Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 1 of 9 PageID# 26495
`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 1 of 9 PagelD# 26495
`
`EXHIBIT 10(cid:3)
`EXHIBIT 10
`
`
`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 1 of 9 PagelD# 26495
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`EXHIBIT 10(cid:3)
`EXHIBIT 10
`
`
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE EASTERN DISTRICT OF VIRGINIA
` Alexandria Division
`- - - - - - - - - - - - - - - - - -x
`RAI STRATEGIC HOLDINGS, INC. : Case No.
`and R.J. REYNOLDS VAPOR : 1:20-cv-00393-LO-TCB
`COMPANY, :
` Plaintiffs and :
`Counterclaim Defendants, :
` v. :
`ALTRIA CLIENT SERVICES LLC; :
`PHILIP MORRIS USA INC.; and :
`PHILIP MORRIS PRODUCTS S.A., :
` Defendants and :
`Counterclaim Plaintiffs. :
`- - - - - - - - - - - - - - - - - -x
`
` CONFIDENTIAL BUSINESS INFORMATION
` SUBJECT TO PROTECTIVE ORDER
`
` Videotaped Deposition of
` KELLY KODAMA
` Conducted Virtually
` Friday, May 28, 2021
` 9:04 a.m. PST
`
`Pages: 1 - 328
`Reported by: HEIDI BELTON, CSR, RMR, CRR, CCRR, CRC
`CSR No. 12885
`Job No.: 374970
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`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`2
`
` Deposition of KELLY KODAMA, conducted
`virtually.
`
` Pursuant to notice, before Heidi Belton, a
`Certified Shorthand Reporter, Registered Merit
`Reporter, Certified Realtime Reporter, California
`Certified Realtime Reporter, Certified Realtime
`Captioner.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 4 of 9 PageID# 26498
`
`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`3
`
`APPEARANCES:
`For Plaintiff and Counterclaim Defendants:
` JONES DAY
` 1221 Peachtree Street NE, Suite 400
` Atlanta, Georgia 30361
` By: Jenn Weizenecker, Esq.
` Phone: 404.581.8548
` E-mail: jweizenecker@jonesday.com
` JONES DAY
` 77 W. Wacker Drive
` Chicago, Illinois 60601
` By: John A. Marlott, Esq.
` Phone: 312.269.4236
` E-mail: Jamarlott@jonesday.com
` JONES DAY
` 555 California Street, 26th Floor
` San Francisco, California 94104
` By: Michael A. Lavine, Esq.
` Phone: 415.875.5857
` E-mail: mlavine@jonesday.com
`
`For the Defendants and Counterclaim Plaintiffs:
` LATHAM & WATKINS LLP
` 505 Montgomery Street, Suite 2000
` San Francisco, California 94111
` By: Gregory K. Sobolski, Esq.
` Phone: 415.395.8035
` E-mail: greg.sobolski@lw.com
` LATHAM & WATKINS, LLP
` 330 North Wabash Avenue, Suite 2800
` Chicago, Illinois 60611
` By: Kumar Ravula, Esq.
` Phone: 312.876.6555
` E-mail: Surendrakumar.ravula@lw.com
`
`Also present: Lucien Newell, Planet Depos
`technician; Armando Forte, videographer.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`
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`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 5 of 9 PageID# 26499
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`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`4
`
` INDEX OF EXAMINATION
`WITNESS: KELLY KODAMA
`
`EXAMINATION PAGE
`BY MR. SOBOLSKI 10, 326
`BY MS. WEISENECKER 316
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 6 of 9 PageID# 26500
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`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`9
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`09:04:00
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`FRIDAY, MAY 28, 2021 9:04 A.M.
` P R O C E E D I N G S.
` THE VIDEOGRAPHER: We're now on the
`record.
` Here begins tape number 1 in the
`videotaped deposition of Kelly Kodama. Taken in the
`matter of RAI Strategic Holdings, Inc. versus
`Altria Client Services, LLC, et al.
