throbber
00001
`
`Clerk's stamp:
`
`COURT FILE NUMBER
`
`1601-05647
`
`COURT OF QUEEN'S BENCH OF ALBERTA
`
`JUDICIAL CENTRE
`
`CALGARY
`
`BAKER HUGHES INCORPORATED, BAKER
`APPL|CANT(S)
`HUGHES OILFIELD OPERATIONS, INC.,
`PEGASI ENERGY RESOURCES
`
`CORPORATION, PEGASI OPERATING,
`|NC., WEATHERFORD INTERNATIONAL
`LLC, WEATHERFORD/LAMB,
`|NC.,WEATHERFORD U8, LP,
`WEATHERFORD ARTIFICIAL LIFT
`
`SYSTEMS. LLC, and PEAK COMPLETION
`TECHNOLOGIES. INC.
`
`1
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`2 3
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`4 5
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`8 7
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`8 9
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`10
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`17
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`20 RESPONDENT(S)
`21
`
`ROSEANN CALDWELL
`
`22 DOCUMENT
`23
`
`QUESTIONING ON AFFIDAVIT
`
`24 QUESTIONING OF LEAH ALISHA BURATTI VIA TELECONFERENCE
`25 BY E.B. MELLETT
`
`26 AFFIDAVIT SWORN MAY 2, 2016
`27 HELD MAY 18, 2016
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`<.DCO‘\|0'J(J'I-l>(.vDl\J—l
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`Taken before Karoline Schumann, Official Court
`
`Reporter, pursuant to Rules 526. 6.20, and 13.46 of
`the Court of Queen's Bench of Alberta, at the offices
`
`of Blake, Cassels & Graydon LLP, Calgary, Alberta.
`
`FOR BAKER HUGHES AND PEGASI GROUP OF COMPANIES:
`
`D.W. McGrath, QC
`
`J. Sealy-Harrington
`10 M. O‘Brien
`
`11 Blake, Cassels & Graydon LLP
`12 3500, 855-2 Street SW
`13 Calgary, Alberta
`14 403-280-9600
`15 FOR WEATHERFORD GROUP OF COMPANIES:
`16 E. Nuttall.
`17 Borden Ladner Gervais LLP
`
`18 1900, 520-3 Avenue SW
`
`19 Calgary, Alberta
`20 403-232-9500
`
`FOR THE RESPONDENT(S):
`21
`22 E.B. Mellett
`
`23 Bennett Jones Calgary LLP
`24 4500, 855-2 Street SW
`25 Calgary, Alberta
`26 403-298-3100
`27
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`OFFICIAL COURT REPORTER:
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`<.DCO‘\|0'J(J'I-l>(.iDl\J—l
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`Karoline Schumann, CSR(A)
`Dicta Court Reporting Inc.
`760, 1015-4 Street SW
`
`Calgary, Alberta
`4D3~531~O590
`
`(PROCEEDINGS COMMENCED AT 2:0? PM)
`LEAH ALISHA BURATTI, Affirmed, Cross-examined by
`Mr. Mellett
`
`Good afternoon, Ms. Buratti.
`Q MR. MELLETT:
`I'm representing Roseann
`My name is Bruce Mellett.
`Caldwell on this application, and I appreciate you
`making yourself available for this examination today.
`Now, Ms. Buratti, if there are any questions or
`difficulties hearing me because of the technology,
`please don't hesitate to let me know, and I'll try and
`do my best to speak more clearly to assist.
`80, Ms. Buratti, do you have a copy of the
`affidavit that was filed with the Court of Queen's
`
`Bench of Alberta, dated May 5th, 2016?
`A I do.
`
`Q And although it's not on the document which I have been
`provided, it's my understanding that this affidavit is
`filed in Court File Number 1601-0564?”?
`MR. IVICGRATH:
`That's correct.
`
`MR. MELLETT:
`
`Thank you.
`
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`Q MR. MELLETT:
`
`And, Ms. Buratti, this was an
`
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`affidavit which you filed in support of a request by
`the Texas court to the Alberta court for letters
`
`rogatory in relation to Roseann Caldwell?
`A That's correct.
`
`Q Now, at paragraph 1 of your affidavit, you indicate
`that you're employed as an attorney and
`counsellor-at-law by Baker Hughes incorporated and
`Baker Hughes Oilfield Operations, Inc; is that
`correct’?
