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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`* CIVIL ACTION NO. A-19-CV-1238
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`*
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`November 5, 2020
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`FINTIV, INC.
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`VS.
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`APPLE, INC.
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`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`01:48
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`Andy W. Tindel, Esq.
`Mann Tindel Thompson
`300 W. Main St.
`Henderson, TX 75652
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`Jonathan K. Waldrop, Esq.
`Paul G. Williams, Esq.
`Darcy L. Jones, Esq.
`Heather S. Kim, Esq.
`ThucMinh Nguyen, Esq.
`Kasowitz Benson Torres LLP
`333 Twin Dolphin Drive, Suite 200
`Redwood Shores, CA 94065
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`Claudia Wilson Frost, Esq.
`Jeff Quilici, Esq.
`Orrick, Herrington & Sutcliffe LLP
`609 Main, 40th Floor
`Houston, TX 77002
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`Travis Jensen, Esq.
`Orrick, Herrington & Sutcliffe LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
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`J. Stephen Ravel, Esq.
`John R. Johnson, Esq.
`Kelly Hart & Hallman LLP
`303 Colorado, Suite 2000
`Austin, TX 78701
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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`For Defendant Apple:
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`Court Reporter:
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`1
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`MS 1039
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`*
`*
`* CIVIL ACTION NO. A-19-CV-1238
`*
`*
`
`November 5, 2020
`
`FINTIV, INC.
`
`VS.
`
`APPLE, INC.
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`1 2 3 4 5 6 7 8 9
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`01:48
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`Andy W. Tindel, Esq.
`Mann Tindel Thompson
`300 W. Main St.
`Henderson, TX 75652
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`Jonathan K. Waldrop, Esq.
`Paul G. Williams, Esq.
`Darcy L. Jones, Esq.
`Heather S. Kim, Esq.
`ThucMinh Nguyen, Esq.
`Kasowitz Benson Torres LLP
`333 Twin Dolphin Drive, Suite 200
`Redwood Shores, CA 94065
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`Claudia Wilson Frost, Esq.
`Jeff Quilici, Esq.
`Orrick, Herrington & Sutcliffe LLP
`609 Main, 40th Floor
`Houston, TX 77002
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`Travis Jensen, Esq.
`Orrick, Herrington & Sutcliffe LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
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`J. Stephen Ravel, Esq.
`John R. Johnson, Esq.
`Kelly Hart & Hallman LLP
`303 Colorado, Suite 2000
`Austin, TX 78701
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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`For Defendant Apple:
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`Court Reporter:
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`1
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`MS 1039
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`(November 5, 2020, 2:32 p.m.)
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`DEPUTY CLERK: Telephonic hearing in Civil Action
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`1:19-CV-1238, styled Fintiv, Incorporated versus Apple
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`Incorporated.
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`THE COURT: If I could hear announcements from counsel,
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`whoever's going to be speaking, please.
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`MR. TINDEL: Yeah. Good afternoon, Your Honor. This is
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`Andy Tindel here on behalf of the plaintiff Fintiv, and with us
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`on the call, Kasowitz' firm, are our lead counsel Jonathan
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`Waldrop, Darcy Jones, Paul Williams, Minh Nguyen and
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`Heather Kim, and I believe Ms. Kim and Mr. Waldrop will be our
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`principal speakers today.
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`THE COURT: If I could hear from counsel for the
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`defendant. Mr. Ravel?
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`MR. RAVEL: Your Honor, it's Steve Ravel for defendant
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`Apple along with two of our client reps, Natalie Pous and
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`Amy Walters. From Orrick we have Claudia Frost, the leader of
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`our team, Travis Jensen, Jeff Quilici, and I think consistent
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`with Mr. Earle's note of about five or ten minutes ago, I'm
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`going to turn it over to Ms. Frost for a discussion of the AEO
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`issue.
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`THE COURT: Okay. I'll turn to Mr. Waldrop. What issues
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`do we need to take up for you, and have they been adequately --
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`I want to take up issues that the other side has had an
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`opportunity to prepare for. So I will let you police yourself
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`in that regard.
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`MR. WALDROP: Good afternoon, Your Honor. This is
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`Jon Waldrop, Your Honor. Thank you for your time. I'm going
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`to turn it over to my colleague Heather Kim, but we will be
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`mindful that in -- make sure that there's no undue prejudice to
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`Apple and will stick to what we can and seek the Court's
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`guidance at a later date on issues that we cannot work with
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`them.
