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Kitzmiller v. Dover Area School District

Pre-Trial transcript: July 14, Part 2


THE COURT: Part two of today's proceeding is the application for intervention filed by the Foundation for Thought and Ethics for the plaintiff, and the defendant obviously we have the same counsel.

Counsel, would your enter your appearances for -- on behalf of the applicant.

MR. BOYLE: Yes, Your Honor, Dennis Boyle on behalf of Foundation for Thought & Ethics.

MR. BROWN: Leonard Brown. Good afternoon, nice to see you.

THE COURT: All right, nice to see you.

All right. You filed the application. It's my understanding that you may have some testimony that you want to present.

MR. BOYLE: That's correct, Your Honor.

THE COURT: You may proceed.

MR. BOYLE: At this time, Your Honor, I would call Jon Buell, the president of the Foundation for Thought and Ethics.

JON A. BUELL, called as a witness on behalf of the petitioner, having been duly sworn or affirmed according to law, testified as follows:

THE DEPUTY CLERK: State your name and spell your last name please for the record.

THE WITNESS: My name is Jon Buell, Jon A. Buell, J-O-N, B-U-E-L-L.

THE COURT: All right, you may proceed.



Q Mr. Buell, what is your current address?

A 6401 Embers Road, E-M-B-E-R-S Road, Dallas, Texas, 75248.

Q And by whom are you currently employed?

A I am employed by the Foundation for Thought and Ethics.

Q And what is your position there?

A My position is as president.

Q And prior to working there where did you work?

A I worked at Probe Ministries prior to the Foundation.

Q And was Probe Ministries a publication-type ministry?

A Lectures in classrooms, but publications as well, and I was the editor of the publications.

Q Okay. What is the Foundation for Thought and Ethics?

A The Foundation for Thought and Ethics is organized to promote freedom of choice for young people in the classroom, especially as it pertains to matters of world view and philosophy and character and the like.

Q How about with respect to science?

A And with respect to science, we've had a burden that -- that natural -- that -- I'm sorry, that intelligent cause, which is so at home in various branches of science, might also extend to biology.

Q And how does the Foundation for Thought and Ethics fulfil this job, this mission?

A Well, we've organized some scientific symposia and we do some teacher training, but primarily through publication of supplemental textbooks for the public school classroom.

Q And where does the Foundation for Thought receive its support from?

A Well, we sell our books, market our books to the schools.

Q What percentage of your income comes from marketing books?

A Well, at this point it's probably about 40 percent.

Q Is that a growing percentage every year?

A Yes, it is.

Q And why is that?

A Well, because in order to really make independent reps who are out making contacts with teachers productive, you have to have a pipeline of product. And as we -- at this point we don't have as much product as the average publisher does, so we have to produce more product which would be text -- supplemental textbooks and teachers guides and peripherals that make them attractive and easy to use for the teachers. And as we do that, as we accomplish that, then we'll have more reps and be able to contact more schools.

Q Okay. Is the Foundation for Thought and Ethics a religious organization?

A No, it's not.

Q What kind of organization is it?

A Well, it's an educational organization.

Q And does it seek to provide any -- promote any Christian message in that education?

A No, it does not.

Q Any religious message at all?

A No, none at all.

Q Your corporate charter mentions a Christian purpose, does it not?

A The articles of incorporation.

Q Okay. And when were they founded, when --

A They were -- they're -- I think it was 1980.

Q And since 1980 have you operated as a Christian organization at all?

A Not at all. We have, you know, a 25 year plus track record of what we've done, which does -- you know, which you can easily compare or look for Christian activities, it's not there.

Q Do you seek to promote any sort of Evangelical message in any way?

A No, we don't.

Q Do you publish -- are you familiar with the book Pandas and People?

A Yes.

Q What is your relationship to the book Pandas and People?

A Well, we are the publisher of Pandas and People.

Q And what is Pandas and People?

A It's a book designed to supplement basal biology textbooks in public school classrooms and present the scientific rationale for intelligent design.

Q I guess we better be clear on what a basal textbook is.

A A basal textbook is a textbook that's designed to cover all the material in a course. Each state has its required benchmarks, if you will, of what has to be covered in American History, what has to be covered in biology, et cetera, and so a basal textbook is going to fare on the market in that state according to how much -- if it has a large percentage or all of those benchmarks so that the teacher can use that basal textbook and be fulfilling his responsibility.

Q And how would a supplemental textbook like Pandas and People be used in that curriculum?

A Well, the layout of Pandas and People is -- follows the -- topically follows the basal textbook. So we would like for our book to be used during the entire course, but practically speaking many people, many teachers will take it and use it for say a two week period. So it's flexible.

Q And what is the rationale for Pandas and People; what is the -- why is it different?

A Well, it's different because it presents the view of intelligent design. And the view of intelligent design is that -- it's the view that intelligent cause, which is so at home in various branches of science, examples would be the search for extraterrestrial intelligence, forensic science, archeology, in all of these branches of science we're very much at home in searching for, recognizing and having confidence that we can identify the product of intelligence.

Now, it's taking that same -- that same kind of confidence and that same purpose and looking, for example, in biology. When we look at biological organisms and especially their genomes, we recognize the same intelligent cause. And because we extend a uniform application of the principles of science, there's good warrant to say that this intelligent -- this designed entity is the product of intelligence. So it's a plausible warranted hypothesis when we look at the information that we see.

Q Now, prior to deciding to engage in the product that resulted in Pandas and People, did you do any marketing studies or any studies for secondary schools?

A Yes, in fact, while we were doing our first book prior to Pandas, we engaged a professor actually who was a former professor of anthropology on a doctoral level at SMU, Southern Methodist University, who had a polling business. And we engaged him, he was a Darwinist, we met with him and discussed questions and let him take our questions and re-express them, and then conducted a poll. And the results were all turned over to him and he used the computer center at SMU to draw a large number of correlations. And it showed a very strong, a very high percentage of interest among biology teachers -- this was all biology teachers -- in having textbook or curricular help and assistance in teaching a hypothesis that was an alternative to Darwin's.

And it also asked the question, if there is a dominant hypothesis and a secondary hypothesis, which should you teach. And the options given to the teachers were, just teach your personal viewpoint, teach the dominant hypothesis and the secondary hypothesis, or teach the secondary hypothesis, teach the dominant hypothesis. The overwhelming majority said teach both, 70 some percent.

Q The individual who conducted this study for you, was he a Christian?

A No, he wasn't.

Q And you referred to him as a Darwinist?

A He was a Darwinist.

Q Perhaps we should define that term for the Court.

A The term Darwinist?

Q Yes.

A Well, a Darwinist is one who adheres to Darwinian or neo Darwinian evolution.

Q So who then was commissioned to write the book Pandas and People?

A So the authors of the book were P. William Davis, who had authored -- previously co-authored books -- major books of biology with McGraw-Hill and W. B. Saunders in his book with Claude Villee, published by W. B. Saunders is the best selling, most widely used college level biology major's major textbook in the world.

And then Dean Kenyon was the other co-author. And Dr. Kenyon was the co-author of the best selling book on the origin of life prior to our book, previous, the book before Pandas. And it also was a McGraw-Hill title, and it was called Biochemical Predestination. And Dr. Kenyon was recognized as one of the top, you know, five or ten origin of life researchers in the world.

Q So this book was written by individuals who were biologists by profession?

A Biologists and origin of life researchers.

Q Okay. After the book was prepared was it submitted for peer review?

A Yes, it was extensively.

Q Would you submit it just to Christian scientists or --

A Oh no. No, we sent it to -- we sent it to people who we had reason to believe might be receptive or in agreement. We sent it to people who we knew were not -- would not be receptive to it. We sent it to people because of their academic credentials in a variety of sciences. It was an extensive project, certainly lasted over a year, working -- just working in terms of the input of the peer review.

Q And what did you do then when you got the results of the peer review?

A We would take -- the peer review informed (sic) the final edit of the book in a very serious -- to a very serious degree.

Q When was Pandas and People first published?

A It was first published in 1989.

Q And how many books have been sold since that time?

A Somewhere between thirty-five and 38,000.

Q And what has the average price of a book been?

A Well, the average price over that lifetime has been -- the average discounted selling price, not the retail, has been between 12 and $13. But presently the current print run is -- the price was adjusted, the retail is 24.50. So the average selling price in this case is 16.22.

Q And how many books do you have remaining to be sold?

A I'm sorry?

Q How many books do you have in inventory to be sold?

A Oh, about 1300 copies.

Q And is there another edition of the Pandas and People in the works at this time?

A There is, yes.

Q And what is that, the title of that book?

A The title of that book will be The Design of Life.

Q And how does that differ from Pandas and People?

A Well, since the second edition of Pandas, you know, we're almost 15 years down the road, and of course the debate has matured a great deal.

A lot of science has been done, and so it's been necessary to update quite a bit of material.

A lot of the original Pandas will be retained, but a lot will be removed, and we've added three authors. They're certainly among the top intelligent design scientists in the world.

Q When do you anticipate this book being released?

A Next year, in '06.

Q And how many -- how many books will you produce in your first printing?

A We'll print 10,000.

Q Do you anticipate any printings of that book after that?

A We certainly hope so. No publisher, you know, anticipates or wants to stop at, you know, the first print run, especially if it's a small one like that. So of course we hope that there will be many print runs like Pandas before it, and anticipate that, but, you know, in terms of our fiscal responsibility, we have to be conservative and do a small print run.

Q Are Pandas and People and The Design of Life both based upon the rationale of intelligent design?

A Yes, they are.

Q How would a judicial determination equating intelligent design to religion affect the sale Of Pandas and People and The Design of Life?

