`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`) Docket No. 10 C 715
`
`))
`
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.,
`
` v.
`
`10:26 a.m.
`)
`)
` )
` ) May 12, 2016
` ) Chicago, Illinois
`BGC PARTNERS, INC.,
`)
`
`)
` Defendant.
`)
`
`
`
`TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE VIRGINIA M. KENDALL
`
`
`
`APPEARANCES:
`
`For the Plaintiff:
`
`
`
`
`
`
`
`
`
`
`McDONNELL BOEHNEN HULBERT & BERGHOFF by
`MR. LEIF R. SIGMOND, JR.
`MR. MICHAEL DAVID GANNON
`300 South Wacker Drive
`Suite 3100
`Chicago, Illinois 60606
`
`MR. STEVEN F. BORSAND
`Trading Technologies International, Inc.
`222 Riverside Drive
`Suite 1100
`Chicago, Illinois 60606
`
`Court Reporter:
`
`
`
`GAYLE A. McGUIGAN, CSR, RMR, CRR
`Federal Official Court Reporter
`219 South Dearborn, Room 2318-A
`Chicago, Illinois 60604
`(312) 435-6047
`Gayle_McGuigan@ilnd.uscourts.gov
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`Page 1 of 31
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`TRADING TECH EXHIBIT 2142
`TRADESTATION v TRADING TECH
`CBM2015-00172
`
`
`
` 2
`
`A P P E A R A N C E S : (Continued)
`
`
`
`For the Defendants
`Interactive Brokers
`Group
`
`
`
`
`
`
`
`MANDELL MENKES LLC by
`MR. STEVEN P. MANDELL
`One North Franklin
`Suite 3000
`Chicago, Illinois 60606
`
`WILSON SONSINI GOODRICH & ROSATI by
`MS. NATALIE J. MORGAN (VIA TELEPHONE)
`650 Page Mill Road
`Palo Alto, California 94304
`
`For the Defendant
`TradeStation Group
`and TradeStation
`Securities:
`
`FISH & RICHARDSON PC by
`MR. DAVID J. HEALEY
`One Houston Center
`1221 McKinney, Suite 2800
`Houston, Texas 77010
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`(In open court:)
`
`THE CLERK: 10 C 715, Trading Technologies
`
`International versus BGC Partners.
`
`MR. BORSAND: Good morning, your Honor. Steve Borsand
`
`for Trading Technologies.
`
`THE COURT: Good morning.
`
`MR. GANNON: Good morning, your Honor. Mike Gannon
`
`for TT.
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`THE COURT: Good morning.
`
`MR. SIGMOND: Your Honor, Leif Sigmond for Trading
`
`Technologies.
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`THE COURT: Good morning.
`
`MR. HEALEY: Good morning, your Honor. David Healey
`
`for Trade Station, defendants.
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`THE COURT: Good morning.
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`MR. MANDELL: Good morning, your Honor. Steve Mandell
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`on behalf of Interactive Brokers.
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`THE COURT: Good morning.
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`I think there's someone on the phone, right?
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`THE CLERK: I do.
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`(Clerk places telephone call.)
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`THE CLERK: I'm calling for Natalie Morgan.
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`Okay. I'm going to transfer you into Judge Kendall's
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`courtroom. Hold on just a moment.
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`THE COURT: Okay. State your name for the record.
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`You're on open -- you're in open court and on the record.
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`MS. MORGAN: Hi. This is Natalie Morgan. I'm with
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`Wilson Sonsini Goodrich & Rosati, and I'm representing the IBG
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`defendants.
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`THE COURT: Okay.
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`Before I forget, Lynn, put Bibbs first on the 25th so
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`we don't have that happen again. Yeah, out of order.
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`All right. It's the motion to reconsider. The floor
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`is yours.
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`MR. HEALEY: Your Honor, this is David Healey for
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`Trade Station.
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`The point of our motion is that the stay should go
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`into effect as ordered without any exception.
