`
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Emsley, Rachel
`Tuesday, May 31, 2016 8:44 PM
`Rob Sokohl; Arner, Erika
`Lori Gordon; Richard M. Bemben; PTAB Account; gannon@mbhb.com;
`sigmond@mbhb.com; tt-patent-cbm@tradingtechnologies.com; Trading-Tech-CBM; Adam
`Kessel; John Phillips
`RE: Kawashima Deposition
`
`Rob ‐
`
`We are available for a meet/confer tomorrow from 10‐12 Eastern. Please circulate a dial in number. A Board call on
`Thursday afternoon also works, but our preference would be to seek a call for Friday morning.
`
`We are available on June 17 for Mr. Kawashima's deposition. The scope will be governed by the Board’s rules on cross‐
`examination (37 CFR 42.53(d)(5)(ii)), and should include TSE’s bias. Because of overlapping due dates in these and other
`proceedings, the due date should be July 1st. We cannot extend Petitioners’ deadline further than September 2, 2016,
`unless the Board will move the Hearing Deadline and allow appropriate time for Due Dates 4‐7.
`
`In addition, we would like to discuss the following discovery issues with all TS counsel of record in each of the CBM
`proceedings on the phone. First, it’s our understanding that Petitioners have been producing documents recently
`pursuant to Judge Kendall's order and in advance of the John Bartleman deposition. Will petitioners agree to reproduce
`the documents it has been producing in the district court in the PTAB proceedings? If we cannot reach agreement, TT
`will raise this issue with the Board. The limited number of documents produced so far has proved to be highly
`relevant. For example, we have been informed that TS0111352 (which is not market confidential) states at the time of
`the Matrix windows first release (TS's first product embodying the claimed invention) that "the Matrix window provides
`users with an exciting new view of the market including an innovative graphical display of market depth and trade
`activity for a given instrument along with lightning fast order execution with its one‐click trading capability. This
`combination allows for unprecedented market feel and efficiency for the frequent trader." We also understand that
`there are even more relevant documents in the limited documents produced so far that have been marked as
`confidential. TS should not be allowed to avoid production of this material based on the protective order. Second, we
`understand that TS’s counsel has objected to the production of certain documents in the district court litigation so that
`the production that has been occurring has been very limited. For example, we understand that TS has refused to
`produce emails that reflect customer interactions. TT believes that these documents contain highly relevant information
`relating to non‐obviousness, and asks that all of these types of documents be produced to TT in the PTAB
`proceedings. We plan to raise this issue with the Board as well if TS refuses to do so.
`
`Thanks,
`Rachel
`
`From: Rob Sokohl [mailto:RSOKOHL@skgf.com]
`Sent: Tuesday, May 31, 2016 3:32 PM
`To: Arner, Erika <erika.arner@finnegan.com>; Emsley, Rachel <Rachel.Emsley@finnegan.com>
`Cc: Lori Gordon <LGORDON@skgf.com>; Richard M. Bemben <RBEMBEN@skgf.com>; PTAB Account <PTAB@skgf.com>;
`gannon@mbhb.com; sigmond@mbhb.com; tt‐patent‐cbm@tradingtechnologies.com; Trading‐Tech‐CBM <Trading‐
`Tech‐CBM@finnegan.com>; Adam Kessel <Kessel@fr.com>; John Phillips <phillips@fr.com>
`Subject: RE: Kawashima Deposition
`
`
`
`Erika, thank you for your email. Please send our well wishes to Steve for a full discovery.
`
`
`1
`
`Page 1 of 5
`
`TRADING TECH EXHIBIT 2398
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`
`
`However, we need to meet and confer on a number of issues, including the points raised in my email last week, as soon
`as possible. We also need your availability for a conference call with the Board tomorrow (anytime) or Thursday
`afternoon should our meet and confer not be fruitful.
`
`Mr. Kawashima is available for deposition on June 17th. The deposition will be held in either California or Hawaii. Due to
`the inconvenience to Mr. Kawishima, we are permitting him to decide the exact location to minimize any further impact
`to him.