A Oh, it would be -- it would be catastrophic for the sales. It would be -- would make that book radioactive. The teachers would not buy it. It would not be used in the classroom. The market for which the book is being prepared would just effectively evaporate.

Q And the market for who the book is prepared, where is that, what is that market?

A That market is in high school biology classes, AP biology classes, and in some introductory level biology in college.

Q How would a decision affecting the sale of that book affect FTE -- or those books affect FTE?

A Well, we're several years into the process of preparing this book. It would be a dramatic blow to FTE and could go to our viability -- probably would, because we've been working since 1998 to develop this book. We've involved a lot of, a lot of scientists. And in addition to the economic hit that it would provide for us, it would be a very scary experience for other authors that we might approach in the future to ask them to write for us, to see what's happened to this book.

Q And what would the total figures that you've calculated for loss be, just from -- through the first printing of Design of Life?

A The revenues for the first printing of The Design of Life would be 310,000 plus some.

Q And when you add that to the other costs that you have, or expenses you have, what would the total loss be?

A Well, we have, as I say, 1300 -- roughly 1300 copies of Pandas presently which are selling at 19 -- let's see, 19.16, excuse me. And then the next print run of Pandas will sell at a little bit more. So the combined present remainder of the present print run and the next print run together would total $213,000 in revenues, projected revenues. And then when you add that to the 300 plus thousand dollars, $310,000 for The Design of Life, we're talking now 524,000.

Q Mr. Buell, what is intelligent design?

A Intelligent design is the view that, just as intelligent causes are well accepted in branches of science, and I mentioned this a while ago, that forensic science and the search for extraterrestrial intelligence or SETI, and you might picture the Arecibo Observatory in the movie Contact that was about Carl Sagan's work and so forth, those were the implements, the tools of SETI, as well as in archeology.

These branches of science are very accustomed to and comfortable with the assignment to identify the product of intelligent design. And so if we take that same rationale and we start with the observation that in biological organisms, in the genome, there is dramatically highly organized, mathematically highly improbable organization along the spine of the DN A molecule, so that the genome as a whole is something that defies, that boggles our mind. So this would be I think a good starting place for the definition of intelligent design.

Q Would you say that the coding of things is evidence of intelligence?

A Yes, I would. I would -- I'm not sure if this is admissible or not, but recently in the press it was widely reported that the famous British Atheist Anthony Flew, throughout a lifetime of advocating atheism, he had been to a symposium in Dallas in 1985. He had been in touch with intelligent design scientists, read several of them, and he had -- he came out in the press, I think it was in December, and he said this. He said a lot of my friends are going to be very angry with me that I'm doing this, but he said, I've always said that you follow the evidence wherever it leads, and that's what I'm doing. And he put his finger on the central argument of intelligent design, that DN A molecule, and the highly unexpected improbable arrangement of the coding of the codon on the DN A spine. And he said that is -- that persuades me. He won't say that the agent, the intelligent agent is even personal, and he doesn't accept the God of the Bible, he doesn't accept the God of the Koran, but he says, it is inescapable to me. And so he's changed, as an 81 year old man, he's thrown out his atheism.

Q Now, you say that the theory originates, or the rationale originates with scientific observation.

A Yes, it does, it originates with this observation that is widely made in science.

Q And this rationale is simply a conclusion from that observation?

A Yes, it is. It's a conclusion, once you realize that we have artificially removed intelligent cause from one branch of science, it's welcome in several others, if it were necessary or we saw evidence of intelligence in another branch of science, it would be welcomed overnight, but it is artificially removed from biology.

Q What does intelligent design tell us about who the creator or designer might be?

A Well, first of all, intelligent design can't tell us anything beyond intelligence. If you accept the well accepted principles of analogical thinking without which science could not be done, the principles that were given to us by David Hume, philosopher David Hume, then you realize that science cannot go from the material realm, from observations of the material, to the supernatural. And this is -- this is an integral part of the teachings of David Hume that have been -- that were accepted into science at that time, the stage that it was, and have been a part of it ever since.

Q Can you tell us if this, this intelligence is a natural or supernatural event?

A No, intelligent design cannot tell us whether it's natural or supernatural.

Q Or even personal in nature?

A And it can't tell us if it's personal.

Q Or even if it still exists?

A That would be right, yes.

Q Are you familiar with creation science?

A Yes, I am.

Q What is creation science?

A Creation science was defined in the mid '80s by the National Academy of Sciences in their booklet, Science and Creationism, a View from the National Academy, as entailing three teachings. Number one, that creation occurred sometime between six and ten thousand years ago; number two, that it was a supernatural creation, simultaneously creating all of the life forms independently of each other, including man; and number three, invoking flood geology or catastrophism to explain the order of the fossils in the fossil record.

Q Now, does creation science begin, is it premised upon scientific observation or upon something else?

A It begins with the observation of the complexity of the information in the genome.

Q Creation science.

A Oh, I'm sorry, I'm sorry. I was thinking intelligent design.

Would you rephrase the question?

Q Does creation science begin with scientific observation of the natural world --

A No, creation science --

Q -- as it --

MR. ROTHSCHILD: Your Honor, objection. Counsel is leading the witness continuously.

THE COURT: Well, I'm going to allow some leading in the interest of time. But I want to say that -- so I'll overrule the objection. But I will say I'm not sure, counsel, with all appropriate and due respect to your efforts to be as comprehensive as possible, under Rule 24, I'm not sure how this line of questioning helps me. Enlighten me.

MR. BOYLE: Your Honor, we have to show -- as the Court is aware, there are several things we have to show, one of which is the interest in the litigation that is not being protected.

THE COURT: Well, you have to show timeliness, you have to show the significant legal interest.

MR. BOYLE: That's correct.

THE COURT: You have to show the impairment of that interest, and you have to show the lack of adequate representation by existing parties, at least as -- if we're as of right, which it appears that we are at least by this line of questioning.

So I'd ask you to move through this and try to get to the other parts. I am particularly interested in timeliness, I'm interested in the area of lack of adequate representation by the existing parties as well.

So -- and I don't -- I don't want to drastically limit your case. You have to do what you have to do, I recognize, but you should move through this.

MR. BOYLE: I understand, Your Honor. I think this does go to the adequacy of representation and the different interests between the school board.

THE COURT: All right.

MR. BOYLE: In essence we've heard that the plaintiffs are alleging that the school board had a creation science policy. Apparently there are press reports where the terms creationism and religion were used to justify the policy. And that, we will submit, is the interest that the defendants have to defend in this particular case. Our interest is more academic and more a financial interest considering intelligent design.

THE COURT: And I don't think that -- a great deal of that does not seem to be controverted. And I'm not sure that there is a strenuous contention that some sales of a text could be lost.

Now, there is an issue as to the number, and I recognize we're going to hear cross examination, and there will be points undoubtedly made as to that. But as to your line of questioning that gets into the broader principles of intelligent design and the subject of the Pandas and People, I think the Court is pretty familiar with a lot of these areas. And I'm just saying, I think you can move through and build the record you think you need to, but I'm --

MR. BOYLE: I'll move through.

THE COURT: -- I'm not sure that you need to stay in this area that long.


Q What are the differences between creation science and intelligent design?

A Well, creation science, the driving impetus is to affirm the genesis narrative in the Bible. And the driving impetus in intelligent design begins with observation, observation of the genome, and the obvious product of intelligence that we see in living systems. So . . .

Q Are there prominent scientists who agree with the theory of intelligent design?

A Oh yes.

Q Could you give us an example?

A Well --

Q Prominent scientists who are not Christians, if I didn't make that clear.

A Dr. Fred Hoyle and Chandra Wickramasinghe published together an article in the journal, a technical journal called Icarus. The title of the article was Directed Panspermia. And they believe that the evidence for intelligence, for intelligent origin of life is so great that they wagered a scenario where some intelligent civilization in deep space sent sophisticated rocketry to the earth loaded with life spores, seeded the earth, and has been watching like a laboratory experiment.

It -- and then Dr. Hoyle, who is one of the co-authors of one of the three major theories of the origin of the universe in the last century, it's since been eliminated from the running, but in -- and he is a Nobel prize winner, wrote a book entitled the Intelligent Universe. And it does say what we -- what it sounds like. He is showing that we cannot explain the genome apart from intelligence.

Q To whom is -- in fact, if I could have just one second?

Are you aware of the Dover School Board policy in this particular case?

A I saw it quoted in the complaint. I believe it was the complaint, or the force document.

Q Do you support using the book Of Pandas and People to advance a religious agenda?

A Oh, no. We've opposed that throughout the sale or throughout the -- both editions of Pandas.

Q Were you ever contacted by anybody from the Dover School Board before the institution of the policy?

A No, we were not.

Q Were you ever contacted by anybody from the Dover School Board after the policy was instituted?

A No.

Q Do you know how they got ahold of your book Pandas and People?

A We don't, we have no idea how they got ahold of the book.

Q Did Thomas More Law Center ever contact you about the policy before it was implemented?

A No, they didn't.

Q Did they ever contact you about the policy after it was implemented?

A No.

Q Did you ever call the Thomas More Law Center?

A Yes, I did. I called Mr. Thompson, Richard Thompson, on April 15. I was concerned that we had a few things that he may not have, that are not widely circulated among intelligent design scientists and educators, and I wanted to offer them to him if he thought they would be useful.

Q Now, when you called on April 15th, was that because of some recent knowledge you gained of what was going on?

A It was because my -- our academic editor, Dr. William Dembski, told me that he had been in touch with Mr. Thompson. And we felt that it was strange and, frankly, very uncomfortable that we had not had contact with the Dover School Board, we had not had contact with the Thomas More Law Center, and yet we were the publishers of the book, the producers of the book, we knew more about the book than anybody. And so, you know, I did -- I did ask Dr. Dembski for the phone number, and he e-mailed Mr. Thompson and introduced me, and then I called him.