`
`A That's correct; I represent them.
`Q So you represent Baker Hughes Incorporated and Baker
`Hughes Oilfield Operations by virtue of being an
`associate attorney at the iaw firm of McKoo| Smith?
`A That's correct.
`
`0 So to be clear then, you're not employed as an employee
`of Baker Hughes Incorporated or Baker Hughes Oilfield
`Operations? Sorry, Ms. Buratti,
`|didn't catch the
`last answer.
`
`I am not a full-time
`I said, that‘s right.
`A Oh,
`employee of Baker Hughes Incorporated or Baker Hughes
`Oilfield Operations.
`I am employed by them by virtue
`of being an associate with McKoo| Smith.
`Q So being an associate with McKool Smith?
`A Yes.
`
`Q And lVlcKool Smith, as I understand it, is a law firm
`with a number of offices throughout the United States?
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`A That's correct.
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`<.DCO“~.|0'J(J'I-l>(.iDl\J
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`0 And one of the areas of specialty that McKoo| Smith
`practices in is patent litigation?
`A That's correct.
`
`Q And you are an associate who works in that area of
`patent litigation at McKool Smith’?
`A Yes.
`
`Q And, Ms. Buratti, you are one of the team of attorneys
`who are acting on behalf of Baker Hughes Incorporated
`and Baker Hughes Oilfield Operations in relation to
`United States District Court proceedings in Civil
`Action Number 6:15-cv-724-RWS-KNM?
`
`A I don't have the Civil Action Number memorized, but I
`
`will take your word for it that that is the correct
`Action Number.
`
`I'll just refer you to Exhibit A of your
`0 Okay, well,
`affidavit and have you look at the style of cause in
`that pleading.
`A Yes, it is Civil Action Number 8:15-cv-7'24.
`Q So you're one of the team of attorneys acting on behalf
`of Baker Hughes Incorporated and Baker Hughes Oilfield
`Operations in that litigation?
`A Yes.
`
`Q Now, Ms. Buratti, can you turn to Exhibit F to your
`affidavit, please.
`A I'm there.
`
`Q And as I understand it. this is the formal request for
`
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`international judicial assistance by letters rogatory,
`which was issued by the United States District Court in
`Eastern District of Texas?
`A That's correct.
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`Q And I want to just ask you a coupte of questions about
`the process for obtaining this request for assistance.
`Was there a formal application on notice in retation to
`this request for assistance?
`A I think the procedural question you're asking may not
`exist here in the United States. You asked about a
`
`notice; we filed a motion seeking this letter rogatory.
`Q Okay, and was that motion seeking the letters rogatory,
`was that opposed by any of the parties to the
`litigation?
`A No.
`
`0 Was there any sworn evidence which was filed in support
`of the letters rogatory request?
`A Yes.
`
`Q And what evidence was that?
`
`A In our motion for letters rogatory, which is publicly
`available on the docket in the Eastern District of
`
`Texas, there were exhibits attached to that motion.
`
`Q So was there an affidavit filed in support of
`the application or the motion?
`For the motion?
`THE COURT REPORTER:
`Q MR. MELLETT:
`I can restate. Was there an
`
`affidavit filed in support of the motion?
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`A I don't recall offhand.
`
`I don't believe so, but I'm
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`happy to check on that.
`Q Were you involved in the preparation of the motion
`seeking the letters rogatory’?
`A Yes.
`
`Q And to the best of your recollection today, there was
`no affidavit in support of the motion’?
`A That's right, although, again, I'm happy to confirm and
`get back to you with a definitive answer.
`Q Now, you mentioned a number of exhibits that have been
`filed in support of the motion.
`A That's right.
`Q And I had asked, in the question that prompted that
`answer, whether there had been any sworn evidence to
`support the motion; can you tell me what sworn evidence
`was put before the Court on this application‘?
`A 80 we submitted exhibits to our motion. Every time
`we -- it was not separately sworn through a
`declaration, I don't believe, but every time an
`attorney submits evidence to the Court, there is an
`implicit representation about that evidence.
`Q But to be clear, there was no factual witness who
`provided evidence in support of this motion for letters
`of request, correct?
`A That's right.
`Q And was the document that we see at Exhibit F to your
`affidavit, was that a document prepared in your office?
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`A Yes.
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`<.DCO'-.|0'J(J'I-l>(2Dl\J
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`Q And did the Court make any changes to the document that
`was presented to it for its signature?