` Today's date, May 28, 2021. The time on
`the video monitor is 9:04 Pacific time. My name is
`Armando Forte. I'm the videographer representing
`Planet Depos. All parties are attending this
`deposition remotely.
` Will counsel please identify themselves
`and whom they represent.
` Mr. Sobolski.
` MR. SOBOLSKI: Greg Sobolski, of Latham &
`Watkins, for the counterclaim plaintiffs. And with
`me is Kumar Ravula.
` MS. WEISENECKER: Hi. I'm Jenn
`Weizenecker, from Jones Day on behalf of RAI
`Strategic Holdings, Inc. and RJR Vapor Company.
`And also from Jones Day we have Mike Lavine and John
`Marlott.
` THE VIDEOGRAPHER: Thank you, Counsel.
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 7 of 9 PageID# 26501
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`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`10
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` Our court reporter for today is Heidi
`Belton, representing Planet Depos. She will now
`swear in the witness and we will proceed.
` (Whereupon, the witness, KELLY KODAMA,
` having been duly sworn, testified as follows:)
` EXAMINATION
`BY MR. SOBOLSKI:
` Q. Great. Good morning, Mr. Kodama. My name
`is Greg Sobolski. I'm going to take your deposition
`today.
` How are you this morning, sir?
` A. I'm doing great, thank you.
` Q. You understand you're testifying today
`under oath as if you were giving testimony in court?
` A. Yes, I do.
` Q. Is there any reason you can't give
`truthful and accurate testimony today?
` A. No, there's not.
` Q. Have you ever been deposed before?
` A. No, I have not.
` Q. Approximately how many hours have you
`worked on this matter on behalf of Reynolds?
` A. I believe it's been approximately 600
`hours starting from last September.
` Q. Approximately how much has Reynolds paid
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`PLANET DEPOS
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`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 8 of 9 PageID# 26502
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`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`154
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`it wouldn't really meet the definition of cavity
`inside of a wall.
` Q. Okay. Let's go to paragraph 114 of
`Exhibit 4.
` Let me know when you have it. Feel free
`to read whatever you like.
` A. Okay.
` Q. It is your opinion that the applicants
`disclaimed the common meaning of the claim term
`"cavity" during prosecution of the '911 patent;
`correct?
` A. I believe as it relates to the Alto
`product there's not -- at least one cavity as
`claimed in the '911 patent.
` Q. Understood. I appreciate that. And I'm
`asking a related but different question. I'm
`asking, to reach that conclusion, Mr. Kodama, your
`understanding is that during prosecution the
`applicants disclaimed the type of wall that the VUSE
`Alto has based on their -- their arguments; right?
` A. I believe when they discussed Rose, yes,
`there were trying to say that the ribs that are --
`or the fingers that came off of the wall were not
`part of the wall.
` Q. The common meaning of "wall" would include
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`Case 1:20-cv-00393-LO-TCB Document 952-10 Filed 02/11/22 Page 9 of 9 PageID# 26503
`
`CONFIDENTIAL BUSINESS INFORMATION
`Transcript of Kelly Kodama
`Conducted on May 28, 2021
`
`155
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`the ribs that are in Alto, but you believe that the
`applicants disclaimed those types of structures out
`of Claim 1; correct?
` MS. WEISENECKER: Objection to form.
` THE WITNESS: Right. They're arguing that
`with Rose the fingers were not part of the wall.
`BY MR. SOBOLSKI:
` Q. Okay. Let's switch gears a little bit; is
`that okay?
` A. Sounds good.
` Q. You reviewed the parties' claim
`construction briefs in this case; correct?
` A. Yes, that's correct.
` MR. SOBOLSKI: Let's bring up what is
`Tab 10, please. That's going to become Exhibit 12.
` AV TECHNICIAN: Stand by.
` (Exhibit 12 marked.)
`BY MR. SOBOLSKI:
` Q. And, Mr. Kodama, just to let you know,
`this is going to be Reynolds' opening claim
`construction brief from this case.
` A. Okay, great. Thank you.
` Q. Look at whatever you like but I'm going to
`ask you questions based on page 26 of the brief. So
`document page 26 at the bottom of the page.
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