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`Page 1
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` - - -
` UNITED STATES PATENT AND TRADEMARK OFFICE
` - - -
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
` IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., TRADESTATION SECURITIES, INC.,
` TRADESTATION TECHNOLOGIES, INC., and IBFX, INC.,
` Petitioners,
`
` v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner.
` - - -
` CBM2015-00179 (Patent No. 7,533,056 B2)
` CBM2015-00181 (Patent No. 7,676,411 B2)
` CBM2015-00182 (Patent No. 6,772,132 B1)
`
` - - -
`
` June 6, 2016
` 10:30 a.m.
` - - -
` TELECONFERENCE IN THE ABOVE MATTER
` - - -
` BEFORE: MEREDITH C. PETRAVICK
` SALLY C. MEDLEY
` JEREMY M. PLENZLER
` Administrative Patent Judges
`
` - - -
`
` VERITEXT NATIONAL COURT REPORTING COMPANY
` MID-ATLANTIC REGION
` 1250 Eye Street, NW, Suite 1201
` Washington, DC 20005
`
`IBG 1043
`IBG v. TT
`CBM2015-00181
`
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`Page 2
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` APPEARANCES:
`
` STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C.
` BY: LORI A. GORDON, ESQUIRE
` ROBERT E. SOKOHL, ESQUIRE
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005-3934
` 202-371-2600
` lgordon-ptab@skgf.com
` rsokohl-ptab@skgf.com
` Representing the Petitioners
`
` FINNEGAN, HENDERSON, FARABOW, GARRETT &
` DUNNER, LLP
` BY: RACHEL L. EMSLEY, ESQUIRE
` JOSHUA L. GOLDBERG, ESQUIRE
` Two Seaport Lane
` Boston, MA 02210-2001
` 617-646-1600
` rachel.emsley@finnegan.com
` joshua.goldberg@finnegan.com
` Representing the Patent Owner
`
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` JUDGE PETRAVICK: Good morning.
`
` MS. GORDON: Good morning.
`
` JUDGE PETRAVICK: This is Judge
`
` Petravick. With me on the telephone are Judges
`
` Medley and Plenzler. We're here for CBM2015-00179,
`
` '181, and '182.
`
` I understand there is a dispute about
`
` the length of a deposition. We got an e-mail from
`
` the Petitioner.
`
` Petitioner, could you tell us who's
`
` on the line for you?
`
` MS. GORDON: Yes, Your Honor. This
`
` is Lori Gordon from Sterne Kessler. I'm here with
`
` Rob Sokohl, and I'm going to be presenting on behalf
`
` of the Petitioners today.
`
` JUDGE PETRAVICK: Okay.
`
` And for the Patent Owner?
`
` MS. EMSLEY: Good morning, Your
`
` Honor. This is Rachel Emsley for the Patent Owner,
`
` and with me is Josh Goldberg.
`
` JUDGE PETRAVICK: Is there anybody
`
` else on the line?
`
` THE COURT REPORTER: Your Honor, good
`
` morning. This is Susan, the court reporter.
`
` JUDGE PETRAVICK: Thank you.
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` And who arranged for the court
`
` reporter?
`
` MS. GORDON: Petitioners did, Your
`
` Honor.
`
` JUDGE PETRAVICK: And you'll file the
`
` transcript afterwards?
`
` MS. GORDON: Yes, we will.
`
` JUDGE PETRAVICK: Thank you.
`
` Petitioner, since you sent us the
`
` e-mail, we'll hear from you first.
`
` MS. GORDON: Okay. Thank you, Your
`
` Honor.
`
` There are actually three topics that
`
` we'd like to raise with the Board today.
`
` The first, since Mr. Kawashima is a
`
` Japanese resident, his native language is Japanese,
`
` we believe that he is going to be interested in
`
` requesting a translator for the deposition.
`
` In accordance with Rule 4253, there's
`
` an indication that we needed to initiate a
`
` conference call with the Board before the deposition
`
` on that.
`
` I don't know if the panel would like
`
` us to initiate another conference call when we
`
` confirm that an interpreter would be needed or if we
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` can consider this as our call on the interpreter
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` issue.
`
` JUDGE PETRAVICK: Does the Patent
`
` Owner object to a translator? Would the Patent
`
` Owner object to a translator?
`
` MS. EMSLEY: No, we wouldn't object.
`
` If there is a translator, we will have a check
`
` translator.
`
` JUDGE PETRAVICK: That's fine.
`
` Then we would consider this your
`
` conference call.
