -- withdrawn.
4 When you put out one of your books, you look at
5 lists of occupations of people who were listees in the
6 books, right?
7 A When we put out specific --
8 THE COURT: All right. Sustained.
9 Q Ms. Barnes, I'm going to ask you to look at --
10 MR. NEVILLE: Now, I'm confused.
11 Q Yesterday I guess it was Defendant's Exhibit FC,
12 Frank Charlie, and I ask you to look at it.
13 THE COURT: Is that in evidence?
14 MR. NEVILLE: No, it's not in evidence, Your
15 Honor.
16 BY MR. NEVILLE:
17 Q Do you recognize it?
18 A You showed it to me yesterday.
19 Q Do you recognize it?
20 A From yesterday, I recognize it.
21 Q Never saw it before yesterday?
22 A Never saw it before yesterday.
23 Q Never saw anything like it before yesterday?
24 A Not that particular document.
25 Q Ever see a document like it before yesterday?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8460 Barnes-direct/Neville
1 A That's not what I typically did
, no.
2 Q You were the publisher and you were concerned with
3 the revenues of the Marquis' publications, right?
4 A Yes.
5 Q And part of the way you worked on the revenue for the
6 Marquis revenues was to send out mass mailings based on
7 lists that your company would rent from list brokers and
8 other organizations or companies?
9 A In every company the president doesn't do every daily
10 task, you have people do them for you.
11 Q But if you as president had decided that you wouldn't
12 use list brokers anymore and you would make the executive
13 decision not to do that, and provided Mr. Reed or whoever
14 above you agreed, your company would stop using list
15 brokers, wouldn't they?
16 MR. WHITE: Objection.
17 THE COURT: Sustained.
18 BY MR. NEVILLE:
19 Q You were responsible for what the people who were
20 supervised by you did, weren'
t you?
21 MR. WHITE: Objection.
22 THE COURT: Sustained.
23 Q I'll ask you to take a look at Defendant's Exhibit FD
24 for Identification.
25 Do you recognize that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8461 Barnes-direct/Neville
1 A From yesterday, yes.
2 Q Concept One is the list broker?
3 A That's what it says at the top.
4 Q Ms. Barnes, when you were president and publisher of
5 Marquis Who's Who, did you ever look at this kind of
6 document from a list broker?
7 A Generally after the list manager secured the
8 information, sometimes I would review it.
9 Q When you say "secured the information," it means
10 after she got it?
11 A After she got it.
12 Q And you would take a look at it?
13 A From time to time.
14 Q And approve whether or not a certain document is
15 okay.
16 A
Occasionally, not always.
17 Q What was her name, Debbie Krom, K-R-O-M?
18 A Yes.
19 Q She was the list expert?
20 A Yes.
21 Q And she worked for you?
22 A Yes.
23 Q And she took executive orders from you?
24 A No, there was another person that she actually -- she
25 didn't report directly to me, to the marketing director.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8462 Barnes-direct/Neville
1 Q Did the marketing director then report to you?
2 A Yes.
3 Q So ultimately you were responsible for what Debbie
4 Krom did?
5 A Ultimately I guess I was responsible for what Debbie
6 Krom did. But she had a job and she got paid to perform.
7 Q Now, if Debbie Krom came to you and said -- did she
8 call you Sandy or Ms. Barnes?
9 MR. WHITE: Objection.
10 THE COURT: Sustained.
11 BY MR. NEVILLE:
1
2 Q Ms. Barnes, she says, this Scientific American list,
13 should we use it, did she ever ask you a question like
14 that?
15 A No.
16 MR. WHITE: Objection.
17 THE COURT: Sustained. Strike out the answer.
18 BY MR. NEVILLE:
19 Q Did she ever come to you and say I don't know whether
20 we should get this list of active subscribers of the
21 economists?
22 MR. WHITE: Objection.
23 THE COURT: Sustained. Desist.
24 Q Ms. Barnes, did your company, did Marquis Who's Who
25 ever send out -- we talked about this yesterday -- the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8463 Barnes-direct/Neville
1 letters, the galley proofs that we talked about, the
2 letters that talk about "Dear Marquis nominee"? Do you
3 remember we talked about that yesterday?
4 A We talked about galley letters, yes.
5 Q A galley letter is a let
ter that goes out telling a
6 person who has been contacted by your company and then
7 approved by your company that they are a possible listee
8 or nominee in your company, right?
9 A These are not galley letters.
10 Q Is that what happens before the galley letter is
11 actually a finished product?
12 Well, let me ask you this, Ms. Barnes. Does this
13 document here look like a galley proof?
14 A No.
15 Q Not at all?
16 A No.
17 Q Not at all?
18 A It's a letter. There's a separate form for a galley
19 proof.
20 Q Then we'll call it a letter.
21 Who is it addressed to?
22 A This is a letter addressed to people who are being
23 considered for publication, they've passed the initial
24 screen.
25 Q Does it say, "Dear Marquis nominee"?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8464 Barnes-direct/Nevi
lle
1 A It does.
2 Q Is that your handwriting?
3 A Yes.
4 Q Is that your handwriting --
5 MR. WHITE: Excuse me. Can Mr. Neville tell me
6 what he's showing the witness, an exhibit number maybe.
7 THE COURT: Yes, tell us what document that is.
8 MR. NEVILLE: Showing FN for Identification.
9 It's page 490 of the documents --
10 MR. WHITE: Let me see what it looks like.
11 MR. NEVILLE: (Handing.)
12 BY MR. NEVILLE:
13 Q Let me ask you to take a look at Defendant's Exhibit
14 FN for Identification. Just look at that first page, the
15 top, the cover page.
16 Is that your handwriting there?
17 A It looks like my handwriting.
18 Q Did you ever write on the front of a document the
19 names of certain people and then the word "only" below
20 them?
21 A Only?
22 Q (Handing.) Is "only" the name of somebody in your
23 company?
24 A That means there were just two people who should have
25 been copied on my notes of the many people that were in
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8465 Barnes-direct/Neville
1 the distribution.
2 Q So this document was an internal memo at Marquis
3 Who's Who?
4 A Yes.
5 Q And it came from someone and it originally was
6 directed to you first?
7 A It was directed to me along with several other
8 people.
9 Q But your name is at the top of the list?
10 A Because I'm B.
11 Q What is that?
12 A Because it is alphabetical.
13 Q Nothing to do with hierarchy?
14 A I don't know.
15 Q Did Stan Walker have a position as high up as you
16 did?
17 A His was higher.
18 Q How about Marilyn Canning, C-A-N-N-I-N-G?
19 A No.
20 Q Now, this document as you said the
y are letters and
21 they are sent out, letters that in their final forms are
22 sent out to prospective listees?
23 A Multitude of letters here.
24 Q What is the first one?
25 A The very first one is a letter that is going out to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8466 Barnes-direct/Neville
1 somebody who passed the initial screening and their sketch
2 has been written.
3 Q Is there any information towards the bottom of that
4 first page of the letter about prices and money and things
5 like that?
6 A We offer them --
7 MR. WHITE: Objection.
8 THE COURT: Sustained. Strike out the answer.
9 BY MR. NEVILLE:
10 Q In any of these documents, these letters that would
11 be sent out to prospective nominees, did you ever have any
12 sales language in there like "respond within 15 days,"
13 "respond quickly," "
get the special price," things like
14 that?
15 A It wasn't a sales message, it was so that we could
16 get the editorial data done in time for the book.
17 Q So it had nothing to do with encouraging people to
18 buy?
19 A No, it took 18 months to compile our publications.
20 Q Had nothing to do with encouraging people to buy and
21 getting cash in?
22 A No.
23 Q Nothing at all?
24 A No.
25 Q You said to be listed in the book didn't cost
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8467 Barnes-direct/Neville
1 anything, right?
2 A It doesn't cost anything to be listed.
3 Q Now, do you remember yesterday we spoke about these
4 lists, these lists, distribution lists where you as
5 president and other people at your company would look at
6 lists of groups of mailings that would go out where you
7 would anal
yze how many pieces were mailed and how many
8 pieces were returned and how many orders you got out of
9 the people who returned?
10 MR. WHITE: Objection.
11 THE COURT: Sustained.
12 BY MR. NEVILLE:
13 Q You would have, for example, for Who's Who in
14 American Law you would have a list showing the mailing
15 lists that you would use from which publications, how many
16 went out, how many were returned and the percentage of
17 returns based upon how many went out?
18 MR. WHITE: Objection.
19 THE COURT: Sustained. Desist.
20 MR. NEVILLE: Your Honor, I thought it was okay
21 to talk about the lists.
22 THE COURT: You've talked about it. The witness
23 already testified about it.
