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Message-ID: <001801be918b$9b957ea0$889a10cf@yawen>
From: "Yale F. Edeiken" 
To: 
Cc: 
Subject: Re: Proposed Draft of Agreement
Date: Wed, 28 Apr 1999 11:27:18 -0400
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 Sir:

 I received the communication from you concerning the first draft of the
proposed contract.  This communication is a response to the questions you
raised.

 I have deleted material for which no response is necessary.

 At this time I see no point in redrafting the contract and will not do s=
o
until the issues in
dispute are settled:

Date: Sun, 18 Apr 1999 19:46:49 +0100
From: David 
Reply-To: DavidM@cableinet.co.uk
To: yawen@enter.net
Subject: Himmler challenge response

RESPONSE TO YALE F EDEIKEN=92S DRAFT HIMMLER CHALLENGE CONTRACT


2. Technical considerations

 In response to my comment:



When and if a contract is signed I will, with
consultation with the signer attempt to find a laboratory based primarily=
 on
the
following criteria:

    1.  Reputation and experience with foreign language analysis.

    2.  Price.

    3.  Proximity to Washington D.C. to facilitate any necessary on-site
copying.

    While the draft calls for the Nizkor Project to suggest a
laboratory, I would have no objection to consulting with you during the
process as an agreed laboratory would expedite the testing.  Further I
have no objection to your revising the contract to include this right of
consultation.


 You answered:

*Accordingly I contacted Charles M Salter Associates of San Francisco
*(http://www.cmsalter.com/about.html). It will be observed from their
*website that they specialize, inter alia, in this type of forensic work
*and that they have provided evidence in major court cases. The contact
*person here is Dr John Freytag

 That is not correct.  Based upon information on their website, Salter is=
 a
=93consultant in
acoustics and audio/visual system design.=94  There is no information tha=
t
they =93specialize=94 in
spectrographic analysis of voices or have testified in any cases concerni=
ng
voice print analysis.  In fact, all of the forensic work that they cite i=
s
with issues of acoustics and noise control; none involved voice
identification.  While they claim ability to do =93voice print=94 analysi=
s,
there is no indication that they are certified by the International
Association for Identification (IAI) or the Voice Identification and
Acoustical Analysis Subcommittee (VIAAS).  This is the only
certification available and we consider such certification as an absolute
necessity.

 In reviewing Mr. Freytag=92s credentials I note that he has no doctorate=
,
that he is a P.E.
dealing with acoustics, and, although his professional credentials are
listed, there is no indication that he is either a member of VIAAS or tha=
t
he has been certified by them.

 If you have other information not contained on their website, please adv=
ise
me.


*(http://www.cmsalter.com/personne.html#freytag). Dr Freytag stated that
*Charles M Salter Associates routinely carries out this sort of analysis,
*and he has expressed an interest in working with us on the analysis of
*the tapes.

*In an e-mail to me dated 8 April (Message-Id:
*<3.0.32.19990408151637.00de3d00@shell10.ba.best.com>) Dr Freytag raised
*the following points (he subsequently gave me permission to post his
*words in this forum):


*1)  The authenticity investigation should not be limited to voiceprint
*analyses.  Physcial, chemical and electronic examination of the
*recording should be made to investigate the recording age, type of
*equipment used, tape (or wire) composition, etc.  Additionally, the
*recording should be checked for evidence of splicing, dubbing, etc. as
*we routinely do for evidentiary tapes in criminal matters.

 I cannot accept this opinion as given.  The physical, electronic and
chemical analysis he
suggests would be of no value in the analysis of this tape for the purpos=
es
in which we are
interested or to a discrimination case in general.  The provenance and
existence of the tape is not in question.

 My client does agree that the tape should be analyzed for splicing.  It
should be noted that
the tape in question was known to be in existence in 1946 and the technol=
ogy
required for
sophisticated alteration by dubbing was not available.  Any splices would
show up on a copy as
well.

*2)  The reliability of any opinions regarding voice print matching
*depends upon the quality of the recordings being compared, the extent of
*matching contextural materials (i.e., are the two recordings saying the
*same thing?), speaker disposition during the two recordings, acoustical
*backgrounds, and non-linearities in recording equipment.