Q After that, were you ever able to talk to the Thomas More Law Center or anybody there about the theory of intelligent design?

A No, we never did discuss it.

Q Did you ever discuss what your interest in this suit might be?

A No, we did not.

Q Did you ever discuss your standing concerning school board policies with respect to the use of your book?

A No.

Q With respect to school board policies and the use of your book, who do you market your book to?

A Well, we have from the beginning marketed our book to teachers. That's the one thing that unifies a lot of different marketing methodologies. For example, we exhibit the book at science and education conventions. We place space ads in education journals.

Now, we're not doing all of these things simultaneously, but over the years we've done that. We've done direct mail to biology teachers. We have been building a network of independent reps who go and they contact directly with individual science teachers.

Q Why do you market it to science teachers instead of school boards?

A Well, we market to science teachers because they're the people that have the expert -- the training and expertise to evaluate the book. And we don't believe that if the book is handed down from above, from an authority structure like a school board, that there's going to be a positive educational experience, especially if the school board requires that the teacher or teachers use the book.

And so we've always counselled -- when we get a call from a school board member, we'd always counsel them to turn the book over to the teacher, just hand it casually, don't say, you know, I really think this is a great book or whatever, just give it to the teacher, the science teacher, and just say, you know, I would like to know what you think of it, and with your background and expertise, I would like, you know, I would like to hear about that.

Q When -- has there ever been a time when you have refused to send a book to a school district because of a school board policy?

A Yes, there have been two notable instances where the school board was ready, was poised to pass a resolution requiring the use Of Pandas and People, one in Louisville, Ohio, and one right up the road from us in Plano, Texas. And because in Louisville there was a confusion between creation science and intelligent design, and they wanted to get the school board to pass a policy that it would be used, we wrote them a letter and said we will not sell you copies Of Pandas and People. We did the same thing in the case of a Plano school district.

Q Getting back to your conversations and your contact with Thomas More, after that conversation with Richard Thompson in April of this year.

A Yes.

Q Did Thomas More ever contact you concerning the documents you had sent them?

A I'm sorry, concerning the --

Q The documents that you had sent them.

A No.

Q Did they ever contact you to find out what your position was on the policy?

A No, I was never asked about my -- our position on the policy.

Q Were you ever asked about your legal interest?

A No.

THE COURT: I think he said he had no contact, is that correct?

THE WITNESS: Well, I think -- were you asking about afterwards, later?

MR. BOYLE: I believe there was one contact, Your Honor.

THE COURT: All right.


Q Did you at some point in time receive a contact from Mr. Gillen?

A Yes.

Q And when would that have been?

A That was on April 21st, I got three phone calls that day. One was from Bill Dembski, our academic editor, and he said that you are going to be served a subpoena. And I got a call from Pepper Hamilton, and they said, you know, will you process a subpoena if it's sent by mail or do you need to be served. And my reply was that I'll take it either way, but I'll go to prison before I turn this book over to you -- referring to the Design of Life. And then the third call was from Thomas More, from Patrick Gillen.

Q And was that just an informational call?

A Yeah, letting me know that we would be subpoenaed.

Q Did he offer to represent your interests at that point in time?

A No, I don't believe so, I don't remember that he did, no.

Q Did you have any further conversations with Mr. Gillen after that?

A Yes, there were -- there were very, very brief contacts, but not anything of the nature of defending our interests or what are your concerns, what are your interests, you know, what is your exposure, nothing like that.

Q Okay. After you heard about the subpoena, when was the subpoena served upon you?

A Well, the subpoena -- I'm still confused about that because I was told that effectively the day the phone call was made that's when the clock started ticking on the subpoena. But I didn't -- I was on my way out of town within a few days of the 21st, and I was unable to cancel my trip. So I spent the first two or three days of my trip actually trying to locate an attorney. And then this -- and the subpoena was delivered to our office on the 28th of April, and then I saw it when I returned to town another day or two later.

Q Were you able to locate an attorney?

A Yes, I was.

Q And who was that?

A It was Jeff Mateer of Mateer & Shaffer.

Q And did Mr. Mateer get a copy of the complaint and the lawsuit for you?

A Yes.

Q And prior to that, that date I guess would have been early May, had you ever seen the complaint before?

A No, I had not seen anything about the lawsuit other than the subpoena.

Q What actions did you take with respect to the subpoena after that? What legal actions did you take?

A Well, following Mr. Mateer's advice, we submitted a motion to quash and a motion for a protective order.

Q Where were those motions filed at?

A Well, one was filed in this Court, and one was filed in the northern Texas district.

Q And a hearing on the motion to quash in this Court was held on May 12th of '05?

A Yes, that's right.

Q And the hearing in the Northern District of Texas was held subsequent to that?

A Yes.

Q Did anybody from the Thomas More Law Center show up for the hearing in northern Texas?

A No, they didn't, nor any written communication or -- no, there was no presence from Thomas More.

Q And I think we've covered it, but through these conversations had Thomas More ever sought your interest?

A No, they had not solicited our interest or our concerns or our exposure.

Q Okay. And they did not show up to the hearing in Texas?

A That's right.

Q Do you have any confidence in -- that the school board is representing your interest at this point in time?

A No, I don't have any confidence in that at all.

I think, you know, that we are -- we are certainly the primary stakeholder in this, and we are -- our interests are -- you know, as a nonparty to the lawsuit, our interests are highly at risk, at least. And just the economic part of this, much less the reputation among potential authors in the future, this would cost us a great deal.

Q Do you have any confidence that the Thomas More Law Center is representing your interests in this matter?

A No, no, there's not any evidence that they are.

Q Who is William Dembski? I believe you mentioned his name earlier.

A Yes. Dr. William Dembski is our academic editor, and he's the editor of the book The Design of Life, and one of the new -- the three new co-authors.

Q And how would you describe Dr. Dembski's position in the intelligent design movement?

A Well, there are many people that would say that he is the premiere intelligent design scientist at this point. Some would say Michael Behe is, who is another one of our co-authors. But Dr. Dembski is prolific, he's produced -- either edited or authored, roughly ten books since the intelligent design thing got underway. He debated -- he and Behe debated two Darwinists at the American Museum of Natural History. He published a book with Cambridge University Press. He travels really around the world speaking and debating.

Q And he holds multiple Ph.D.s, is that correct?

A Yes, he's got a Ph.D. in mathematics from the University of Illinois, and a Ph.D. in philosophy from the University of Chicago at Illinois -- I mean Illinois at Chicago, pardon me.

Q Does he have a relationship -- did he have a relationship with the Thomas More Law Center?

A He did. He was an expert witness for them at one point.

Q And is he an expert witness at this point in time?

A No, he's not; he's not an expert witness now. He was fired.

Q By whom?

A By Mr. Thompson.

Q And how does that, his lack of involvement in this case, affect your interest if at all?

A Well, he's the leading authority and expert on the book. And so he would be tremendously important to making the points, answering the allegations, establishing the book, establishing its scientific status and so forth.

Q Are you familiar with John A. Campbell?

A Yes, I am.

Q Who is Dr. Campbell?

A Dr. Campbell is a professor at Memphis State, I believe, of the -- his area is the science -- I'm sorry, the rhetoric of science. And he's very very conversant with the intelligent design/Darwinist debate.

Q Did he have a relationship with the Thomas More Law Center?

A Yes, he did.

Q Do you know if that relationship has continued?

A He was hired as an expert witness, and then he was let go, he was fired.

Q Do you know by whom?

A I don't know.

Q By the Thomas More Law Center?

A By the Thomas More Law Center, right.

Q Does his discharge affect FTE's interests in this litigation?

A He's -- he's a leading authority, and so, yes, I mean it puts us in greater jeopardy. We -- we need the scientists that, you know, are willing to be expert witnesses.

You have to understand that there are many scientists who have tremendous credentials who have no stomach for this kind of thing. And we don't have access to everybody that, you know, that has -- that believes in intelligent design or has done great things in science.

So yes, this is an extremely disappointing loss, it's invaluable to us.

Q Now, the plaintiffs in their lawsuit have alleged that this policy of Dover's had a religious agenda or motive. Do you have a religious agenda or motive for the book Pandas and People?

A No, I don't.

Q Is your interest solely educational and scientific?

A My interest is scientific and educational, that's correct.

Q How does that differ from Dover's interest in this case?

A Well, I think that the comments that I heard about, you know, from the Dover press reports of comments indicate religious purposes to me.

MR. BOYLE: If I could have just one second, Your Honor?


MR. BOYLE: Cross-examine.

THE COURT: Let's go to plaintiffs.



Q Good afternoon, Mr. Buell.

A Good afternoon.

Q My name is Eric Rothschild and I represent the plaintiffs.

You indicated that you were familiar with Dr. Campbell and Dr. Meyer.

A No, Dr. Campbell and Dr. Dembski.

Q I'm sorry. And are you familiar with Steven Meyer?

A Yes, I am.

Q Do you understand that he was also an expert in this case?

A Yes, I do.

Q And do you understand that he also is no longer an expert in this case?

A Yes, I do.

Q Now, you said Dr. Dembski is affiliated with the Foundation for Thought and Ethics, right?

A That's right.

Q Dr. Campbell is not, correct?

A That's correct.

Q And Dr. Meyer is not, correct?

A That's true.

Q Okay. The precipitating event for those three experts being removed from the case is that they requested private representation at their depositions by counsel for the Foundation, isn't that right?

A I know that to be true in the case of Bill Dembski, Dr. Dembski.