24 Do you have any documents you want to put in on
25 that subject, put them in. We're not going into the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
8468 Barnes-direct/Neville
1 business of Marquis Who's Who and how they run it and who
2 owned it or who transferred ownership of it or any of
3 these things which are not relevant.
4 BY MR. NEVILLE:
5 Q This document, FK, concerns specifically, does it
6 not, Ms. Barnes, --
7 A Concerns what?
8 Q Are you okay?
9 A Yes.
10 Q Does it concern mailing lists?
11 A This document lists names of mailing lists.
12 Q Who's Who in Finance and Industry, for example?
13 A That's the title.
14 THE COURT: When you say "this document," is
15 there a letter to it?
16 MR. NEVILLE: Well, it's all part of FK for
17 Identification.
18 BY MR. NEVILLE:
19 Q And the magazine, The Economist, was one of the
20 subscriber lists that your company used, one of the
21 mailing lists?
22 A It's listed on that document.
23 Q
If it's listed on that document, does that mean your
24 company listed it?
25 A If it said mailed.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8469 Barnes-direct/Neville
1 Q Mailed?
2 A Yes.
3 Q So as an example, 21,000 or so could be mailed out
4 and 494 would be returned (perusing.)
5 MR. WHITE: Objection.
6 THE COURT: Sustained.
7 MS. SCOTT: Your Honor, I would like to add that
8 I'm having difficulty hearing Mr. Neville.
9 THE COURT: All right. Mr. Neville, keep your
10 voice up.
11 MR. NEVILLE: Okay.
12 BY MR. NEVILLE:
13 Q When you would send up these documents with these
14 mailing lists, these mass mailings, did you get 100
15 percent return?
16 MR. WHITE: Objection.
17 THE COURT: Sustained.
18 Q This was an exclusive publication that you put out,
19 wasn't it?
20 MR.
WHITE: Objection.
21 THE COURT: Sustained.
22 Mr. Neville, if you have no other relevant
23 questions, I'll ask you to sit down.
24 Q Ms. Barnes, is your company represented by attorneys?
25 MR. WHITE: Objection.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8470 Barnes-direct/Neville
1 THE COURT: Sustained.
2 BY MR. NEVILLE:
3 Q Last night after court, Ms. Barnes, did you meet with
4 Mr. White?
5 A No.
6 Q Did you meet with Ms. Scott?
7 A No.
8 Q Did your lawyer meet with Ms. Scott or Mr. White?
9 A I don't know.
10 Q Did you talk with your lawyer yesterday after your
11 testimony?
12 MR. WHITE: Objection.
13 THE COURT: Overruled.
14 A Yes.
15 Q How many lawyers do you have here in the courtroom
16 for you?
17 A One.
18 MR. WHITE: Objection.
19 THE COURT: Sus
tained. Strike out the answer.
20 BY MR. NEVILLE:
21 Q Is that Mr. Bailey who is sitting right over here?
22 MR. WHITE: Objection.
23 THE COURT: Overruled.
24 Q Mr. Bailey right over here (indicating)?
25 A Yes, that's Mr. Bailey.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8471 Barnes-direct/Neville
1 Q And that's Reed's lawyer? Excuse me, one of Reed's
2 lawyers?
3 A He's not an employee of Reed.
4 Q He works for a law firm?
5 A Yes.
6 Q That's hired by Reed?
7 A Yes.
8 Q While you were testifying yesterday and today, could
9 you see Mr. Bailey from where you were seated?
10 MR. WHITE: Objection.
11 THE COURT: Sustained.
12 BY MR. NEVILLE:
13 Q Did you see him taking notes?
14 MR. WHITE: Objection.
15 THE COURT: Sustained.
16 Q Did you ever see him hand any notes to Mr. Whit
e?
17 MR. WHITE: Objection.
18 THE COURT: Sustained.
19 Desist.
20 Q Have you ever heard of a man named Marty Biegelman?
21 MR. WHITE: Objection.
22 THE COURT: Sustained.
23 Q Have you talked to him?
24 A No.
25 MR. WHITE: Objection.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8472 Barnes-direct/Neville
1 THE COURT: Sustained. Desist.
2 All right. Mr. Neville, please sit down.
3 MR. NEVILLE: I have one more question, Your
4 Honor.
5 BY MR. NEVILLE:
6 Q You used mailing lists in your company, right?
7 MR. WHITE: Objection.
8 THE COURT: Overruled.
9 A I said yes yesterday and I said yes the day before.
10 Yes, we used mailing lists as a source.
11 Q Have you ever been visited by Marty Biegelman?
12 MR. WHITE: Objection.
13 THE COURT: Sustained.
14 Mr. Neville, be seated
now.
15 Anybody else?
16 MR. SCHOER: Yes. May we just have a second,
17 please?
18 THE COURT: Yes. Mr. Schoer, I don't want
19 repetitive testimony.
20 MR. SCHOER: I'll try not to.
21 THE COURT: And stay to the relevant issues as
22 I've outlined them to you.
23 MR. SCHOER: I hope I will be able to do that.
24 THE COURT: You wanted a moment, did you say?
25 MR. SCHOER: Yes, just to speak to Mr. Neville.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8473 Barnes-cross/Schoer
1 THE COURT: Sure. Go ahead.
2 (Counsel confer.)
3 CROSS-EXAMINATION
4 BY MR. SCHOER:
5 Q Ms. Barnes, good morning.
6 A Good morning.
7 Q I'm going to show you what Mr. Neville had marked as
8 Defendant's Exhibit FK.
9 Is that a document kept in the ordinary course of
10 business of Marquis Who's Who?
11 A (P
erusing.) Yes.
12 Q And --
13 A Yes.
14 Q And is it the ordinary course of your business of
15 your company to keep records like that?
16 A Yes.
17 MR. SCHOER: Your Honor, I would offer Exhibit
18 FK.
19 THE COURT: Show it to counsel.
20 MR. SCHOER: I believe Mr. White has a copy.
21 MR. WHITE: No objection, Your Honor.
22 THE COURT: Defendant's Exhibit FK, Fox King, in
23 evidence.
24 (Defendant's Exhibit FK received in evidence.)
25 BY MR. SCHOER:
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8474 Barnes-cross/Schoer
1 Q Now, Mrs. Barnes, Reed Elsevier owns a company named
2 Bowker as well, R.R. Bowker, B-O-W-K-E-R?
3 MR. WHITE: Objection.
4 THE COURT: Sustained.
5 Q Did the use the name Who's Who, the words "Who's
6 Who," is that exclusive to Marquis?
7 MR. WHITE: Objection.
8 THE COURT: Sustained.
9 Ms. Barnes, when you see Mr. White rise to his
10 feet, that means he's about to make an objection. Please
11 don't answer them until I rule on it.
12 THE WITNESS: Okay.
13 MR. WHITE: I'll try to be faster.
14 THE COURT: You should be faster.
15 BY MR. SCHOER:
16 Q Are you aware of the fact that there are hundreds of
17 publications that use the name Who's Who?
18 MR. WHITE: Objection.
19 THE COURT: Sustained. Desist.
20 Q You talked about mailing lists; is that correct?
21 A I answered questions about mailing lists.
22 Q You're right. You answered questions about mailing
23 lists.
24 Is it fair to say that the mailing lists that
25 were used by Marquis were ordered and then the lists went
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8475 Barnes-cross/Schoer
1 directly to mailing houses
as opposed to coming into
2 Marquis itself?
3 A No, that's not fair to say.
4 Q Okay.
5 Do you know whether Marquis reviewed the mailing
6 lists before mailings were made?
7 A I don't know.
8 Q Do you know whether or not at times mailing lists are
9 not accurate?
10 A I don't know that.
11 Q I would like to show you what I'll mark as
12 Defendant's Exhibit FN -- I'm sorry, I'll mark it FO.
13 THE COURT: Are we waiting for something?
14 MR. SCHOER: I'm showing it to Mr. White before I
15 show it to the witness.
16 MR. WHITE: I haven't seen it before, Your
17 Honor.
18 BY MR. SCHOER:
19 Q Ms. Barnes, do you recognize that as I think you
20 called it a data mailing? That is a data mailing?
21 A That is a letter to a data mailing.
22 Q It's a letter and with that is a form that somebody
23 fills out and then sends back
to Marquis; is that fair?
24 A The form is not here.
25 Q The form is not there?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8476 Barnes-cross/Schoer
1 A That's fair.
2 Q But that's the cover letter that goes with the form?
3 A That is one of the letters that goes with one of the
4 forms for one of the publications, yes.
5 Q And that's a letter that is sent to someone whose
6 name comes from a mailing list or the kind of letter that
7 may be sent to someone whose name comes from a mailing
8 list; is that correct?
9 A I can't answer that. It could be, it could not be,
10 it could also be internal lists that were internal
11 research that was done.
12 Q Now, the other part of that document that I've handed
13 you second page, is that -- is that a brochure of Marquis
14 that is sent with a letter like the one that you have in
15 front of you?