 The two scientific studies (Dr. Oscar Tosi and FBI) indicate that the mo=
st
important factor
is the number of similar words analyzed.  The error rate dropped sharply
between Tosi (10
words) and the FBI study (20 words) demonstrating this.  The VIAAS standa=
rds
do NOT require
voice equalization.

 The second most determinative factor is the known skill of the examiner =
as
Dr. Tosi noted
in his study.

*3)  All voiceprint opinions which we develop carry a caveat.  The best
*of results would be a high qualitative estimate of the liklihood of a
*voice match.  The worst results would be inconclusive.

 Mr. Freytag is not following the VIAAS standards promulgated on January =
1,
1992.

 The caveat, required by the VIAAS, reads =93The spectrographic/aural
technique used is not
completely conclusive; however, an examination following the IAI Standard=
s
does allow for a
meaningful voice comparison.=94

 I believe that you have misinterpreted the final statement in this
paragraph.  Mr. Freytag
cannot be referring to the content of opinion itself but the confidence w=
ith
which it is stated.  The
Standards of the VIAAS sets forth the wording of the seven possible
conclusions that can be
reached.  They include =93possible elimination,=94 =93probable eliminatio=
n=94 and
=93elimination.=94  Thus
the accepted standards include the possibility of elimination.  Further
confirmation can be found
in the Tosi study and FBI study both of which include =93false negatives.=
=94
Should Mr. Freytag
words mean what you stated, it is an indication that he is not following =
the
accepted scientific
standards for such analysis.



*4)  It is very difficult to perform reliable voiceprint comparisions in
*different contexts.  Speech may not be disassembled into phonemes and
*then reassembled into another context for the purpose of voiceprint
*comparision.  We must compare word sequences and phrases to develop
*reliable conclusions.

 This contradicts both the FBI studies and the Tosi study when referring =
to
a discrimination
test.  In the FBI test there were 696 identifications which consisted of =
one
false positive and two
false negatives.  In this study the standard used was 20 words.  There wa=
s a
higher rate of failure in the Tosi study which used 10 words and a
non-certified, untrained examiner.  That study was further complicated as=
 it
involved open and closed testing rather than discrimination testing as wi=
ll
be done here.  Tosi=92s conclusions are that discrimination testing is
inherently more accurate than either open or closed testing

*5)  Our laboratory+engineer bills at US$200 per hour.  Voiceprint
*analyses generally require a minimum of 10-times the recording length
*for analysis. The 190-minute comparision is necessary because we must
*sort through two recording samples to find matching context.  While the
*5-minute section may be of utmost interest to you, voiceprint comparison
*needs matching context

 This statement is contrary to both VIAAS and FBI standards.  Matching wo=
rds
for the test
can be developed from written transcripts.  With the length of this speec=
h,
such comparison
would be the first step.

*wherever we may find it.  We will also need to retain a German
*translator.

 The only purpose of a translator would be to make the work of the
laboratory easier.  That
should be part of the laboratory fee not a separate expense.




*Several points follow from this:

*a. Access to the original tape is necessary so that tests over and above
*voiceprint analysis can be carried out. This is not an insurmountable
*problem.

 This is contrary to VIAAS standards.  The FBI prefers analysis of origin=
al
recordings but
this in not an absolute necessity.  The only reason Mr. Freytag gave for
this opinion was based on his desire to perform physical tests that are
unnecessary.


*b. Great care will be necessary in the selection of a comparison tape.
*If it is greatly different from the alleged Posen tapes then there is a
*risk of biasing the study against the hypothesis that it is really
*Himmler. Considerable thought needs to be given to the process to be
*used for the selection of a comparison tape. Such selection, however,
*cannot be made exlusively on the grounds of scientific convenience -- to
*compare a disputed Himmler tape with another disputed Himmler tape (or
*one likely to be disputed) would hardly give us a useful conclusion.

 The choice of the comparison tape is, of course, important. Please note
that the original
contract gives you the right to reject the proposed comparison tape.


c. Dr Freytag=92s opinion that:

*requires that great care be given to the contractualization of the
*interpretation of the response. As the lawyers whom I consulted pointed
*out, there would need to be close liaison between the drafter of the
*final contract and the laboratory carrying out the analysis to establish
*precisely the form in which the results would be produced by the
*laboratory (which, I should add, itself depends on the tests to be
*carried out) and then to translate the results into a decision as to
*their implications regarding the authenticity of the Himmler tape, who
*has won the challenge, and who pays what to whom.