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`The PTAB proceedings are hot and heavy. The one
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`deposition that has been completed to date in any of this was
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`in one of the PTAB proceedings. They've had a mandamus in the
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`PTAB proceedings. They've asked for various and sundry
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`discovery in the PTAB proceedings. The PTAB is handling the
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`cases that have been instituted, and it will handle the future
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`cases that will be instituted.
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`Your order staying the case was completely correct.
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`It was in accord with the statute, congressional intent, and
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`federal circuit case law.
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`The case -- if any of these patent claims survive --
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`and that's a big "if" -- but if they do, then the case will be
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`smaller, it will be more compact, and the scope of the
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`questioning at the deposition of Mr. Bartleman, who is the
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`president of Trade Station Group and every Trade Station
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`subsidiary since March, will be minimized. And even if he were
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`to be deposed now, certainly in two years, or however long the
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`CBM process takes, if any claims survive, they are going to
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`want to depose him again on Trade Station's additional
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`products, additional finances, additional damages, while at the
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`same time whole segments of this suit could be eliminated, and
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`the entire benefit or huge portion of the benefit of
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`Mr. Bartleman's deposition will be eliminated if many of the
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`claims and patents are held invalid, as the PTAB has held they
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`are more likely than not invalid.
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`And under 101, the abstract idea provision, which
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`applies to every initiation, this Tokyo Stock Exchange thing
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`is -- is of no moment. But the consultants, which was an issue
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`last time, finished their work some time ago. These files, we
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`had opposed producing them as inaccessible data. We now are
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`getting the last few out. We're still having problems
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`converting the last few to TIF. And what I mean the last few,
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`the last batch. But by last Friday, we had produced the great
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`majority of them. Because we weren't going to have to spend
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`the money to have lawyers go to Miami and to prep Mr. Bartleman
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`and present his deposition and we were getting that cost
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`savings, we said we would give TT their $20,000 back, even
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`though this whole process with getting at this inaccessible
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`data was opposed and it was more expensive than that.
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`Mr. Bartleman is what we would call an apex
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`deposition. He's been in his new role for about 90 days, give
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`or take. And his time is very valuable, very scarce, very
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`important to the company. His deposition is not just a burden
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`on us in terms of expense, it's a burden on the company in
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`terms of the company's operations.
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`And, your Honor, as I think you can see from just the
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`exhibits that have been filed with the defendants' -- I mean,
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`with the plaintiff's response to our motion for
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`reconsideration, you give them an inch, they take a mile.
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`There's -- one thing begats another thing. There's -- it just
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`seems to me I get a constant flood of e-mails complaining about
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`things on almost a daily basis. And I have no doubt that
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`Mr. Bartleman's deposition is going to raise a lot of issues
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`that are going to then need to be resolved or will sit there
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`for years before they're resolved.
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`And the point is there's very little upside to doing
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`it now because if it ever has to be done at all -- and it may
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`not ever have to be done at all -- but if so, it will be on a
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`much narrower set of topics, it will be a much more focused
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`deposition, and the issues that are in dispute -- which just
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`from my experience in this case I would be shocked if there
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`aren't disputes coming out of this deposition -- can be
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`Page 6 of 31
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`resolved promptly in the regular flow of litigation.
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`In the meantime, they're asking for discovery in the
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`PTAB. They've had a deposition in the PTAB. The PTAB is
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`actively managing and running these cases.
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`They did have a conference call with the PTAB, and
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`they made some representations about what was going on in this
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`case. And I think as shown by the exhibit to their response to
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`our motion, where they go back and forth about whether they had
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`an agreement with IBG and what kind of discovery they're
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`entitled to by May 10th, there's even a dispute as to what the
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`May 9th -- I guess May 9th order means in terms of what
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`discovery gets done by June 10th.
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`But the point is your stay was correct. That was a
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`clean break in the discovery. And we ought to stop these
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`depositions, which are apex depositions, highly burdensome,
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`very expensive, and are going to have to simply be retaken when
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`new products and changes in finances come out, if any of the
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`claims survive. And the problems that are going to come out of
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`these depositions in terms of disputes are going to have to be
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`resolved or tabled. But it makes no sense to go forward with
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`them now.