`A Yes, the Court affixed its dates, signature, and seat.
`Q And that is what we would see at page 9 of Exhibit F’?
`A That's right.
`Q Were there any other modifications or changes which the
`Court put in place for this document when it was
`presented to it’?
`A I don't believe so, although I have not run like a
`document comparison.
`Q Now, Ms. Buratti, ifl can speak fora minute to you
`about the larger context of the litigation in this
`Texas proceeding. And if 1 call it the Texas
`proceeding, you'll understand that that's the Civil
`Action 6:15-cy-724?
`A Yes.
`
`Q So in terms of the Texas proceeding, this is a US
`patent litigation case’?
`A That's right.
`0 And you act for a number of defendants accused of
`infringing certain patents by the plaintiff, Rapid
`Completions LLC’?
`A I act on behalf of two of the defendants.
`
`Q And those are the two Baker Hughes entities?
`A That's right.
`Q And, indeed, you've been authorized by the other
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`defendants to swear your affidavit and to seek the
`assistance of the Court in this Alberta proceeding’?
`A Correct.
`
`Q Now, Rapid Completions LLC is noted as the plaintiff.
`I understand that a party identified as Packers Plus
`Energy Services is also now a party to the Texas
`proceeding?
`A Correct.
`
`Q And it's been brought in by way of a counterclaim by
`one or more of the defendants?
`
`A Yes, it's been brought in by way of a counterclaim from
`the Weatherford defendants.
`
`Q And in terms of the Respondent, Ms. Caldwell, you
`understand that she was and is a patent agent at
`Bennett Jones LLP?
`
`A That's my understanding, yes.
`Q And that Bennett Jones had been retained by Packers
`Plus Energy Services in relation to its US patent
`applications?
`A That's right.
`Q So --
`
`A Or, let me correct, at least the US patent applications
`that are at issue in the Texas litigation.
`Q Right. And in that regard, Ms. Buratti, you'll confirm
`that Ms. Caldwell herself is not a party to the Texas
`litigation?
`A That's correct. She is referenced and discussed in our
`
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`allegations of inequitable conduct, but she is not a
`named party to the litigation.
`Q Right. 80 Ms. Caldwell is not a party to the Texas
`litigation, correct?
`A Correct.
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`Q And similarly, Bennett Jones LLP is not a party to the
`Texas litigation?
`A Correct.
`
`Q And to your information, Ms. Caldwetl was never an
`employee of Packers Plus Energy Services, correct?
`A I have no knowledge about that.
`Q And do you have any knowledge that Ms. Caldwell was
`ever an employee of Rapid Completions LLC?
`A I have no knowledge about that.
`0 Now, in terms of the patents at issue in the Texas
`litigation, those were initially patents that were
`obtained by Packers Plus Energy Services?
`A Correct, with the assistance of Bennett Jones and
`Ms. Caldwell.
`
`Q Those were prosecuted in Packers Plus Energy Services‘
`name and obtained in their name, correct’?
`A I would have to look at the patents. They may have
`been prosecuted in the inventors names and then
`assigned to Packers Plus.
`ljust don't remember that
`nuance.
`
`Q And the inventors were two individuals, one of which
`was named Themig, T-H-E-M—|-G. and one was named Fehr.
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`F-E-H-R, correct?
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`A I believe so. Again, I'm happy to confirm if you'd
`like me to look at the patents, but I believe so.
`Q Well, could I ask you, Ms. Buratti, to look at the
`disclosure, the initial disclosure, filed by your
`clients, Baker Hughes Incorporated and Baker Hughes
`Oilfield Operations, at Exhibit D to the letters of
`request. Do you have that exhibit?
`A Yes.
`
`Q Okay, and at page 5 of that exhibit, there's a chart
`identifying individuals likely to have knowledge.
`A I may be in the wrong place. You said Exhibit B?
`Q Exhibit D, as in David, to the request for
`international judicial assistance, which is your
`Exhibit F to your affidavit.
`A Okay. And this is plaintiff Rapid Completions‘ initial
`disclosures, to be clear.
`
`Q If you look at Exhibit D, as in David, the document I
`have is defendants‘, Baker Hughes Incorporated, Baker
`Hughes Oilfield Operations, Pegasi Energy Resources
`Corp, and Pegasi Operations, |nc., initial disclosure?