Q Is it not true for Dr. Campbell and Dr. Meyer?

A I'm not denying that, I just don't know.

Q Do you understand that in the -- in one of the pleadings that the Foundation submitted in support of its intervention that it represented that certain experts requested private representation by counsel for FTE?

A Yes.

Q And that request -- that request by those experts for representation by counsel for FTE was not accepted by counsel for the defendants, correct?

A I'm sorry, would you restate that?

Q Yes. The request that these three experts made for representation by counsel for the FTE was not agreed with by counsel for the defendants, Thomas More, correct?

A Are you saying that these three are named in the document you quoted?

Q What I'm reading from is the reply brief that the Foundation submitted in support of intervention. It says, "When certain experts requested private representation by counsel for FTE, defendants, paren, amazingly fired several experts because they insisted on that representation."

Do you understand that to be the case?

A I understand that, yes.

Q And ultimately they were not allowed to have that second representation, correct?

A Right.

MR. BOYLE: I'm going to object to the term "second representation."

THE COURT: What do you want me to do inasmuch as he said it, and this is a bench proceeding?

MR. BOYLE: Well, just to clarify for the record that they requested their own representation.

THE COURT: Well, it's so noted. You may proceed.


Q Now, you acknowledge that you were not aware of when the Pandas books were purchased for Dover, correct?

A Not at all.

Q Okay. And, in fact, when school districts or other purchasers purchase Pandas, it's not always directly through the Foundation, correct?

A Yeah, I would say it's not always. I mean we have no way of knowing how much -- you know, we have no way of knowing about purchases that aren't directly from us.

Q Some are done through on-line vendors.

A There are -- you know, there are distributors. Normally we would expect them to call us, at least the vast majority over the years would call us.

Q In the case of Dover, you weren't aware of how the book was going to be used in that school district or high school, correct?

A We weren't aware that the book was being considered.

Q Okay. And so therefore you weren't aware of whether it would be, for example, in the curriculum -- in the classroom or in the library?

A We -- before they did this, before the press reports came out reporting what they had done, we were not aware that the book was even being considered in Dover.

Q And is that sometimes the case for other school districts, that you're not aware that the book is being purchased?

A It has been the case on some occasions, it certainly is the extraordinary. But I'm certain that over the years that's happened.

Q And is it sometimes the case that even when you are aware of who purchased it, you don't know how the book is going to be used in the school district?

A We try and contact the school district if we know there is an interest or they're making a purchase or they've made a purchase, to find out, you know, what their intentions are. We know that having talked to as many teachers and administrators in schools as we have, we might be able to help them.

Q And am I correct that, for example, one of the on-line vendors that the book is sold through is a home -- a vendor who provides support to people who are home schooling their children?

A Yes.

Q And so that -- and I take it that some of the purchasers of the Pandas books are people who are home schooling their children?

A Yes, that's right.

Q And I take it it's also the case that private schools or sectarian schools sometimes purchase the books?

A I'm sure they do.

Q Just to make sure I understand your testimony on direct, your estimate of the loss of profits that could occur depending on how this Court rules, is based on the amount of inventory that you have of Pandas, the books you have?

A In part. In part on the inventory.

Q And one printing of -- one subsequent printing of Pandas?

A One subsequent printing of Pandas and a first printing of The Design of Life.

Q Okay. You never have been told by anybody at Dover that they're going to ask for their money back if they lose this lawsuit, have you?

A No.

Q You filed your petition to intervene on May 23rd?

A That sounds right.

Q And you're aware that the complaint in this case was filed on December 14th.

A No, I wasn't aware of that.

Q Are you aware of that now?

A Since you just said it, yes.

Q Okay. Prior to that you were not?

A No.

Q Okay. You were aware sometime around December of 2004 or the beginning of 2005 of the lawsuit, weren't you?

A I was aware early in the year, early in '05 that there was -- there were some -- you know, there was some talk in the media.

Q And the reason you were aware is you were actually going onto the Internet and looking for articles about this lawsuit, right?

A Actually, no, I wasn't. You know, I mean I certainly had an article or two sent to me.

Q You were not following it on the Internet?

A No.

Q You were also aware that Pandas was part of the controversy?

A I heard that somewhere in the, you know, in the spring.

Q Mr. Buell, you remember having your deposition taken by my colleague Chuck Wilcox last week?

A Yes, I do.

Q And I'm going to --

MR. ROTHSCHILD: If I may approach the witness, Your Honor?

THE COURT: You may.

MR. BOYLE: Your Honor, could I see a copy?

MR. ROTHSCHILD: Certainly. Your Honor, would you like a copy?

THE COURT: Are you going to take him to a brief passage?


THE COURT: I don't think I need a copy. I'll ask for one if I do.


Q Do you see on page 98 of the deposition, if you could flip through it. These versions of the deposition have four numbered pages on each single page.

Do you see on page 98 my colleague, Mr. Wilcox, asked when you became generally aware of the lawsuit; it's on line 16 at page 98?

A Yes, ah-hah.

Q And you answered that around the turn of the year or my guess was that it was in December, correct?

A I'm sorry?

Q When he asked you when you became generally aware of the lawsuit, you answered, close to the turn of the year, and then you went on to say, my guess is that it was in December.

A Okay, I see that.

Q That was your testimony, correct?

A Right.

Q And then he asked you whether you knew the book involved was Pandas, didn't you -- and this is on page 99, at line 13.

A Yes, ah-hah.

Q And you answered yes. Right on that next --

A I think at that point we're talking about line ten, I said, from what I saw in press reports I wasn't clear -- it wasn't clear to me that the school board knew the difference between creation science and intelligent design, but they knew -- but you knew the book involved was Pandas, didn't you.

So I don't know exactly when I became aware that Pandas was involved. I also don't know to this point, I've heard conflicting information as to whether Pandas is -- has been -- the policy selected Pandas for use in the classroom or put copies in the library.

Q But you knew that Pandas was involved?

A Yes, at some point I became aware of that.

Q And if you continue over to page 100, you state, I read the articles as they, you know, as we pulled them off the Internet, isn't that right?

A Yes.

Q So you did pull articles off the Internet?

A Yeah, but we were not researching, we were not going to Google and searching on it. We didn't Google it. Somebody would say, you know, there's an article in such and such, and so I would go there.

Q Okay. And during that time that you were becoming aware of the lawsuit through the articles, you didn't try to get a copy of the complaint, correct?

A No, I didn't.

Q By now you have read the complaint?

A Yes, I have.

Q And if I understand the reason you're intervening here is because you think FTE's economic interests are threatened by the position that the plaintiffs are urging the Court to take, is that right?

A Yes, among others things. I think also our -- our interests in terms of publishing and being a participant in the process of education and science are also at risk here.

Q And the reason you think those interests are at issue is because plaintiffs are arguing that intelligent design is a religious concept not a scientific concept?

A Yes, that's right, that is a -- that is a very large concern to us because that would cause the market for the book to evaporate.

Q And another concern you've expressed that would affect your economic interest and the educational interest is that plaintiffs are equating intelligent design to creationism or creation science, is that right?

A Yes, that's right.

Q And if I understand your briefs and your testimony today, you weren't aware of that until the Foundation became involved in the litigation through the subpoenas.

A That's really what made it clear to us that we were in the crosshairs.

Q Now, you would agree that if you had read the complaint you would have realized those were the plaintiff's contentions?

A Yes, I would have if I had read the complaint. I didn't even know that a lawsuit involved a complaint that was public and accessible.

Q But you agree that having now looked through the complaint, those propositions that you're concerned about that intelligent design is a religious concept not a scientific concept, and that intelligent design is akin to creationism, those are apparent in the complaint, correct?

A I believe so.

MR. ROTHSCHILD: Your Honor, I would like to introduce an exhibit. May I approach the clerk?

THE COURT: Give a copy to opposing counsel.

MR. ROTHSCHILD: Would you like a copy, Your Honor?

THE COURT: Yes, please.


Q Mr. Buell, what I've given you is an article in the New York Times dated January 16, 2005, or a copy that was printed from the Internet entitled, An Alternative to Evolution Splits a Pennsylvania Town.

If you could turn to the second page of the document, and look at the second full paragraph.

A All right.

Q Do you see there it says, in mid December 11 local parents represented by the American Civil Liberties Union and Americans United for Separation of Church and State sued the school board contending that discussing intelligent design is a way to hoist religion on their children; do you see that?

A Yes.

Q So that makes clear that the ACLU and the Americans United, they always forget my law firm, was taking the position in the complaint, in the lawsuit that intelligent design is religious?

A Yes.

Q And you recognize this as an article that came out of the Foundation's production of documents?

A Yeah, I think I do.

By the way, if I might add, we did not read everything that came to us in this regard because over the years we have seen certainly thousands of articles, and they all follow a very similar scheme, schema. So I can tell you that I saw this article. I can tell you also that I didn't read it. I probably scanned down the first, you know, several paragraphs.

Q Now, you testified today that the Foundation does not have a religious agenda or motive, correct?

A That's right.

MR. ROTHSCHILD: Your Honor, I would like to mark another exhibit.


Q Mr. Buell, do you recognize the document I've given you, which is the second exhibit today, a Form 990, Return of Organization Exempt from Income Tax for 2003 to be a document filed by the Foundation?

A Yes, I do.

Q Okay. And if you could turn to the last page of that exhibit. Are you on that page?

A I am.

Q And if you go about 60 percent down the page, there's an entry for Statement of Organization's Primary Exempt Purpose.

A Um-hum, um-hum.

Q And the explanation that the Foundation provides to the IRS is that its primary exempt purpose is promoting and publishing textbooks presenting a Christian perspective, isn't that right?

A That's what it says.