 The Standards of the VIAAS specify how a conclusion is to be stated.

 My client considers adoption of those standards in the context of this t=
est
to be mandatory.
It should be noted that the FBI standards, which are slightly more rigoro=
us,
include the VIAAS
standards.

*d.  The costs of this exercise are likely to be much, much higher than
*the costs cited by Yale F. Edeiken,

 Only if Mr. Freytag=92s position is accepted.

 Not only is estimate several times higher than other estimates and the
hourly fee suggested quite high but it includes additional testing and
expenses that is not required either by practice of such testing or the
accepted standards of the science.

 Further any laboratory doing forensic testing routinely includes a
reasonable estimation of
cost and allocation to a preliminary survey to determine whether testing =
is
feasible.  These are not issues that can be addressed in our contract but=
 in
the contract or letter of agreement executed with the laboratory.

 the garbled clause 12:


12.  In case of the breach of this contract and would be impossible or
very difficult to ascertain accurately, because the actual damages that
either party would sustain
if the other party breaches its obligations and duties under this
agreement are uncertain the parties agree in good faith that reasonable
compensatory damage for the harm done is is the party in breach of this
contract shall forfeit all claim to any funds on deposit with said
attorney, pay as liquidated damages the sum of Ten Thousand
($10,000.00) U.S. Dollars, and bear the incidental costs, including,
inter alia, reasonable attorney's fees of the non-breaching party or the
named attorney holding said funds, and the reasonable costs and fees of
arbitration including costs of transcription..


 This was garbled in word processing, the wording of this paragraph appro=
ved
by my
client was:



12.  As the actual damages that either party would sustain if the other
party breaches its
obligations and duties under this agreement are uncertain, the parties ag=
ree
in good faith that
reasonable compensatory damage for the harm done is that the party in bre=
ach
of this
contract shall forfeit all claim to any funds on deposit with said
attorney, pay as liquidated damages the sum of Ten Thousand
($10,000.00) U.S. Dollars, and bear the incidental costs, including,
inter alia, reasonable attorney's fees of the non-breaching party or the
named attorney holding said funds, and the reasonable costs and fees of
arbitration including costs of transcription..



*Particular concerns regarding the draftsmanship of the document are as
*follows:

*(a) Numerous important areas that require detailed contractualization
*are glossed over. This could result not only in legal disputes but
*disputes as to whether agreed procedure is being followed, disputes as
*to the interpretation of the analysis, and disputes as to who is liable
*for what. These need to be tightened up. Areas of weakness include, for
*example:

*--  attribution of procedural responsibilities (who is responsible for
*what);

 All procedural responsibilities were covered in the contract.


*-- provision of a schedule;

 Since the scheduling of the test depends on a third party (the laborator=
y)
which is not a
party to this contract, the schedule of such testing is not a proper subj=
ect
of this contract.  If you
wish to have some scheduling requirements in reaching the contract with t=
he
laboratory, please
have your attorney draft them.

*--  itemizing and allocation of all potential costs and procedures for
*dealing with unanticipated costs;

 The allocation of costs and potential costs are allocated in the contrac=
t.
Specifically my
client will pay all laboratory costs and a similar sum is to be deposited=
 by
you.  While procedures for unexpected costs was contained in the existing
contract, my client has no objection to redrafting this clause for more
specificity.

 Please inform us of the procedures for unexpected costs that would be
acceptable to you.
I suggest a percentage limitation on unexpected costs with your approval
required for amounts
above that level.

*--  analytical procedure and interpretation (how shall the analyses be
*conducted and interpreted, and by whom precisely shall they be
*interpreted);

 My client has no objection to specifying that the Standards promulgated =
by
the VIAAS in
1992 be specified in the contract.

*--  translation of the interpretation of the results into a decision as
*to who is liable for what;

 This is covered in the VIAAS standards.


*--  dispute resolution procedures and procedures for dealing with
*unanticipated issues that might arise;

 An arbitration clause is in the existing contract.

