`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ------------------------------------x
` APPLE INC., Petitioner,
` v.
` SMARTFLASH LLC, Patent Owner.
` ------------------------------------x
` CBM2015-00028 (Patent 7,334,720 B2)
` CBM2015-00029 (Patent 7,334,720 B2)
` CBM2015-00031 (Patent 8,336,772 B2)
` CBM2015-00032 (Patent 8,336,772 B2)
` CBM2015-00033 (Patent 8,336,772 B2)1
` ------------------------------------x
` INITIAL TALK CONFERENCE CALL
` June 29, 2015
` 2:02 p.m.
` Before JENNIFER S. BISK, RAMA G. ELLURU,
` JEREMY PLENZLER, and MATTHEW R. CLEMENTS,
` Administrative Patent Judges.
`
` ELLURU, Administrative Patent Judge
`
` Reported By:
` ERICA RUGGIERI, RPR, CSR, CLR
` Job No: 39714
`
`
`
`2
`
` A P P E A R A N C E S:
`
` ATTORNEYS FOR PETIONER:
` ROPES & GRAY, LLP
` 700 12th Street Northwest
` One Metro Center
` Washington, DC 20005-3948
` 202.508.4600
` BY: J. STEVEN BAUGHMAN, ESQ.
` Steven.Baughman@ropesgray.com
`
` ATTORNEYS FOR PATENT OWNER:
` DAVIDSON BERQUIST JACKSON & GOWDEY, LLP
` 8300 Greensboro Drive, Suite 500
` McLean, VA 22102
` 571.765.7700
` BY: MICHAEL R. CASEY, ESQ.
` mcasey@dbjg.com
`
`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` MR. BAUGHMAN: Steve Baughman
` from Ropes & Gray joining.
` MR. CASEY: Hey, Steve, it's
` Michael. The court reporter is here
` too. I didn't hear anything about
` Google joining so I assume they are
` not.
` JUDGE ELLURU: Hello, this is
` Judge Elluru. I have with me Judges
` Bisk, Clements and Plenzler. This is
` the initial talk conference for
` CBM2015-00028, 29, 31, 32 and 33.
` Who do we have for petitioner?
` MR. BAUGHMAN: Your Honor, Steve
` Baughman from Ropes & Gray for
` petitioner.
` JUDGE ELLURU: Mr. Baughman, do
` you expect anyone else today?
` MR. BAUGHMAN: No, Your Honor.
` Thank you.
` JUDGE ELLURU:: Do you have a
` court reporter on the line?
` MR. BAUGHMAN: Petitioner does
` not, Your Honor.
` JUDGE ELLURU:: Who do we have
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`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` for patent owner?
` MR. CASEY: Michael Casey from
` Davidson Berquist Jackson & Gowdey and
` we do have a court reporter on the
` line, Your Honor.
` JUDGE ELLURU: Thank you. We do
` ask that the patent owner file the
` transfer of today's teleconference as
` an exhibit in the record for each of
` these cases.
` MR. CASEY: Your Honor, we had
` this discussion once before. With
` your permission I think it's supposed
` to be filed as just a notice paper
` because it's not truly patent owner's
` exhibit, but I will take direction
` from you however you wish.
` JUDGE ELLURU: That's fine. The
` way you've been doing it is fine.
` MR. CASEY: Your Honor, if I
` could have, again, permission to file
` the same transcript with the comment
` header, I know it's not normally done
` but it's not an exhibit by patent
` owner. It's been fairly effective in
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` other cases.
` JUDGE ELLURU: That's fine too.
` So we received a proposed, a list of
` proposed motions by each party. Could
` we start with the petitioner first,
` please.
` MR. BAUGHMAN: Yes, thanks, Your
` Honor. The first is simply a note
` that we make pro hac vice admission
` motions but understanding that it's
` already been authorized.
` The second is a request to
` expedite the schedule in this group of
` trials to permit synchronization with
` final argument in the CPM2015, 15
` through 18 proceedings, which is set
` for November 9th. We have a proposal
` to essentially move forward our due
` date to the time for petitioner to
` reply forward by roughly a month in
` order to shorten our time and make it
` possible, we think, to synchronize
` that final hearing date. We have
` different ways of approaching that,
` depending on whether patent owner
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` chooses to have a due date for its
` motion to amend, if it's contemplating
` that.