16 A It's a brochure that from time to time is sent to
17 certain publications.
18 Q And that relates to Who's Who in American Law; is
19 that correct?
20 A That's correct.
21 Q And is that document the kind of document that would
22 be sent to someone whose name you received from a mailing
23 list?
24 A Could be. Could be one of many documents.
25 MR. SCHOER: Your Honor, perhaps I should
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8477 Barnes-cross/Schoer
1 separate them.
2 I would offer FO which is the letter and I'm
3 going to mark the other, what we call the brochure as FP.
4 THE COURT: All right. Any objection?
5 MR. WHITE: Are you offering both of them?
6 MR. SCHOER: Yes, I'm offering both of them.
7 MR. WHITE: No objection.
8 THE COURT: Defendant's Exhibit FO, Fox Oboe, and
9
FP, Fox Peter, in evidence.
10 (Defendant's Exhibits FO and FP received in
11 evidence.)
12 BY MR. SCHOER:
13 Q You also talked about a galley letter or galley
14 letters. I want to clarify that so we understand what
15 that is. That is something different from that data
16 mailing that we were just talking about; is that correct?
17 A That's correct.
18 Q I'm going to show you what I've marked as FQ. Is
19 that a galley proof?
20 A That is a galley proof.
21 Q And that is the kind of galley, I think you called it
22 a galley letter, but there's a letter that goes with that
23 and that's what is sent back?
24 A This is the proof for you to make the corrections or
25 additions.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8478 Barnes-cross/Schoer
1 MR. SCHOER: Your Honor I would offer that
2 document, FQ.
3 THE COURT: Any objection?
4 MR. WHITE: No objection, Your Honor.
5 (Defendant's Exhibit FQ received in evidence.)
6 BY MR. SCHOER:
7 Q Looking at that document --
8 THE COURT: Defendant's Exhibit FQ, Fox Queen, in
9 evidence.
10 MR. SCHOER: Thank you, Judge.
11 Q Looking at that document, FQ, that's a galley proof
12 that relates to me, right, for Who's Who in American Law?
13 A If you are Gary Schoer, yes.
14 Q That's me.
15 A Okay.
16 Q Now, you can't tell from that document how Marquis
17 got my name, can you?
18 A No.
19 Q I could have come from a mailing list?
20 A Could have. Could have been a nomination, could have
21 been a research.
22 Q Well, let me just ask you something about "could have
23 been a nomination." This document that is in evidence,
24 FK, looking at the page that talks about Who's Who in
25 American Law, there's a list of mail lists that were
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8479 Barnes-cross/Schoer
1 purchased by Marquis and sent out, data letters sent out
2 as a result of those mailing lists; is that correct?
3 A These are mailing lists that were used, yes.
4 Q And also there's a bottom line that says nominations,
5 self and others; is that correct?
6 A That's correct.
7 Q So I understand this document, it indicates there
8 were a total, total mailings for Who's Who in American Law
9 in 1992 or at least -- would that be for the year 1992 or
10 would that be just for this one date, October 1, 1992?
11 A The one date.
12 Q So on October 1, 1992, there were 168,679 mailings
13 for Who's Who in American Law?
14 A That's what it says.
15 Q Out of that 168,679 mailings, 296 of those were from
16 nominati
ons, self or others?
17 MS. SCOTT: May we know just what document he's
18 reading from.
19 MR. SCHOER: This is from FK.
20 MR. WHITE: What is the number on the bottom?
21 MR. SCHOER: R445OO7.
22 THE COURT: Let the record indicate that the
23 defendant Tara Garboski has appeared.
24 Good morning, Ms. Garboski.
25 DEFENDANT GARBOSKI: Good morning.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8480 Barnes-cross/Schoer
1 THE COURT: I explained to the jury about your
2 unfortunate car.
3 DEFENDANT GARBOSKI: I'm sorry.
4 THE COURT: It's all right.
5 MR. SCHOER: Shall I proceed, Mr. White? Do you
6 have what you were looking for? Do you want me to come to
7 you and show you what I'm offering?
8 MR. WHITE: May I see what it is?
9 MR. SCHOER: Sure.
10 (Counsel confer.)
11 BY MR. SCHOER:
12 Q I'm
not sure I got the last question out. I may be
13 repeating myself, but on this day, this mailing of October
14 1, there were 296 nominations in the total mailing of
15 168,000 plus; is that correct?
16 A That may have been very small, on that particular
17 date.
18 Q On that particular day.
19 A On that particular day, yes.
20 Q I'm only asking you about that particular day.
21 Now, the galley proof that you have in front of
22 you, I sent that information back to Marquis, right, at
23 some point?
24 Does Marquis verify any of the things that I put
25 on that sheet?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8481 Barnes-cross/Schoer
1 A We depend on the integrity of the listee to provide
2 accurate and honest information.
3 Q I hope I provided accurate and honest information,
4 but you don't verify in any way the infor
mation that I
5 provided on that document --
6 THE COURT: Wait a minute. Sustained. Desist
7 from what they verify and the jury is to disregard what
8 they verify or don't verify. It is totally irrelevant to
9 any issues in this case what this company does.
10 BY MR. SCHOER:
11 Q I'm going to show what you I've marked as Defendant's
12 Exhibit FR.
13 Could you tell me what that is?
14 A It's one of many forms. This one is asking you to
15 provide nominations if you care to do so.
16 Q So that was a form that is sent to someone who is one
17 of your "biographees," with a double e at the end, asking
18 them to nominate someone if they choose to do so?
19 THE COURT: Sustained.
20 I told the jury that this was offered for the
21 intent to deceive or lack of intent to deceive.
22 MR. SCHOER: Judge, may we approach with respect
23 to this?
24 THE COURT: No. You may not approach.
25 Proceed. Do you have any other questions that I
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8482 Barnes-cross/Schoer
1 told you that I would permit with respect to the other
2 issues?
3 MR. SCHOER: I believe I do, Judge.
4 THE COURT: Well, get to it.
5 BY MR. SCHOER:
6 Q Is it fair to say that Marquis Who's Who is the
7 leader in the industry?
8 THE COURT: Sustained.
9 Q Is it fair to say that Marquis Who's Who sets the
10 standards for the industry?
11 MR. WHITE: Objection.
12 THE COURT: Overruled.
13 A Would you repeat that question?
14 Q Sure.
15 Is it fair to say that Marquis Who's Who sets the
16 standards for your industry?
17 A Marquis Who's Who has biographical standards, yes.
18 Q No. No. What I'm asking you is with respect to all
19 of the
Who's Who publishers, would you consider Marquis
20 Who's Who to be the Rolls Royce of the industry?
21 A Marquis Who's Who publishes very reputable reference
22 directories.
23 Q You haven't answered the question.
24 Would you consider Marquis Who's Who to be the
25 Rolls Royce, the Cadillac of your industry?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8483 Barnes-cross/Schoer
1 MR. WHITE: Objection.
2 THE COURT: Sustained.
3 Do you consider Marquis Who's Who, and I
4 pronounce it differently than you do --
5 THE WITNESS: That's fine.
6 THE COURT: -- To set the standards, to set the
7 practices for the industry?
8 THE WITNESS: I believe that Marquis Who's Who
9 set standards years ago for the biographical reference
10 directories.
11 THE COURT: I'm not asking for standards for your
12 own company, but for the i
ndustry as a whole, if you can
13 use the "Who's Who" industry.
14 Does your company, that is to set the practices,
15 the customs in the industry?
16 THE WITNESS: I don't know what the other
17 standards are. I'm having a hard time answering that
18 because I'm not sure.
19 THE COURT: Then you don't know.
20 THE WITNESS: I don't know.
21 BY MR. SCHOER:
22 Q Mrs. Barnes, you testified yesterday outside the
23 presence of the jury. Do you remember that?
24 A Yes, I do.
25 Q Do you remember being asked this question and giving
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8484 Barnes-cross/Schoer
1 this answer?
2 THE COURT: Well, show it to counsel first.
3 MR. SCHOER: Page 8,334.
4 THE COURT: What page is it?
5 MR. SCHOER: 8,334.
6 THE COURT: All right. You may proceed.
7 BY MR. SCHOER:
8
Q Do you remember being asked this question and giving
9 this answer.
10 MR. SCHOER: Judge, may I read starting on line
11 13 or shall I start on line 17?
12 THE COURT: No, you can read on line 13.
13 MR. SCHOER: Okay.
14 "Question: As far as you are concerned, Marquis
15 is the Rolls Royce, the Cadillac of Who's Who biographical
16 directories, isn't that so?
17 "Answer: Absolutely.
18 "Question: And it sets the standard for the
19 industry, isn't that so?
20 "Answer: I believe it is. That is my opinion.