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`MR. MANDELL: Your Honor --
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`MS. MORGAN: Your Honor, this is Natalie Morgan for
`
`IBG. If I can just jump in to just add a couple of comments in
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`addition to what Mr. Healey just said.
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`Page 7 of 31
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`So for IBG, TT's emergency motion -- first of all, I
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`agree with everything that Mr. Healey just said.
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`In addition, there are some specific issues that are
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`unique to IBG.
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`TT's emergency motion never mentioned any documents
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`for IBG at any time. In the hearing yesterday, TT never
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`mentioned any IBG documents at all during the hearing.
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`I sent an e-mail to opposing counsel saying that we
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`read the -- both the order and the motion and the transcript as
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`calling for the deposition of IBG, but nothing more. TT never
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`responded to that, and then in their response today says that,
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`oh, no, there was an agreement that we had to produce all these
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`e-mails.
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`First, there was never an agreement that e-mails would
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`be produced before the deposition.
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`The parties had extensive discussions about search
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`terms and whether terms should be used, but we have never
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`agreed to produce e-mails before the deposition.
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`Second of all, we're in a little bit different
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`position with respect to the deposition. The deposition was
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`scheduled for this coming Monday. The vast majority of our
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`preparation and work for that deposition was planned to take
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`place this week. In fact, really no preparation had started
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`because we still had a full week's worth of time. Then the
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`Court's stay order came out. We, of course, reasonably
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`Page 8 of 31
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`cancelled all of our plans, all of our travel.
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`There's just -- the deposition, in other words, was
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`not ready to go. There was very much more that still had to be
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`done.
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`In addition, if you were to proceed with the
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`deposition, it would be a great burden on IBG's president and
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`director and other IBG employees to prepare the president and
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`director for a deposition, which were supposed to be a very
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`limited scope to give TT the information it contended it needed
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`for its final non-infringement -- for its final infringement
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`contentions.
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`Therefore, we objected in March to the deposition
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`notice for all parts of it that went beyond the features and
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`functions of the accused products.
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`On Monday, before receiving the Court's stay order, TT
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`e-mailed us saying that they needed to meet and confer about
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`the scope of the topic.
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`Clearly, this deposition was -- the parties were not
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`in the same place as to what this deposition was going to cover
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`and entail.
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`And so allowing TT to continue with this discovery now
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`is just inviting further discovery disputes, further
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`complications that the whole purpose of the stay was designed
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`to avoid.
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`THE COURT: Did she say what you wanted to say,
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`Page 9 of 31
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`Mr. Mandell?
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`MR. MANDELL: Yes, your Honor.
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`I think the only thing I would add is if you look at
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`the emergency motion --
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`THE COURT: Which one? Yours or theirs?
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`MR. MANDELL: Their emergency motion. They said two
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`things. With respect to documents, it was only the Trade
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`Station documents. With respect to depositions, they said
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`we're going to take a 30(b)(6) on inter alia product
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`functionality.
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`So I think really there's -- my impression is your
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`impression, your Honor, is that these were just discreet facts
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`or discreet tasks that could be accomplished easily. And
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`that's --
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`THE COURT: Nothing is accomplished easily with all of
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`you, ever. Ever. Nothing is ever easy with all of you.
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`MR. MANDELL: Well, I think what -- that sort of
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`underscores the point that this should be taking place in one
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`forum, not simultaneously in two forums.
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`And your Honor we believe obviously made the correct
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`decision that the forum for right now should be in front of the
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`PTAB.
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`And having it take place on multiple tracks is not
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`going to serve anybody's interest.
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`THE COURT: Okay. Response.
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`Page 10 of 31
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`MR. BORSAND: He said a lot there.
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`We're not rearguing. We lost yesterday on rearguing
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`the stay.
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`We're talking now about the modification you made to
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`the stay on the select discovery.
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`This shouldn't be that complicated. These depositions
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`were set a long time ago --
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`THE COURT: What are the three depositions?
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`MR. BORSAND: The 30(b)(6), and I guess Mr. Bartleman
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`was going to be the 30(b)(6) witness --
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`MR. HEALEY: We've always -- we've always told you
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`guys that Mr. Bartleman had to be the 30(b)(6) witness.
