Beruflich Dokumente
Kultur Dokumente
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Dennis Montgomery, et al.,
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Plaintiff,
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-vs7
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ETreppid Technologies,
et al.,
Defendant.
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No. 3:06-cv-056-PMP-VPC
August 18, 2008
United States District Court
400 S. Virginia Street
Reno, Nevada 89501
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A P P E A R A N C E S:
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Ellyn Garofalo
Randall Sunshine
Mark Gunderson
Attorneys at Law
Stephen Peek
Jerry Snyder
Attorneys at Law
FOR COUNTER-DEFENDANT:
Robert Rohde
Gregory Schwartz
Rolan Tellis
Bridgett Robb-Peck
Attorneys at Law
Carlotta Wells
U.S. Department of Justice
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Reported by:
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---OoO---
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JUDGE COOKE:
Please be seated.
JUDGE PRO:
Please be seated.
THE CLERK:
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Bridgett Robb-Peck.
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JUDGE PRO:
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And, occasionally,
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and other issues that have arisen since the inception of this
case.
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trial.
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were filed.
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decade.
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actions.
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discovery disputes.
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parties.
The
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precipitously.
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of judges.
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change.
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should have happened a long time ago, and that relates to, for
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Judge Cooke, she came up with the term "first phase," the
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deposition.
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document production.
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They understand
but what they are, and what information they have that
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to get it moving:
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deposition.
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to allow for you all, and to allow for Judge Cooke and myself,
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claims are and what the basis for those claims are.
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I don't think
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date.
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of the judge is going to have to try the case when all the
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And
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counsel.
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JUDGE COOKE:
I need the
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was resolved.
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So, those
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Protective Order.
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And that seems, to Judge Pro and me, an expeditious and fair
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lawyers.
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But if
JUDGE PRO:
up on that.
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calendar.
And
just mentioned.
So when you're
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scheduling.
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done with regularity, and I think the last time was on, as I
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I know she's
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And then
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MR. SUNSHINE:
excellent idea.
JUDGE PRO:
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good idea.
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MR. PEEK:
And I also
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or Atigeo representatives.
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I am concerned, and
Sandoval or Blixseth.
I am
Sandoval or Blixseth.
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today.
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JUDGE PRO:
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MR. PEEK:
Right.
So, I am concerned about meeting
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that deadline.
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JUDGE PRO:
But I
And if I
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And
And
and that's why Judge Cooke so perceptively made sure you get
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moving on.
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The kind of
Time is
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lot of cases.
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me as well.
But, nonetheless,
and Sandoval?
behalf.
MR. TELLIS:
My
name is, Rolan Tellis with the law firm of Bingham McCutchen.
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Michael Sandoval.
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JUDGE PRO:
Great.
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MR. ROHDE:
THE COURT:
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Honor.
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Atigeo.
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MR. TELLIS:
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JUDGE PRO:
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MR. TELLIS:
Right.
As an individual defendant, we
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denied.
JUDGE PRO:
MR. TELLIS:
Right.
And part of the argument
was
he had done.
misappropriated.
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be taken.
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learning about the claims against him, days before, when some
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But I would
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be taken.
But, I don't
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capacity.
As I
as to his response.
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He possesses no
And Atigeo, the
producing documents.
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documents.
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JUDGE PRO:
Right.
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making claims.
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have a problem with a gap in between the first two and the
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second two.
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MR. TELLIS:
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MR. ROHDE:
Fair enough.
Thank you.
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JUDGE PRO:
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Great.
appreciate it.
All right.
that matter?
JUDGE COOKE:
JUDGE PRO:
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ADR proposals that would take this off calendar or alter the
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dates.
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Something which
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settlement, judge.
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since I'm here and it's a good time to raise it -- that any
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but have you made any serious assessment of whether some form
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might also be the one that puts her in the posture of being
MR. SUNSHINE:
JUDGE PRO:
MR. SUNSHINE:
Your Honor --
Mr. Sunshine.
Thank you, Your Honor.
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is any different.
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MR. SUNSHINE:
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While
Right.
But I believe that an early ADR
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out ourselves.
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JUDGE PRO:
All right.
Mr. Peek.
MR. PEEK:
observations as well.
that.
judge.
And I suspect
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JUDGE PRO:
I don't know
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her.
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she would be the one who would decide how that would go.
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MR. PEEK:
schedule.
JUDGE COOKE:
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And I think
magistrate judges.
said, discussions are had, and then trouble comes, and you
It's
But
Things are
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up the works with respect to the litigation, and I'm not privy
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to what happened.
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can't be fixed.
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not.
So --
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JUDGE PRO:
to add?
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(No response.)
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JUDGE PRO:
All right.
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It doesn't have to
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THE CLERK:
JUDGE PRO:
Submit it jointly.
Your Honor.
It can contain
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All right.