` And with Your Honor's
` permission, we'd be happy to submit a
` proposal for schedule, but I
` understand from conferring with
` counsel for patent owner that the
` request that the parties received last
` night from counsel for Google in
` another matter may complicate our
` ability to negotiate that.
` So happy to elaborate further
` Your Honor, but maybe I should pause
` there for any questions.
` JUDGE ELLURU: And can you just
` sort of make clear for us the basis
` for the request of expediting the
` schedule in these cases.
` MR. BAUGHMAN: Certainly, Your
` Honor. Thank you. So in the 2015 --
` excuse me, CPM201500015 through 00018
` matters, the board has already set a
` common final hearing date for four
` patents which have a number of claims
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` challenged under 101 grounds and one
` claim challenged under 112 grounds for
` a single date, November 9th.
` The petitions we are speaking
` about today, CPM201500028, 29, 31
` through 33 also involve claims being
` challenged under 101 grounds and we
` think those could officially be heard
` at the same time as the November
` hearing. At the moment the hearing in
` those matters being discussed today is
` set for January 6th. So it's not a
` significant difference in timing of
` the final hearings and we would
` suggest that they could officially be
` brought forward to the November 9th
` date. And petitioner has some
` proposals in mind by which we could
` essentially absorb most of that time
` change, particularly if the patent
` owner is not going to amend, but even
` if it is, we think minor adjustments
` could be made to the rest of the
` schedule to make that possible.
` JUDGE ELLURU: Mr. Casey, would
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` you like to respond?
` MR. CASEY: Yes, Your Honor. I
` think that the patent owner believes
` that the proceedings that Apple is
` talking about trying to join with this
` one are for different patents. We
` will already be having a hearing on
` four and as Mr. Baughman alluded to,
` there are pending petitions out there
` by Google that relate to the '720 and
` '717 patents, which are the subject
` matter of the proceedings that
` Mr. Baughman is proposing be
` synchronized with CPM2015, 15, 16, 17
` and 18.
` So I think, Your Honor, that
` this, as Mr. Baughman said, it's not a
` long change, it's a two-month change
` in the schedule but given the number
` of cases that are out there, I think
` that patent owner believes that it's
` going to need the time to be able to
` address all the different proceedings
` that are ongoing.
` It's not just Smartflash and
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` Apple, there's also Samsung
` proceedings and there's also Google
` proceedings and there are additional
` proceedings as well. So the patent
` owner believes that the schedule
` should stay the way it is, especially
` since we don't yet know what Google is
` actually proposing or going to do with
` its other cases that might be, might
` be upcoming as well.
` JUDGE ELLURU: Mr. Baughman, do
` you have anything to add?
` MR. BAUGHMAN: Your Honor, just
` that we think it does make sense to
` address the matters that are between
` Apple and Smartflash, understanding
` that there -- without control of these
` parties other parties who are moving
` forward on their own challenges we
` think the challenges between these two
` parties would make sense to hear
` together. We already have four
` patents being heard and, respectfully,
` due to additional patents that are
` sufficiently related, we think it
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` would be efficient to hear our
` challenges together.
` JUDGE ELLURU: Let me ask the
` parties this question. At this point
` in time do either party contemplate --
` does either party contemplate opposing
` the third parties' pending motions to
` join these cases? Starting with
` petitioner.
` MR. BAUGHMAN: Your Honor,
` respectfully, we are trying to
` understand the scope of the proposal.
` We had heard initially from counsel
` for Google but not in the level of
` detail that we received last night by
` e-mail, and I hadn't seen that until
` this morning, so we are not yet in a
` position to give a final position on
` that but we are certainly open to
` discussing it, once we understand the
` scope of it.
` JUDGE ELLURU: And patent owner?