`A Okay, I've got it. Here it is.
`Q You've got that?
`A Yes.
`
`Q And so if you go to page 8 and 9 of that exhibit,
`you‘ll see that this was a document prepared by McKooI
`Smith; is that correct?
`
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`A Yes.
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`Q And were you involved in the preparation of this
`disclosure document?
`A No.
`
`Q So if you could turn to page 5 of that document, you'll
`see reference there to a Jim Fehr and a Daniel John
`
`Themig, who are identified in the disclosure as named
`inventors and likely to have knowledge in relation to
`prosecution of the patents; do you see that?
`A Yes.
`
`Q And to your knowledge. those individuals were
`identified in the patent filing as the named inventors
`of the patents at issue?
`A Yes.
`
`0 Now, Ms. Buratti, could you have a look at paragraph 11
`of your affidavit, please.
`A Okay.
`Q And you indicate there that: (as read)
`The applicants request an order abridging
`time for bringing this application, if
`needed, and further request that the
`deposition of Ms. Caldwell be required to
`take place before June 1st, 2016, in light of
`the deadline in the underlying action of June
`9, 2016, for the parties to amend the
`pleadings, including inequitable conduct
`pleadings.
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`So just to clarify, inequitable conduct pleadings are
`those which make the allegations against Packers Plus
`and Ms. Caldwell that form the basis of the argument
`that the patents should be invalidated, correct?
`A Correct.
`
`Q And in terms of the timelines that you refer to, your
`clients have requested an order abridging the time for
`this application and, indeed, requested an expedited
`hearing from our Court of Queen's Bench for this
`application, but the letters of request were issued by
`the Court, as I understand it, on April 12, 2016; is
`that correct?
`
`A That's the date of the signatures on the letters of
`request.
`0 So when was the document available from the Court?
`A I don't recall the exact dates and whether it was the
`
`date of the signature. The Court issued an order
`granting the motion, and the letters rogatory with the
`signature and the seal were available for pickup a
`number of days later, although I don't recall offhand
`how many days.
`Q Would it have been within a week of April 12th?
`A It would have been in that ballpark, I believe.
`Q And certainly, as counsel, you were aware that this
`request was -- had been made on motion to the Texas
`court in order for this request to be issued?
`A I'm sorry, I don‘t understand the question.
`
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`Q As counsel to the Baker Hughes defendants, you are
`aware that this request have been sought by your
`clients so that it would have been something that you
`expected was going to be received from the Court in or
`around April 12'?
`A I was aware that we had filed a motion for the issuance
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`of the letters rogatory; I did not know when the Court
`would act on that motion.
`
`Q Your affidavit in this proceeding was sworn on May 2nd,
`2016, do you know why it took three weeks between the
`signature of the Court on the request and the affidavit
`in this request application to be flied here in
`Alberta’?
`A Yes.
`
`Q Can you tell me why?
`A I believe that calls for privileged information.
`defer to my counsel on that.
`MR, McGRATH:
`If Ms. Buratti is saying it
`calls for privileged information, it calls for
`privileged information.
`MR. MELLETT:
`
`Okay, thank you.
`
`I'll
`
`(OBJECTION)
`A And to clarify, you know, it's simply the work process
`of the attorneys in filing the application with the
`Canada court, to the best of my understanding, would
`call for privileged information.
`Q MR. MELLETT:
`Okay. Now. Ms. Buratti, at
`
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`paragraph 11 that we're looking at, you indicate
`there's a request for the examination of Ms. Caldwell
`to take place prior to June 1st, 2016, correct?
`A I'm sorry, can you point me to where you're looking at,
`please?
`Q Paragraph 11 of your affidavit.
`A Yes.
`
`Q And that date is different than the one that was put in
`the document that was put to the Court for its
`consideration and signature? And 1 refer you to page 8
`of Exhibit F to your affidavit.
`A Yes, that appears to be correct.
`Q So wouid it be your expectation that when this document
`at Exhibit F to your affidavit was submitted to the
`Texas court for the issuance of a request to the Court
`here in Alberta, that the most accurate information
`
`would have been provided to the Texas court at that
`time’?
`
`A I believe that was likely a typo on my part.
`Q I see. Now, let me ask you then about this date that's
`in the paragraph 11 of your affidavit, please.
`A Paragraph 8 of my affidavit?