(b) There is some vague and subjective language that needs to be
tightened up as far as possible in order to reduce the scope for
misunderstandings and disputes. Examples include:

*-- a =93recognized=94 laboratory;

 My client is willing to amend this to state =93a laboratory certified by
VIAAS or a
laboratory operated by the government of the United States which follows
those standards.=94

*-- =93good cause=94

 This is defined in the text of the present contract.


*=94--a reasonable degree of scientific certainty=94


 This is the legal standard for an expert to render an opinion.  It requi=
res
no definition as it
is well-established in law.

*-- a =93known speech=94 given by  Heinrich Himmler.

 I see nothing vague or undefined here.  This is especially true as the
contract gives you the
right to participate in the selection and, implicitly, the right not to n=
ame
a speech for which you
have some information that demonstrates that the speech was not made by
Himmler.  I feel that,
for technical reasons, the .best procedure is to let the laboratory propo=
se
the comparison speech to
be used.


*3. Specific clauses

CLAUSE 1


The Nizkor Project (hereinafter "Nizkor"), an
unincorporated organization based in Canada and David
Michael (hereinafter "Michael") a citizen and resident of
the United Kingdom hereby agree to jointly have the
recording of the  speech made by Heinrich Himmler before
officers gathered in the Polish city of Posen in October
1943 and entered into evidence at the trial before the IMT
of major war criminals at Nuremberg and currently held by
the U.S. National Archives analyzed by a recognized
laboratory specializing in voice print analysis to determine
whether the voice on said tape-recording is that of Heinrich
Himmler.


*We feel that the counterparty should be Kenneth McVay,

 My client is willing to accept this change even though, contrary to your
statement, the
initial challenge was issued by The Nizkor Project.


CLAUSE 2


The analysis of the said tape recording shall consist only of a voice pri=
nt
analysis of the tape
recording at issue.  Any other analysis shall be done only at the expense=
 of
the
party wishing such further analysis.


*Here I simply again draw Yale F Edeiken=92s attention to Dr John Freytag=
=92s
*comment:

 As Mr. Freytag=92s statements contradict the VIAAS standards as stated a=
bove,
we do not
accept them.

 My client has no objection to amending this section to include examinati=
on
for evidence of
editing or splicing.


CLAUSE 3


The voice print analysis will be performed by a recognized laboratory
specializing in forensic voice print analysis to which the parties to
this contract mutually agree, Nizkor shall propose which laboratory
shall perform the analysis subject to the approval of Michael.
Rejection of any proposed laboratory shall be only for good cause shown
including, inter alia, lack of competence, a poor
reputation within the profession of voice print analysis, demonstrated
bias, or conflict of interest.  Should the laboratory proposed be
rejected for good cause, Michael will then propose a laboratory located
with the continental United States, subject to the approval of Nizkor on
the same basis.  This process will continue until a laboratory is selecte=
d.


*The laboratory would need to be selected before the contract is
*finalized so that the precise procedure to be used, the form of the
*results, and the interpretation of the results can be contractualized.


 This is incorrect.  There are published standards accepted by this field=
 of
 expertise and my
client insists that any work be done by either a certified laboratory or =
a
government laboratory
that maintains similar standards.  We are willing to amend the contract t=
o
include specific mention of these standards.


*The selection process seems onerous and unnecessary.

 The selection of a laboratory is crucial to proper analysis of this tape.
We cannot accept any shortcuts to this important task.


*I would propose that we use Dr Freytag=92s team and that this be specifi=
ed
*in the contract.

 Based upon the information you have provided, Mr. Freytag =96 who does n=
ot
indicate that
he is certified by the VIAAS =96 is not acceptable as a scientist perform=
ing
the tests.


CLAUSE 4


The voice print analysis shall be done according to the standards of the
laboratory chosen and the scientific principles of voice print analysis w=
ho
will then, as experts
in voice print analysis, make a report as to their findings as to
whether the tape recording is the voice of Heinrich Himmler to a
reasonable degree of scientific certainty.  Said report shall be
considered in the public domain.


Needs tightening up as specified above.

 Unless you wish specific mention of the VIAAS standards and certificatio=
n,
I see no need
to amend this section.