` MR. CASEY: Your Honor,
` Smartflash would be greatly opposed to
` anything that looks even remotely like
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` the schedule that Google has already
` proposed because essentially they are
` asking that the preliminary responses
` be due in two weeks. I'm supposed to
` be out on vacation this week and I had
` to cancel it for other things as well,
` but there's no way that we can be
` prepared to have a preliminary
` response in two weeks. And then after
` that, their proposal is essentially
` that around six weeks after the
` preliminary response would be patent
` owner's response, which means that
` Your Honors would have to get a
` decision out on the cases in that
` period and then after the decision is
` out, patent owner would have some,
` appears to be very short period of
` time to file a factual response. So I
` think that Smartflash will definitely
` oppose such a motion if it's anything
` like what's been proposed.
` But Your Honor, the e-mail that
` was sent out last night was not done
` with any meet and confer. It was
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` approached on Tuesday, I asked for a
` schedule on Wednesday and heard
` nothing until Sunday night,
` essentially just before this call. So
` I can't speak for what Google is
` trying to do but the schedule that
` it's asking for is extremely
` aggressive and prejudicial.
` JUDGE ELLURU:: Thank you. I do
` want to make clear for the record of
` this transcript -- of this transcript
` for this call that Judge Anderson is
` also on this call. I'm going to put
` the parties on mute while I confer
` with the panel. Thank you.
` (Brief recess.)
` JUDGE ELLURU: The panel is back
` online. Do we have counsel for
` petitioner present?
` MR. BAUGHMAN: Yes, Your Honor.
` JUDGE ELLURU: And counsel for
` patent owner?
` MR. CASEY: Yes, Your Honor.
` JUDGE ELLURU: The panel has
` decided that given the number of
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` claims in each of the sets of papers
` presented and the number of patents at
` issue, we are going to stick to the
` schedule, current schedules in each
` set of cases. Is that clear?
` MR. BAUGHMAN: Understood, Your
` Honor, for petitioner.
` JUDGE ELLURU: And Mr. Casey?
` MR. CASEY: Yes, understand,
` Your Honor.
` JUDGE ELLURU: And moving on to
` patent owners with the proposed
` motion, Mr. Casey, would you like us
` to walk through -- would you like to
` walk through your motion to propel
` routine discovery?
` MR. CASEY: Yes, Your Honor. We
` have addressed this on two different
` occasions before but the additional
` evidence that has come to light is
` that Mr. Wechselberger, the deponent
` in these cases, did agree in his last
` deposition in the last set of cases
` that he did do a report on
` noninfringing alternatives and on
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` noninfringement though he indicated
` that he couldn't remember which claims
` he had done the noninfringing
` alternatives report for. But we
` believe that that information, coupled
` with the fact that the standard that
` Mr. Wechselberger uses in both the
` litigation and in the present
` proceeding, is not broadest reasonable
` interpretation defined in the
` ordinary meaning but the report is
` properly discoverable and should have
` already been served. And, as you
` know, the routine discovery is
` supposed to be served but it's
` inconsistent with the position
` advanced by the party during the
` proceeding. And given that this is a
` test of relative preemption and even
` if the Petitioner has alleged
` challenged claims direct that nothing
` more than the unpatentable abstract
` idea and the challenged claims' broad
` functional nature firmly triggers
` preemption, we believe that the
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` reports are relevant and should have
` been -- should have been provided with
` petitioner. And we would like
` permission to file a motion
` essentially to compel the production
` of these -- of those noninfringing
` alternative report and the report on
` noninfringement, Your Honor.
` JUDGE ELLURU: Thank you.
` Mr. Casey, are you making any
` additional arguments than that were
` already presented on this issue in the
` previous sets of cases?
` MR. CASEY: Yes, Your Honor.
` The fact that Mr. Wechselberger has
` now admitted during depositions that
` he did, in fact, prepare a report on
` noninfringing alternatives in the
` District Court litigation, which will
` be relevant to the issue, not just
` that we believe it, Mr. Wechselberger
` has agreed under oath that he did and
` just said he can't remember which they
` were.
