throbber
2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 1 of 82 Pg ID 6207
`Motion Hearing • July 19, 2016
`
`1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`_
`_
`_
`
`FORD MOTOR COMPANY,
`Plaintiff/
`Counter-Defendant,
`
`vs.
`VERSATA SOFTWARE, INC., F/K/A
`TRILOGY SOFTWARE, INC., TRILOGY
`DEVELOPMENT GROUP, INC. AND
`TRILOGY, INC.,
`Defendants/
`Counter-Plaintiffs.
`_______________________________/
`
`Case No. 15-10628
`Hon. Matthew F. Leitman
`
`MOTION FOR LEAVE TO TAKE ADDITIONAL DEPOSITIONS
`and
`MOTION TO STAY ALL PROCEEDINGS PENDING INTER PARTES REVIEW
`BEFORE THE HONORABLE MATTHEW F. LEITMAN
`United States District Judge
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Tuesday, July 19, 2016
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendants:
`
`JOHN S. LEROY
`CHANILLE CARSWELL
`JAMES P. FEENEY
`JONATHAN D. NIKKILA
`LANNY JESSE DAVIS
`RODGER D. YOUNG
`STEVEN JOHN MITBY
`
`To obtain a copy of this official transcript, contact:
`Robert L. Smith, Official Court Reporter
`(313) 964-3303 • rob_smith@mied.uscourts.gov
`
`Ford Motor Company vs. Versata Software • 15-10628
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`Versata 2311
`Ford v. Versata
`IPR2017-00150
`
`

`

`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 2 of 82 Pg ID 6208
`Motion Hearing • July 19, 2016
`
`2
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`TABLE OF CONTENTS
`
`Page
`
`MOTION FOR LEAVE TO TAKE ADDITIONAL DEPOSITIONS
`Motion by Mr. Davis................................. 4
`Response by Mr. Feeney..............................20
`Reply by Mr. Davis..................................24
`Denied by the Court.................................27
`
`MOTION TO STAY ALL PROCEEDINGS PENDING
`INTER PARTES REVIEW
`Motion by Mr. LeRoy.................................29
`Response by Mr. Mitby...............................52
`Reply by Mr. LeRoy..................................69
`Denied by the Court.................................76
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`Ford Motor Company vs. Versata Software • 15-10628
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`

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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 3 of 82 Pg ID 6209
`Motion Hearing • July 19, 2016
`
`3
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`Detroit, Michigan
`Tuesday, July 19, 2016
`at about 9:58 a.m.
`
`_
`_
`_
`(Court and Counsel present.)
`THE CASE MANAGER:
`Please rise.
`The United States District Court for the Eastern
`District of Michigan is now in session, the Honorable
`Matthew F. Leitman, United States District Judge, presiding.
`You may be seated.
`The Court calls Case No. 15-10628, Ford Motor vs.
`Versata Software, Inc., et al.
`Counsel, please state your appearances for the
`
`record.
`
`Company.
`
`Company.
`
`Company.
`
`Honor.
`
`MR. FEENEY:
`
`James Feeney for the Ford Motor
`
`John LeRoy for Ford, Your Honor.
`MR. LeROY:
`MS. CARSWELL:
`Chanille Carswell for Ford Motor
`
`MR. NIKKILA:
`
`Jonathan Nikkila for Ford Motor
`
`THE COURT:
`MR. YOUNG:
`
`Good morning.
`Roger Young on behalf of Versata, Your
`
`THE COURT:
`
`Good morning.
`
`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 4 of 82 Pg ID 6210
`Motion Hearing • July 19, 2016
`
`4
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`MR. MITBY:
`
`Steven Mitby, Your Honor, on behalf of
`
`Versata.
`
`Good morning.
`THE COURT:
`Lanny Davis on behalf of Versata.
`MR. DAVIS:
`Good morning.
`Okay.
`Thank you to
`THE COURT:
`everybody for joining me this morning.
`We are here for
`argument on two motions, Versata's motion to take -- for
`leave to take additional depositions, and Ford Motor
`Company's motion to stay the proceedings pending inter partes
`review.
`How about if we start with the deposition motion.