`
` MS. GORDON: Okay. Thank you, Your
`
` Honor.
`
` The second issue that we wanted to
`
` get guidance on related to handling any issues that
`
` might arise during the deposition.
`
` The process of getting Mr. Kawashima,
`
` who's a Japanese resident, to agree to another
`
` deposition on this matter has been quite difficult
`
` and he recently agreed to be deposed in the
`
` continental U.S. and that actually removes a lot of
`
` the travel burden on both parties, including the
`
` Patent Owner.
`
` But given the unique circumstances of
`
` this deposition, the fact that Mr. Kawashima is
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` traveling from Japan, we will only have a day with
`
` Mr. Kawashima.
`
` So if any issues arise, it would be
`
` helpful to have a procedure or understand the
`
` procedure to get in contact with the Board so we
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` could quickly and efficiently resolve any issues.
`
` The deposition is going to be in
`
` California and based on our experience, sometimes
`
` when issues come up late in the day, the process of
`
` going through the paralegals in D.C. creates an
`
` issue because they've gone or they've left for the
`
` day and it's not possible to get a member of the
`
` panel on the line.
`
` So we were just seeking guidance from
`
` the Board should an issue arise, if there is a
`
` mechanism for us to contact the panel.
`
` JUDGE PETRAVICK: Well, we don't
`
` expect any issues to arise. We expect the parties
`
` to follow the Trial Practice Guide, which says that
`
` you should object, have the witness answer the
`
` question, and then just put the objection on the
`
` record at that time.
`
` Our trial phone is staffed, you know,
`
` pretty late at night with a lot of our paralegals.
`
` So we would expect the parties to follow the Trial
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` Practice Guide and we should not have to have a
`
` phone call.
`
` MS. GORDON: Okay. Thank you, Your
`
` Honor. We certainly will try. We've had
`
` negotiations with the other side related to scope,
`
` but at times issues do arise. So I appreciate the
`
` guidance.
`
` So turning to the duration of the
`
` deposition, the parties have tentatively -- or
`
` agreed, actually, on the scope of the deposition to
`
` be limited to the topic of whether TSE qualifies as
`
` prior art and, specifically in the petition or
`
` statement, that TSE was published in August of 1998
`
` as well as, of course, the credibility of
`
` Mr. Kawashima.
`
` Given that limited scope and the fact
`
` that Mr. Kawashima is a witness, he's a Japanese
`
` resident coming from a very long distance, we don't
`
` feel that seven hours is required.
`
` In fact, if you look at the
`
` deposition transcript, this portion of the
`
` deposition really finished in three pages of
`
` testimony, which was only about 24 lines per page,
`
` and it was before the first break that this
`
` testimony concluded.
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` Now, we understand that there's going
`
` to be translators and check translators, which will
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` increase the time of the deposition. But we feel
`
` that four hours is a sufficiently long time given
`
` the very narrow scope of this deposition to put a
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` witness, who's come a long distance, going out of
`
` his way, through.
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` So we don't think he should be
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` subjected to seven hours, which opens the door for
`
` repeated questioning on the same topic to try and
`
` kind of wear down a witness who's not used to being
`
` a witness. We would therefore ask the Board to
`
` limit the duration to four hours.
`
` JUDGE PETRAVICK: Patent Owner, we'll
`
` hear from you on this topic now.
`
` MS. EMSLEY: Sure. Our position is
`
` that we don't see a need to deviate from the Board's
`
` rules, which allow seven hours for the
`
` cross-examination, and there are two main reasons
`
` for this.
`
` Just by way of background, we have
`
` agreed and negotiated about the scope. I think both
`
` parties are clear on what the scope is and that it
`
` is narrow. And we don't intend to wear down the
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` witness or use the full seven hours if it's not
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` necessary.
`
` But there are other factors at play
`
` here that make an absolute cutoff of four hours or
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` even less than the seven hours potentially
`
` prejudicial to Patent Owner.
`
` Because there's going to be a
`
` translator and a check translator, the pace of the
`
` questioning and answering can't be guaranteed. CTE
`
` has told us that last time some questions took up to
`
` 15 minutes to ask the translator to translate.
`
` While we don't expect that to happen
`
` here and while we don't have any intention of
`
` keeping the pace slow, and being very mindful of
`
` Mr. Kawashima's status of being a third party and
`
` having traveled so far, we just don't see a need to
`
` make an absolute cutoff that would cause a problem
`
` between the parties.