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`MR. BORSAND: Should just say "yes" to my -- okay, so
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`Mr. -- it's one person from Trade Station, a 30(b)(6) witness
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`and individual Mr. Bartleman, who -- he may be president now.
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`He's been --
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`THE COURT: Is Mr. Bartleman the 30(b)(6) --
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`MR. BORSAND: He's both, the personal and 30(b)(6).
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`THE COURT: All right.
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`MR. BORSAND: So that's why it was two days of dep.
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`And Mr. Bartleman happens to be the most knowledgeable
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`person at Trade Station about the whole history of these
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`products because he's been involved forever with them.
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`And the dep was about -- it's not that complicated.
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`Product functionality, why the features were put in the
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`Page 11 of 31
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`product, and its development history.
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`Same notices for IB, but the dep was scheduled for
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`next Monday.
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`We didn't hear boo about any problem with these
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`depositions until, you know, all these reasons that are coming
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`up now after your stay order on Monday.
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`And I want to --
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`THE COURT: I still have one deposition that you've
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`told me about, Bartleman.
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`MR. BORSAND: I'm sorry.
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`THE COURT: Who is the other two?
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`MR. BORSAND: That was Trade Station.
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`And for IBG, there was one deposition, a 30(b)(6)
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`only, I believe, on similar -- same topics. And I don't know
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`the name of the person. I think they just told us the name
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`recently. But it's the 30(b)(6) corporate representative. I'm
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`not sure of the person's name.
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`THE COURT: And you're honestly going to tell me,
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`Ms. Morgan, that you, as a partner in that firm, have not
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`prepared a 30(b)(6) deposition six days before it was to take
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`place? Is that what you're saying? We were going to do it,
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`what, this weekend?
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`MS. MORGAN: The deposition preparation was scheduled
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`to take place this week. We had the entire week to take care
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`of it. We had plans to travel out -- travel out to where the
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`company is located, to spend a two full days with the president
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`and director preparing, a dedicated full two preparation days,
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`as well as a third day to sit for the deposition.
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`It also involved pulling in other IBG employees,
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`because, as you know, for a 30(b)(6), he can't just rest on his
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`own personal knowledge, so we were going to inform him with the
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`knowledge of other employees.
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`And while it's cast as a simple deposition of the
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`features and functions, these products have been out there for
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`more than ten years, and they are asking about very specific
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`features and functions that have changed numerous times over
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`the years.
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`The -- you know, software changes as you go along.
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`You release new versions, you tweak things --
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`THE COURT: I wouldn't know that.
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`MS. MORGAN: Okay. Sorry for assuming that.
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`And so -- and so it's not a very simple deposition.
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`There's a lot of work that needed to be done.
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`But an additional complicating factor now is that TT
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`is saying that they also want all these e-mails produced before
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`the deposition, when there was no such agreement to do so. And
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`none of those e-mails, while processing has been done by a
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`vendor, there's been no attorney review of those e-mails at
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`all, which takes hundreds and hundreds of hours to get them out
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`the door, despite the fact that our e-mails were never
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`mentioned in TT's original emergency motion.
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`MR. BORSAND: Can I make two more points? I'm sorry,
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`because I was going to try to address that with what Ms. Morgan
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`said now for the second time.
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`First of all, the deposition of 30(b)(6) for IBG was
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`delayed at their request, moved back -- this May 9th is the
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`second time it was scheduled. So because they hadn't gotten
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`the documents together previously, we reached an agreement with
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`them on search terms, and of course we were going to be getting
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`the documents before the deposition. Otherwise, it would be a
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`big waste of time and make no sense. That was the agreement.
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`The other point I want to make is there's been a new
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`development, just while we were sitting in court this morning,
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`and all this talk about --
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`THE COURT: Listening to my jail cases?
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`MR. BORSAND: Yes. You know, which puts this in
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`perspective, obviously.
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`But yesterday -- they keep talking about let the --
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`let the PTAB do their own thing.