21 "Question: And whatever your company's custom
22 and usage is, that sets the standard for the custom and
23 usage in the industry, isn't that so?
24 "Answer: I'm assuming it is."
25 Do you remember being asked those questions and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8485 Barnes-cross/Schoer
1 giving
those answers yesterday?
2 A I remember that, but I would like to clarify --
3 Q The question is, do you remember --
4 THE COURT: Excuse me a minute. Listen to the
5 question.
6 THE WITNESS: Okay.
7 THE COURT: Answer the question responsively. If
8 they call for a yes or no, please try to answer yes or
9 no. If you can't, just say I can't answer that question
10 yes or no.
11 THE WITNESS: Okay.
12 BY MR. SCHOER:
13 Q Do you remember being asked those questions and
14 giving those answers yesterday?
15 A Yes.
16 THE COURT: What are we waiting for?
17 MR. SCHOER: Sorry. I'm sorry.
18 BY MR. SCHOER:
19 Q I'll show you what has been marked as Defendant's
20 Exhibit FR.
21 Is that a record --
22 THE COURT: Is this a second FR or the same FR?
23 MR. SCHOER: I'm sorry, Judge. I must have lost
24 track. FS, it's a
different document.
25 MR. SCHOER: Defendant's Exhibit FS.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8486 Barnes-cross/Schoer
1 BY MR. SCHOER:
2 Q Is that a record created by Marquis Who's Who?
3 A I believe it was created by Marquis Who's Who.
4 Q Is that a record that is kept in the ordinary course
5 of business of Marquis Who's Who?
6 A When McMillan owned us.
7 Q And that was created in 1991 or 1992; is that
8 correct?
9 A I don't see a date.
10 Q Well --
11 A Again, it says "1992 Business Planning Manual," but
12 McMillan didn't own us then. I don't know when it was
13 prepared.
14 Q Okay.
15 But it is projecting certain information in 1991
16 and 1992, is that fair to say?
17 A Yes, it's a document, a business planning document
18 for 1991 forecast.
19 MR. SCHOER: I would offer this do
cument?
20 THE COURT: Any objection?
21 MR. WHITE: May I ask a question?
22 THE COURT: Yes.
23 (Continued.)
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8487 Barnes-voir dire/White
1 VOIR DIRE EXAMINATION
2 BY MR. WHITE:
3 Q Have you ever seen this document before, that one?
4 A This particular document? I don't recall
5 specifically. I probably did.
6 Q I don't want to know about probably. Do you recall
7 seeing that document?
8 A (Perusing.) This particular document, I don't know.
9 Q Do you know who prepared that?
10 A No, I did not.
11 Q You did not.
12 And you don't know who did, correct?
13 A No.
14 Q You don't know the circumstances under which they
15 prepared it, do you?
16 A No, it says business planning.
17 Q All you know is what you read there on the
page,
18 right?
19 A Right.
20 Q Do you know where they got the information to put in
21 that?
22 A No.
23 Q Do you know if the information that is said to be put
24 in there is reliable or unreliable?
25 A I don't know.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8488 Barnes-cross/Schoer
1 MR. WHITE: I have an objection.
2 THE COURT: What is the ground of the objection?
3 MR. WHITE: Foundation.
4 THE COURT: May I see it?
5 MR. SCHOER: Here's a copy, Your Honor.
6 THE COURT: Well, not only objection -- well, I'm
7 sustaining the objection to relevancy grounds in addition
8 to foundation.
9 BY MR. SCHOER:
10 Q Ms. Barnes, did there come a time in April of 1993
11 that you wrote a letter in which you indicated that it was
12 time for the postal authorities to begin confiscating the
13 in
coming mail of Who's Who Worldwide?
14 MR. WHITE: Objection.
15 THE COURT: Sustained. Desist. The jury is
16 instructed to disregard that.
17 Counsel should not have asked that question and
18 I'm really surprised to hear it. Now, don't do that.
19 Do you have any other relevant questions,
20 Mr. Schoer?
21 MR. SCHOER: Yes, Judge.
22 BY MR. SCHOER:
23 Q Ms. Barnes, would you agree that the value of your
24 publications is subject to peoples' opinion as to how
25 valuable those publications might be?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8489 Barnes-cross/Dunn
1 MR. WHITE: Objection.
2 THE COURT: Sustained.
3 Mr. Schoer, you will sit down unless you have
4 anything relevant to the issues that I permitted this
5 witness to testify about.
6 Do you have anything relevant to those issues?
7 MR. SCHOER:
Judge, I think that that last
8 question is relevant to the issues, but if Your Honor
9 doesn't --
10 THE COURT: Well, I do not. Anything in that
11 vein I will not permit, clearly for the record.
12 MR. SCHOER: I have nothing further.
13 THE COURT: Anybody else?
14 MR. DUNN: Yes, Your Honor. I'll try.
15 CROSS-EXAMINATION
16 BY MR. DUNN:
17 Q Good morning, Ms. Barnes.
18 A Good morning.
19 Q I would like to ask you some questions about mailing
20 lists, if I may?
21 THE COURT: And not to be repetitive, Mr. Dunn.
22 MR. DUNN: I understand, Your Honor.
23 Q Yesterday I believe you testified at one point that
24 there was some kind of mailing list that your company
25 employed which resulted in a response rate of 3.46
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8490 Barnes-cross/Dunn
1 percent; is that c
orrect?
2 Do you remember that?
3 MR. WHITE: Objection.
4 THE COURT: Sustained.
5 BY MR. DUNN:
6 Q Well, while you were using mailing lists, you were
7 targeting a particular group of listees; is that correct?
8 A Yes.
9 Would you repeat that?
10 Q When you were using mailing lists, you were targeting
11 a particular group of listees with those mailing lists,
12 correct?
13 A Potential listees.
14 Q And is it fair to say that when you targeted these
15 listees, these potential listees, that response rates from
16 those particular mailing lists would vary? Is that true?
17 MR. WHITE: Objection.
18 THE COURT: Sustained.
19 BY MR. DUNN:
20 Q Part of your job deals with marketing, correct? Is
21 that correct, part of your job deals with marketing?
22 A Which job?
23 Q Did you testify yesterday that part of your job, an
y
24 part of your job, deals with marketing?
25 A Previously, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8491 Barnes-cross/Dunn
1 Q And marketing research?
2 A I personally didn't do marketing research, no.
3 Q But you are aware of people in your company that did
4 marketing research, correct?
5 A Yes.
6 Q People in your company that would use focus groups
7 for the purpose of dealing with market research, correct?
8 MR. WHITE: Objection.
9 THE COURT: Sustained.
10 BY MR. DUNN:
11 Q In reference to mailing lists, does the term known as
12 erosion, have any relationship to mailing lists?
13 MR. WHITE: Objection.
14 THE COURT: Sustained.
15 Q Based on your experience with mailing lists, do you
16 have any knowledge whether competitors used the same
17 mailing lists as you do?
18 A No.
19 Q Do you recall testifying at a civil proceeding in
20 which -- withdrawn.
21 Would it be fair to say at some point you believe
22 that Bruce Gordon's company was a competitor?
23 MR. WHITE: Objection.
24 THE COURT: Sustained.
25 MR. DUNN: Your Honor, it just goes for the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8492 Barnes-cross/Dunn
1 previous question for credibility, 611(b).
2 THE COURT: Sustained.
3 BY MR. DUNN:
4 Q It's fair to say based on your experience of 25 years
5 with Marquis Who's Who and based upon your testimony over
6 the last couple days, that you have knowledge of mailing
7 lists, correct?
8 A Yes.
9 Q And is it fair to say that if a competitor is using
10 mailing lists, that that may result in an erosion in your
11 potential listees?
12 MR. WHITE: Objection.
13 THE COURT: S
ustained.
14 Mr. Dunn, anything else?
15 MR. DUNN: I'm just double-checking, based on
16 your previous ruling.
17 I have no further questions.
18 THE COURT: Anybody else?
19 MR. TRABULUS: Yes, very briefly, Your Honor.
20 (Continued.)
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8493 Barnes-cross/Trabulus
1 CROSS-EXAMINATION
2 BY MR. TRABULUS:
3 Q Ms. Barnes, I just want to make it clear. When you
4 were president of Marquis Who's Who, Marquis Who's Who
5 would send letters to people telling them that they had
6 been nominated for consideration for inclusion in your
7 publication; is that correct?
8 A That was one form of letters, yes.
9 Q And that form of letter using the word "nominated,"
10 would be sent to, among others, people who had -- whose
11 na
mes came from a mailing list; is that correct?
12 A Among others, yes.
13 MR. TRABULUS: I have no further questions.
14 MR. GEDULDIG: I'm going to try just a couple,
15 Judge.
16 (Continued.)