`
` Also, this is a pivotal issue in the
`
` cases, as to whether this reference was publicly
`
` available; and in addition to the proceedings that
`
` are pending before the Board right now, where TSE
`
` has been alleged as a piece of prior art or as a
`
` foundation for 101 and CBM arguments, the
`
` Petitioners have now asked that the deposition be
`
` admissible across all of the proceedings as well as
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` some unknown number of to-be-filed proceedings. One
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` was actually filed last Friday citing TSE as prior
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` art.
`
` We understand that Mr. Kawashima
`
` won't be made available again and we've
`
` conditionally agreed that this single deposition
`
` will be allowed admissibility in all of the
`
` proceedings, even those not yet filed, to the extent
`
` that TSE is being used in the same way.
`
` So we don't believe that a limit of
`
` less than seven hours is necessary if what we're
`
` just trying to do is explore the limited scope for
`
` which they're trying to use his testimony.
`
` And about the original testimony
`
` being only three pages, I think it is a data point,
`
` but it isn't a good measure of how long this
`
` deposition should take or shouldn't take. There
`
` were multiple parties involved there, multiple
`
` issues, and the emphasis and strategic decisions
`
` made there across parties and who was able to
`
` question Mr. Kawashima and to what extent was a
`
` completely separate scenario.
`
` JUDGE PETRAVICK: Petitioner, any
`
` last thoughts?
`
` MS. GORDON: Yes, Your Honor. I'd
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` like to address a few points there.
`
` First, the issue that Ms. Emsley
`
` raised about this being used across multiple
`
` proceedings, I think that creates a false
`
` impression. The fact of the matter is it's going to
`
` be used in the identical way across all the
`
` proceedings. So that should not increase the time
`
` needed during this deposition.
`
` Second, Ms. Emsley referred to
`
` something about each question lasting 15 minutes in
`
` the earlier deposition and there's absolutely no
`
` evidence in the record that that is actually
`
` accurate.
`
` In fact, if you look at the
`
` translation, you know, of the questions related to
`
` publication of this document, there was no issue
`
` with those. Those went very quickly. And, in fact,
`
` they were done before the first break. So that
`
` indicates that 15 minutes per question is not
`
` accurate and we disagree and believe that's a
`
` mischaracterization.
`
` JUDGE PETRAVICK: I have a question
`
` for you. If for some reason something went horribly
`
` wrong and the questioning with the translators took
`
` a very long time, would you agree with the Patent
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` Owner to extend the time period of more than four
`
` hours?
`
` MS. GORDON: Yes, Your Honor. We
`
` would be reasonable if something came up related to
`
` the translation if it was reasonable. We would hope
`
` that Patent Owner wouldn't insert their counter
`
` translator into the mix to try and create delay.
`
` But if it was a reasonable issue, we would be
`
` reasonable about extending it longer than four
`
` hours.
`
` JUDGE PETRAVICK: All right. Thank
`
` you. I think we have enough information on this
`
` issue. I'm going to take a minute to consult with
`
` my panel.
`
` - - -
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` (Whereupon there was a recess in the
`
` proceedings.)
`
` - - -
`
` JUDGE PETRAVICK: Hello?
`
` MS. GORDON: Yes.
`
` JUDGE PETRAVICK: Is counsel for
`
` Petitioners still there, Ms. Gordon?
`
` And, Ms. Emsley, are you still there?
`
` MS. GORDON: Yes.
`
` MS. EMSLEY: Yes.
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` JUDGE PETRAVICK: Okay. We have
`
` considered the issue and we have decided that you
`
` can have up to five hours for deposition. We think
`
` that should be sufficient as there is only one issue
`
` really to cross-examine about.
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` We do, however, expect that if
`
` something happens with the translation or an issue
`
` such as that arises, that the parties can work
`
` together to get Mr. Kawashima's testimony finished
`
` even if it is a little bit over the five hours.
`
` MS. EMSLEY: Yes, Your Honor.
`
` MS. GORDON: Thank you, Your Honor.
`
` JUDGE PETRAVICK: All right. Before
`
` we go, I have another question for Petitioner.
`
` MS. GORDON: Yes, Your Honor.
`
` JUDGE PETRAVICK: You filed a request
`
` for a hearing regarding our Order regarding the
`
` cross-examination of Mr. Kawashima.
`
` MS. GORDON: Yes, we did.
`
` JUDGE PETRAVICK: So if Mr. Kawashima
`
` is going to be cross-examined in the United States,
`
` would that request for a hearing be moot?
`
` MS. GORDON: Yes, Your Honor. In the
`
` interest of efficiency of the Board and the parties,
`
` we would agree to consider that moot at this point.