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`Yesterday there was a call with the PTAB for over an
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`hour talking about discovery issues, and one of the issues that
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`was raised -- and there was a million lawyers on the phone from
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`all over the country -- was, you know, we were seeking
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`overlapping discovery from them relating to the development
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`history of their products. And it came up that, you know, we
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`Page 14 of 31
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`have to constantly keep them apprised of what's going on in
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`district court, that the stay was entered on Monday, but there
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`was this discovery occurring between now and June 10th, and
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`that it was overlapping, and they issued an order this
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`morning --
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`THE COURT: Overlapping with what? PTAB?
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`MR. BORSAND: It's overlapping with some of the stuff
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`that's needed in the PTAB proceedings. And they issued an
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`order this morning -- they actually extended -- our due dates
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`in the PTAB for our responses were end of May. They extended
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`the due dates until June 17th. They specifically note that
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`there is overlapping discovery going on in the district court
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`that may be relevant, and that that's actually one of the
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`reasons why they do extend the deadlines, and it's one of the
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`reasons why they deny us discovery there, because they say
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`you're going to get it anyway there, so that all works out just
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`nice.
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`So their whole statement that, oh, leave it to the
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`PTAB, the PTAB is relying -- is basing on this as well, just
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`today.
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`So -- and then the final -- I think -- well, I said I
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`only had two. There's a -- you know, there -- most of what
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`they've been arguing is going back to issues of the stay, which
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`you are entering, and they're acting like this is a
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`black-and-white thing, there's either a stay or there's no
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`stay. Obviously, we wanted no stay, they wanted a stay. But
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`there's a whole gray area in between within your Honor's
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`discretion about how to close the case down in appropriate
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`manner, and it doesn't have to be a cold stop. Like they say,
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`there's nothing in the rules that say that, especially when the
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`PTAB is referencing what's going on here in an order they just
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`entered this morning.
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`THE COURT: What are the 20 -- was the $20,000 paid
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`for? For what communication?
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`MR. BORSAND: That was for a consultant they needed to
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`bring back --
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`THE COURT: Who? Who is "they"?
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`MR. BORSAND: Trade Station. I apologize. To bring
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`back archived documents from pre-2009 and before.
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`MR. HEALEY: The lawsuit --
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`THE COURT: Prior to my order, is it true or not true
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`that there was an agreement to do that?
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`MR. HEALEY: Yes. And we produced those documents
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`and --
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`them.
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`THE COURT: So you have them?
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`MR. BORSAND: No. They're in the process of producing
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`MR. HEALEY: They have the bulk of them. There's a
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`final batch that will go out shortly, that there's -- these
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`documents, we had opposed producing them because they were
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`inaccessible data, and we've had to go through the outside
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`consultants who have done their work and Fish's internal IT
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`people to get them out, and the IT people are having some
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`last-minute difficulties in getting the last batch out, but we
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`are going to give them all those documents. They've already
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`got most of them and had most of them last week.
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`And the one thing about the PTAB order is there's
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`obviously a difference of agreement, as illustrated by the
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`e-mails attached to IBG's -- rather, to Trading Technologies'
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`response to our motion for reconsideration about what this
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`Court's order meant, and the information that the PTAB was
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`acting on was Trading Technologies' interpretation of that
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`order, not the interpretation that the defendants had of that
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`order.
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`And I also bring up again, your Honor, as you say,
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`nothing is easy in this case. And there's going to be
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`problems. I hope not.
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`I have gone through entire patent cases against large
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`national firms without a single motion to compel. Believe me,
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`this is an anomaly for me.
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`But I can't imagine that we're going to get through
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`these depositions without disputes and problems coming up. And
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`there's just no point in doing that in light of the fact that
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`this case is going to be shut down and the PTAB is going
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`forward and they've even had a deposition in the PTAB.
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`THE COURT: There were three depositions scheduled
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`prior to my stay order. And my understanding is that those
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`three depositions were the 30(b)(6) deposition of Trade
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`Station's rep and a personal deposition of that individual, who
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`I think now is Bartholomi [sic.], and the IBG 30(b)(6) dep.
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`Does everyone agree that those were scheduled prior to
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`the entry of my stay order?
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`MR. HEALEY: Yes, your Honor.
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`MR. BORSAND: Yes, your Honor.