17
18
19
20
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8494 Barnes-cross/Geduldig
1 CROSS-EXAMINATION
2 BY MR. GEDULDIG:
3 Q Ms. Barnes, I'm going to ask you some questions only
4 dealing with the period from approximately 1989 to
5 approximately 1994, okay? Is that all right with you?
6 A That's fine.
7 Q And during that period of time you were either the
8 president or the publisher of Marquis Who's Who; is that
9 correct?
10 A That's correct.
11 Q Now, during that period of time did your company send
12 out letters to prospective list
ees telling them that they
13 had been nominated for inclusion in your publications?
14 A Would you repeat that question?
15 Q During that period of time did your company send out
16 letters to prospective listees telling them that they had
17 been nominated for inclusion in any one of your
18 publications?
19 A For potential inclusion, for consideration.
20 Q Okay.
21 So they had been nominated for possible inclusion
22 for one of your publications; is that correct?
23 A That's correct.
24 Q And some of the people who had received those letters
25 were gotten, their names were gotten from mailing lists;
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8495 Barnes-cross/Geduldig
1 is that right?
2 A Possibly.
3 Q Am I correct in saying that you were telling some of
4 your prospective listees that they had been nominated for
5 inclusion in one of your publications when in fact no
6 nomination process at all had taken place, that their
7 names had come from mailing lists?
8 A We generally disclosed --
9 Q This is a question that can be answered yes or no.
10 My question is, did you send letters to people
11 telling them they had been nominated for possible
12 inclusion in one of your publications, their names were
13 gotten from mailing lists and in fact there was no
14 nomination process at all that was used?
15 Yes or no?
16 A If you have that letter --
17 Q You were the president or the publisher. I'm asking
18 you --
19 A I don't know the wording, the exact wording. You are
20 telling me wording and if you show it to me I can answer
21 yes or no.
22 Q I asked you the question previously and you said that
23 was done.
24 A Did you show me the letter?
25 Q You answered my question.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8496 Barnes-cross/Geduldig
1 Are you now telling me your prior answer was
2 inaccurate or you can't answer it as you did?
3 A No, because the wording, I can't recall that the
4 wording is identical to what you said yesterday.
5 Q Am I not correct -- let's talk about one of the
6 publications. You had one called industry and finance or
7 something like that; is that right?
8 A Who's Who in Finance and Industry.
9 Q Who's Who in Finance and Industry.
10 That was a publication of your company?
11 A That is correct.
12 Q And that publication, I think you've previously
13 testified, appealed to the same group of people that
14 Mr. Gordon's company was appealing to; is that right?
15 You were trying to approach the same people for
16 inclusion in your pu
blication as he was approaching?
17 MR. WHITE: Objection.
18 THE COURT: Sustained.
19 BY MR. GEDULDIG:
20 Q In any event, am I correct in saying that some of the
21 people contacted by Marquis Who's Who for inclusion in the
22 publication Who's Who in Finance and Industry were told
23 they had been nominated when in fact -- nominated for
24 inclusion, when in fact they had not been nominated?
25 A Nominated for consideration of inclusion.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8497 Barnes-cross/Geduldig
1 Q Right.
2 A Yes.
3 Q So they were told that they were nominated for
4 consideration of inclusion and in fact they had not been
5 nominated.
6 A They may have -- generally they were professionals.
7 Q My question is very simple.
8 A There might have been letters that said your name has
9 been brought to ou
r attention for consideration and they
10 had been nominated for inclusion --
11 Q Ms. Barnes, I did not say that. I used the word
12 "nominated." I used the word "nominated." You've
13 qualified it and you've said "nominated for inclusion,"
14 and I've accepted your qualification.
15 My question to you is very simple. It's a simple
16 question. Did you send letters to people who you were
17 soliciting for inclusion in your publication Who's Who in
18 World Finance or whatever that was, did you send those,
19 some of those people letters telling them that they had
20 been nominated for possible inclusion in that publication
21 when in fact they had not been nominated?
22 That can be answered yes or no.
23 A It can't because we did have nominations and the same
24 letter went to people who were nominated.
25 Q I understand that. Let's put them out of the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8498 Barnes-cross/Geduldig
1 equation. I'm not talking about people you say were
2 nominated. I'm talking about people --
3 MR. WHITE: Can I object to Mr. Geduldig making a
4 speech and lecturing the witness. If he has a question to
5 ask, he can ask it.
6 MR. GEDULDIG: I would like an answer and she is
7 twisting my question, Judge.
8 THE COURT: Excuse me, can I get a word in here.
9 MR. GEDULDIG: Yes.
10 THE COURT: I generally don't have any trouble
11 getting words in, Mr. Geduldig.
12 Mr. Geduldig, your tone is somewhat harsh, you
13 don't mean that, I know.
14 MR. GEDULDIG: I don't. I'm a gentleman.
15 THE COURT: Member of the jury, every lawyer has
16 their own technique. You've seen a panoply. Now, some
17 lawyers stay behind the lectern, they never move. Others
18 are like F
ran Tarkenton, which you don't know anything
19 about because you're too young. He was a quarterback that
20 came out of the pocket, he rolled around, he was a
21 scrambler. There are some lawyers who do that, I don't
22 want to tell you who they are. And then there is
23 Mr. Geduldig, he's very assertive, he's -- that's his
24 style. He's a very good lawyer and I let him have his own
25 say. Every lawyer has their own style. In fact they
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8499 Barnes-cross/Geduldig
1 should never change their style to try to be somebody
2 else. But that has nothing to do with this case.
3 Go ahead, Mr. Geduldig.
4 MR. GEDULDIG: Thank you, Judge.
5 I'll talk hopefully a little gentler.
6 BY MR. GEDULDIG:
7 Q My question is this. I'm not talking about all --
8 withdrawn.
9 Again, we're talking about your
publication Who's
10 Who in Finance and Industry. Is that the right title?
11 A That's the correct title.
12 Q There are a lot of people who were contacted by your
13 company for that publication and possible inclusion; is
14 that right?
15 A Probably -- yes.
16 Q And some of these people came to the notice of your
17 company through different methods; is that right?
18 A That's correct.
19 Q Now, we're zeroing in on just a segment of those
20 people that were contacted by your company, all right?
21 I understand that different systems were used,
22 but I'm now talking about one possible way in which your
23 company acted with regard to some of those potential
24 listees, all right? Do you understand my question now,
25 the group we're talking about?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8500 Barnes-cross/Geduldig
1 A For some of the listees?
2 Q Potential listees.
3 A Right.
4 Q For some of the potential listees.
5 My question is, is it not true that some of the
6 people contacted by your company for possible inclusion in
7 the publication Who's Who in Finance and Industry, were
8 told that they had been nominated, nominated for possible
9 inclusion in your publication when in fact they were not
10 nominated?
11 A I'm having a hard time answering that because --
12 THE COURT: The answer is yes, no, I don't know,
13 I don't remember or I can't answer yes or no.
14 THE WITNESS: I can't answer yes or no.
15 MR. GEDULDIG: If I can have one second, Judge.
16 THE COURT: Well, I think this is a time for a
17 ten-minute recess.
18 Do not discuss the case and keep an open mind.
19 (Jury exits.)
20 (Recess taken.)
21 (Jury enters.)
22 THE COU
RT: Please be seated, members of the
23 jury.
24 You may proceed, Mr. Geduldig.
25 MR. GEDULDIG: Thank you, Judge.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8501 Barnes-cross/Geduldig
1 BY MR. GEDULDIG:
2 Q Ms. Barnes, perhaps I can recast my question.
3 With regard to this publication Who's Who in
4 Finance and Industry, am I correct in saying that you
5 would contact prospective listees as nominees when in fact
6 their names were gotten from mailing lists?
7 A And I said I can't answer that yes or no.
8 Q Let me show you a letter, and ask you if you've ever
9 seen a letter such as the one I'm showing you now
10 (handing)?
11 A Yes, I've seen this letter.
12 Q That's a letter that was put out by your company?
13 A Yes.
14 Q To a prospective listee in the publication Who's Who
15 in Finance and Industry?
16 A Yes.
17 Q And it addresses the prospective listee as
18 "nominee."
19 A Yes.
20 Q Is it not possible that a person receiving that
21 letter that his name was obtained from a mailing list?
22 A I see now that this letter does say, it tells how
23 they got various -- various ways that they got the name.
24 Q Try to answer my question if you would, Mrs. Barnes.
25 I'm asking you is it not possible that a
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8502 Barnes-cross/Geduldig
1 prospective listee for Who's Who in Finance and Industry
2 received that letter and you got that name from a mailing
3 list?
4 A That's possible.
5 Q So you wrote letters to people calling them "nominee"
6 when in fact their names came from mailing lists.
7 A That's possible.
8 Q They were not nominated.
9 A That's possible.
10 Q How do you explain calling somebody a nominee who was
11 not nominated?