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` JUDGE PETRAVICK: Thank you.
`
` Let me ask a question: Would you
`
` agree to withdraw it?
`
` MS. GORDON: Yes, we can withdraw it.
`
` What's the mechanism you would like us to follow to
`
` do that?
`
` JUDGE PETRAVICK: Just a second,
`
` please. I'm getting a message from my fellow Judge.
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` MS. GORDON: Okay.
`
` JUDGE PETRAVICK: We'll consider the
`
` transcript sufficient.
`
` MS. GORDON: Okay. So, yes, we agree
`
` to withdraw it.
`
` JUDGE PETRAVICK: Is there any other
`
` issue?
`
` MS. EMSLEY: Your Honor, there --
`
` sorry; Petitioners should go first.
`
` MS. GORDON: Thank you.
`
` Not from Petitioners, Your Honor,
`
` thank you.
`
` JUDGE PETRAVICK: From the Patent
`
` Owner?
`
` MS. EMSLEY: Yes, Your Honor; just
`
` one issue directly related to the call that we're on
`
` here about Mr. Kawashima's testimony.
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` We didn't have a chance to exchange
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` e-mails about it, but there is a conflict with our
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` due date for our Patent Owner responses.
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` June 17 is the only day that
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` Mr. Kawashima is available and that's actually the
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` day that our Patent Owner responses are due, and so
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` we wanted to seek your guidance on getting an
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` extension for that deadline. The parties have
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` started negotiating that, but have not reached an
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` agreement.
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` We have a not-yet-scheduled
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` meet-and-confer tentatively for sometime this week
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` on discovery issues that Your Honor is also aware of
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` for documents that were produced in the District
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` Court and sought in the District Court and
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` potentially being produced into the PTAB.
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` But we feel like we should perhaps
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` address this issue of the deadline extension at
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` least initially for Mr. Kawashima's testimony while
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` we have everybody on the phone.
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` JUDGE PETRAVICK: Your request is
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` sort of premature. We'd like you to confer with the
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` other parties first.
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` MS. EMSLEY: Okay. Just to be clear,
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` we have conferred with the other side. We have --
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` well, let me back up.
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` They had agreed or we had agreed to a
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` one-week -- or not fully agreed to a one-week
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` extension for both parties. But our team is not
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` available and what we had requested was two weeks on
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` our end and one week on their end, and that is where
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` the disagreement ended.
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` If you'd like us to meet and confer
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` again to bring that to a head and suggest another
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` Board call, we can do that. I just thought that
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` perhaps --
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` JUDGE PETRAVICK: We would like you
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` to meet and confer again as to some sort of
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` extension of time. This will be the fourth
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` extension. And I'm assuming that in the other
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` cases, you're talking about the '179, '181, and
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` '182, as opposed to the '161; is that correct?
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` MS. EMSLEY: Well, we want to put
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` them all together as they're on the same schedule
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` and TSE was used in the 101 and CBM arguments
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` before. However --
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` JUDGE PETRAVICK: Then we expect you
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` guys to get together, meet and confer, and figure
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` out and come to an agreement about an extension.
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` MS. EMSLEY: Okay. We can do that.
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` Thank you, Your Honor.
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` JUDGE PETRAVICK: All right. Let me
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` query my panel very quickly and see if they have any
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` other questions.
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` All right. So I'd like the
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` transcript filed and I'm going to issue a short
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` Order about what we've discussed here today and then
`
` provide some additional guidance as to the
`
` translator.
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` That is all for today. We are
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` adjourned.
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` MS. EMSLEY: Okay. Thank you, Your
`
` Honor.
`
` MS. GORDON: Thank you.
`
` - - -
`
` (Whereupon the conference call
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` adjourned at 10:50 a.m.)
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` - - -
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` C E R T I F I C A T I O N
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` - - -
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`Page 18
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` I, Susan Marie Migatz, RMR, CRR, do hereby
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` certify the foregoing is a true and correct
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` transcript from the conference call held in the
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` proceedings in the above-entitled matter.