CLAUSE 5


The analysis shall compare the said tape recording to a known speech
given by  Heinrich Himmler.  The selection of control specimen shall be
determined by the laboratory performing the analysis from the archive of
speeches and other public statements made by Heinrich Himmler maintained
by the U.S. National Archives  Either party has the right to reject any
such alternate proposed specimen for good cause which, for the purpose
of this agreement, consists only of a showing that the suggested
speech is not suitable for analysis or of clear and convincing evidence
that the speech was made by a person other than Heinrich Himmler.


*As indicated above, selection of the tape would need careful thought. It
*would need to meet the scientific standards of the lab, but it would
*also need to be undisputed -- and not reasonably disputable

 Good cause is specified as showing either that the selected speech is no=
t
amenable to
analysis or it can be shown that it was not given by Himmler.  This place=
s
the burden of showing
that the speech was not given my Himmler on the person making that claim.

 My client is happy with this clause as it is presently drafted especiall=
y
as you are part of
the selection process.



CLAUSE 6


If the named laboratory is unable to perform a complete analysis due to
the length of the tape recording, the minimum analysis shall consist of
the portions of the speech dealing with the Final Solution of the
"Jewish question" and two other portions selected at the discretion of
the laboratory performing such analysis.


*I would say that this =93ausrotten=94 section, which should be cited in =
full
*in an annexure to the contract so that there is no dispute about the
*section in question, should in any case be the absolute minimum section
*analysed.

 My client has no objection to attaching the German text of this section =
to
the contract.
Not only will it specify the crucial portion of the speech but could act =
as
a guide for the
laboratory, simplifying there choice of words to be used for the comparis=
on.
Please prepare a
transcription of the language upon which the laboratory to focus so that =
it
can be included as an
appendix.

 My client disagrees that this section is =93minimal.=94  In fact, the pr=
ovision
of two other
sections in the analysis would be an important confirmation of any findin=
gs.


* Moreover, at an absolute minimum, in addition to voiceprint
*analysis, analysis would have to be undertaken to ensure that this tape
*has not been spliced or dubbed, as Dr Freytag has indicated.

 My client, as had been stated, is willing to add analysis as to splicing=
 or
editing.  I know
of no scientific test that would indicate whether =93dubbing=94 =96 the c=
opying of
one tape to another =96
could be determined.


CLAUSES 7 AND 8


        7.   Nizkor shall pay all fees required by the laboratory.

        8.   Prior to actual payment of any such fees, Michael will
deposit a sum equal to those fees with an attorney licensed to practice
law in Pennsylvania to be placed in an attorney's trust, escrow, or
IOLTA account pending the expert report of the laboratory.  Nizkor
agrees to provide the names of three (3) such attorneys.  Should Michael
insist that another attorney holds the funds as described above, he
shall bear the sole cost of any legal fees which are incurred as a
result of his decision.


This differs from the original challenge as presented to Mr Giwer by
Yale F Edeiken. I cite Message-ID: <4vl522$hv2@news.enter.net> posted in
alt.revisionism by Yale F Edeiken:


Third. Trust account. There is no need for any special account. Every
lawyer must maintain (or have access to) a trust account for the deposit
of clients funds. Withdrawals cannot be made from such an account
without notice or, depending on the agreement, permission of the client
or a court. If Giwer does not trust the account that I maintain or the
one our firm maintains either his attorney could hold it or we could
name a neutral attorney to do so.


 *Is there any reason why Yale Edeiken has backed off from the original
*challenge in this respect? I found the original proposal put to Mr Giwer
*far preferable in this regard.

 Yes.  At the time this was written I had not been retained by The Nizkor
Project.

 An attorney accepting such funds and responsible for determining whether
conditions
precedent for distribution have been met has a fiduciary duty to all pers=
ons
with an interest in
those funds.  This is an absolute duty in such cases and the attorney
holding the funds could be
joined as a party to any litigation or arbitration and, under most U.S.
procedures could initiate an equity action against all claimants to
determine which are entitled to the funds.  This raises the possibility o=
f a
conflict of interest if the attorney for either party holds the funds and=
,
therefore, they are ethically barred from doing so.  An independent perso=
n
must be retained to perform this function.