Q Okay. And Pandas is one of those publications, isn't it?

A No, Pandas doesn't fit this because this is not an accurate statement.

Q Okay. This --

A This statement was -- we had a new CP A do our 990 and audit we had never used before. He wasn't even from the state of Texas. He was not familiar with us. You know, I neither saw that statement, nobody gave him that information, and I didn't -- I certainly didn't approve it.

Q Okay. So -- and so this statement that's filed with the IRS so that the Foundation can be exempt from paying income tax is false; is that what you're saying?

A Well, I'm saying that I didn't see that statement.

Q And just if you could turn to the preceding page of the document, those are your initials on the page, aren't they, towards the bottom of the page?

A Yes.

Q Now, your counsel brought up your articles of incorporation and I'd like to show those to you as well.

These are the articles of incorporation that the Foundation filed with the state of Texas.

THE COURT: I'm not sure that was recognized as a question.

THE WITNESS: Oh, I'm sorry, yes, I'm sorry.

THE COURT: Let's keep this moving.

MR. ROTHSCHILD: Sorry, Your Honor.


Q And on the second page of the document there's a signature space with your signature on it?

A On the second page of the document? Yes, uh-huh, I see it.

Q If you go to the third page of the document, it identifies the purposes for the -- for which the corporation was formed?

A Right.

Q And what it states is that the primary purpose is both religious and educational, and then it talks about making known the Christian gospel and understanding of the Bible?

A Yes.

Q Is it your testimony that that's also an inaccurate submission?

A It was boilerplate that the attorney that was helping us become established used. I felt that it was inappropriate. He said we need to be clear in identifying yourself as having a genuine nonprofit purpose, and so the language that originated with me is the phrase, "but is not limited to."

Q And everything else was the attorney's?

A Yes, most of it, I think nearly all of it, possibly all of it.

Q So the accountant got it wrong and the attorney got it wrong?

A It's true.

MR. ROTHSCHILD: I would like to mark another exhibit, Your Honor.


Q Mr. Buell, this document is something that was pulled off the Internet, but you recognize it as a purpose statement for the Foundation that used to be distributed?

A Yes. I don't actually -- I don't actually remember this statement, but it's obviously an FTE statement.

Q And in this statement it says, "The Foundation for Thought and Ethics has been established to introduce Biblical perspective into the mainstream of America's humanistic society, confronting the secular thought of modern man with the truth of God's word."

A Yes, that's right.

Q And then it talks about how there would be a public -- a textbook published which will present the scientific evidence for creation side by side with evolution.

A Yes, and this, by the way, was written before -- I can just tell from the language, this was very early, before the National Academy defined the term creation science. So the terms of art that are in play today were not in existence at that time.

Q This was just your use of the word creation?

A Yes, right.

Q And into the third paragraph it describes the Foundation as a Christian think tank, correct?

A Yes. I would say in contrast to that, there's what we've done for over 25 years, which is not to be a Christian think tank, but to actually engage in primary works of science.

Q And that includes Pandas, correct?

A It includes Pandas, yes.

MR. ROTHSCHILD: Next exhibit, Your Honor.


Q You recognize this as a letter that you wrote to raise funds for the Foundation?

A Yes, I do.

Q And this is written in 1995, well into the Foundation's 25 year existence?

A Ah-hah, um-hum.

Q And just, Mr. Buell, so the record is clear, if you can say yes.

A I'm sorry, yes.

Q Not a problem.

And this letter was written after both editions of Pandas had been published, correct?

A That is correct.

Q And in fact it mentions Pandas, right, the letter?

A Yes, it does.

Q And at the bottom of the first page, what it says is, "Our commitment is to see the monopoly of naturalistic curriculum in the schools broken. Presently school curriculum reflects a deep hostility to traditional Christian views and values, and indoctrinates students to this mindset through subtle but persuasive arguments."

Do you see that?

A I see that.

Q That's what you wrote, correct?

A Yes.

Q And your view one of the areas of curriculum that is a primary offender in terms of showing hostility to Christian views and values is the subject of biology, isn't that right?

A Yes, that's right. I think that anybody should oppose this from an education -- should oppose that stature or the status of education being lopsided, just from an educational standpoint.

Q Because the teaching of biology you consider to show a deep hostility to traditional Christian views and values?

A I think that the teaching of biology is done with an artificial removal of biology from the sciences which can legitimately entertain intelligent cause. I think that is an artificial truncation of science.

Q And then if you go over to the next page, in the first paragraph, you blame -- you blame the current deplorable condition of our schools resulting in large part in denying the dignity of man created in God's image, correct?

A Yes, correct.

Q And the rest of the paragraph builds on that concept, right?

A That's right. Many teachers tell me they have difficulty with -- in the classroom with student behavior because there is no -- there's no sense of respect or accountability to the teacher, to the school, or to authority.

Q And effectively what you're advocating in this fundraising letter is that the FTE's publications are an antidote or a partial antidote to these problems of hostility to Christian views and the cultural decay in our schools, isn't that right?

A I would say that they're not an antidote to the hostility to Christian views, but they are an antidote to the hostility toward positive character qualities and moral traits and a positive outlook and philosophy.

Q And you think Pandas would contribute to that cause?

A I think Pandas would reestablish a level playing field where in science we're free to entertain intelligent causation wherever we find it.

Q And also it would be a remedy or antidote to these issues of character that you're talking about?

A You know, that would be up to individual -- individuals and their own choices.

Q Isn't that what you're advocating here, Mr. Buell?

A What I'm saying here is that I think that many would, once they see that it's a plausible option for them. But that would be their choice. That would be how they may respond.

Q Mr. Buell, this is not the first time that you have recognized that a court decision could affect the financial fortunes of your company, isn't that right?

A That is right.

MR. ROTHSCHILD: If you'd just give me one moment, Your Honor.



Q Mr. Buell, do you recognize the document we've just introduced as an exhibit?

A Yes.

Q It's a letter that you wrote to a potential publisher of Pandas?

A Yes.

Q And just to prod ourselves here, if you turn to the second page, there's mention of a book called Biology and Origins, is that right?

A Yes.

Q And Biology and Origins was the working title for the book that became Pandas, correct?

A Well, it was the field test edition that was used prior to the publication of the book.

Q There aren't two different books. This is the book that eventually, after field testing, became Pandas, correct?

A Right.

Q And turning to the front page, there is some mention here of polls showing that three quarters of the public want creation taught in schools, and it's about half way down the page, and another poll about biology teachers. Do you see that?

A I see the first -- yes, I see them both.

Q And are these the polls you were talking about in your direct testimony?

A The second one is.

Q Okay. And the first one --

A No, I wasn't referring to that.

Q Now, this first page talks about a decision out of the United States Fifth Circuit Court of Appeals on the Louisiana Balanced Treatment Act that was on appeal to the United States Supreme Court, correct?

A Correct.

Q And that's a decision known as Edwards versus Aguillard?

A Yes, um-hum.

Q It was eventually decided by the Supreme Court?

A Right.

Q This letter was written before that decision?

A I believe that's right.

Q Okay. And what you said was at issue for the United States Supreme Court was whether there could be state mandated teaching of creation, correct?

A I don't know. Would you point me to that passage?

Q Yeah, I'm sorry, it's on -- the paragraph that begins "The U.S. Fifth Circuit." And if you --

A On the -- okay. All right.

Q That's what you wrote the decision was about, right, whether the United States Supreme Court would allow state mandated teaching of creation or not?

A Didn't I write that that was what it was about?

Q Yes.

A Yes.

Q And then if you go down to the bottom of the page, you have some projections of how this book, then called Biology and Origins, would do if the Supreme Court reversed the decision and did not allow state mandated teaching of creation, you said modest expectations, correct?

A Yes.

Q Even those modest expectations were not actually realized, correct?

A Right.

Q And then you say that if they uphold it, if they allow state mandated teaching of creation, you could throw out these projections, the nationwide market would be explosive, right?

A I said that, but that does not mean that I would favor that.

Q Okay. But what you are saying is, if state mandated teaching of creation is not allowed, we have these modest expectations; and if it is allowed, then the market for this book is explosive, right?

A Yeah, I think that was just, you know, good salesmanship and honest analysis.

Q Do you recognize the document that I just gave you?

A I recognize that it's our document and that it's my handwriting on it.

Q And was this -- this document was a part of a drafting of either Biology and Origins or Pandas?

A Yes, it played some role in that, that's right.

Q And if you could turn to page three, headed Summary Chapter.

A Yes.

Q If you look in the second paragraph, about half way down it says, "Evolution is the theory that natural causes are adequate to account for everything in the natural world, including life itself. Creation is the theory that certain phenomena must be explained by intelligent causes. In this book we counterpose these two theories about life's origin."

A Yes.

Q Okay?

A That's right, that would be -- pardon me.

Q This was what was written in this draft of either Biology and Origin or Pandas?

A Yes. At that point the term creationist did not mean what it does now. It referred to creation in general, not to -- today it is a synonym for creation science.

Q So today creation means creation science and before creation means --

A Before the National Academy of Sciences gave it the specific definition, which I quoted earlier, and that definition was affirmed by the U.S. Supreme Court, it did not carry that meaning.

Creation, in general, was a word used in -- even in scientific literature, for centuries. And then when you say a creationist, prior to those terms of art, the origin of those terms of art, you were just talking about somebody who holds to a general view of creation, not -- this is not a reference to creation scientists or, you know, a specified viewpoint.

Q So this is the term in operation before the court defined it and before the NAS defined it?

A Yes, it is.

Q And at that time -- and just a general usage of the word creation or creationist, right?

A I'm sorry, would you ask me again?

Q At that time what you meant by creation was just how creation was used in the general public, right?