` Your Honor, the alternative to
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` this is potentially that the reports
` be brought -- the report be provided
` to Your Honors for in camera review so
` that you can decide whether or not the
` report is, as I'm -- I believe it must
` be, on the infringing alternatives and
` relating with the same pipe
` instructions and directed to whether
` or not there are or what the breadth
` of the preemption is, which is the
` central issue in the case on 101 or
` that aspect of the case on 101.
` JUDGE ELLURU: Mr. Baughman,
` would you like to respond, including
` whether petitioner is willing to file
` for a stipulation indicating that
` petitioner admits that there are
` noninfringing alternatives for
` infringement purposes?
` MR. BAUGHMAN: Your Honor, I
` think we stated this in the prior
` hearing in CPM2015, 15 through 18, and
` we -- you take the position that Apple
` is not infringing so what Apple is
` doing, for example, is noninfringing.
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` Also, I think we stated that on the
` record in that prior hearing.
` And I believe that's reflected
` in the board's order from that hearing
` of May 13th, which is paper 28 in the
` 201500015 matter. So, respectfully, I
` don't think there is anything new here
` about Mr. Casey's motion. We don't
` think it's appropriate to have a trial
` within a trial about whether Apple is
` infringing. We are certainly
` litigating that issue. And it is our
` position that Apple is not. And as
` far as being inconsistent, we don't
` think this does fall within the scope
` of routine discovery for all the
` reasons we stated. If Your Honor
` wishes, I can try to repeat those on
` the record, but for all the reasons we
` stated on the record in the prior
` hearing, we don't believe this is in
` any way inconsistent with the
` positions we have taken in our
` petitions, for example in the
` CPM201500028, which is paper 5 at
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` pages 35 to 37 that's at issue here in
` today's hearing, and we talked about
` relative preemption and the case law
` we cite, including Mayo versus
` Prometheus, that's 132 Supreme Court
` 1289 at 1303, makes clear that there's
` not a separate inquiry as Mr. Casey is
` suggesting but that the two-prong
` tests that played out by the Supreme
` Court for 101 is a way of baking in
` that preemption analysis because
` judges are not institutionally well
` suited to making determinations about
` what level of preemption is
` appropriate in a case. It's all
` proportional and it's reflected in the
` test already.
` So, respectfully, it's not
` within the scope of routine discovery,
` it's a misreading of the law and our
` position to suggest so. Again, this
` seems to be an attempt to get our
` discovery of our confidential
` information outside the District Court
` protective order.
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` The suggestion for in camera
` review I find a bit confusing because
` I understand that one of the issues
` that the board faces is a need to make
` this basis for determination public.
` I don't know how that would work. And
` we don't see any basis for additional
` discovery here either. If that's
` going to be the next topic. We think
` this isn't appropriate for either
` routine or additional discovery and
` respectfully don't see a basis for
` this argument to begin with.
` JUDGE ELLURU: Mr. Casey?
` MR. CASEY: Yes, Your Honor. I
` think that actually much to
` Mr. Baughman's point, the production
` of the noninfringing alternatives
` report will actually reduce the number
` of issues rather than create a trial
` within a trial because it will create
` as an admission on the record those
` things which petitioner indisputably
` agreed are alternatives as opposed to
` creating an issue where patent owner
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` will have to ask the experts do you
` believe that this is a noninfringing
` alternative, how about this, how about
` this and then eventually Your Honors
` will have to decide whether or not you
` agree with the witness rather than
` being able to simply use the admission
` of the party.
` And frankly, Your Honor, if we
` can do this without disclosing
` confidential information, all the
` better. I don't know anyone that
` wants to deal with filing things under
` seal. So I don't think that it's a
` fair characterization to say that we
` are attempting to get at confidential
` information outside the protective
` order. We just want what we are
` entitled to, which is the information
` on what the noninfringing alternatives
` are.
` If they are only noninfringing
` alternative is what Apple is doing,
` that's one thing, but if there are
` other noninfringing alternatives,
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` obviously they must have been able to
` articulate what they were in some
` nonconfidential way. So I don't think
` that that really should be driving the
` entire inquiry.