 You should note that the U.S. consists of more than 50 jurisdictions eac=
h
of which have
their own terminology.  An attorney=92s trust account (as it is called in=
 my
jurisdiction) is known
elsewhere as an =93escrow account.=94  An IOLTA is, in fact, a trust acco=
unt
which bears interest and is insured by a fund available where the funds h=
ave
been unethically taken from the account.


CLAUSE 9


 Should the laboratory require additional fees, Nizkor will advance said
fees to the laboratory upon deposit of a sum by Michael equal to those
additional fees with the named attorney  to be placed in the attorney's
trust, escrow, or IOLTA account as aforesaid within thirty (30) days of
being notified by mail that such additional funds will be required.


*This creates a legal obligation for me to pay any additional fees that
*the laboratory might demand. I would need to have a right of refusal
*should I, at my sole discretion, consider the additional fees excessive,
*unreasonable or unnecessary.

 My client is willing to amend the contract as specified above.  It is no=
t
acceptable to give
you sole discretion to abort the testing based on a whim.


CLAUSE 10


Should either party fail to make the payments due either to the
laboratory performing such analysis or to a licenced attorney for deposit=
 in
a trust, escrow, or
IOLTA account, it will constitute a breach of this agreement.  As
liquidated damages, as set forth below, all sums already deposited in
the said account shall be returned to the non-breaching party and the
breaching party shall pay the sum of Ten Thousand ($10,000.00) U.S.
Dollars as liquidated damages.


*We don=92t see the necessity for this.

 Please consult your attorney for an explanation of liquidated damages.  =
Had
you done so
as you stated you would in your communication, you would have understood =
the
nature of
damages in a contract action.  This clause has, as your attorney would ha=
ve
recognized, a clear
meaning which is the exact opposite of the effect you assume.

* It could lead to lengthy disputes and litigation.

 In fact, it would reduce any litigation to a single,  simple question.


* If there is a breach of the contract it will be obvious
for all to see and that will be sanction enough.

 Please consult your attorney as to the meaning of a liquidated damage
clause.  It is not a
=93sanction=94 but compensation.  Please note that the failure to include=
 this
clause raises a problem of damages under Hadley v. Baxendale.


* Consideration should be given to deleting this clause.

 Since this clause eliminates the complexity of any litigation that would
result from a
breach of contract, my client will not consider deleting this clause.


CLAUSE 11


Except in cases of breach of contract or as otherwise provided herein
the attorney shall release and distribute the sums held in said account
following and pursuant to
the expert report of the laboratory chosen.  Said distribution shall be m=
ade
as follows:

        a.      If the expert report finds that voice print analysis
confirms that the voice on said tape recording is that of Heinrich
Himmler to a reasonable degree of scientific certainty all funds held in
such account shall be released and distributed to Nizkor.

        b.      If the expert report finds that voice print analysis
confirms that the voice on said tape recording is not that of Heinrich
Himmler to a reasonable degree of scientific certainty all funds held in
such account shall be released and distributed to Michael.

        c.      If the expert report finds that voice print analysis is
inconclusive in that it is unable to confirm or deny to a reasonable
degree of scientific certainty that the voice on said tape recording is o=
r
is not that of Heinrich
Himmler Nizkor and Michael shall split the costs of the analysis equally.
To
this end all funds held in such account shall be released and
distributed to equally to Michael and Nizkor.  Any rebate or refund from
the laboratory as a result of their failure to be able to perform the
analysis shall be divided in the same manner.

        The parties agree that, in all cases, the decision of the
attorney holding said funds shall be final and no liability shall accrue
to said attorney by reason of his acting in conformity with the report
of the expert.


*Two points.

*First, I have a problem with this decision being made by =93the attorney
*holding the funds=94We propose that the contract, which should be drafte=
d
*in close liaison with the laboratory responsible for producing the
*results, should specify precisely the form in which the results should
*be produced by the lab.

Any attorney accepting the funds will be given a letter of instruction
approved by both parties.  This is standard procedure.

 The laboratory will be expected to conform to the standards of VIAAS
standards.  The
consultation needed is to ask them whether they are certified and whether
they follow those
standards.  Any laboratory that answers =93no=94 to either question will =
not be
considered.