A Yes, it was just a general -- a broad general term, not a reference to creation science.

Q Okay. And similarly, the term creationist was just intended as how it was used generally in the public before it was defined by the NAS and the Supreme Court?

A I'm sorry, I thought that's the question we just discussed.

Q I used the word creation, and now I'm on creationist.

A A creationist in that sense would be like an evolutionist. I mean an evolutionist is not a synonym for evolution science. It's one who adheres to creation in that broad -- you know, in a broad sense, not defined as later it was defined by the National Academy.

Q So, for example, Henry Morris is just holding himself out as a creationist, right?

A I'm sorry?

Q Henry Morris holds himself out as a creationist?

A It would -- it was not -- it was not a represent -- it was not a representation to Henry Morris's thought or thought like Henry Morris's.

Q But he described himself as a creationist, right; is that right?

A Yes. What we're talking about here is a choice of words when the vocabulary was not as precise as it is now. And I offer as an example of why you can count on that, is because before we ever started this book at all, we published a book that has been acknowledged as one of the top books ever published on the origin of life, published by a secular publisher, outsold the previously best selling book by McGraw-Hill. And, you know, so it would be difficult for me to imagine, having achieved something like that that receives accolades from the highest levels of science, and turn around and talk about creation science, and try and publish a track or a book or, you know, some kind of a subterfuge promoting creation science.

Q Actually in this version of the book it describes who creationists are, doesn't it, if you look at pages 22 and 23 and 24. It says there's different types of creationist's literature. There are older creationists, younger creationists, agnostic creationists, right?

A Yes. We were trying to give some articulation to the breadth of what that term means.

Q And then if you could turn back to page 22, you explain that "Creation is the theory that various forms of life began abruptly, with their distinctive features already intact: Fish with fins and scales, birds with feathers and wings, mammals with fur and mammary glands."

That's how you defined creation, correct?

A Yes.

Q All right. And I would like to take -- you to take a look at an excerpt from Pandas and People. Turn to page 99 in the excerpt I gave you.

A All right.

Q Says, "Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact: Fish with fins and scales, birds with feathers, beaks and wings, et cetera."

Do you see that?

A I see it.

Q So that's pretty much the exact same sentence substituting creation for intelligent design, isn't that right?

A The reason that you find the similarity in the two passages is because this obviously was at a time when we were developing the manuscript. We had not chosen the term "intelligent design" at that point. We were trying to -- this was just a place holder term until we came to grips with which of the plausible two or three terms that are in scientific literature we would settle on. And that was the last thing we did before the book was revise -- I mean was sent to the publisher.

Q It was creation, creation, creation until the end and then it was intelligent design.

MR. BOYLE: Your Honor, I'm going to object to this line of questioning based upon relevance.

As the Court will recall, we attempted to describe the difference between intelligent design and creation science, and the Court indicated that that really wasn't the issue for today's hearing; or at least that was my understanding, and ask that we move along.

MR. ROTHSCHILD: First of all, I'm finishing up, Your Honor, in case you're concerned about that. But first of all, that was still a substantial subject of the direct testimony. And on the issue of timeliness and the interest, the Foundation has come in here and claiming that they were surprised to find that plaintiffs would characterize intelligent design as being akin to creationism, that they are surprised that we have suggested that it is a religious proposition that being promoted for religious reasons. And the evidence that has been introduced here, particularly relevant given the nature of direct, clearly addresses that point.

THE COURT: Well, I'll overrule the objection. I'm happy to hear that you're nearing an end. I think you've made your point. I'll allow the answer to the question, but I think you're going to run the risk soon of being in this area too long. And you're also going to run the risk of lapsing over excessively into your case in chief. And I know you don't want to do that, and I don't want you to do that. So let's move through this. And I'll tell you that we can sit today until five o'clock. I was hoping that we wouldn't have to, but we may have to.

Do you have another witness?

MR. BOYLE: I don't have another witness, Your Honor, but there are some points I would like to clarify on redirect.

THE COURT: Well, particularly if and -- and you certainly will have that right, and to the extent that there's a question that hasn't been asked yet, and I can't imagine what that would be, but we're going to give Mr. Gillen an opportunity to ask questions as he needs to have as well, so let's wrap it up.

We'll overrule the objection. And I'm not sure. Do you remember the question, sir?

THE WITNESS: I would love to hear it again.

THE COURT: I would too. So why don't we read that back.

(Question read.)

THE WITNESS: That misrepresents the actual fact of the matter because creationism took on a specialized meaning while the book was being developed.

There was a new position that was being determined through dense extensive interaction between scientists and philosophy science. We knew that it was fundamentally different from creation science. And then when the National Academy came out with their definition, we knew that we had to choose a term that would distinguish between the two. And as evidence of what I'm saying I offer you this, that we, on our own dime, flew to Little Rock, Arkansas, after McClain went down, and tried to appeal to the Attorney General not to appeal the verdict, because we felt that it was wrong -- wrong minded. And the same is true before the case with Edwards v. Aguillard, we flew to Atlanta, we met with the attorney, the lead attorney. We tried to persuade him to drop creation science. And it is true that among -- in the literature, intelligent design was a term that appeared now and then.

These terms go back to a previous century. E. J. Ambrose, a British cell biologist and cancer researcher, used the term creative intelligence. That was one of the things that we thought about. We picked this term.

We knew well before we were -- I don't know, maybe a year before we were through with the manuscript, editing it, that we would not use the term that had been assigned while we were doing the book with specialized terminology, and now you're coming now and saying that this terminology as it applies today is what we had in mind. That just is not the fact.


Q Mr. Buell, one of the authors you mentioned for Pandas is Dean Kenyon?

A Yes.

Q And you're aware that Dean Kenyon submitted an affidavit in Edwards?

A Yes, I am.

Q And that affidavit was in support of creation science, wasn't it?

A Yes, it was.

Q And he actually said in that affidavit those are the only two explanations for origins of life, evolution and creation science.

A Dr. Kenyon changed his view after he interacted with us. We went to Davis and Kenyon for the nuts and bolts of science in Davis' case of biology, and in Kenyon's case in the origin of life.

Dr. Thaxton, Charles Thaxton, who was the academic editor, was the one who had been steeped in the history of science and philosophy of science and was working out the framework that -- through which these would be laid out. So we did not hire Kenyon for his view on creation science.

Q And Nancy Pearcey, she also contributed to the drafting of Pandas?

A Yes, under Dr. Thaxton's direction.

Q And you recognize that she holds herself out as the owner of Creations?

A I didn't know that.

MR. ROTHSCHILD: I have no further questions, Your Honor.

THE COURT: Mr. Gillen.

MR. GILLEN: I have no questions, Your Honor.

THE COURT: Redirect.

MR. BOYLE: Perhaps we will finish by four, Your Honor.

MR. ROTHSCHILD: Your Honor, I would like to move the exhibits into evidence.

THE COURT: Any objection?

MR. BOYLE: No objection.

THE COURT: Any objection, Mr. Gillen?

MR. GILLEN: No objection.

THE COURT: All right, exhibits P-1 through 8, is that correct?

THE DEPUTY CLERK: I think it's 7.

THE COURT: The last one I have is marked 8.

MR. ROTHSCHILD: I gave you a draft of Pandas, that was the last one.

THE COURT: It's P-8 on mine.

THE DEPUTY CLERK: That's okay.

THE COURT: So 1 through 8 are admitted. P-1 through 8 are admitted. Redirect.



Q Mr. Buell, when was exhibit 8 produced to the -- in response to the subpoena?

A Exhibit 8?

Q Yes, that would be the introduction chapter. The exhibit before that.

A When was it produced?

Q Yeah, when was it produced in this case?

THE COURT: Are you referring to P-7 or P-8?

MR. BOYLE: Sorry, Your Honor.

THE COURT: I can see we have two different tags and that's what's causing us -- my tag for today's hearing, apparently it was a deposition exhibit 8, I think.

MR. ROTHSCHILD: That's right.

MR. BOYLE: That's correct, Your Honor.

THE COURT: It looks like to me, but for our purposes today you are referring to P-7 for this hearing?

MR. BOYLE: And that's correct, Your Honor, I'm sorry.

THE COURT: All right, go ahead.

MR. BOYLE: I looked at the wrong number. This document.

THE WITNESS: All right. I have that -- all right, I have that as 8, but that's, that's fine.

THE COURT: Well, it's P-7 for today. Just assume that. We all have the right document. Go ahead.



Q In May of this year?

A Yes.

Q Prior to this had this document been circulated outside of your office, to your knowledge?

A No, it had not.

Q Now, you indicated on your initial examination that there were non-Christians that held to the theory of intelligent design.

A Right.

Q Are there Christians scientists that come up with other scientific theories in the modern day Christian scientists of note?

A Yes.

Q Could you give us some examples?

A You mean theories of origins?

Q Or other scientific theories, outside the theory of origins.

A Sure, oh yeah, many.

Q Could you give us a couple examples?

A Well, yeah, I think two recent examples that are I think outstanding, one is Dr. Townes, who is the co-discoverer or the co-inventor, however you want to word it, of the laser. He received a Nobel prize for it. Dr. Francis Collins, the head of the human genome project is a Christian. That would be a couple of good examples.

Q And were their views discounted because they were Christian?

A No. You know, I will say that they probably were motivated to do good science because they were -- because they were Christians, just like I've heard a Jewish talk show host talk about being motivated by his faith to do well in his field.

Q Now, on exhibit 5, it's going to bear the tag exhibit 7 from the deposition, that's in front of you.

A Got it.

Q Okay, and the first sentence says, "We are a non-profit organization working in the field of education."

A Yes.

Q Is that true?