`O No, paragraph 11, sorry.
`A Paragraph 11, okay.
`0 Now, you mention there that the evidence is required,
`in light of a deadtine in the underlying action of June
`9, 2016, for the parties to amend the pleadings,
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`including inequitable conduct pleadings. So just so
`I'm understanding, that's a reference to the underlying
`action being the Texas proceeding or the Texas
`litigation?
`A Correct.
`
`Q And so what you're saying in the affidavit to the
`Alberta court is that your clients are seeking
`discovery from Ms. Caldwell in order to better define
`the pleadings in their Texas litigation‘?
`A No, that is not what I'm saying.
`Q Okay, well. can you -- the reference there is that
`there's a deadline for the parties to amend the
`pleadings, so what relevance then is the deadline to
`amend pleadings if you're not seeking this information
`for the purpose of amending pleadings?
`A The relevance of the information that we're seeking is
`for us to be able to use Ms. Caldwe||'s testimony at
`trial in order to support our case at trial for -- on
`the inequitable conduct claims.
`Q So that's what you say at paragraph 10 of your
`affidavit, where you say that: (as read)
`The testimony and production of documents
`requested herein are intended for use at
`trial if admissible or directly in the
`preparation of trial.
`So I think that's what you're telling me now is the
`purpose is for use at trial or preparation for trial,
`
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`00017
`1
`correct?
`A That‘s correct.
`
`<.DCO'-.|0'J(J'I-l>(2Dl\J
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`Q Is there a trial date as yet?
`A Yes.
`Q And what's the trial date’?
`A I don't recall offhand.
`
`Q Is the trial scheduled for a date in 2016’?
`A I can check our docket control order and confirm with
`
`I believe it's scheduled for 2017.
`you.
`Q Okay.
`In the first or second half of the year?
`A I would have to check the docket control order.
`
`Q And what's the relevance of the June 9th, 2016 deadline
`that you mention in paragraph 11?
`A That is the deadline in the Eastern District of Texas
`
`for us to amend our pleadings.
`Q And so, again, I want to clarify, are you seeking the
`information that you would hope to obtain from
`examination and production by Ms. Caldwell for purpose
`of amending your pleading?
`A No, we are seeking it for trial.
`0 Which is not scheduled until at least sometime in 2017’?
`
`A Right.
`Q And as I understand it, the deadline of June 9, 2016,
`is to allow parties to amend their pleadings without
`cause; is that accurate?
`A Yes, I believe so.
`
`Q And after that deadline, parties are still entitled to
`
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`amend their pleadings if they can show cause to do so?
`A I wouldn't say that were entitled to.
`I would say we
`have the ability to request the Court for leave to do
`80.
`
`Q So in otherwords, the parties are at liberty to move,
`to amend their pleadings after June 9, 2016, if they
`can demonstrate cause to do so?
`
`A Yes, the parties are free to file a motion to the Court
`seeking leave to amended the pleadings.
`Q And they might do that if they do, indeed, come across
`new information in the course of regular discovery?
`A Correct.
`
`Q So could you turn, again, to paragraph 10 of your
`affidavit --
`A Yes.
`
`Q -- and this is speaking to the intended use of the
`testimony and production of documents for use at trial
`or directly in preparation of trial, correct?
`A Correct.
`
`Q Now then, you go on in the latter half of that
`paragraph to talk about:
`(as read)
`a request for testimony and documents
`concerning Ms. Caldwells prosecution of the
`patents-in-suit, her knowledge regarding the
`prior art, defendants‘ products at the time
`of prosecution, an explanation of statements
`made to the US Patent and Trademark Office
`
`<.DCO‘\|0'J(J'I-l>(.vDl\J—l
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`

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`00019
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`relating to the patents-in-suit.
`Then you go on to say that: (as read)
`The requests are narrowly tailored and that
`the defendants have been unable to obtain
`
`this discovery through United States
`discovery means.
`80 if we could, just for a moment, talk about the
`discovery to date, and I take it you have some
`familiarity with the discovery to date in the Texas
`litigation?
`A I don't have extensive knowledge about the discovery
`conducted in the Texas litigation, no.
`Q But you are involved as with one of the members of the
`team in this litigation, correct?
`A Correct.
`
`0 And in swearing this affidavit in support of the
`request to the Alberta court, you informed yourself
`with regard to the general status of the litigation and
`what steps have been taken to date’?