12 MR. WHITE: Objection.
13 THE COURT: Sustained.
14 MR. GEDULDIG: Judge, I would like to move this
15 letter into evidence. I'm not sure what we're up to.
16 MR. JENKS: FT.
17 MR. GEDULDIG: Frank Thomas, a baseball player.
18 THE COURT: Any objection?
19 MR. WHITE: Yes, Your Honor. I object to
20 Mr. Geduldig's taking one letter out of a packet out of a
21 mailing. He's not including as an exhibit the other
22 things that are in the envelope with the letter.
23 THE COURT: You want to put the whole package
24 in?
25 MR. WHITE: With the whole package I have no
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8503 Barnes-cross/Geduldig
1 objection whatsoever.
2 THE COURT: Do you want to do that,
3 Mr. Geduldig?
4 MR. GEDULDIG: Give me
a second, Judge.
5 THE COURT: While we have a few minutes, we'll
6 take a longer lunch hour. It's because I have to take
7 care of a matter involving a very serious illness of a
8 very dear friend of a judge of the Second Circuit who I
9 have to see over the lunch hour, and so we'll take an
10 extended lunch hour from 12:30 until 2 o'clock.
11 I'm sorry about keeping you waiting but I
12 wouldn't do it unless it was urgent that I do it.
13 What's happening, Mr. Geduldig?
14 MR. GEDULDIG: I think, Judge, the consensus is
15 we'll put in the whole package.
16 THE COURT: We'll call that FT, the whole
17 package.
18 MR. GEDULDIG: Yes, sir.
19 THE COURT: Defendant's Exhibit FT, Fox Tiger, in
20 evidence.
21 (Defendant's Exhibit FT received in evidence.)
22 BY MR. GEDULDIG:
23 Q Now, this letter is addressed to "Dear Marquis Who's
24 Who
nominee;" is that right?
25 A The letter you showed me, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8504 Barnes-cross/Geduldig
1 Q And that prospective nominee is the person whose name
2 may have come from a mailing list; is that right?
3 A May have, yes.
4 Q And this is a letter to a prospective listee to your
5 publication with Who's Who in Finance and Industry, is
6 that also right?
7 A I believe it was, yes.
8 Q Now, you did have a nomination process at Who's Who
9 during this period 1989 to 1994?
10 A Yes.
11 Q And you sent out mailings during that period to
12 prospective listees for the publication Who's Who in
13 Finance and Industry; is that right?
14 A Would you repeat that question?
15 Q You sent out mailings, mass mailings during the
16 period of 1989 to 1994 to prospective listees in the
17 pu
blication Who's Who in Finance and Industry?
18 A Yes.
19 Q And this would be a break down of one such mailing
20 that your company sent out to prospective listees in the
21 publication Who's Who in Finance and Industry, is it not?
22 A Yes.
23 MR. GEDULDIG: I'm showing Ms. Barnes an item
24 which is already in evidence and has been marked
25 Defendant's Exhibit FK.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8505 Barnes-cross/Geduldig
1 BY MR. GEDULDIG:
2 Q And in that listing you break down by percentage how
3 you got the names of people that you were contacting by
4 letter; is that right?
5 A No.
6 Q Tell me what it is.
7 A It's a listing of the sources that were used, how
8 many were used and how many were returned and the percent
9 of return to that mailed.
10 Q How many mailings were made?
11 THE
COURT: I will not permit this to go on now.
12 Sustained.
13 MR. GEDULDIG: This has to do with the nomination
14 process.
15 THE COURT: Well, ask the question. You asked it
16 I thought and you received an answer.
17 BY MR. GEDULDIG:
18 Q On that list you are looking at now, does it say how
19 many people were nominated?
20 A No.
21 Q Does it have a nomination column?
22 A It says how many were mailed that day. It doesn't
23 say how many were nominated.
24 Q In that particular mailing, does it say how many
25 people were nominated?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8506 Barnes-cross/Geduldig
1 A No.
2 MR. WHITE: Objection.
3 THE COURT: Sustained. Strike out the answer.
4 BY MR. GEDULDIG:
5 Q There's a number on that list for 205,381.
6 THE COURT: Sustained.
7 Q On this exhibi
t that you had looked at before that
8 has been marked FT, on the top page there's a handwritten
9 letter, WF with a slash and another letter. Do you see
10 that?
11 A Yes.
12 Q Can you tell us what that stands for?
13 A It stands for Who's Who in Finance and Industry, a
14 mailing to a person who was in the prior edition.
15 Q And that's a code?
16 A Yes.
17 Q And does that code appear on some of the other
18 documents in that package?
19 THE COURT: Well, does it, Mr. Geduldig?
20 MR. GEDULDIG: I believe it does.
21 Yes, it does.
22 THE COURT: All right. Show it to her.
23 THE WITNESS: There's a letter.
24 THE COURT: Okay.
25 Proceed.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8507 Barnes-cross/Geduldig
1 BY MR. GEDULDIG:
2 Q Does the code appear in this letter (indicating)?
3 A No.
4 Q Does this indicate any kind of a code (indicating)?
5 A Yes.
6 Q I thought you said it doesn't appear in the letter?
7 A That's not the same code.
8 Q But this is also a code?
9 A That's a code.
10 Q And what does that code stand for?
11 A Data mailing.
12 THE COURT: Sustained. Next case -- I mean, next
13 question.
14 Boy, was that a Freudian slip.
15 MR. GEDULDIG: Wishful thinking. We're all on
16 the same thing.
17 THE COURT: Let's move along, Mr. Geduldig.
18 MR. GEDULDIG: Judge, --
19 THE COURT: Let's move along.
20 MR. GEDULDIG: Judge, I have no other questions.
21 I have nothing else.
22 THE COURT: Anybody else?
23 Mr. White?
24 MR. WHITE: Yes, Your Honor.
25 THE COURT: Go ahead.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8508 Barnes-cross/White
1 CROSS-EX
AMINATION
2 BY MR. WHITE:
3 Q Now, Ms. Barnes, aside from when you appeared in
4 court to testify the other day, you and I have never met,
5 correct?
6 A That's correct.
7 Q And we've never sat down and discussed your
8 testimony?
9 A That's correct.
10 Q Now, Ms. Barnes, I would like to go over with you
11 this Defendant's Exhibit FT that Mr. Geduldig just showed
12 you.
13 Now, that was a letter that was sent out to
14 prospective, people who were prospective candidates to be
15 in Who's Who in Finance and Industry; is that right?
16 A I believe they were all finance and industry. It's a
17 whole package. Several mailings.
18 Q If you can --
19 A They were all finance and industry, yes.
20 Q Take a look at the third page which I think that was
21 the page that Mr. Geduldig was referring you to.
22 A Yes.
23 Q Tha
t indicates, the greeting on the letter says "Dear
24 Marquis Who's Who nominee;" is that correct?
25 A That's correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8509 Barnes-cross/White
1 Q If you look down at the second paragraph, just follow
2 along with me as I read it and then I want to ask you a
3 question about it.
4 It says "as part of the identification process
5 our research staff consults many publicly available
6 sources including annual reports, directories,
7 professional society rosters, newspapers and magazines.
8 Your appearance in such a source warrants the
9 consideration of your professional accomplishments for
10 inclusion in Who's Who in Finance and Industry."
11 Do you see that?
12 A Yes.
13 Q And this is what gets disseminated to all of those
14 people that you are mailing stuff to, right?
15 A Y
es.
16 Q Now, is it correct that while the greeting at the top
17 says "nominee," this letter does tell the recipient that
18 he could have come from a publicly available source?
19 A It does.
20 MR. GEDULDIG: Objection.
21 THE COURT: What ground?
22 MR. GEDULDIG: Objection to the form of the
23 question, Judge. Mr. White is testifying.
24 MR. WHITE: It's cross-examination, Your Honor.
25 THE COURT: Well, that's an interesting point.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8510 Barnes-cross/White
1 I've held that this witness, I don't want to get into what
2 the legal definition is and that's why I permitted
3 cross-examination tactics, rather leading questions by the
4 other attorneys.
5 MR. WHITE: Your Honor, the same thing should
6 hold here, Your Honor.
7 THE COURT: No, I don't think so. I'm sustaining
8
the objection. Don't lead the witness.
9 MR. WHITE: Your Honor, I don't think your ruling
10 before the converse is true with respect to the
11 government.
12 THE COURT: Well, I'm now making it a ruling.
13 Proceed.
14 BY MR. WHITE:
15 Q Can you tell us, Ms. Barnes, what your understanding
16 is of what a professional society roster is?
17 MR. TRABULUS: Objection, Your Honor.
18 THE COURT: Overruled.
19 A A professional society roster could be a roster, a
20 list of names of people who are in a particular
21 profession, a particular society.