A Yes.

Q Was it true at the time this was written?

A Yes, it was.

Q "Our goal it to provide supplemental textbooks to teachers in the public schools, giving them well documented information so they can teach the truth in the classroom."

Is that true?

A Yes.

Q Is the truth there synonymous with Christianity?

A I'm sorry?

Q Is the term "truth" that you use synonymous with Christianity?

A Oh, no.

Q What do you mean by "truth"?

A Well, I meant that we -- I'm going back to the artificial removal of biology among those sciences where we are permitted to consider intelligent cause.

Q Okay. And did you ever -- was there ever a discussion of producing Pandas and People as a religious book?

A Never was, there never was.

Q With any religious tones at all?

A No.

MR. BOYLE: I have nothing further, Your Honor.

MR. ROTHSCHILD: Nothing further, Your Honor.

MR. GILLEN: Nothing.

THE COURT: I have some questions.


Q I am a little unclear. This lawsuit was filed in December, specifically December 14th of 2004. Tell me when you first became aware of the existence of this lawsuit?

A I know that it was close to the turn of the year.

Q So is it a fair statement to say in January of 2005?

A That would be fine, yes.

Q Well, I don't want to put words in your mouth. I want you to tell me when you found out.

A Well, I don't really remember exactly. The end of the year is a very very intense time, and there was just a lot crammed into a short period.

Q And how did you find out about the lawsuit?

A First in press reports, and only then much later in April did I get any more specific information.

Q Did you understand in January of this year what the basic parameters of the lawsuit were?

A If you include within that that they were coming at our interests, no, I did not understand that.

Q Well, that's not my question. Did you understand that a group of parents had brought suit against a school board in this case alleging that a particular policy by the school board that featured the mention of intelligent design, that that was -- that those parents allege that that was an infringement or an unconstitutional infringement under the First Amendment?

A I don't think that I recognized it as specifically as you express it. I recognized --

Q What did you know? What did you know?

A I knew that the books were put in a library and that students were told that they could go check the book out.

Q Well, that was my next question. So is it fair that as early as January you knew that Of Pandas and People somehow figured in this dispute?

A Yes, that's true.

Q All right. Now, it's your contention, if I understand it correctly, that your company or your not-for-profits interest are not adequately protected by the defendants in this case, is that correct?

A That's true. Correct.

Q Tell me why.

A Well, because we found out late in the case that the intention was to take intelligent design back to the Supreme Court and have it declared to be creation science, and therefore included in the -- as a religion in the constitutional prohibition against creation science. And we didn't know until well on, until April that we were going to be required to turn over a work in process.

Q Well, you believe that the thrust of the defense in this case is that? Is that what you're saying?

A I'm sorry?

Q You said that you found out that creation science is going to be part of a defense. Elaborate on that for me.

A Well, I found out that the intent of the plaintiff --

Q I see, the intent of the plaintiff.

A -- was to take intelligent design back to the Supreme Court and have it included in the creation science.

Q Well, I'm not asking you about what the plaintiff's intent is --

A I'm sorry.

Q -- or their intentions are, I'm asking you about the defendant in this case.

You are saying, by your motion, that you don't think your interests are adequately represented. Now, would you agree that your goal would be the same as the defendant's goal, that is, to have the policy of the Dover School Board remain in place as it's presently cast?

A No, I don't think the Dover School Board policy is -- I think that is the very thing that we have opposed on the part of school boards in the past.

Q All right. But that's what's at issue in this case, is it not?

A Well, my understanding is that we've been led to believe in the documents -- and I'm sorry, Your Honor, I couldn't pinpoint which one, but in the legal documents, that it's the intention of the ACLU to take intelligent design back to the Supreme Court and have them declare it to be religion or creation science or both.

Q So your belief as to what you claim to be an unprotected interest is based largely upon what you -- what you think the thrust of the plaintiff's arguments are?

A Yes, but not exclusively, because $525,000 is more than any of our annual budgets have ever been.

Q I understand that. And I'm not sure that you understood my question.

A I'm sorry.

Q Perhaps it wasn't clear.

If the Dover school board prevails in this litigation, in the sense that the policy remains in place, that gets you where you need to be, doesn't it?

A If -- if it prevails, I can't imagine that the ACLU's other goal would be actualized, so yes, I guess on appeal it might change, but yes.

Q What do you know of the Thomas More Law Center?

A I don't know a lot. I know that we received their mailings for some period of time, and that I generally feel collegial feelings for them.

Q Do you know how many attorneys have entered their appearance on behalf of the Thomas More Center representing the defendants in this case -- or the defendant in this case?

A I don't know. The only thing that I know was that I believe it was in this Court there was one, it was Mr. Gillen.

Q Would it surprise you if I told you that there might be four attorneys?

A From Thomas More at this hearing?

Q And local counsel.

A Yes, I didn't know that.

Q I guess then I'm interested in understanding why you don't think your interest can be protected when you're not sure how many counsel are involved, and because you can't tell me anything about counsel who are representing the defendants.

A I think, you know, part of the reason is because we -- we gave rise to this viewpoint. We've worked on it for more than a quarter of a century. We are intimately connected with and have worked with the two leading scientists who have provided the theoretical underpinnings for intelligent design as science.

Q If you were allowed to intervene, would Mr. Dembski be brought back into this litigation through that intervention?

A I hope so. We haven't talked about it.

Q Do you understand that if Mr. Dembski would be brought back into this process, that that might lead to that which you sought to protect before, which is the introduction of the manuscript of the volume three of which is now, as I understand it, Design of Life? Do you understand that?

A In the court proceedings?

Q Yes.

A Yes.

Q And you said earlier that you would go to jail before you'd release that, is that correct?

A Yes.

Q And do I understand correctly that -- it appears to me from what I've seen, that it was Mr. Dembski's removal from this litigation as an expert witness that appeared to trigger your desire to intervene, is that correct?

A No, no, it isn't.

Q Well, what caused you, having known about the lawsuit since January of '05 and then having known about certainly Mr. Dembski's involvement for some time prior to your motion to intervene, what triggered in May of this year your filing of a motion to intervene?

A Your Honor, I can't be precisely specific, but I know that it was a combination of what we read when we read the legal documents. It took me a while to read those documents because at the same time we were required by the Northern District of Florida to produce over 25 years of documents, which our office is less than a thousand square feet. They were in boxes unmarked, and so we had to bring in workers and supervise that and be precise about that.

So it was when I could read those -- all of those legal documents, I saw that we were really in the crosshairs, and that's why. And we were trying to do everything that was expected of us.

THE COURT: Thank you. All right. You may step down, sir. That will conclude the examination.

Now, you say you do not have another witness?

MR. BOYLE: I have no further witnesses, no, sir.

THE COURT: All right. I'll allow you to make some closing remarks, if you'd like.

MR. BOYLE: Your Honor, I want to focus upon two facts at this point in time, and that is the adequacy of the representation in this particular case, and the timeliness of the intervention. Let me deal with the timeliness first.

This case was filed late last year. At that point in time it involved a small school district in central Pennsylvania.

THE COURT: I know all of that.

MR. BOYLE: Okay.

THE COURT: I'm not sure that that helps me. What I am interested in is, the suit was filed on December 14th. It's quite clear now that your client understood that the suit was filed as early as January of '05. Discovery is closed in the suit. We're moving inextricably towards a trial at some point in the late summer/fall -- actually the fall as previously set by the Court.

I am trying to understand why there was no motion to intervene prior to the filing of this motion to intervene.

MR. BOYLE: I think there was no movement to intervene because the press reports did not give the true nature of the suit or the nature of FTE's involvement in the suit. And that this was not a matter that affected the FTE at all until they received a subpoena from this court.

THE COURT: But wasn't Mr. Dembski involved from a point in time, it seems to me -- and I don't know the exact point in time -- but at some point after January of '05 Mr. Dembski was clearly involved as, at least at that time, the defendant's expert. Mr. Dembski works hand in glove, obviously, with Mr. Buell and with his not-for-profit.

Are you telling the Court that the only source of information that your client had was through press accounts?

MR. BOYLE: That's what the testimony I believe indicates, Your Honor, that --

THE COURT: That strains credulity. I can't believe that. In a matter that is -- that is this important to your client, and certainly had some notoriety that transcended simply the community of Dover, and even Pennsylvania, and it was -- and Mr. Buell just told me that he understood -- if I understood his answer correctly, and I think I did -- as early as January he understood that Of Pandas and People was something that was the subject, or a subject of the lawsuit.

Now, I am having difficulty understanding what the trigger point was for the motion to intervene. It looks to me like the trigger point came after Mr. Dembski was dropped as an expert. And to me it looks like Mr. Dembski was dropped as an expert because he didn't want to produce, or because his employer didn't want to produce the manuscript of The Design of Life. And it was only after that that I saw the motion to intervene.

MR. BOYLE: Well, I think that we have no reason to know or no reason to know why Thomas More dropped Mr. Dembski as an expert.

THE COURT: Well, we can -- we can connect the dots. Go ahead.

MR. BOYLE: Perhaps I connect the dots differently, Your Honor.

THE COURT: Well, tell me how you connect the dots.

MR. BOYLE: I think what happened in this case is there was a policy in Pennsylvania, and I think that that policy received a variety of news coverage that may or may not have been accurate around the country. I believe that Mr. Buell saw some of that news coverage, did not connect the fact that that implicated FTE's interest that much. And Mr. Buell testified that the school district policy is not the way they market the book. They have no interest in a policy that mandates the use of the book.

THE COURT: But that's the very subject of this lawsuit.

MR. BOYLE: Well, that's one of the subjects of the lawsuit. I think the other subject is whether or not intelligent design is creation science.