`MR. DAVIS:
`Good morning, Your Honor.
`May it
`please the Court, we have in a way followed the script of the
`famous scene in the Wizard of Oz where the good witch says to
`Dorothy, go out and get me the broomstick of the wicked witch
`and then I will find a way to send you back to Kansas.
`Well, when I was in this courtroom the last time
`and made a very difficult motion to take specific depositions
`that were related to the case, but we both agreed tenuously
`related, and you gave us the benefit of doubt to take just
`two depositions.
`I considered the mandate that if I couldn't
`come back to you to explain why our theory of the credibility
`of Ford being at the heart of the Versata Software case and
`that if we could demonstrate a pattern of deception and
`misrepresentation and influencing witnesses to do the same
`that you would allow me to pursue that if I could strengthen
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`Ford Motor Company vs. Versata Software • 15-10628
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`

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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 5 of 82 Pg ID 6211
`Motion Hearing • July 19, 2016
`
`5
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`that as relevant to the core issues of the software case,
`which is --
`Let's start with the last part,
`THE COURT:
`influencing witnesses to do the same.
`If one thing seems
`reasonably clear from the materials that you folks have
`submitted, it is that Mr. LeRoy did not do that.
`When I
`looked at his e-mails that he sent sending along the
`deposition -- excuse me, the draft declarations, they were
`the standard ones I used to send when I was practicing and
`I'm sure you send, which is look at the affidavit and if it
`is accurate -- or look at the declaration, if it is accurate,
`please sign it.
`And then Mrs. Tambe asked for changes, he
`made the changes not using her words but using his, the
`substance to me strikes me as the same.
`At least on that point can you and I agree that
`there is not evidence that Mr. LeRoy in any way tried to
`influence a witness to make a false statement?
`MR. DAVIS:
`Yes.
`THE COURT:
`Okay.
`I have known
`MR. DAVIS:
`There is no evidence.
`Mr. LeRoy just professionally and briefly, and I consider him
`to be an honest person with professional integrity.
`And so I
`raised the task at hand in what I just said and I agree with
`you, I did not even want to accomplish anything untoward
`about what happened.
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`Ford Motor Company vs. Versata Software • 15-10628
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`

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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 6 of 82 Pg ID 6212
`Motion Hearing • July 19, 2016
`
`6
`
`Let me -- before you do that,
`
`I can say objectively that there is no evidence of
`influencing but to me there is indisputable evidence that
`what he wrote to the Court was at best incomplete and
`misleading.
`And I would like to -- rather than characterize
`my own conclusions from the deposition testimony, I would
`like to briefly walk you through what was said by the
`witnesses and then the conclusion I hope we can -- you can
`arrive at based on the evidence of what happened during the
`depositions is that we should be entitled to allow us to take
`a few more.
`THE COURT:
`Mr. Davis --
`Sure.
`MR. DAVIS:
`-- let me throw out a proposition and
`THE COURT:
`get your response to it.
`One way of looking at this is to say that the
`divergence, if there was one, and I don't mean to suggest
`that there was one, is that the affiant or the declarant,
`Mrs. Tambe, said -- was willing to say only not invited in by
`me, and in Ford's papers to me Ford said not invited or
`uninvited, made what you characterize as a broader statement.
`If that's true, if that's the problem, that's the kind of
`thing that strikes me that happens every day, and the
`response is for you folks to come in in response to the
`protective order motion and say Ford is suggesting this is
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 7 of 82 Pg ID 6213
`Motion Hearing • July 19, 2016
`
`7
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`what happened but when you compare what Ford's lawyers are
`saying to the actual evidence in the record it doesn't stand
`up.
`Why isn't that what happened here?
`I didn't see any
`evidence that at the time Mr. LeRoy wrote the facts that he
`knew or had reason to know that his description of the facts
`was false.
`I can see a point where you say it went beyond
`the evidence that was in front of him, but in your papers you
`say there is a strong inference that when Mrs. Tambe said by
`me she was communicating to him that, in fact, somebody else
`had invited them in or at least strongly suggesting that.
`You guys used the word strong inference.