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`Heather, I'll turn it over to you.
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`THE COURT: Okay.
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`MS. KIM: Good afternoon, Your Honor. Thank you for
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`taking our call today.
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`This is just as a segment that we missed on Monday, and so
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`we appreciate you making the time for us on such quick notice.
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`Today we're prepared to talk about the schedule, which we
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`only have one date that we are still disputing, and the
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`deposition hours, which we've gone back and forth with Apple on
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`a few times. That issue is the most pressing as it is
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`backlogging the depositions we need to complete by the fact
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`discovery close of December 11th. We are prepared to argue
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`those issues and bring those up to the Court today, Your Honor.
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`THE COURT: Okay. Happy to hear them.
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`MS. KIM: Great. I think we can start with the first
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`issue of the schedule. We've agreed with Apple on every
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`deadline except for the deadline for opening expert reports and
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`the deadline for Apple to narrow the number of prior art
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`references at issue. Those dates are going to be the same.
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`Currently Apple is proposing a December 23rd deadline, and we
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`would like to have that set to January 6th. Our reasoning for
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`that is to give the parties the same amount of time for the
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`previous deadline. For Fintiv that would be between the close
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`of fact discovery and the deadline to submit opening expert
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`reports would be 25 days, and the date for Apple to submit
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`their rebuttal expert reports after the opening reports go in
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`would be 24 days. We can make that even and go 24 and 25 and
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`give Apple an extra day if that would be helpful, but we did it
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`that way because with the January 5th deadline we'd be going
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`through Christmas and the new year holiday and so we proposed a
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`25 day for us and 24 days for them.
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`THE COURT: Okay. Any response to that?
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`MS. FROST: Yes, Your Honor. It's Claudia Frost for
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`Apple. Good afternoon.
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`THE COURT: Good afternoon.
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`MS. FROST: And thank you for hearing us today.
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`I do have an issue in regard to the schedule sort of --
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`it's a table-setting issue that we raised in our e-mail to
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`Mr. Earle this morning that I think does impact the overall
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`schedule and will let us know for sure whether we just have the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`one issue that Ms. Kim outlined or actually we have another
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`issue. If I may address that sort of table-setting issue
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`first, I think that would help everyone.
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`The table-setting issue we set forth in our e-mail this
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`morning pertains to a claim construction issue, in particular
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`the -- in -- a few weeks ago I think -- I was looking for the
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`date, but I can't find it -- a few weeks ago Mr. Tindel raised
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`an issue with the Court about a clarification of a prior claim
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`construction term that the Court had construed in November of
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`2019, and they're potentially requesting some clarification
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`about that. The Court gave Fintiv an opportunity to submit a
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`letter explaining what term it wanted clarification on and why.
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`Fintiv responded that it would do so, but it hasn't submitted
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`any letters, and a few weeks have gone by. Nor does Fintiv's
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`proposed schedule contain any dates for additional claim
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`construction or clarification proceedings, and we want to make
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`sure that this issue is not going to raise its head again and
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`that there's not going to be any further claim construction
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`proceedings in the case so that we can get a schedule that we
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`can all live with and rely on. If that's not going to come up,
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`then I agree with Ms. Kim. We have the one issue about the
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`expert reports, and I'll address that now.
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`THE COURT: Okay.
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`MS. FROST: The issue on the expert reports is pretty
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`straightforward. What Fintiv is proposing is a schedule that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`does not give Apple adequate time to prepare its rebuttal
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`reports and gives Fintiv far more time than Your Honor's
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`standing order would provide. We suggest that the Court adopt
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`Apple's proposal, which adheres much more closely to your
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`standing order which provides a week from the close of fact
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`discovery until opening expert reports. Our proposal provides
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`longer than that, which is the difference between December 11th
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`and December 23 from the close of fact discovery to the opening
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`expert report deadline. We think 24 days or even 25 days for
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`Apple to do rebuttal reports is not appropriate. It's not long
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`enough, and we think Fintiv should have had plenty of time
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`to -- or should have plenty of time to submit its opening
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`reports within almost two weeks after the close of fact
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`discovery.
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`It's particularly appropriate here, Your Honor, because
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`fact discovery's been open for almost a year. Fintiv's taken
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`already 70 hours of fact discovery deposition testimony,
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`including about 50 hours of Apple 30(b)(6). Apple certified to
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`substantial completion of its document production for the
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`original case months ago and also recently for the added
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`products, and Fintiv's inspected the source code for all the
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`products and has had the benefit of all three Markman hearings.