I think that the position the plaintiffs take in this case is there was a mandatory policy under the Lemon test with a religious purpose. But I think they also in their complaint clearly equate intelligent design with creation science under Edwards v. Aguillard, and for that reason alone sort of as a separate basis the policy should be unconstitutional.

THE COURT: Defendants say it's not.

MR. BOYLE: Pardon?

THE COURT: The defendants say it's not.

MR. BOYLE: Well, the defendants, though, Your Honor, have to defend the political policy of the Dover school board. That's where the defendant's case rises or falls. It's on that political determination by the Dover school board.

THE COURT: Well, you may say it's a political policy. It is an explicit policy that calls for something to be said, as the Court understands it, as a precursor to the biology curriculum. Now, you call it a political policy. It's a policy. It's a statement. It's being vigorously defended by the school district, by, I might say, experienced and accomplished counsel who have at every turn litigated this case zealously.

Now, tell me what you would do, both before today and hence forth, that they haven't done?

MR. BOYLE: What we would do, Your Honor, is we would retain William Dembski and Dr. Campbell as experts in this case.

THE COURT: Well, and Mr. Dembski would then reappear in the litigation. And Mr. Buell just said that if Mr. Dembski's manuscript -- if their manuscript is dragged back into the mix, that he would rather go to jail than reveal that. So where does that get me if Mr. Dembski comes back in?

MR. BOYLE: Well, in terms of the production of the document, I don't know that there's been a ruling on that or the relevance of that has been determined.

THE COURT: Well, when you put it in an expert report and you name that as the basis for your expert report, then you have a problem if you don't want to produce it.

MR. BOYLE: Well, it's a handicap, Your Honor, to try to litigate the case, a case of intelligent design without using the foremost experts in the field.

THE COURT: Well, you want to unring a bell, and I'm not sure that that can be done in the case of Mr. Dembski, and I think you get into a, be careful what you wish for, it may come true, if in fact intervention is granted in this case.

MR. BOYLE: If intervention were granted, Your Honor, we would -- we would take a different tact with respect to the policy, the Dover policy. Our approach is --


MR. BOYLE: -- to litigate intelligent design.

THE COURT: What would you do?

MR. BOYLE: Pardon?

THE COURT: What would you do? I still haven't heard it. You say you would take a different tact. I don't understand what it is.

MR. BOYLE: Well, we would attempt -- we would establish to separate the difference between intelligent design and creation science.

THE COURT: And you don't think that the defendants are doing that?

MR. BOYLE: I think the defendants are, by the statements made by their clients, are limited to -- I think they have to defend a policy. I think they have to decide to defend a political --

THE COURT: And that's the very subject of this litigation. And it seems to me by your comments that you want to make this a broader litigation by the intervention, and I'm not sure --

MR. BOYLE: I think --

THE COURT: -- that that makes sense.

MR. BOYLE: If the case only involved the Dover policy and not the theory of intelligent design, it would be a narrow case, but the plaintiffs have taken the view, as I understand it, that intelligent design is creation science, irrespective of the policy. And that is where our interest is.

THE COURT: And how am I going to rule differently on that if you're in or if you're not in?

MR. BOYLE: Well, because our interest is in presenting the scientific evidence and the legal arguments in that case.

THE COURT: And you don't think the defendants are going to do that?

MR. BOYLE: I think the defendants are limited to what -- I think they're limited to the depth of the policy the board has enacted and what that policy is. I don't think the Dover policy and intelligent design are synonymous.

THE COURT: Your client just told me he didn't know how many attorneys were in this mix from the Thomas More Law Center, he knew very little about the attorneys who were in, quite obviously. He had a collegial relationship with Thomas More, but didn't know that much about them. How can you come before this court and indicate to me that the interests aren't adequately protected when you can't even tell me about counsel -- not you, but your client?

MR. BOYLE: Well, I think on the flip side of that, Your Honor, the reason why he can't is because he's never had any calls from Thomas More. Thomas More has never sought out what his interest is.

THE COURT: Well, think about what that argument implies. That is that there is an obligation on the Thomas More Law Center to, in the midst of their representation of the Dover school board, make contact with every potentially -- like a class action suit, every potentially affected entity or person. They don't have that burden, do they?

MR. BOYLE: I don't think they have that burden to contact everybody in the universe, but certainly, Your Honor, the publisher of the book that's at issue would seem to be a primary person they would contact.

THE COURT: Well, they used Mr. Dembski as their expert. And it was only when an objection was raised to the revelation of the transcript, it seems to me, that the twain separated here.

MR. BOYLE: I think that the twain separated when Mr. Buell received the subpoena, when he had no notice or no assistance from Thomas More in how to respond to that subpoena, when he hired separate counsel at that point in time to protect his interests, when motions were filed and when the Thomas More Law Center did not show up in Texas to present --

THE COURT: And I might agree that his interests diverge as it relates to the disclosure of the manuscript and the need to keep that confidential; and I completely understand that, and we were very careful about that in the prior proceedings. And there's no question that that's the case. But I'm not so sure that the interests diverge as it gets to the merits of the lawsuit. All right.

MR. BOYLE: Thank you. Thank you, Your Honor.

THE COURT: Any closing comments?

MR. ROTHSCHILD: Yes, and I will be brief, Your Honor.

On the issue of timing, even if Mr. Buell and the Foundation had not sat on their rights in this case, which I feel very strongly they did, it's too late in this case to bring them in. We are at the close of discovery, and now what they are talking about is not simply just participating in trial, but that experts whose depositions were scheduled and prepared for, would be brought into the case.

And what is particularly extraordinary about this is that -- and I don't need to vouch for Mr. Gillen or his firm, but they're complaining about adequacy of representation because these experts were removed from the case. But if you look at their representation in their brief it was because FTE counsel was going to represent them.

Mr. -- Dr. Meyer has no affiliation with FTE. Mr. -- Dr. Campbell has no affiliation with FTE. And here is FTE counsel insisting on representing them in this litigation. They should not be rewarded by meddling with defendant's case by being allowed to intervene and then bringing those same experts back in whose depositions would have to be taken and the preparation renewed. That's all I have.

THE COURT: I understand.

Mr. Gillen.

MR. GILLEN: Your Honor, if I may, a few comments.

I'm struggling with my personal pride because to some extent I feel like the efforts we made on behalf of the defendants have been impugned here. But I want to --

THE COURT: Well, to the extent that they have, and I didn't necessarily see that, that may be an overly sensitive reaction to it, but I well understand, and my comments should imply that I understand the zealous representation that you've provided. And inasmuch as I'm the final arbiter, at least as this stage, that is well established. But go ahead.

MR. GILLEN: Thank you, Your Honor. I appreciate that very much.

I want to also be fair and make it clear that I have made it abundantly clear to Mr. Buell that I do not represent FTE. They are strangers to my defendants. We did not contact them when we purchased the book because we believed then and believe now we purchased a science textbook. I see no reason why we would have to contact them and that's why we didn't.

It's also true that we did in fact have some feeling of insecurity when the notion of separate counsel was introduced on behalf of some of the experts based on affiliations we did not know about, and we did not want to suffer by reason of those. There was some sense of, we hired experts to serve the interests of our clients.

This new factor, intervening into the litigation, gave us reasonable grounds for insecurity concerning the zealousness with which we could expect that representation. I just want to make it clear for the record that's why we needed not to retain those --

THE COURT: Understood.

MR. GILLEN: Finally, as your comments indicate, Judge, it is the position of the Dover Area School District, the defendants in this case, that intelligent design is a scientific theory. To the extent that that is an issue in this case, we will fully and fairly and vigorously defend that interest.

THE COURT: All right, thank you.

All right, that will conclude part two, and the final part of our hearing this afternoon.

Now, I understand from Liz, counsel, that you had some concerns about scheduling, and that you might want to discuss those.

I think what we ought to do, as the hour grows somewhat late, and it's a legitimate concern, is probably set up at some appropriate time a scheduling conference call, and then we can all be heard on scheduling.

I will tell you that -- well, let me ask you first of all, the sense of the inquiry, as I understood it, was not that you wanted to delay, it was simply that you wanted to have some idea of where we go after the start date of the trial; and that's certainly fair.

It would not be my intention, because I simply can't, given your recent estimate of the duration of the trial, I can't go from start to finish in straight days. That wouldn't work for any of us, I suspect. Everyone is busy and I have other matters that I have to attend to. So what we'll look at, when we have a scheduling conference, is to designate certain days.

I am going to do my best to be in Harrisburg for as many days as I can. However, as Liz may have advised you, it appears to me that given the expected duration, we simply are not going to be able to avoid having some trial days in Williamsport. I'll try to schedule those back to back, and I wouldn't run you around unnecessarily from one place to the other, and nor do I want to do that, but we'll work through that.

So I'll, by separate order, schedule a scheduling conference. And I'll ask you to get your schedules out for that, and let's try to work through that.

I can't promise that it will be in the next week or so, but we'll do it in due time and we'll try to get a schedule so that everybody has a little predictability. It's my policy that I -- I think that courtesy dictates to counsel, although this courtesy was not always afforded to me when I was practicing, but courtesy dictates to counsel that we have some sense of where we're going so that, particularly for those who are travelling in, they can see what they need to do.

MR. ROTHSCHILD: Thank you.

THE COURT: Anything else before we close the record?


MR. BOYLE: No, Your Honor.

THE COURT: We'll close the record. We will render a decision with respect to the intervention matter promptly. I will render a decision with respect to the motion to quash after I've had an opportunity to view in camera the documents which will be submitted, as I understand it, no later than the close of business next Tuesday.

With that, the record is closed and we're adjourned.


(4:24 p.m., court adjourned.)


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