`Why isn't the reasonable conclusion that she said
`the declaration was about her and she wasn't willing to offer
`any statements about what else may have happened?
`That was a
`lot that I just threw out there.
`MR. DAVIS:
`No.
`I will answer your question
`It would be probably more informative for you to
`directly.
`actually read along in the transcript to what I'm about to
`characterize, but I would definitely like to answer your
`question directly.
`When Mr. LeRoy said to the Court the
`investigators entered the -- I'm paraphrasing -- the
`apartment without invitation he had already written that as a
`first draft.
`After interviewing Mrs. Tambe she then came
`back and inserted the words by me on two occasions, one about
`the invitation into the apartment, the other about inviting
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`Ford Motor Company vs. Versata Software • 15-10628
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`

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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 8 of 82 Pg ID 6214
`Motion Hearing • July 19, 2016
`
`8
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`He then incorporated those
`people to sit down on a couch.
`changes and that was her final declaration.
`The unanswered
`question was, well, how did they get in if you didn't invite
`them in?
`
`So two things I would show you in the transcript.
`One, when I presented to her what Mr. LeRoy had said to the
`Court in the motion for a protective order, remember we are
`talking about our effort to investigate and this was an
`effort to stop us from investigating subject to an order of
`the Court setting ground rules, he already knew that his
`original draft had been modified by the words by me, yet when
`he submitted his motion he omitted those words.
`I said to Mrs. Tambe in the deposition, and I read
`her from the brief that was filed, is this accurate?
`She
`said no, when this was filled out after several questions it
`was the sentence he came in uninvited.
`THE COURT:
`I agree with you that there is that one
`exchange where you show her this and you say is that
`accurate, but taking a broader view of her deposition in some
`ways trying to pin her down was very difficult, at times she
`used the word uninvited referring to them to create a less
`than perfectly clear record, even though when you tried to
`ask the direct questions her answers to your direct questions
`seem to suggest that she didn't know whether they were
`invited, but at times she used the word uninvited, and when
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`Ford Motor Company vs. Versata Software • 15-10628
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`

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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 9 of 82 Pg ID 6215
`Motion Hearing • July 19, 2016
`
`9
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`later on after she said that this statement in the motion
`paper was inaccurate my sense was that it was inaccurate in
`that it went beyond what she personally knew, she used the
`term it was generic.
`I didn't get the sense that she was
`saying it is categorically false, the statement in the motion
`is absolutely false.
`My broader reading of her testimony in
`the overall context is that it was inaccurate in the sense
`that she couldn't attest personally to its accuracy.
`Do you
`disagree with that?
`I agree that she couldn't attest any
`MR. DAVIS:
`more than to her personal knowledge but she went out of her
`way to change that, and the papers submitted by Ford to you
`omitted it knowing that she had made the change.
`So then I
`asked her did you ever ask your husband, which is the
`unanswered question, whether he invited them in.
`She said
`no.
`And I said never, and there is an exchange where I
`incredulously repeated never asked your husband to this day
`whether he invited them in?
`No.
`Then when it came time for Mr. Tambe's deposition
`and he said I don't remember virtually to everything -- I
`wanted to ask him do you remember what date today is to see
`if I could get a yes but never mind.
`I then asked him did
`Mr. LeRoy ever call you to ask you did you invite them in?
`Answer:
`No.
`Never?
`No.
`So she says by me telling the lawyer I can't say
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 10 of 82 Pg ID 6216
`Motion Hearing • July 19, 2016
`
`10
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`what my husband did, he answered the door, I can say I didn't
`invite them in.
`And when I asked her was it accurate to
`leave out the words by me, she said no, and didn't modify
`that no.
`I asked her two or three times, and she said
`inaccurate.
`But here is my point about getting back to why I'm
`We have two decorated police officers who have been
`here.
`accused of being, at the very least, trespassers.
`As they
`described it to me, one is a former Detroit decorated police
`officer, of being thugs that barged, the words used by
`Mr. Sreejit, who is a witness I would like to depose, they
`barged into my apartment uninvited, same thing as was said to
`the Court despite the modification by me.
`He didn't say by
`me, he said they barged in uninvited.