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`So, as in most cases, we also suspect that Fintiv's been
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`working on its opening expert reports for some time. So we
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`believe that a 12-23 date for opening expert reports is
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`appropriate, which gives us a longer time for our rebuttal
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`reports. And the schedule that we proposed, Your Honor, is in
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`the e-mail that we sent over to Mr. Earle this morning. So
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`opening expert report deadlines that we proposed is 12-23, and
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`the rebuttal expert report deadline is 1-29.
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`THE COURT: Let me tell you I just have sort of a generic
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`in-my-soul problem that probably is to the detriment in this
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`particular moment to Apple of having deadlines like
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`December 23rd or December 27th or December 31st just because,
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`you know, I know how you all will work. I know how you will be
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`away from your families, and, I mean, you all will get it done.
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`But I sort of think at what cost?
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`Ms. Frost, if I push it back some, maybe not as much as
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`plaintiff is seeking, but it just seems to me not -- it just
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`seems to me that early January is -- I always -- basically I
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`don't do anything at the court and I don't -- I don't set
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`anything at the court, and I don't usually require lawyers to
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`do anything sort of the week of Christmas or the following week
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`because I think we all need some period in our -- sane period
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`in our life. That's more for you guys than me. I mean, I
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`don't care. You know, Josh asked me this morning if I would do
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`a Markman in -- whenever in December. I said sure. I'll do it
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`whenever. But tell me if I were to not do it when you're
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`suggesting but a little bit later, what do you think that the
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`fairest date for Apple would be early in January?
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`MS. FROST: Well, Your Honor, if I may, the opening expert
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`reports if due on the 23rd will actually put the imposition a
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`little bit more on Apple than it will on Fintiv. So we're --
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`THE COURT: I get that. Listen, I understand that. I'm
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`saying I don't -- I don't set deadlines -- you may not be
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`hearing me. I don't set deadlines that fall -- I try not to
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`unless there's an emergency, and I don't think you've given me
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`a reason for it on August 23rd or August 27th or December 30th.
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`And so I'm inviting you to tell me, when in early January do
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`you think would be a fair date to move it to for your client?
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`MS. FROST: Well, they've asked for the 5th of January.
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`The problem we have is what it does to the rest of the
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`schedule, Your Honor, is that if -- if rebuttal expert -- if
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`opening expert reports are due on the 5th of January, which is
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`what Fintiv is proposing, that only gives us 24 days for our
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`rebuttal expert reports. And that's not enough time,
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`respectfully. And so we're asking for -- we're asking for
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`their reports, to get them finished by Christmas and give us --
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`let us work through that holiday. I hear what you're saying,
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`and you don't want to do that. I understand. The problem is
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`we need more than 24 days. That's just not sufficient,
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`and so --
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`THE COURT: Well, then, Ms. Frost, help me out here. How
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`do I fix -- how do I fix the problem on the other end? How
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`much time do you think you need on the other end?
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`MS. FROST: What we're asking for is we were asking for
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`the difference between the 23rd of December and the 29th,
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`recognizing there were a few days in there that were going to
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`be a problem for us for Christmas. So we're really asking for
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`30 days.
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`THE COURT: Okay. So that sounds completely fair to me.
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`Is what -- you all tell me what the gating issue is here, and
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`if it's something on my schedule that I can adjust, I will, you
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`know, up to and including if I need to move the trial back a
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`week or so, I'll consider doing that. So tell me -- as opposed
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`to trying to protect yourself, which I get. I'm not
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`unsympathetic to anything that you're saying because I've been
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`in your shoes, as you know. If I can accommodate -- which I
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`think is saying we set the first date January 5th, I assume
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`Apple would like to have it somewhere around February 5th that
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`the next tranche comes, correct?
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`MS. FROST: Yes, Your Honor. That's true.
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`THE COURT: Okay. So assuming we can do that, what is
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`preventing things from shifting back a week? What can I do to
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`help make this fair for Apple? Help me that way. I'm happy to
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`let you all have 30 days -- I'm happy to let you all have
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`30 days. I want everything to be as fair as possible. And so
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`just tell me what I need to do in the schedule -- I have the
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`power that you all don't. You all have to work within whatever
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`deadlines that we set at some point earlier. Help me help you
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`here. What -- and let me even ask you this. Would it be
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`easier for you all -- knowing that I am going to give 30 days
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`for the response, would it be easier for you all to sit down
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`and just work this out yourselves, knowing that I will
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`accommodate on my schedule, whatever it takes?