`
`We recognize that his will require a further extension to the due date for TT's reply. We therefore propose to extend
`TT's POR due date by one week and make a commensurate change to our due date.
`
`We look forward to hearing from you later today about a meet and confer. Please also confirm that June 17th works
`since Mr. Kawashima needs to make his travel plans immediately.
`
`Rob
`
`
`
`From: Arner, Erika [mailto:erika.arner@finnegan.com]
`Sent: Tuesday, May 31, 2016 9:51 AM
`To: Rob Sokohl; Emsley, Rachel
`Cc: Lori Gordon; Richard M. Bemben; PTAB Account; gannon@mbhb.com; sigmond@mbhb.com; tt-patent-
`cbm@tradingtechnologies.com; Trading-Tech-CBM; Adam Kessel; John Phillips
`Subject: RE: Kawashima Deposition
`
`Rob,
`We will get back to you as soon as possible with our availability for a meet and confer. TT’s counsel, Mr. Borsand, has
`been dealing with some medical issues and is hopefully able to get an MRI today. Thank you for your patience.
`Regards,
`Erika
`
`
`Erika H. Arner
`Attorney at Law
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`11955 Freedom Drive, Reston, VA, 20190
`571.203.2754 | fax 202.408.4400 | erika.arner@finnegan.com| Bio
`Finnegan AIA Blog | www.finnegan.com | PTAB Guidebook
`
`
`
`
`
`
`
`From: Rob Sokohl [mailto:RSOKOHL@skgf.com]
`Sent: Friday, May 27, 2016 8:57 PM
`To: Emsley, Rachel
`Cc: Lori Gordon; Richard M. Bemben; PTAB Account; gannon@mbhb.com; sigmond@mbhb.com; tt-patent-
`cbm@tradingtechnologies.com; Trading-Tech-CBM; Adam Kessel; John Phillips
`Subject: Re: Kawashima Deposition
`
`
`Rachel, are you available for a meet and confer on Tuesday to discuss our proposal? We would also like to know your
`availability for a call with the Board on Wednesday.
`
`
`2
`
`Page 2 of 5
`
`
`
`Rob
`
`Sent from my iPhone
`
`On May 27, 2016, at 5:36 PM, Emsley, Rachel <Rachel.Emsley@finnegan.com> wrote:
`
`Rob,
`
`
`We would prefer that Mr. Kawashima be made available in the continental United States. If you could
`please provide us with Mr. Kawashima’s counsel’s contact information, we would like to communicate
`directly to discuss the location of the deposition and also the scope of his deposition to avoid any
`misunderstandings.
`
`
`We cannot agree to a 4‐hour deposition. While we respect that Mr. Kawashima is a third‐party witness,
`his testimony is central to a key issue and will be subject to translation and check‐translation. The rules
`allow at least for a seven hour deposition for Mr. Kawashima’s testimony, and we cannot agree to less
`given the challenges this deposition will pose.
`
`
`Thanks,
`Rachel
`
`
`Rachel L. Emsley
`Attorney at Law
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Two Seaport Lane
`Boston, MA 02210-2001
`617.646.1624 | fax: 202.408.4400 | rachel.emsley@finnegan.com | www.finnegan.com
`
`
`
`NOTICE: This e-mail is sent by a law firm and may contain information that is confidential, protected, or
`privileged. If you are not the intended recipient, please delete the email and any attachments and notify
`us immediately.
`
`
`From: Rob Sokohl [mailto:RSOKOHL@skgf.com]
`Sent: Thursday, May 26, 2016 1:44 PM
`To: Emsley, Rachel; Lori Gordon; Richard M. Bemben; PTAB Account
`Cc: gannon@mbhb.com; sigmond@mbhb.com; tt-patent-cbm@tradingtechnologies.com; Trading-Tech-
`CBM
`Subject: RE: Kawashima Deposition
`
`
`Counsel,
`
`We wanted to let you know that TSE is reconsidering whether to make Mr. Kawashima available for
`deposition. We will likely be able to confirm their decision early next week. In the meantime, we wanted
`to discuss the scope of the potential deposition and logistics.