`And when I asked him and we -- not asked him, but
`when we look at the affidavits of the two police officers we
`find in the case of Mr. Sreejit not a personalized by me, I
`can't say what my husband did, we actually have a lie because
`in the case, which is what I would like to establish for the
`Court in the deposition, he was in an apartment building and
`both officers testified that they buzzed the entrance and he
`came down and opened the door into the foyer, according to
`their sworn testimony, and they both describe how serious it
`is to say anything untrue under oath, and this was a very
`serious matter for them and they were trained to be cordial
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 11 of 82 Pg ID 6217
`Motion Hearing • July 19, 2016
`
`11
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`and to wait to be invited in and to be asked to be invited
`into anyone's premise, he talked to them in the foyer
`according to their testimony, and then he says and they
`walked down the hall and walked into my apartment uninvited.
`Well, something was missing in that lie, and that is a lie,
`that's an intentional misrepresentation of the truth.
`I don't use the L word in my political career and
`in my professional career unless there is hard evidence of
`intent.
`So when he says they walked down the hallway in
`front of me into my apartment he doesn't explain how did they
`walk through a closed door, because both officers testified
`under oath that the door was closed.
`THE COURT:
`Can you just give me a minute?
`MR. DAVIS:
`If I can establish more than an
`inference --
`THE COURT:
`MR. DAVIS:
`deposition --
`THE COURT:
`referring to?
`Mr. Sreejit, that would be Exhibit 13.
`MR. DAVIS:
`Help me understand how -- between this
`THE COURT:
`declaration and the declaration of the officers there is
`objective evidence that this declaration is false?
`MR. DAVIS:
`Yes.
`Would you like me to at least
`
`Just a second, Mr. Davis.
`Do you want me to point to you the
`
`Where is the declaration that you are
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 12 of 82 Pg ID 6218
`Motion Hearing • July 19, 2016
`
`12
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`show you and give my colleagues a copy of what I was going to
`do anyway?
`I have it all here for you in a notebook, or I
`can just read to you this section?
`THE COURT:
`Whatever you think is easier.
`MR. DAVIS:
`I think it would be more convenient for
`you and my colleagues can follow along, so I will give it to
`you.
`May I approach the bench?
`THE COURT:
`Sure.
`MR. DAVIS:
`I'm going to be immediately pointing to
`tab 5, which is the officer's testimony, so let's do this one
`first.
`If you turn to his affidavit he says in paragraph 5
`when I got to the main entrance to see what they wanted -- he
`doesn't mention why he went to the main entrance is because
`they buzzed him and asked him to talk to him, they entered
`the complex and confirmed my name and address.
`Of course he
`opened the door to let them in, that's okay.
`Then he says,
`and this is the lie, the two men then proceeded to walk
`directly into my apartment.
`He doesn't say I opened the
`door, because the door was closed, as you will see in a
`second, in front of me and without my permission.
`They
`barged into my apartment like they were FBI agents.
`That is
`a lie.
`It is a lie because two former police officers, if
`you look at tab 5 and go to tab 5, declaration of
`Timothy Gilbert, this is the Detroit former police officer
`who was given officer of the year in 2000, he's not prone to
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 13 of 82 Pg ID 6219
`Motion Hearing • July 19, 2016
`
`13
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`lie under oath, and if you look at paragraphs 12, 13 and
`14 -- if you are with me on tab 5, Your Honor?
`THE COURT:
`Yes.
`MR. DAVIS:
`We rang the buzzer for Mr. S's
`apartment, he met up in the building lobby and let us into
`the building, paragraph 13.
`Paragraph -- we told him we
`wished to speak to him about our investigation, paragraph 13
`explained.
`Then paragraph 14, Mr. S informed us that he was
`not a Ford employee.
`We spoke with him for several minutes
`in the foyer.
`Mr. Zaneri, that is Mr. Gilbert's partner, who
`was a New York City decorated former police officer --
`THE COURT:
`Mr. Davis, I see your point that there
`is an arguably irreconcilable conflict between the
`declaration of the officer and who we are calling Mr. S, I
`don't want to mispronounce his name.
`MR. DAVIS:
`It is easier to say Mr. S.