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`MS. FROST: Well, thank you very much for that, Your
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`Honor, and I think we've -- both sides, I think, have struggled
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`with this schedule to try to fit it all in. I think if we
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`could move everything in the schedule two weeks all the way
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`down from then, that would accommodate this and give the
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`parties the opportunity to have the parity that Ms. Kim is
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`asking for but also the time in the schedule for Apple to --
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`THE COURT: So tell me when the trial's currently set.
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`MS. FROST: March the -- I believe it's March the -- I'm
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`sorry. May the 17th.
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`THE COURT: May the 17th. So...
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`MS. FROST: I believe.
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`THE COURT: So to get all this done and to give you all
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`the time that you need, we're looking for something right
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`around June 1st, correct, more or less?
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`MS. FROST: Yes, more or less.
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`THE COURT: Okay. I'm going to put you guys on hold and
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`I'll talk to my folks here and I'll see what I can jigger on my
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`calendar. You know, I've got other trials, some of which
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`others on this -- I think there are people on this call are
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`involved with, and if I've got something -- you know, I
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`think -- I've got plenty to do, and I'll see what I can do.
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`I'm going to put you on hold for a few seconds.
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`MS. FROST: Thanks, Your Honor.
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`(Pause in proceedings.)
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`THE COURT: We're going back on the record.
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`We are -- I'm going to reset this trial for June 1st, and
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`all the dates can move back accordingly to accommodate that.
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`Ms. Frost, does that take care of your problems?
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`MS. FROST: That does take care of that problem, Your
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`Honor.
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`Just to close the loop on the claim construction issue I
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`raised, I'm assuming there's -- that that issue is -- that ship
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`has sailed, and that's not going to be a part of this schedule
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`on the additional claim construction that I mentioned.
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`THE COURT: That ship has sailed.
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`MS. FROST: Thank you.
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`THE COURT: Is there anything else?
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`MS. KIM: Your Honor, sure. Your Honor, we don't think
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`the claim construction issue is relevant, and so we can take
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`that up at a different time. It's not going to be relevant.
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`It shouldn't impact the schedule.
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`MS. FROST: Your Honor, I strongly -- this is Claudia
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`Frost. I strongly disagree that it's going to impact the
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`schedule. We have done more claim construction and we're going
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`have --
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`THE COURT: Ms. Frost, I'm not planning on doing any more
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`claim construction.
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`MS. FROST: Thank you.
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`THE COURT: Okay. What else -- is there anything else we
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`need to take up?
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`MS. KIM: Your Honor, we have the issue of the depositions
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`of Apple witnesses.
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`THE COURT: Okay. And is that something that's ripe to
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`take up right now? If so, I will.
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`MS. KIM: Yes. It is, Your Honor. We have been going
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`back with Apple on who we can depose and the hours of them.
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`There are a couple that we have agreements on. One of them is
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`Jennifer Bailey, and another one is Murali Vempaty. But the
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`other ones we have some disagreements on as far as the time
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`that we are going to be allowed to depose them and the people
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`we can depose.
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`I do want to note for Your Honor, we have exhausted nearly
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`all of our 70 hours of total fact deposition hours. We had
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`originally agreed to that quite awhile ago back in June of
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`2019. Since then we have served our 30(b)(6) deposition notice
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`with 42 topics, and Apple has, to date, designated 13 witnesses
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`02:55
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`on those topics. It looks like we've gotten through about
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`02:55
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`seven of the 30(b)(6) witnesses that they've designated, but
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`they have, by my count, at least five or six more that we're
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`here to talk about today, and we can go through those one by
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`one if that makes the most sense for the Court.
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`THE COURT: I'm happy to hear one by one why you feel like
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`you need to take those depositions. Sure.
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`MS. KIM: Okay. Thank you, Your Honor.
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`The first one we'd take up is Mr. Baris Centinok. He has
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`been designated on all of the marketing consumer survey and
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`advertising topics. To date we have not had any witness
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`testify on marketing topics, and now we have not only the
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`iPhones and the watches, we also have the iPads and the MACs in
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`this case, and to date we have no deposition testimony on that.
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`02:56
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`We are proposing a five-hour deposition for this 30(b)(6)
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`witness.
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`THE COURT: Okay. Whoever wants to speak on behalf of
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`Apple.