`A Yes.
`
`Q And, indeed, one of the things you've said in your
`affidavit is the defendants have been unable to obtain
`
`this discovery through United States discovery means.
`80 I take it, in making that statement, you did
`consider what efforts have been taken to this point in
`the litigation?
`A That's correct.
`
`<.DCO‘\|0'J(J'I-l>(.iDl\J—l
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`1
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`Q So if we could consider that issue for a moment, and
`let's talk about it in terms of the documents that are
`
`<.DCO'-.|0'J(J'I-l>(2Dl\J
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`being sought, and some of those documents in the
`request relate to documents that would have been
`associated with Packers Plus‘ prosecution of the
`patents at issue, correct?
`A My understanding is that it's Bennett Jones and
`Ms. Caldwetl that prosecuted the patents.
`Q Well, they did so on behalf of the client, Packers Plus
`Energy Services, right?
`A That's right.
`Q Right. 80 when your law firm acts on behalf of a party
`in the course of prosecuting a claim, it's your
`client's claim, it's not yours, correct?
`A Correct.
`
`0 So in this case, to be clear, the applications were
`those of Packers Plus Energy Services; they weren't
`Ms. Ca|dwe|l's applications, and they weren't Bennett
`Jones‘, correct?
`A So as we discussed earlier, I am uncertain, without
`reviewing the patents again, as to whether they were
`prosecuted in the names of the inventors or in the
`names of Packers Plus.
`
`Q They certainly weren't prosecuted in the names of
`Ms. Caldwell or Bennett Jones?
`
`A That's correct; they were prosecuted by Ms. Caldwell
`and Bennett Jones.
`
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`Q On behalf of theirciient, Packers Plus Energy
`Services?
`
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`A Yes, I guess the -- what I‘m trying to clarify is that
`I'm uncertain, without reviewing the patents and the
`prosecution history, whether they were prosecuted in
`the name of the inventor or in the name of Packers
`Plus.
`
`Q So at this point, do you not know that because the
`production by the parties of documents in the
`litigation doesn't include the files that would have
`been submitted to the US patent office?
`A I don't know that because I don't have the patents in
`front of me or the file history in front of me right
`now.
`
`Q Well, are you familiar with the production of records
`in this litigation?
`A As I said earlier, I'm generally familiar, yes.
`Q I understand that there are documents available from
`
`the US patent office in a package known as a file
`wrapper; are you familiar with that concept?
`A Yes.
`
`Q Have you reviewed the file wrappers of the patents in
`question in this case’?
`I reviewed excerpts.
`A Not in their entirety.
`Q So you don't know the entirety of the information
`contained in those file wrappers to this point in time?
`A I personally do not. My team collectively does.
`
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`00022
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`Q Has there been production of records or documents as
`yet by Packers Plus Energy Services in the lawsuit?
`A I believe so.
`
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`Q Have you reviewed the Packers Plus production documents
`to determine whether some of the records that are being
`sought in this letters rogatory request are contained
`in the Packers Plus production?
`A 80 I would say that, I guess, my work product here is
`likely privileged. And when you're asking about what
`efforts I have undertaken in this case that don't
`
`relate to interacting with opposing counsel or the
`Court, that calls for privileged information. So
`documents that I personally have reviewed or that my
`team have reviewed, questions about that all call for
`privileged information.
`Q So you've sworn in paragraph 10 of your affidavit that
`the defendants have been unable to obtain this
`
`discovery through United States discovery means, so I
`just want to explore, you know, what efforts have been
`made to obtain those through those means, and I take it
`you're telling me you don't feel you can answer that
`question?
`A I'm sorry, I didn't hearthe last part of your
`quesfion.
`Q You're telling me that you feel, because of privilege,
`that you're unable to tell me what efforts have been
`made to obtain the discovery through US discovery
`
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`means?
`
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`A No, that's not the question you asked earlier. The
`question you asked earlier was whether I personally
`have reviewed the Packers Plus production.
`Q Right. And I think you told me that you couldn't
`recall whether you'd reviewed it?
`A No, I said that that called for privileged information.
`Q I see. Has anyone on your team reviewed the Packers
`Plus document production in this Texas litigation?
`A Yes.
`
`Q And who was that?
`A I don't recall offhand.
`
`Q So you haven't spoken to anyone --
`A Again, I would note that this line of inquiry all calis
`for privileged information.