`THE COURT:
`How can I determine who -- how can I
`determine somebody is lying and somebody is not to reach the
`conclusion that there is some sort of falsehood but, second,
`the one thing we saw from the declaration of Mrs. Tambe is
`that Ford's role in it -- Ford's lawyer, to the extent that
`he had the role in the declaration itself, it was a role that
`was consistent with eliciting truthful information from her.
`So even if this declaration is false, what's the basis for
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 14 of 82 Pg ID 6220
`Motion Hearing • July 19, 2016
`
`14
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`assuming or presuming that Ford or its lawyers had any
`connection to any potentially falsity in it?
`I'm really
`MR. DAVIS:
`Okay.
`Good question.
`trying to walk the fine line of giving Mr. LeRoy the benefit
`of the doubt that this is a judgment issue and not a personal
`intent issue, so with that in mind I would answer your
`question.
`
`First of all, there are two sworn statements from
`two former police officers that give added credibility
`because they both -- if you turn the pages you will see
`Mr. Zaneri and --
`I don't mean any disrespect to the
`THE COURT:
`police officers, I really don't.
`MR. DAVIS:
`I know that.
`THE COURT:
`But on the papers I can't afford them
`any more credibility than this gentleman who signed under
`oath too.
`
`So there are multiple parts to judging
`MR. DAVIS:
`credibility.
`One is you have two people swearing versus one
`saying the opposite.
`You can't know the truth without a
`hearing.
`We actually asked for a hearing but I think
`understandably the Court didn't grant us one at that time,
`but that's just one factor.
`The other factor is the simple on the face of it
`illogic that how could they walk through a closed door?
`He
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 15 of 82 Pg ID 6221
`Motion Hearing • July 19, 2016
`
`15
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`doesn't explain that when they buzzed and he let them in and
`then they walked, as he says, ahead of him into the
`apartment, if the door was wide open it would be
`contradicting what the two officers said, that the door was
`closed and they were invited in, but the affidavit does not
`explain that.
`I would say it is fair to say that that
`illogic is another reason for believing that he's not being
`truthful.
`
`And then the third part of the answer about the
`brief written by and the reason that we are here asking for
`one more opportunity with three witnesses, including
`Mr. LeRoy, is when I asked Mr. Tambe since she said by me and
`insisted on it in her e-mail back that she had made changes
`and said it is inaccurate not to include the by me, I was
`literally dumbfounded in my reaction when I asked Mr. Tambe
`did Mr. LeRoy ever call you and ask you did you invite them
`in?
`We are about to accuse two former cops of barging in
`uninvited to somebody's home, that could actually be
`criminal.
`Did you invite them in?
`He would have maybe said
`I don't remember or they maybe assumed or whatever his answer
`was.
`He said no.
`I said not ever before June 30th?
`He said
`no.
`
`So to me it suggests not a willfulness on the part
`of Mr. LeRoy to ignore the truth but a neglect, a judgment
`call that he didn't need to take the next step to ask the
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 16 of 82 Pg ID 6222
`Motion Hearing • July 19, 2016
`
`16
`
`husband how did they get into the apartment before accusing
`them as he did of going in unwelcome, which was the predicate
`for their motion to prevent the investigation.
`And then to look at Mr. S, which is why I would
`like to depose him, I would like to ask him, since you have
`two police officers saying the door was closed and you opened
`the door to let them in the foyer, you would agree with that
`even though you didn't write that, he will say I'm sure, yes,
`otherwise how could they get into the foyer.
`Then how did
`they get into your apartment as a basis of accusing them of
`barging into the apartment like they were FBI agents.
`Of
`course, FBI agents don't barge in without a warrant, without
`an invitation, they are just as trained as these two police
`officers say in their sworn affidavit about being trained
`never, never to do that.
`I'm not
`There is a serious issue of credibility.
`saying and asking the Court to say that I'm right, but you
`did ask me to find additional evidence of credibility issues.
`First, I wanted to start with the Tambes.
`If I couldn't
`establish it there I wouldn't be here this morning.
`I think
`I raised serious questions about the brief submitted by Ford
`after they knew the by me was important and yet they still
`told the Court after the correction that they went in
`unwelcome.