`
` <%signature%> June 6, 2016
`
` ____________________________ _________________
`
` SUSAN MARIE MIGATZ, RMR, CRR DATE
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`&
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`& 2:2,8
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`0
`02210-2001 2:11
`1
`101 9:23 16:20
`10:30 1:16
`10:50 17:17
`1100 2:4
`1201 1:24
`1250 1:24
`15 9:10 11:10,19
`161 16:17
`17 15:4
`179 16:16
`181 3:6 16:16
`182 3:6 16:17
`1998 7:13
`2
`20005 1:25
`20005-3934 2:4
`2016 1:15 18:13
`202-371-2600 2:5
`24 7:23
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`4
`4253 4:19
`6
`6 1:15 18:13
`6,772,132 1:13
`617-646-1600 2:11
`7
`7,533,056 1:12
`7,676,411 1:12
`a
`a.m. 1:16 17:17
`able 10:20
`absolute 9:3,16
`absolutely 11:11
`accurate 11:13,20
`addition 9:20
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`additional 17:8
`address 11:1 15:18
`adjourned 17:11,17
`administrative 1:21
`admissibility 10:7
`admissible 9:25
`agree 5:18 11:25
`13:25 14:3,12
`agreed 5:20 7:10
`8:22 10:6 16:2,2,3
`agreement 15:10
`16:24
`alleged 9:22
`allow 8:18
`allowed 10:7
`answer 6:20
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`anybody 3:21
`appeal 1:4
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`15:5 16:5
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`aware 15:13
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`b1 1:13
`b2 1:12,12
`back 16:1
`background 8:21
`based 6:8
`behalf 3:14
`believe 4:17 10:10
`11:20
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`bit 13:10
`board 1:4 4:14,21
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`board's 8:17
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`call 4:21,24 5:1,11
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`cause 9:16
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`cbm2015-00179
`1:12 3:5
`cbm2015-00181
`1:12
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`certainly 7:4
`certify 18:6
`chance 15:1
`check 5:7 8:2 9:7
`circumstances 5:24
`citing 10:2
`clear 8:23 15:24
`come 6:9 8:6 16:24
`coming 7:18
`company 1:23
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`concluded 7:25
`conditionally 10:6
`confer 15:12,22 16:8
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`conference 4:21,24
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`conflict 15:2
`consider 5:1,10
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`considered 13:2
`consult 12:13
`contact 6:5,16
`continental 5:21
`correct 16:17 18:6
`counsel 12:21
`counter 12:6
`course 7:14
`court 1:23 3:23,24
`4:1 15:15,15
`create 12:7
`creates 6:10 11:4
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`cross 8:19 13:5,18
`13:21
`crr 18:5,15
`cte 9:8
`cutoff 9:3,16
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`d.c. 2:4 6:10
`data 10:15
`date 15:3 18:15
`day 6:1,9,12 15:4,6
`dc 1:25
`deadline 15:8,18
`decided 13:2
`decisions 10:19
`delay 12:7
`deposed 5:20
`deposition 3:8 4:18
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`7:9,10,21,22 8:3,5
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`[discovery - kawashima]
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`discovery 15:13
`discussed 17:7
`dispute 3:7
`distance 7:18 8:6
`district 15:14,15
`document 11:16
`documents 15:14
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`due 15:3,6
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`efficiently 6:6
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`ended 16:7
`entitled 18:8
`esquire 2:3,3,9,10
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`examine 13:5
`examined 13:21
`exchange 15:1
`expect 6:18,18,25
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`16:4,14,15,24
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`f 18:2
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`mid 1:24
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`topic 7:11 8:10,15
`topics 4:13
`trademark 1:2
`tradestation 1:6,6,7
`trading 1:9
`transcript 4:6 7:21
`14:11 17:6 18:7
`translate 9:10
`translation 11:15
`12:5 13:7
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`Page 4
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`translator 4:18 5:4
`5:5,7,8 9:7,7,10
`12:7 17:9
`translators 8:2,2
`11:24
`travel 5:22
`traveled 9:15
`traveling 6:1
`trial 1:4 6:19,23,25
`true 18:6
`try 7:4 8:10 12:7
`trying 10:12,13
`tse 7:11,13 9:21 10:2
`10:9 16:20
`turning 7:8
`two 2:10 8:19 16:5
`u
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`u.s. 5:21
`understand 3:7 6:4
`8:1 10:4
`unique 5:24
`united 1:2 13:21
`unknown 10:1
`use 8:25 10:13
`v
`
`v 1:8
`veritext 1:23
`w
`want 16:18
`wanted 5:14 15:7
`washington 1:25 2:4
`way 8:7,21 10:9
`11:6
`we've 7:4 10:5 17:7
`wear 8:11,24
`week 15:12 16:3,3,6
`weeks 16:5
`went 11:17,23
`withdraw 14:3,4,13
`witness 6:20 7:17
`8:6,11,12,25
`work 13:8
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`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`
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`[wrong - york]
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`wrong 11:24
`y
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`york 2:4
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`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830