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`THE COURT: Okay.
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`MS. MORGAN: Yes.
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`THE COURT: So what is confusing about my order that
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`says discovery shall be completed to include -- and we'll go
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`one by one -- the three depositions already scheduled that the
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`parties agreed to provide to this date? Is there some dispute
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`about that?
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`(No response.)
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`THE COURT: Is there?
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`Why are you, Ms. Morgan, writing in an e-mail that
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`there's only one deposition? Because it's one that has to do
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`with you. Is that it?
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`MS. MORGAN: It was the one that had to do with us,
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`correct, your Honor. And the -- I guess the problem was the
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`dispute with that going forward is that it's now become
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`apparent, from the e-mails on Monday and this whole emergency
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`brief going both ways, that TT has a different view of the
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`scope of that than we do.
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`THE COURT: Did the scope of the deposition change
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`between my order when I entered the stay and what was agreed --
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`what was agreed upon prior to that order?
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`MR. BORSAND: No. The scope has not changed. It's
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`the same as the scope of the 30(b)(6) of Trade Station --
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`THE COURT: Miss Morgan, what do you believe is the
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`change?
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`MS. MORGAN: We had an understanding of the scope.
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`It's now apparent --
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`THE COURT: No. Be specific.
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`MS. MORGAN: -- had a different --
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`THE COURT: No. Be specific.
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`MS. MORGAN: We --
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`THE COURT: What do you believe the scope was and he
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`says the scope is?
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`MS. MORGAN: Sorry, your Honor.
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`We understood that the scope was limited to the
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`features and functions of the accused product, and that the
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`deposition is going to go forward based on the numerous
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`documents already produced, including user guides, tutorials,
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`internal databases, and our source code.
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`TT now contends -- well, first of all, they wanted to
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`meet and confer on the scope of the topics. We're not quite
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`sure what that was because that never took place because of the
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`stay. And, number two, they now contend that they want the
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`deposition to cover e-mails that have never been reviewed or
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`processed or produced because we weren't at that point in time
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`yet.
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`THE COURT: Okay. What responsive documents were
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`agreed to prior to my entry of stay?
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`MR. BORSAND: They --
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`MS. MORGAN: We agreed --
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`MR. BORSAND: Are you asking me? I'm sorry.
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`THE COURT: Go ahead.
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`MS. MORGAN: We agreed, after very lengthy
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`negotiations, we finally settled -- settled on search terms
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`that we would run against a single custodian's e-mail as a test
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`batch for TT to use and decide how to search additional
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`custodians. We agreed to go forward with those. We were in
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`the process of running those search terms when the stay order
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`came out. All that had been done was vendor processing. We
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`have had no attorney review for responsiveness, for privilege,
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`for anything.
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`THE COURT: And when --
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`MS. MORGAN: There was never any agreement --
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`THE COURT: When were you planning on doing that? I
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`mean, my stay order was entered on Monday. When were you
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`planning on doing that?
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`You have a deposition one week later?
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`MS. MORGAN: Yes, but the deposition was not about --
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`COURT REPORTER: I'm sorry, I can't hear.
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`MS. MORGAN: The deposition is not a personal
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`deposition --
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`THE COURT: You're breaking up, Miss -- Miss Morgan,
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`you're breaking up. You're -- and you're -- when you raise
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`your voice, it is breaking the phone connection.
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`MS. MORGAN: I'm sorry. I'll try and keep my tone
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`very low.
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`There was never any agreement to produce the e-mails
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`before the deposition, although we said that we would try,
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`because the deposition was not about the e-mails.
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`The deposition was supposed to be about things like
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`the source code and how the features and functions function
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`according to the source code, about what we say in our
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`tutorials, about what we say the product -- how the features
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`and functions work according to our user guide.
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`The deposition was not a personal deposition and never
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`supposed to be about a single custodian's e-mails. That's --
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`that's all the e-mails are. They are test search terms run on
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`a single custodian's e-mails. No more.
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`THE COURT: Okay. Did everyone agree that there was
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`$20,000 retainer for certain Trading Technologies' e-mails that
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`everyone agreed were going to be turned over?