`So now I have Mr. Sreejit even more blatantly
`himself saying they barged in, that was the first time that
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 17 of 82 Pg ID 6223
`Motion Hearing • July 19, 2016
`
`17
`
`word was used, it wasn't used in the brief, barged into the
`apartment, never says the door was closed and they walked
`through a closed door, doesn't explain anything more than
`they barged into the apartment.
`I think if my task, and respectfully I was trying
`to fulfill the task you gave me, is to show greater evidence
`of credibility in the positions that Ford is taking that
`relate to the case before you, which is the credibility of
`whether software was stolen and then that theft was covered
`up, I think I came at least to the threshold of allowing me
`just three more depositions.
`And I will conclude by at least
`doing 60 seconds on each of the three to explain to you.
`THE COURT:
`Before you do that, let me ask you kind
`of a broader question.
`MR. DAVIS:
`Sure.
`THE COURT:
`Even if the word uninvited is
`inaccurate in the brief and even if the word barged is
`inaccurate, isn't it fair to say that the overall picture
`painted by Ford in its brief of people who are extremely
`frightened, absolutely want nothing to do with the
`unannounced arrivers and definitely want protection, isn't
`that picture generally accurate?
`I have been on
`MR. DAVIS:
`Yes, and legitimate.
`their side of the equation in a very-high-profile case
`involving a hotel in New York where there was an alleged rape
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 18 of 82 Pg ID 6224
`Motion Hearing • July 19, 2016
`
`18
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`and the investigators used by the alleged defendant knocked
`on people's doors in the lady's -- in the housekeeper's
`neighborhood and the people were frightened by the knock,
`much less the appearance of somebody in a dark suit.
`But what's really important in this profession
`other than the thugs that do exist out there is professional
`training, what to do, FBI agents are trained, these two are
`trained, you never, never enter without asking permission and
`you are always cordial.
`There is undisputed testimony by
`Mr. Tambe, the only thing he could remember is they took off
`their shoes.
`Imagine barging into an apartment like an FBI
`but taking off your shoes first, it doesn't make sense.
`So all I'm asking the Court is to give me a little
`bit more rope.
`If Mr. S can't explain whether that door was
`open or closed and it was closed how did they get in if he
`didn't voluntarily open it, it doesn't change the fact that
`he was frightened.
`It's certainly, to me, very credible.
`Mrs. Tambe was very frightened with her child, it is a Sunday
`morning, it is a frightening experience, but the professional
`investigators here were seeking the truth, following the
`rules that they were trained to follow, and if that's true
`then our effort to obtain the truth outside of discovery,
`which is very difficult as you know in your years as a
`lawyer, was thwarted by a depiction of thugs barging into an
`apartment.
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 19 of 82 Pg ID 6225
`Motion Hearing • July 19, 2016
`
`19
`
`So to us we think this testimony, Mr. LeRoy should
`be able to answer my question why didn't you think of calling
`Mr. Tambe before you accused people of entering the premises
`unwelcome, which is a serious charge.
`And I would also like
`to ask Mr. LeRoy when you saw those corrections emphasized in
`the deposition as important to her why did you not respect
`them when you were addressing the Court and include the by me
`and then make the point you made about overall she was scared
`to death.
`
`So I am not saying that I have proven anything
`untoward here, I believe that I've raised enough questions
`based on deposition testimony that it would be reasonable and
`not burdensome to allow me to take Mr. S for sure, Mr. LeRoy
`in order for him to explain why he didn't include the words
`by me reflecting what the witness said and why he didn't ask
`Mr. Tambe, which would have been the end of the story, did
`you ever invite them in, he never asked.
`And then finally
`the third person, Ms. Balinski, is the management level at
`Ford involved somehow, I don't know how much, in the drafting
`of these declarations?
`She is on e-mails, she was in a
`conference call with Mrs. Tambe, so that's the third request.
`THE COURT:
`When I read your papers I draw in my
`own mind a distinction of being on a call and facilitating
`communication and being involved in drafting the content of a
`declaration.