`
`Given the limited use of his deposition testimony, we propose that the deposition be limited to two
`issues: public availability of the TSE Operation Guide and Mr. Kawashima's alleged bias. We also propose
`limiting the deposition to 4 hours. Mr. Kawashima is a third party and we do not believe he should be
`significantly inconvenienced.
`
`
`We also propose that this deposition be admissible in all pending or to be filed CBMs (whether instituted
`or not). There is simply no reason to take Mr. Kawashima's deposition more than once.
`
`The location of the deposition is still uncertain, but two possible locations are Hong Kong or Guam. We
`
`3
`
`Page 3 of 5
`
`
`
`will confirm the date and location early next week once we hear back from TSE.
`
`Please let us know if you are agreeable to the terms outlined above. Please let us know by COB
`tomorrow. If you are not, we intend to reach out to the Board for relief when we receive confirmation of
`Mr. Kawashima availability.
`
`Rob
`
`
`From: Rob Sokohl
`Sent: Wednesday, May 04, 2016 3:08 PM
`To: 'Emsley, Rachel'; Lori Gordon; Richard M. Bemben; PTAB Account
`Cc: gannon@mbhb.com; sigmond@mbhb.com; tt-patent-cbm@tradingtechnologies.com; Trading-Tech-
`CBM
`Subject: RE: Kawashima Deposition
`
`
`Rachel, as we have previously indicated, Mr. Kawashima has informed us he is unwilling to voluntarily be
`deposed in the United States or Japan. Further, Mr. Kawashima is a third party witness and is not under
`our control. Nevertheless we have made another inquiry as to whether he will agree to be deposed.
`
`
`Rob
`
`
`
`From: Emsley, Rachel [mailto:Rachel.Emsley@finnegan.com]
`Sent: Monday, April 25, 2016 9:54 PM
`To: Rob Sokohl; Lori Gordon; Richard M. Bemben; PTAB Account
`Cc: gannon@mbhb.com; sigmond@mbhb.com; tt-patent-cbm@tradingtechnologies.com; Trading-Tech-
`CBM
`Subject: Kawashima Deposition
`
`
`Counsel,
`
`
`The Board’s Order (Paper 39, CBM2015‐00179; Paper 34, CBM2015‐00181; Paper 25, CBM2015‐00182)
`makes clear that Petitioners must produce Mr. Kawashima for cross‐examination, and Patent Owner
`notes that its request to depose Mr. Kawashima from March 22, 2016, remains outstanding. As the
`dates in our original request have passed, we note that Patent Owner has availability from May 10‐13
`and May 18‐20 for the deposition of Mr. Kawashima.
`
`
`Regards,
`Rachel
`
`
`Rachel L. Emsley
`Attorney at Law
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Two Seaport Lane
`Boston, MA 02210-2001
`617.646.1624 | fax: 202.408.4400 | Rachel.Emsley@finnegan.com | www.finnegan.com
`
`This e-mail message is intended only for individual(s) to whom it is addressed and may contain information that is privileged, confidential,
`proprietary, or otherwise exempt from disclosure under applicable law. If you believe you have received this message in error, please advise
`the sender by return e-mail and delete it from your mailbox. Thank you.
`
`
`
`
`
`This e-mail message is intended only for individual(s) to whom it is addressed and may contain information that is privileged, confidential,
`proprietary, or otherwise exempt from disclosure under applicable law. If you believe you have received this message in error, please advise
`the sender by return e-mail and delete it from your mailbox. Thank you.
`
`4
`
`Page 4 of 5
`
`
`
`
`
`This e-mail message is intended only for individual(s) to whom it is addressed and may contain information that is privileged, confidential, proprietary, or otherwise
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`
`5
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`Page 5 of 5