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`Did you agree with that?
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`MR. HEALEY: Yes, we did.
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`MS. MORGAN: We --
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`MR. HEALEY: And we have it in our firm trust account.
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`That was to pay the consultant to try to retrieve the data that
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`was inaccessible.
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`We had told TT because we were saving money on the
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`Bartleman deposition, since it was stayed, that we would go
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`ahead and give them back the $20,000.
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`MR. MANDELL: Your Honor, just so you're clear, the
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`$20,000 issue is a Trade Station issue only. It has nothing to
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`do with any IBG e-mails.
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`That was the point I was trying to make earlier was
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`when they made their motion, they mentioned e-mails, but only
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`the Trade Station e-mails.
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`So this has never been about IBG's obligation to
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`produce any documents.
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`THE COURT: Go ahead.
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`MR. BORSAND: Your Honor, Trade Station, yes, that's
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`where the $20,000 relates to.
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`Focusing in on IBG, the deposition was moved back so
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`they could do the searches and produce the documents. Yes,
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`it's not a deposition just about documents. It's a 30(b)(6)
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`deposition about basic things like product functionality and
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`why it was introduced into the product in the first place,
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`Page 22 of 31
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`which relates to issues of validity.
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`And they -- they wanted -- they're the ones who asked
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`for the dep to be moved back. We agreed on the search terms.
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`We agreed to that. Common sense.
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`I don't know where this is all coming from right now
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`from them.
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`Why would we be going to get -- take the deposition of
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`this person when they were still without some of the basic
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`documents? I mean, it just makes no sense.
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`And, I'm sorry, what Ms. Morgan is saying is just not
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`accurate.
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`So we had an agreement to have one witness from IBG.
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`We're supposed -- I mean, I'm not saying we're going to get
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`every document in the world from them, but they were supposed
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`to give us some documents so we could have a meaningful
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`deposition, just like we were planning on -- we were going to
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`literally be there today doing Trade Station.
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`THE COURT: What were the search terms?
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`MR. BORSAND: I don't know them off the top of my
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`head. I apologize, your Honor.
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`MS. MORGAN: Your Honor, if I can jump in, because I
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`was involved in those negotiations.
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`There was a lot of dispute over the search terms.
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`It took us months to negotiate the terms that were
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`search -- that we said that we would search on one custodian
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`Page 23 of 31
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`because terms are things like Book Trader and (inaudible)
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`Trader, which are the product names, which the ESI rules say is
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`actually inappropriate to use as e-mail search terms.
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`TT was unwilling to narrow it further to provide any
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`other limitations that focus on the accused features and
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`functions, so we agreed as a test to run these very broad terms
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`against one custodian.
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`And just for the record, the suggestion that they
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`don't have the documents relevant to the deposition is simply
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`not true.
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`We produced all of our user guides that describe the
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`products.
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`We produced all of our tutorials where IBG is teaching
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`people how to use the products.
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`We produced all of our communiques about changes to
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`the product.
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`We produced all of our internal databases about
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`changes to the product and produced source codes.
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`These e-mails are one small piece that they say they
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`also want, but the deposition was never about that, and the
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`deposition was not moved expressly so that they could get those
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`e-mails. It was moved for, one, to give them time to review
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`the source code that was produced after the parties reached
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`agreement; two, to give us more time to negotiate search terms;
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`and some other discovery issues that I won't get into right now
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`Page 24 of 31
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`that ended up being resolved between the parties.
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`THE COURT: Why would you need more time to negotiate
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`search terms if you weren't going to use the material in the
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`deposition?
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`MS. MORGAN: We were negotiating --
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`THE COURT: Okay.
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`MS. MORGAN: We were negotiating search terms to come
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`to an agreement for the overall case as to what terms would be
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`used across the custodians that TT wanted to have searched in
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`the case.
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`This -- this deposition was described initially as an
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`initial deposition so that TT could gather some facts about the
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`accused features and functions. It was meant to be an
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`exploratory beginning deposition, and we produced the documents
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`that related to the features and functions and changes thereto.
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`THE COURT: Are the two 30(b)(6) dep