Editor Gets a Glimpse at Elsevier’s Files

SAN DIEGO (CN) — Legal publisher Elsevier cannot prevent the editor of one of its academic journals from viewing court documents in a lawsuit that could deliver him thousands of dollars in royalties, a federal judge ruled.

U.S. District Judge David Bartick found that Elsevier failed to establish good cause for entering an "attorney's eyes only" confidentiality designation on a protective order applied to certain court documents.

Duncan Lindsey, Ph.D., has edited "Children and Youth Services Review" for 38 years and is its editor today. A retired UCLA professor, he has written many books on child welfare and received the highest award in his field, the Pro Humanitate Medal. His contract with Elsevier will expire in 2018, absent renewal, according to Bartick's Aug. 19 ruling on the joint motion on the disputed protected order.

In his March 17 complaint in Superior Court, Lindsey says he "believes that Elsevier has made millions of dollars from thousands of institutional subscriptions to 'Children and Youth Services Review' worldwide." He also believes that "Elsevier has obfuscated, misled and failed to disclose the truth about the way it was calculating Dr. Lindsey's royalties," the number of subscriptions to the journal, and the royalties due to him.

He says Elsevier never has paid him, other than a small stipend, because his 1978 contract stipulated he would not receive 15 percent of net institutional subscription income until Elsevier received more than 750 such subscriptions.

Elsevier told him the 750 subscription threshold was never reached. When it asked him to sign a new contract in September 2015, Elsevier told him there were only 26 institutional subscribers worldwide, which Lindsey calls "ridiculous on its face."

He says that "set off alarm bells" and made him think that "Elsevier may not have been honestly representing the number of subscribers for years." He demanded an accounting and says Elsevier refused.

When he insisted, Lindsey says, Elsevier told him it was not counting electronic subscriptions toward the 750 threshold, and that it included "Children and Youth Services Review" in bundled subscriptions with other journals, and was not counting those either.

It also told him that some customers get access to his journal without any subscription at all, according to Lindsey's complaint.

In the latest court battle, Elsevier said Lindsey should not be able to view certain "highly sensitive and confidential" documents in the case because they may contain trade secrets. It said Lindsey may become a competitor, and it would be "impossible to prevent him from starting a competing journal at the end of this litigation."

Lindsey says he has no desire to become a publisher and plans to retire, but that apparently does not placate Elsevier.

Bartick did not buy Elsevier's comparison of this case to one in which a defendant's fear of competitive harm was found to be legitimate.

"The court does not find Elsevier's fear of a current employee potentially starting a competing business in a brand new field in his early 70s to be remotely as legitimate as, or even comparable to, the fear of disclosing supplier and customer lists to the president of a competing business currently in the same field," Bartick wrote.

He called call Elsevier's concerns "highly speculative and highly unlikely" given Lindsey's career history, retirement status and age.

Elsevier was also concerned about disclosing financial information and publishing agreements with journals unrelated to "Children and Youth Services Review," which it claims contain trade secrets. Bartick agreed, and signed a protective order to prevent that information from being improperly disclosed.

Lindsey said he would be severely prejudiced if he were not allowed to view Elsevier's financial information and agreements relevant to his claims. He said he will rely "on his own expertise and decades of experience as an editor" to make decisions on his litigation. He says his attorney does not have experience with subscriptions, journal publishing and editorial compensation, so he, Lindsey, will make the "factual conclusions."

Bartick said that Lindsey's attorney "is more than qualified to assist with analyzing and preparing plaintiff's case," but he agreed that Lindsey could be prejudiced if he is not able to review Elsevier's information. He denied Elsevier's request for an "attorney's eyes only" confidentiality designation.

Lindsey is represented by Susan Klein with Valle Makoff; Elsevier by Andrew Gold with Bogatin, Corman & Gold. Neither law office returned phone calls and emailed requests for comment.

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