22 Q And annual reports in this letter, what does that
23 refer to?
24 A Annual reports, as I interpret them, are reports that
25 are produced by businesses, corporations and it typically
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8511 Barnes-cross/White
1 lists names of t
heir directors and key employees.
2 Q And when it says here "directories," what does that
3 refer to?
4 A Directories are typically other sources of
5 biographical directories about people with names in them.
6 Q This also refers to Marquis' research staff; is that
7 correct?
8 A Yes.
9 Q Does Marquis have a research staff?
10 A Yes.
11 Q Does the research staff determine who is accepted for
12 inclusion in the book?
13 MR. JENKS: Objection.
14 THE COURT: Sustained.
15 BY MR. WHITE:
16 Q Who determines who is accepted for inclusion in the
17 book?
18 MR. JENKS: Objection.
19 THE COURT: Sustained.
20 Q Now, let me show you Government's Exhibit -- let me
21 back up.
22 Do you recall testifying yesterday that in
23 response from questions from Mr. Neville that your
24 recollection was that there was a brochur
e sent out by
25 Marquis Who's Who that indicated the sources of Marquis'
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8512 Barnes-cross/White
1 name?
2 A Yes.
3 Q Let me show you Government's Exhibit 1622 for
4 Identification, and let me ask you if you recognize that
5 brochure, 1622?
6 A Yes, I do.
7 Q And what is it?
8 A It's a brochure to potential listees for Who's Who in
9 Finance and Industry. That's a letter. And inside we
10 tell them how we got their names and general questions and
11 answers.
12 Q And was that part of mailings that were sent out to
13 prospective listees in Who's Who in Finance and Industry?
14 A Yes, it was.
15 Q Did you send out those sorts of brochures with
16 mailings as a regular part of your business?
17 A Yes, we did.
18 Q And did you do that in the regular course of Ma
rquis
19 Who's Who business?
20 A Yes.
21 MR. WHITE: The government offers 1622.
22 Let me show it to defense counsel.
23 THE COURT: Did you say you offer that?
24 MR. WHITE: Yes, Your Honor, but I believe
25 defense counsel needs time to review it.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8513 Barnes-voir dire/Neville
1 MR. NEVILLE: Your Honor, may I have a couple of
2 voir dire questions?
3 THE COURT: Surely.
4 VOIR DIRE EXAMINATION
5 BY MR. NEVILLE:
6 Q Ms. Barnes, this brochure that Mr. White just showed
7 you --
8 A The question, yes.
9 Q It's a preliminary question and it shows that I'm
10 leading up to another one. Where did Mr. White get this?
11 Do you know?
12 A The Judge asked us to go through our documents last
13 night to indicate if there was any brochures that listed
14 how we got the names.
15 Q And how did Mr. White get this?
16 A I have no idea. I didn't give it to him.
17 Q Did Mr. Bailey give it to him?
18 A I gave it to Mr. Bailey.
19 Q So you gave it to Mr. Bailey?
20 A I gave it to Mr. Bailey.
21 Q So Mr. White ultimately got it from you?
22 THE COURT: Is that a question on voir dire?
23 MR. NEVILLE: No, sorry.
24 THE COURT: Well, why are you asking it for?
25 MR. NEVILLE: I apologize.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8514 Barnes-cross/White
1 BY MR. NEVILLE:
2 Q Did you hand this document to your lawyer yesterday?
3 THE COURT: Sustained.
4 Anything else on voir dire?
5 MR. NEVILLE: No, I'll save it.
6 THE COURT: Any objection?
7 MR. TRABULUS: No, Your Honor.
8 THE COURT: Government's Exhibit 1622 in
9 evidence.
10 (Government's
Exhibit 1622 received in evidence.)
11 MR. WHITE: Your Honor, I would ask that you
12 instruct the jury that you instructed the witness to make
13 available subpoenaed documents to the party this morning.
14 THE COURT: I did.
15 MR. WHITE: And I got here early -- not as early
16 as you, Your Honor.
17 THE COURT: Now that you raised the subject,
18 Mr. White, getting here early is a relative time factor.
19 MR. WHITE: I said not as early as you, Your
20 Honor.
21 Your Honor, the exhibit was accepted.
22 THE COURT: Yes, in evidence as 1622.
23 BY MR. WHITE:
24 Q Ms. Barnes, if you can follow along with me as I read
25 a part of this. On page 2 of this brochure under the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8515 Barnes-cross/White
1 heading where it says Q and A, answers to -- I'm sorry,
2 I'm reading from the wrong
column.
3 From the second column on page 2. It says, "how
4 did we get your name?"
5 Do you see that?
6 A Yes, I do.
7 Q Let me read it.
8 "Though individuals are occasionally nominated
9 by their associates for our publications, our own staff
10 researches in numerous locations where people of
11 achievement and position are likely to be found and sends
12 out questionnaires to gather specific information.
13 In today's rapidly changing society we must be
14 extremely creative in our research. For example, we have
15 learned we may find people who qualify among those," and
16 there's a colon and bullet points.
17 A Right.
18 Q The first bullet point says, "among those, number
19 one, who have subscribed to prestigious journals or
20 business publications for ten years or more because these
21 people are likely to be highly involved in their
careers."
22 Bullet point number 2. "Who belong to profession
23 associations or societies, including chambers of
24 commerce."
25 Bullet point number 3. "Who have earned college
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8516 Barnes-cross/White
1 degrees or professional certification and have spent a
2 decade or more in their chosen field."
3 Bullet point number 4. "Who are active in social
4 and community affairs and whose names are routinely found
5 in association rosters, annual reports and the local
6 newspapers."
7 "Every year our editors send questionnaires to
8 people from many sources such as these. From the
9 information we receive we determine those biographies that
10 will be published in our edition."
11 Do you see that, Ms. Barnes?
12 A Yes, I do.
13 Q I want to ask you about those bullet points. The
14 first one is "people who have subscribed to prestigious
15 journals or business publications for ten years or more."
16 What does that refer to?
17 MR. TRABULUS: Objection, Your Honor.
18 THE COURT: Sustained.
19 BY MR. WHITE:
20 Q Let me go back to Defendant's Exhibit FT which is the
21 letter that you had in front of you.
22 By whom is that letter signed?
23 A The third page in?
24 Q Yes.
25 A Judy Salk.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8517 Barnes-cross/White
1 Q Is Ms. Salk a real person?
2 A Yes, she is.
3 Q And on the left-hand side of the letter, a board of
4 advisor is listed?
5 A Yes.
6 Q Are those real people?
7 A Yes.
8 MR. JENKS: Objection.
9 MR. SCHOER: Objection.
10 THE COURT: What ground?
11 MR. JENKS: Outside the scope of Your Honor's
12 ruling.
13 MR. WHITE: It's the issue that is put in.
14 THE COURT: I limited the defense and I'll limit
15 you as well. Sustained. It's in evidence, the jury can
16 see it.
17 I've told the jury two or three times the
18 purpose, the reason I'm allowing the testimony to go in
19 and it isn't to explore Marquis Who's Who, but if the jury
20 hears evidence of a custom and standard and practice in
21 the industry, it bears upon the intent or lack of intent
22 to deceive. That's why I allowed it in, only for that
23 purpose and not to delve into the corporate background and
24 purposes and methods of operation of Marquis Who's Who.
25 That's why I very definitely limited the defense questions
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8518 Barnes-cross/White
1 and I'll do the same to you when you pay attention to what
2 I say.
3 MR. WHITE: Your Honor, if I could, just at the
4 side bar, I want to clarify one thing because I don't want
5 to contravene Your Honor's ruling.
6 THE COURT: Come up.
7 (Side bar.)
8 THE COURT: Yes, Mr. White.
9 MR. WHITE: Your Honor, I -- neither does the
10 government want to get into a comparison of the two. I
11 just want to make one thing clear which I think was raised
12 by the defendants.
13 The government's ultimate theory of the fraud in
14 this case is not simply that mailing lists were used or
15 whatever, it goes to the old selection that it was not
16 selective.
17 THE COURT: I understand.
18 MR. WHITE: So I think there is a distinction to
19 be drawn because Mr. Neville raised a clear implication in
20 his questions that by Marquis' use of a lot of mailing
21 lists, that you wanted more and more money and whatnot.
22 And it s
hould be made clear, I think, just the simple
23 point that as I think she intimated with Mr. Neville, that
24 in this company there's a research department that decides
25 whether or not you are admitted and attempts at sales have
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8519 Barnes-cross/White
1 nothing to do with that and come later.
2 THE COURT: Sustained.
3 We'll not get into the nuances of this company
4 because that will, on redirect, go into all the other
5 things that I've kept out. Now, it is very clear there
6 were certain things I told you that you could ask about
7 and that's what you could ask about. You can also ask
8 about the mailings, if you want to go into it. You've
9 already offered the brochure.