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`Ford Motor Company vs. Versata Software • 15-10628
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`

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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 20 of 82 Pg ID 6226
`Motion Hearing • July 19, 2016
`
`20
`
`Absolutely.
`MR. DAVIS:
`I understood Mr. LeRoy to be telling me
`THE COURT:
`when we here before that the Ford employees didn't have input
`into the content of the declaration, not that they weren't
`somehow facilitating the communications.
`So do you really
`think you raise much of a question with respect to this --
`whether you need to depose the Ford person to ask about this
`involvement issue?
`You always ask me questions where you
`MR. DAVIS:
`force me to answer honestly to my detriment.
`The answer is
`not much.
`I don't know much about Ms. Balinski.
`Certainly
`based on the record she had no involvement in the drafting,
`she called and then e-mailed would you tell me what happened.
`She was on the conference call.
`There were other people Ford
`copied on all the e-mails.
`For us it would be important to
`know whether there was higher-level management who knew that
`these declarations were at best incomplete and misleading and
`that they were involved in supervising what Mr. LeRoy did,
`but I'm not sure other than the very slight reference to
`Ms. Balinski that I have much more to say to you then that.
`THE COURT:
`Okay.
`Thank you very much.
`I'm not
`MR. FEENEY:
`Good morning, Your Honor.
`sure how much you want to hear from me with respect to this
`motion.
`I would like to remind the Court that we started on
`this track with Mr. Davis indicating that he would take a
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 21 of 82 Pg ID 6227
`Motion Hearing • July 19, 2016
`
`21
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`ten-minute deposition of Mr. Tambe for the purpose of
`establishing that Ford's credibility was at issue in this
`case.
`He took four hours to depose Mr. and Mrs. Tambe, and
`he's not established anything at all with respect to Ford's
`credibility or lack thereof.
`He probably has established
`some sort of factual disagreement or dispute between what his
`investigators say what happened and what the witnesses say
`happened.
`
`What about his point, leaving aside
`THE COURT:
`where the sworn declarations from each side conflict, why
`isn't it reasonable for him to say Mr. LeRoy drafts a
`declaration that has unqualified language about being
`uninvited, it comes back with an important qualification that
`Mrs. Tambe's only willing to say she didn't invite them, and
`then the language in the brief is back to the unqualified.
`What do you say to his argument that there is a very
`significant difference between those two positions, one makes
`it sound much more extreme?
`So with regard to -- there are
`MR. FEENEY:
`Right.
`First of all, with regard to the
`two questions there really.
`change that Mrs. Tambe made, that's easily explainable and,
`in fact, she testified to why she wanted to make that change
`because it was her affidavit and she was not speaking for
`anyone other than Mrs. Tambe, so that really -- and that is a
`perfectly reasonable reaction and interpretation and
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`Ford Motor Company vs. Versata Software • 15-10628
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`2:15-cv-10628-MFL-EAS Doc # 139 Filed 08/15/16 Pg 22 of 82 Pg ID 6228
`Motion Hearing • July 19, 2016
`
`22
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`It is her affidavit, it is no one
`
`acceptance by Mr. LeRoy.
`else's affidavit.
`The other point though with respect to your other
`question is don't forget that Mrs. Tambe wrote an e-mail to
`her lawyer before Mr. LeRoy ever met her.
`THE COURT:
`Yeah, but look at the sequence of
`If you -- if Mr. LeRoy -- I understand why if
`events.
`Mr. LeRoy saw that e-mail he might have originally drafted a
`declaration that had an unqualified reference to being
`uninvited, but as I understand the sequence, after that
`e-mail is written Mrs. Tambe declines to go as far as to say
`uninvited.
`What I'm really asking you to focus on,
`Mr. Feeney, is the difference between the language in the
`brief and the language in the declaration when the brief
`includes language that was specifically declined,
`understandably, by an affiant that doesn't want to go further
`than her personal knowledge, why shouldn't Mr. Davis be able
`to ask Mr. LeRoy about the use of the unqualified language?
`MR. FEENEY:
`Well, Your Honor, I would say that,
`first of all, we have not objected to these depositions so as
`much as I think Mr. LeRoy -- the request to depose Mr. LeRoy
`under these circumstances is wholl

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