* We further propose that the contract should
*specify precisely which results should constitute a =93win=94 for myself=
 and
*precisely which results should constitute a =93win=94 for the counterpar=
ty.


 This is clearly specified in the contract.

 A report stating that, to a reasonable degree of scientific certainty, t=
hat
the speech was
made by Himmler, constitutes a =93win=94 for my client.  A report stating=
 that,
to a reasonable degree of scientific certainty, that the speech was not m=
ade
by Himmler is a =93win=94 for you   A report that states, to a reasonable=
 degree
of scientific certainty, that no conclusions can be drawn is a wash.

 We are willing to amend this to include the findings of =93possible
elimination=94 and
=93possible identification=94 as inconclusive results.

*This implies that the contingency described in clause 11b of the draft
*contract could not arise -- it could not be proven that the speaker is
*not Himmler =FB and hence, irrespective of the outcome, I would be oblig=
ed
*to pay half of the costs.

 This is, as pointed out above is incorrect.

 You have either misinterpreted Mr. Freytag=92s communication or he is un=
aware
of the
published and accepted standards for this type of analysis.


*counterparty. We suggest that the basic principle to be followed here
*would be that if, in the opinion of the laboratory, the match is of such
*a high standard that there can be no reasonable doubt that the voice is
*that of Heinrich Himmler,

 The standard by which an expert is bound by any court is =93to reasonabl=
e
degree of
scientific certainty;=94 there is, in fact, case law which states that no=
t
only is that the standard but
that those specific words must be used.  My client will not accept a repo=
rt
that deviates from the
legal standard for evaluating the report of an expert.  Had you consulted=
 an
attorney, her or she
could have explained this to you.

CLAUSE 13


Any dispute under this contract shall be submitted to binding
arbitration by the American Arbitration Association, pursuant to their
Commercial Arbitration Rules or, at the option of the party bringing such
action,  binding common law
arbitration pursuant to the statutes, rules and practices  within the
Commonwealth of Pennsylvania.  The loser of said arbitration shall bear
any costs of arbitration, including, inter alia, fees paid to the
arbitrators, incidental costs of the arbitration including, inter alia,
transcription fees, and the reasonable attorney's fees of the
non-breaching party.  Nizkor and Michael agree that any decision of this
binding arbitration may and shall be reduced to a judgment in a form
valid under the laws and jurisprudence of Canada, the United Kingdom,
and the Republic of South Africa.  Notification of the decision to
initiate the arbitration process shall be by mailing a notice of such
intent to the other party or his representative.


*We are not happy with this. I am not familiar with Pennsylvania law, nor
*would it be easy for me, as a resident of Great Britain, to obtain
*counsel to advise on such law. The costs of travel to, and accommodation
*in, Pennsylvania, and the fact that I would be obliged to be away from
*my business for a lengthy period of time, would make this process
*onerous.

 It is equally onerous for my client and for the same reasons.  Further, =
as
noted above,
there is actually a third party to be considered here =96 the person hold=
ing
the money.  He or she
may be drawn into any litigation over this matter.  It is unfair to leave
him exposed to the same
onerous conditions as you note.  If British law or Canadian law was
selected, for example, the
third party would be required to produce for a court expert testimony as =
to
the law in those
jurisdictions whereas he could represent the law in other U.S. jurisdicti=
ons
himself in a matter this simple.

 In fairness to the person holding the funds, I believe utmost considerat=
ion
to the problems
that the attorney holding the funds might face.  That consideration would
include having the local
courts available to him or her, being able to apply local law, and
eliminating the possibility that
her or she would be obligated to travel to London or Vancouver to explain=
 to
a foreign court how
he followed his fiduciary obligations.

 My client would be willing to amend this clause to specify the that law =
and
the
jurisdiction shall be that of the person holding the funds.

 Next, there is an arbitration clause in this paragraph.  This is a rathe=
r
simple matter that
would be heard in less than a day before a judge.  In an arbitration
setting, specified in the
contract, it would last no more than 3 hours.  The only issues for partie=
s
other than the person
holding the funds would be the contract and the report of the expert.  As
long as you were
properly represented, your presence would not even be required.

 Again, had you followed your own advice and consulted an attorney, this
could have been
explained to you.