` JUDGE ELLURU: Thank you,
` Mr. Casey. Are the parties willing to
` meet and confer to see if there's any
` kind of stipulation that the parties
` can agree to resolve this issue, for
` example, a stipulation indicating
` describing the methods and systems
` that are noninfringing alternatives
` without the report itself? Starting
` with Mr. Baughman.
` MR. BAUGHMAN: Your Honor, we
` have stipulated to Apple's position in
` litigation on the record. I'm not
` sure that that stipulation that Your
` Honor has just described is one that
` could be done without a lot of
` disagreement. I do know that, again,
` in the litigation, patent owner's
` expert talked about noninfringing
` alternatives at trial. We didn't
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` actually argue, as I understand it,
` any evidence from our own expert at
` trial and put in a stipulation there
` to that effect.
` So I don't know whether it's
` going to be something that is really
` amenable to agreement between the
` parties, although if patent owner
` wishes to take positions on this, I
` don't understand why its expert
` couldn't do so.
` JUDGE ELLURU: Mr. Casey?
` MR. CASEY: Your Honor, I'm
` always willing to try to negotiate.
` Perhaps what you are suggesting is the
` different way to do it and we will see
` if we can re-raise the issue in a week
` or maybe less than a week, well, it's,
` Friday's a holiday, sometime around
` the beginning of next week if the
` parties haven't come to an agreement.
` But as I said, I think that we are
` interested in what was admitted as
` noninfringing alternatives. I think
` Mr. Baughman is right that the
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` noninfringing alternatives were not
` discussed at trial because the report
` was excluded at the trial but I don't
` believe that means that the report
` wasn't generated. In fact,
` Mr. Wechselberger said he did the
` report.
` So to the extent that we can
` negotiate this between the parties,
` I'd be happy to do it, but I don't
` want to be waiting with the right to
` bring this motion, Your Honor, and I
` assume you understand that.
` JUDGE ELLURU: I understand, and
` we do encourage the parties to meet
` and confer on this issue to just see
` if there's any kind of stipulation
` that can be reached that would resolve
` the issue, but at this time we are
` going to deny patent owner's request
` for motion to compel routine discovery
` based on the reasons that we've
` previously provided in CPM20150015,
` 16, 17, 18 and the reasons we provided
` in CPM201400190, 192, 193, 194 and
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` 195.
` And the next proposed motion by
` patent owner is the motion to permit
` coordination of the deposition
` transcripts. Is this the same request
` that's previously been made,
` Mr. Casey?
` MR. CASEY: Yes, Your Honor, it
` is. We have done this in the earliest
` Apple cases that we just had hearing
` on, we have done it in the Samsung
` cases and we have done it in CPM 2015
` 15 through 18. So hopefully it's not
` a new request or a request that will
` have problems. And it's worked --
` it's worked well in the past.
` JUDGE ELLURU: Mr. Baughman, I
` assume there's no objection on your
` part?
` MR. BAUGHMAN: No, Your Honor.
` We take the same position.
` JUDGE ELLURU:: Thank you. And
` the panel is also fine with that. So
` the practice that you've been doing
` propelling those deposition
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` transcripts is amenable to the panel.
` We will issue a brief order for
` today's -- covering today's
` teleconference.
` Are there any other issues that
` the parties would like to raise at
` this time, starting with petitioner?
` MR. BAUGHMAN: Your Honor, I
` just note that as before we don't
` expect the need for protective order
` but we would endeavor to reach
` agreement in reaching out to the board
` if one would arise.
` JUDGE ELLURU: Thank you. And
` Mr. Casey.
` MR. CASEY: One last
` housekeeping note, Your Honor. You
` mentioned that Judge Anderson is on
` the phone. As I promised the court
` reporter, if there were any new names,
` can I get a spelling for Anderson? Is
` it s-o-n or s-e-n?
` JUDGE ELLURU: S-o-n.
` MR. CASEY: Okay. Thank you
` very much, Your Honor. Patent owner
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` doesn't have anything else.
` JUDGE ELLURU: Thank you. We
` appreciate your time. This call is
` adjourned.
` MR. BAUGHMAN: Thanks, Your
` Honor.