10 MR. WHITE: Right.
11 THE COURT: But I'm going to hold you to that,
12 that's it.
13 MS. SCOTT: They went way
outside of the scope
14 yesterday and that was after we objected and after Your
15 Honor instructed them not to. Part of the reason we
16 didn't continue to object we didn't believe Your Honor
17 would sustain our objections. We haven't had much success
18 that way, frankly.
19 THE COURT: Ms. Scott, I don't know what in the
20 world you are talking about. You never have been
21 prohibited from objecting as to anything and if you
22 decided for your own reasons that you were going to
23 decide, think, guess what I was going to do so you didn't
24 object, that's very poor strategy, trial tactics. I can
25 only ascribe that to inexperience, Ms. Scott. So don't
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8520 Barnes-cross/White
1 tell me that you didn't want to object because you thought
2 what I would or would not rule.
3 MR. WHITE: Your Ho
nor, Mr. Neville asked several
4 questions regarding what the telemarketers did at Marquis
5 and what and how they dealt with libraries, and I just
6 wanted to clarify that. That is a question that he
7 specifically asked.
8 THE COURT: I want to tell you something, I
9 didn't want to say it before for the record but I will
10 have to now. I had to object on your behalf 12, 15 or 20
11 times because you didn't think enough of your own case to
12 object and I resent the implication made by Ms. Scott that
13 I in any way was unfair in my ruling. If anything, I
14 protected the government's interest too much.
15 Now, let's proceed.
16 MR. WHITE: Okay.
17 (End side bar.)
18 MR. WHITE: Your Honor, may I publish Exhibit
19 1622 to the jury?
20 THE COURT: Yes.
21 MR. WHITE: Thank you.
22 BY MR. WHITE:
23 Q Now, Ms. Barnes, on Defendant's Ex
hibit FT and the
24 brochure we've just looked at, can you tell us whether or
25 not that is -- those are typical of the mailings that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8521 Barnes-cross/White
1 would be sent by Marquis Who's Who?
2 A Yes, they are.
3 Q And does that apply to some, excluding Who's Who in
4 America for a moment, the remaining titles, does that
5 apply to some or all of the other Marquis titles?
6 A All of the other Marquis titles.
7 Q Now, is there a practice at Marquis with respect to
8 advising potential listees of the source of their names?
9 MR. LEE: Objection, Your Honor.
10 THE COURT: Overruled.
11 A Yes.
12 Q Can you tell us in substance in general, in summary,
13 what that is?
14 A We typically in every brochure letter that their name
15 could have come from a variety of sources, could h
ave been
16 a professional roster society list, alumni list, rosters
17 of prestigious journals such as Harvard Business Review,
18 while the particular journal may not have been mentioned.
19 Q Is there a practice that is followed at Marquis Who's
20 Who regarding what to do if someone who is a potential
21 listee in one of your titles asked where you got my name
22 from?
23 MR. TRABULUS: Objection.
24 MR. LEE: Objection.
25 THE COURT: Overruled.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8522 Barnes-cross/White
1 A Yes.
2 Q What is that practice?
3 A Generally referring to the wording I explained, and
4 if that is not enough and they wanted to know of the exact
5 source, we would ask them to hold them on the telephone,
6 bear with us, and we look it up on the computer.
7 Q Is there a practice once you looked it up on
the
8 computer and it lists that someone came from a
9 professional association list, to tell them that?
10 A Yes.
11 MR. WHITE: Your Honor, may I have one moment?
12 THE COURT: Yes.
13 MR. WHITE: Your Honor, I'm just trying to find a
14 defense exhibit.
15 BY MR. WHITE:
16 Q Ms. Barnes, let me show you what has been marked as
17 Defendant's Exhibit Z, which is already in evidence in
18 this case.
19 That is a 1989 letter to Mr. Gordon regarding his
20 nomination in -- nomination for possible inclusion for
21 Who's Who in the East.
22 Do you see that?
23 A Yes, I do.
24 Q Can you tell from looking at that letter whether
25 Mr. Gordon was really nominated?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8523 Barnes-cross/White
1 A David Swanson was in customer service. Yes, I can.
2 Q What did you t
ell?
3 A He took a phone call and this letter went out as a
4 result of the phone call. Somebody nominating Mr. Gordon,
5 maybe he nominated himself, maybe somebody else called in
6 and nominated him.
7 Q You mentioned the name David Swanson.
8 A He was an employee of ours.
9 Q He was the man who signed the letters?
10 A Yes.
11 Q I want to make sure I'm clear.
12 From the fact that Mr. Swanson signed the letter,
13 how do you know that Mr. Gordon was nominated?
14 A Because he worked in customer service and part of his
15 job was to take the phone calls for nominations coming in.
16 Q So from your knowledge at Marquis you can say that
17 that did not come from a mailing list?
18 A Absolutely.
19 MR. WHITE: No further questions, Your Honor.
20 (Continued.)
21
22
23
24
25
OWEN M. WICKER,
RPR OFFICIAL COURT REPORTER 8524 Barnes-recross/Trabulus
1 RECROSS-EXAMINAITON
2 BY MR. TRABULUS:
3 Q This Mr. Swanson you are talking about, he worked in
4 customer service; is that correct?
5 A Yes.
6 Q And you said part of his job might be to take
7 nominations; is that correct?
8 A Yes.
9 Q And he worked at the phone, correct?
10 A He worked on incoming calls.
11 MR. WHITE: Objection.
12 As I understood Your Honor's ruling before, this
13 is the same topic.
14 THE COURT: You raised it, Mr. White. I'll allow
15 a limited inquiry because you raised it. And by doing so
16 went outside the perimeters without objection by the
17 defendants.
18 BY MR. TRABULUS:
19 Q Would he also take orders?
20 A In customer service, sometimes they would take
21 orders. They took incoming phone calls and whatever
22 happened as a result of that.
23 Q And you've known about this letter to Mr. Gordon
24 since 1994 at least; is that correct? You've seen it
25 before?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8525 Barnes-recross/Trabulus
1 A Yes.
2 Q And you testified about it in 1994, did you not?
3 A Yes.
4 Q In the Reed civil suit?
5 A I believe I did.
6 Q Now, since that time have you inquired of Mr. Swanson
7 as to whether or not two weeks before that letter was
8 sent, Mr. Gordon had ordered a copy of Who's Who in the
9 East from Mr. Swanson?
10 A Mr. Swanson hasn't been employed with us since 1991,
11 1992.
12 Q So when you say that Mr. Swanson took an incoming
13 call, you don't know whether that incoming call was a
14 nomination or possibly Mr. Gordon calling up and saying I
15 want to buy a copy of Who's Who in
the East?
16 A He wouldn't have gotten this letter.
17 Q You haven't spoken to Mr. Swanson about that, have
18 you?
19 THE COURT: Sustained. Let's move along.
20 MR. TRABULUS: Your Honor, I will. I will. I
21 just want to take the exhibit.
22 BY MR. TRABULUS:
23 Q I will stand near you, Mrs. Barnes.
24 Now, this is Exhibit 1622 in evidence which
25 Mr. White questioned you about, and he asked you to read
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8526 Barnes-recross/Trabulus
1 various portions of it; is that correct?
2 A Yes.
3 Q And under "how did we get your names," where it says
4 "though individuals are occasionally nominated by their
5 associates for our publications, our own staff researches
6 in numerous locations where people of achievement and
7 position are likely to be found and sends out
8 questionn
aires to gather specific information."
9 A That's the first paragraph.
10 Q And then after that, it lists or it sets forth
11 various places where people may be found; is that correct?
12 A That's correct.
13 Q Now, is it fair to say that the phrase "mailing list"
14 does not appear in this document?
15 A The words "mailing list."
16 Q Does not appear?
17 A Does not appear.
18 Q And it doesn't appear in any of the letters that were
19 included in Exhibit FT, does it?
20 A It's implied but not listed.
21 MR. TRABULUS: Move to strike.
22 Q Does it appear in any of those letters?
23 A No.
24 Q Now, this brochure does not say, does it, that our
25 research staff has not done any research leading to your
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8527 Barnes-recross/Trabulus
1 particular name before your getting thi
s mailing, does it?
2 A Would you repeat that?
3 Q I'll rephrase it.
4 Does this brochure say to the person although
5 we're talking about a research staff, you are getting a
6 letter that came directly from a direct mail source on a
7 mailing list that we rented, does it say that?
8 A It says you may have been chosen by subscriber.
9 Q Is the answer yes or no, ma'am?
10 A I can't answer it yes or no.
11 Q Does it tell the person who receives it after talking
12 about our research staff, that the research staff probably
13 never heard about that person's name after that date?
14 A I'm sorry, I don't understand what you're asking.