CLAUSE 14


The parties agree that the validity and construction of this agreement
and of the rights and duties of the parties shall be governed in accordan=
ce
with the laws of the
Commonwealth of Pennsylvania and that the jurisdiction for any such
litigation not subject to binding arbitration will be the U.S. District
Courts which shall be the sole jurisdiction for the resolution of any
such dispute.   Nizkor and Michael agree that any decision of a court of
the designated jurisdiction,  may and shall be reduced to a judgment in
a form valid under the laws and jurisprudence of Canada, the United
Kingdom, and the Republic of South Africa.


*The above reservation concerning clause 13 applies equally to clause 14.

 And my answer is the same.


CLAUSE 15


For the purposes of this agreement notice to a designated agent of a
party shall constitute notice to a party.  Each party shall
designate one person and/or firm to act as a designated agent.


*In my case notice should be communicated directly to myself, unless this
*is subsequently waived in writing by myself.

 The clause is =93waived=94 by your failure to appoint an agent.


CLAUSE 16


This agreement shall not be assigned by either party without the written
consent of the other party to the proposed assignment.


*We do not see the necessity for this clause.

 I am absolutely flabbergasted by this statement.

 Had you consulted an attorney you would have been informed that, unless
otherwise
specified in the contract, a contract is freely assignable.  That means t=
hat
the party could be
changed for a nominal consideration without prior notice to the other par=
ty.
Considering that you spent a substantial portion of your communication
demanding a change to the identity of the other party, your objection to =
a
clause that would prevent transfer of the obligations of the contract is =
not
reasonably explicable.

 Had you consulted an attorney as you promised, you would have understood
its meaning
and that it is a standard clause in any contract.
=2E

CLAUSE 17


This agreement is indivisible as to all of the rights, duties, and
obligations stated herein.  Breach of any duty or obligation constitutes =
a
breach of the entire
agreement and give rise to a cause of action for termination or breach of
contract as
set forth above.  No partial invalidity of this agreement shall effect
the validity and enforcibility of the remainder of the agreement.


*OK, with the reservations expressed above.

 I saw no reservations expressed above.

 Again, had you consulted an attorney you would have been made aware of t=
he
possible
legal consequences of deleting this clause.


CLAUSE 18


This agreement constitutes the entire agreement between the parties
concerning the voice print analysis of the speech made by Heinrich Himmle=
r
in Posen in October, 1943, as preserved on tape at the U.S. National
Archives.  This
agreement supercedes any prior written or oral agreements between the
parties regarding the subject matter of this agreement and contains all
covenants and agreements between the parties with regard to the voice pri=
nt
analysis
of the speech made by Heinrich Himmler in Posen in October, 1943.  Each
party to this agreement acknowledges that no representations, inducements=
,
promises, or
agreements, oral or written, have been made by any party
or any person authorized to negotiate for any party, other than those
embodied in this agreement, and that no other agreement, statement, or
promise not embodied in this agreement shall be binding or valid upon
the parties to this agreement.


*First, we need to designate the speech precisely -- the one made on 4
*October.

 We will amend this paragraph to include the date of the speech.


*Second, as indicated above, the analysis would need to go beyond
*voiceprint analysis.

 We will amend the contract to include tests for splicing or other
electronic fabrication.

*Third, the final sentence appears superfluous and could cause
*complications. Suggest delete.

 This is the result of your failure to consult an attorney.  This is call=
ed
a =93merger=94 clause
and is present in most contracts.  Its practical effect is to REDUCE
complications.  There is no
reason to delete it on the sole grounds that you do not understand it.


*4. Concluding comments

 These comments are public posturing and have no place whatsoever in thes=
e
negotiations.
Please confine your communications to me to the issues of this contract.
Should you wish I am
willing to provide you with a genuine plastic milk crate from =93Lehigh V=
alley
Dairies=94 so that you
can go to Hyde park, set yourself up on whatever corner appeals to you, a=
nd
orate to your heart=92s content.

 I will redraft the contract including the agreed amendments when there i=
s
substantial
agreement on the terms and when you have consulted an attorney so that th=
e
principles of contract law can be explained to you.

 =96Yale F. Edeiken

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