` (Whereupon, the call was ended.)
` (Time noted: 2:26 p.m.)
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`27
`
` STATE OF NEW YORK )
` ss.:
` COUNTY OF NEW YORK )
`
` I, ERICA L. RUGGIERI, RPR and a
` Notary Public within and for the State
` of New York, do hereby certify:
` That I reported the proceedings
` in the within-entitled matter, and
` that the within transcript is a true
` record of such proceedings.
` I further certify that I am not
` related by blood or marriage, to any
` of the parties in this matter and
` that I am in no way interested in the
` outcome of this matter.
` IN WITNESS WHEREOF, I have
` hereunto set my hand this 1st day of
` July, 2015.
`
` ERICA L. RUGGIERI, RPR
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`
`
`A
`ability 6:12
`able 8:22
`20:7 21:1
`absorb 7:19
`abstract
`14:22
`add 9:12
`additional
`9:3,24
`13:19 15:11
`19:7,11
`address 8:23
`9:15
`addressed
`13:18
`adjourned
`26:4
`adjustments
`7:22
`Administra...
`1:15,17
`admission
`5:9 19:22
`20:7
`admits 16:17
`admitted
`15:16 22:23
`advanced
`14:17
`aggressive
`12:8
`agree 13:22
`20:6 21:10
`agreed 15:22
`19:24
`agreement
`22:7,21
`25:12
`alleged 14:20
`alluded 8:8
`alternative
`15:7,25
`20:3,23
`alternatives
`13:25 14:4
`15:18 16:6
`16:18 19:18
`
`19:24 20:20
`20:25 21:13
`21:25 22:24
`23:1
`amenable
`22:7 25:1
`amend 6:2
`7:21
`analysis
`18:11
`Anderson
`12:12 25:18
`25:21
`APPEAL 1:2
`appears
`11:18
`Apple 1:4 8:4
`9:1,16
`16:23,24
`17:10,13
`20:23 24:10
`Apple's 21:17
`appreciate
`26:3
`approached
`12:1
`approaching
`5:24
`appropriate
`17:9 18:15
`19:10
`argue 22:1
`argument
`5:15 19:13
`arguments
`15:11
`articulate
`21:2
`asked 12:1
`asking 11:3
`12:7
`aspect 16:12
`assume 3:6
`23:13 24:18
`attempt
`18:22
`attempting
`20:16
`
`ATTORNE...
`2:3,12
`authorized
`5:11
`B
`back 12:17
`baking 18:10
`based 23:22
`basis 6:17
`19:5,7,12
`Baughman
`2:9 3:1,1,14
`3:15,17,19
`3:23 5:7
`6:20 8:8,13
`8:17 9:11
`9:13 10:10
`12:20 13:6
`16:13,20
`21:15,16
`22:25 24:17
`24:20 25:8
`26:5
`Baughman's
`19:17
`beginning
`22:20
`believe 14:5
`14:25 15:21
`16:5 17:3
`17:21 20:2
`23:4
`believes 8:3
`8:21 9:5
`Berquist 2:13
`4:3
`better 20:12
`Bisk 1:13
`3:10
`bit 19:2
`blood 27:13
`board 1:2
`6:23 19:4
`25:12
`board's 17:4
`breadth 16:9
`brief 12:16
`
`25:2
`bring 23:12
`broad 14:23
`broadest 14:9
`brought 7:16
`16:2
`B2 1:7,8,8,9
`B2)1 1:9
`C
`
`C 2:1
`call 1:11 12:4
`12:12,13
`26:3,7
`camera 16:3
`19:1
`cancel 11:6
`case 16:11,12
`18:3,15
`cases 4:10 5:1
`6:19 8:20
`9:9 10:8
`11:15 13:5
`13:22,23
`15:13 24:10
`24:12
`Casey 2:17
`3:3 4:2,2,11
`4:20 7:25
`8:2 10:23
`12:23 13:8
`13:9,13,17
`15:10,14
`18:7 19:14
`19:15 21:7
`22:12,13
`24:7,8
`25:15,16,24
`Casey's