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`MS. FROST: Your Honor, it's Claudia Frost again on behalf
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`of Apple. I think if we could -- and I will address
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`Mr. Centinok's hours -- but this issue is a bit broader than
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`the way Fintiv has presented it to Your Honor. The -- she's
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`02:57
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`correct -- or Fintiv is correct that they have exhausted their
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`70 hours of deposition time that was set forth in the original
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`schedule. Throughout the 30(b)(6) deposition notice that
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`Fintiv is referring to was served very early in the case in
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`January, I believe, maybe before, in fact. We've been
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`presenting 30(b)(6) witnesses for deposition since February of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`this year. We've, as I mentioned previously, produced already
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`approximately 50 hours of 30(b)(6) testimony. Throughout this
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`spring -- and I won't belabor this, but I think it's important
`
`for the Court to be aware that throughout the spring of this
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`year we endeavored earnestly to try to get an omnibus
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`deposition schedule in place because there were a lot of
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`30(b)(6) depositions to be taken, as well as a number of
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`30(b)(1) depositions that Fintiv was insistent upon taking as
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`well. We were trying to get that directed so the 30(b)(6)
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`witnesses could be deposed and try to make this manageable
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`because there were a lot of depositions, more than we thought
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`were appropriate or proportionate, in fact. But, nonetheless,
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`we did.
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`By the time July came around, we actually were advising
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`Fintiv that they were running out of hours and were asking if
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`we could reduce some of the 30(b)(6) depositions hours we had
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`already scheduled for them down to a smaller number so they
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`could manage within their time. They spent a lot of their time
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`during the first part of the year taking 30(b)(1) depositions
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`instead of their 30(b)(6) depositions that we had been offering
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`on the topics that they had noticed, subject to our objections,
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`of course, but, nonetheless, quite a few of those. And by the
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`time July came along, they had run out of hours.
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`In July the issue came to Your Honor. Fintiv proposed a
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`02:58
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`45-hour allotment of additional time for them to take
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`14
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`depositions. Your Honor ordered them to come up with a
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`proposal on a per-witness basis and to try to work with us to
`
`justify the number of hours and the witnesses and the topics on
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`which they wanted the discovery. We've been working with them
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`consistently since that time to try to come up with a holistic
`
`approach to this issue. Fintiv is out of time, and we think
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`it's appropriate for Fintiv to have some 30(b)(6) discovery.
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`We do. And we know that that's -- you know, that has primacy
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`and to sort of -- of deposition discovery. 30(b)(6) is
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`primary, and everything else is secondary or tertiary in our
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`view. But, nonetheless, we do understand that they ran out of
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`hours from the first part of the case on 30(b)(6) and didn't
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`get to take all the 30(b)(6) witnesses we had offered to put
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`03:00
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`up. So they have some hanging over from that period of time.
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`03:00
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`There have also been, as you know, new products added to
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`03:00
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`the case and some new theories, and we think it's not
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`03:00
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`inappropriate for them to have some 30(b)(6) testimony on those
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`03:00
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`issues as well. And the proposal we've sent over in our e-mail
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`03:00
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`to Mr. Earle this morning provides 30(b)(6) testimony to Fintiv
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`03:00
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`both from the original case and for the case involving the new
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`03:00
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`products. We are offering approximately 20 of the 30(b)(6)
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`03:00
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`topics that Fintiv is requesting. Your Honor, they've
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`03:00
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`requested 31 specific 30(b)(6) topics on the new products. We
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`03:00
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`are offering them 30(b)(6) testimony on the vast majority of
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`03:00
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`25
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`all of the topics that they have had in the case in addition to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`15
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`the 50 hours they've already had and including the new products
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`and the new theories. We think our proposal is imminently
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`reasonable. I think to talk about it on a witness-by-witness
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`basis, I understand, but I think it's more of a holistic issue
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`and it's the total number of hours that they want and the total
`
`scope of discovery that they're seeking in a single patent case
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`that nothing has changed in significantly enough to justify
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`this increase in the number of hours of deposition time.