`0 All right, I appreciate that, but you're making this
`affidavit in support of a request to the Alberta court,
`saying that this information can't be discussed -- or,
`pardon me, can't be obtained through United States
`discovery means, and I'm trying to test that. So I'd
`like to know whether anyone on the team has determined
`whether the Packers Plus production includes some of
`the information requested in this letter of request.
`A (NO VERBAL RESPONSE)
`Q Can you answer that?
`A What was the question? I didn't realize that was a
`quesfion.
`
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`I'll restate it. Has anyone on your
`Q I apologize.
`team, the lv1cl»<ool Smith team, reviewed the Packers Plus
`
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`
`production documents in this Texas litigation to
`determine whether some of the documents requested of
`Ms. Caldwell are included in the Packers Plus
`
`production?
`A Yes.
`
`Q And what was the result of that inquiry?
`A The conclusion is that the documents that we are
`
`seeking through our requests for evidence from
`Ms. Caldwell are not included in the Packers Plus
`
`production.
`Q Can you -- so you're suggesting that all of the
`documents requested in Schedule A to the request for
`assistance, none of those documents are included in the
`Packers Plus production?
`A I have no knowledge of what Ms. Caldwell has in her
`possession specifically.
`Q So you don't --
`A It is possible that -- it is possible that she has
`documents in her possession that Packers Plus also had
`in its possession and produced to us.
`I have no
`knowledge of that.
`Q So you really don't have any knowledge of what
`Ms. Caldwell may have in the files requested‘?
`A That's incorrect.
`I have -- I have a general knowledge
`of the type of documents that a patent agent would
`
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`ordinariiy have in her regular course of business, and
`I would expect that Ms. Caldwell would have those types
`of documents.
`
`If you're asking me about specific documents, no,
`I don't have knowledge of these specific documents that
`Ms. Caldwell has in her possession that Packers Plus
`may also have in its possession.
`Q Has a request been made through Packers Plus counsel to
`have them produce the documents that would have been in
`their patent agent's file?
`A I believe so.
`I would have to double-check and confirm
`
`on that for you, and I can certainly do that.
`Q Can you please do that, confirm that has been -- that
`request was made and let me know what date that request
`was made?
`
`A Okay, would you like me to do that now’?
`Q After the questioning will be fine.
`A Okay, let me make a note of that. Okay, I will check
`on that at the break, and I would also note I believe
`
`your question is only addressing documents, not the
`deposition topics; is that right’?
`Q At this point, yes.
`A Okay.
`UNDERTAKING 1 - To confirm a request has been
`made through Packers Plus counsel to produce
`the documents that would have been in their
`
`patent agent's file, and advise when that
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`request was made
`Q MR. MELLETT:
`
`80, Ms. Buratti, ifl could
`
`ask you, in terms of the rules of procedure that govern
`the Texas litigation, does -- in your understanding,
`does the Court have the ability, where it considers it
`appropriate, to direct a party to produce the files of
`its advisors or professional agents, patent agents?
`A I'm not here to offer a legal opinion.
`it would be for
`the Court to determine whether that's within its power.
`Q Well, you've said in paragraph 10 of your affidavit
`that the defendants have been unable to obtain this
`
`discovery through United States discovery means, so are
`you --
`A Correct.
`
`0 -- saying that there are no means under the Us rules
`governing the Texas litigation that would altow parties
`to seek an order compelling production of another
`party's advisor's files’?
`MR. NICGRATH:
`
`Mr. Mellett, in fairness to
`
`the witness, she's answered your question, I believe.
`I think she's obviously constrained by way of
`privilege. Obviously, if and to the extent the
`material documents are producibie and are not
`privileged or subject to other evidentiary exceptions,
`they would normally be produced, and I believe the
`question you're asking to the witness at this point is
`a bit confusing, with all due respect.
`
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`MR. MELLETT:
`
`Well, let me see if I can ask
`
`it in a less confusing way.
`Ms. Buratti, if a request is
`Q MR. MELLETT:
`made to a party to have their advisors produce their
`patent files or documents that may be relevant in this
`sort of litigation, and that request is refused, have
`you seen instances where the party will then go to the
`Court and ask for an order compelling that production?
`MR. MCGRATH:
`Mr. Mellett, with all due
`
`respect again, your question is not very specific. You
`talk about advisors. What type of advisors are

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