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`They want something now close to 120 hours or more. Some
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`offers have been up to 130-some-odd hours, but that's just not
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`proportional to this case. So we're -- our proposal is we
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`think imminently reasonable. We're going to give them 30(b)(6)
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`03:01
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`testimony, which is what, you know, a party in litigation needs
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`03:01
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`on the topics that are most important that Fintiv itself has
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`03:02
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`identified. Some of the 50 hours of 30(b)(6) testimony we've
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`03:02
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`previously provided them covers a number of the topics that
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`03:02
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`they have asked for here that are -- that are generic. They
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`don't -- they aren't product-specific. So the deposition
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`testimony -- for example, on licensing we don't have any
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`additional licensing testimony that would relate in any way to
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`the new products that have been added, for example. That's
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`03:02
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`just a simple one.
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`03:02
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`So there are a lot -- there's a lot of discovery that
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`03:02
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`they've already done that pertains to the case as a whole.
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`03:02
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`What our offer does is provide them the 30(b)(6) testimony that
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`16
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`17
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`they didn't take because they ran out of time and 30(b)(6)
`
`testimony on the new products and any supplementation of the
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`prior witnesses testimony that needs to be included to give
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`them testimony on those topics on the new products, and we
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`would respectfully request that the Court grant -- enter our
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`order and proposal on the schedule.
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`THE COURT: Let me ask Fintiv this: What is the total
`
`additional number of hours for 30(b)(6) hours you're seeking?
`
`MS. KIM: The total hours, Your Honor, the -- I'll have to
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`03:02
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`03:02
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`do some math. On total we're at 47 and a half hours we're
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`asking for, but some of those are 30(b)(1). There are --
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`03:03
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`sorry. I have to do a little bit of quick math.
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`03:03
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`THE COURT: And you've already taken 70 hours?
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`MS. KIM: We have, Your Honor. When we agreed to the
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`03:03
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`70 hours, I want to note that we had agreed to that time limit
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`03:03
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`before we knew that Apple would come back and add so many
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`03:03
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`witnesses to their initial disclosures and designate over a
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`03:03
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`dozen witnesses on 30(b)(6) topics, and they've added people to
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`their initial disclosures as late as September 24th, Your
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`Honor. So it's -- I just don't agree with Ms. Frost's
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`statement that --
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`THE COURT: Hold on. I just asked how many hours you
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`wanted.
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`MS. KIM: For 30(b)(6) --
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`THE COURT: Wait. How many -- how many -- between when we
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`agreed on the number of hours and now, how many additional
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`people have Apple -- has Apple added to folks who were
`
`disclosed that Fintiv felt like they had to take the
`
`depositions of?
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`MS. KIM: That would be three, Your Honor.
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`THE COURT: Okay. So that's a total of at most 21 hours?
`
`MS. KIM: That's correct, Your Honor. But we had -- over
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`the summer Apple had told us that we were out of hours and
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`refused to give us any more deposition testimony on other folks
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`03:04
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`until we got to this issue. And at the hearing with Your Honor
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`on August 5th we were supposed to go by line by line and have a
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`12
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`proposal of how many hours we would want and how many hours
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`Apple wants and our justification and try to come to an
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`agreement. And we have come to agreement on a couple of those,
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`03:05
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`but there's still some that are outstanding, and that's why
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`03:05
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`we're before the Court today.
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`MS. FROST: If I may, Your Honor -- it's Claudia Frost --
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`03:05
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`just to clarify that. We have not come to any agreement on
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`anything other than we will produce the witnesses that we have
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`offered, and we have offered them for a certain number of hours
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`on a certain set of topics. We have not agreed to a piecemeal
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`03:05
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`proposal here. As I said, I think this needs to be a holistic
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`approach. You need to get a total list of witnesses, hours and
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`topics, and we have not agreed to something on a piecemeal
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`basis, just to clear that up. I think that's a bit of a
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`misconception, and I don't want to perpetuate it.
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`In August, if I may add too, Fintiv's proposal of 45 or so
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`witnesses included 10 hours for willfulness, as well as 10 to
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`15 hours for the new products that they anticipated Your Honor
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`would add, which in fact you did, and so we started there with
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`45 hours. Willfulness is no longer in the case. They were
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`asking for 10 hours of that, so they were down to 35 hours. On
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`October 26th they sent me a proposal that had 66 and a half
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`hours, and today they're at 47 and a half hours, and the
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`proposal they have in the e-mail that was sent to Mr. Earle and
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`03:06
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`Ms. Kim is referring to doesn't include all the witnesses that
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`they've asked us for and that are included in our proposal. So
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`if --
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`THE COURT: Okay. I'm going to put you on hold just for a
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`03:07
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`second.
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`03:07
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`(Pause in proceedings.)
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`03:10
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`THE COURT:
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