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subject that Judge Cooke and I had also conferred on, and
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Am I --
JUDGE COOKE:
MR. PEEK:
No.
that, but there certainly were dates set forth with respect to
nature.
JUDGE PRO:
MR. PEEK:
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Right.
JUDGE PRO:
Yes.
I'm sorry.
Moving to the
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MR. PEEK:
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JUDGE PRO:
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have something to --
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JUDGE PRO:
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I'm sorry.
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date, I've got the benefit now of what you all had filed on
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MR. PEEK:
Yes.
Honor.
JUDGE PRO:
calendar and --
MR. PEEK:
Mr. Montgomery.
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proceedings.
And as we have gone through the discovery process
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and learned more and more about the so called Glogauer and
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Jale Trepp e-mails that were reported in both the Wall Street
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been committed.
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There are --
JUDGE PRO:
Refresh my recollection.
When did
JUDGE COOKE:
minute.
ahead,
I think, if this --
JUDGE PRO:
JUDGE COOKE:
We'll go
Yeah.
-- is fine with you, judge.
We'll
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Report.
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just raised.
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part of this morning going through the July 15th case status
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report.
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Court.
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So, I think --
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JUDGE PRO:
Let's do that.
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rose and raised that issue, I wasn't familiar with it from the
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JUDGE COOKE:
JUDGE PRO:
Right.
I indicated my preference would be
MR. PEEK:
JUDGE COOKE:
All right.
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with the Order to Show Cause hearing concerning the May Order
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case management.
status conference.
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Mr. Peek.
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MR. PEEK:
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I don't know.
Of
We have let
forwarded to us.
JUDGE COOKE:
MR. PEEK:
We
our exhibits today -- that what CDs do you have, and when will
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JUDGE COOKE:
All right.
Mr. Sunshine.
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MR. SUNSHINE:
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the exact status of the CDs, whether or not there are any.
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JUDGE COOKE:
All right.
I don't
I'm -- my
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when were the -- Mr. Peek, when did you receive the 21 hard
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drives, sir?
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MR. PEEK:
Friday -- Thursday?
Yeah, we received them Thursday, via overnight
express.
be the --
JUDGE COOKE:
MR. PEEK:
JUDGE COOKE:
August 7th?
August 14th.
Oh, excuse me.
August 14th.
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MR. SUNSHINE:
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And I can also say that, to the extent there are any problems
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with them, I've already told Mr. Peek informally, and I will
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JUDGE COOKE:
resolved?
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know how much work it will take to deal with that unreadable
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JUDGE COOKE:
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MR. SUNSHINE:
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MR. PEEK:
back to me?
MR. SUNSHINE:
JUDGE COOKE:
MR. SUNSHINE:
law firm and the people working on the case are here this
will put things in motion while we're here to make sure that
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And, hopefully, we
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that, to me, says, gee, the week of July 16th, that week or
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And here I find out they don't get them until less than a
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So, in my mind,
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And I do
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And I
MR. PEEK:
JUDGE COOKE:
Hard drives.
Pardon
me.
August 27th.
here, can make a call and figure out what is going on with
that.
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All right.
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All right.
Thank you.
MR. PEEK:
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And there are none of those are on the CDs that we've read.
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MR. SUNSHINE:
gander.
JUDGE COOKE:
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MR. PEEK:
Right.
All right.
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already.
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already to them.
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JUDGE COOKE:
had.
We have produced
I thought you
All right.
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ordered.
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The
I don't think
The Court had ordered on July, that no later than July 25,
course of business.
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are there any other matters to take up, just with respect to
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MR. SUNSHINE:
of right now.
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JUDGE COOKE:
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All right.
Okay.
Very good.
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requests.
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And I think
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JUDGE COOKE:
We believe that
Very good.
Mr. Peek.
MR. PEEK:
That is correct.
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JUDGE COOKE:
All right.
However, what
on this production.
So, it sounds to me, Miss Clerk, that counsel have
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Court how that was proceeding, and you -- and I recall at the
July hearing, the lawyers were a little unclear, not being the
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MR. SNYDER:
privilege log?
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JUDGE COOKE:
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MR. SNYDER:
Yes.
We, as we mentioned in our status
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inadequate.
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the e-mail.
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fully evaluate.
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JUDGE COOKE:
All right.
Let me clarify.
All right.
prejudice, and said that the Court gave the Montgomery parties
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camera, because she thought that would give the Court -- she
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And
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Montgomery parties.
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But,
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And then there is this other privilege log that the Montgomery
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talking about?
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MR. SNYDER:
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One
JUDGE COOKE:
MR. SNYDER:
Right.
And one for eTreppid, which
log.
JUDGE COOKE:
Right.
Maybe my misunderstanding,
It says:
I thought there
"ETreppid's counsel
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MR. SNYDER:
log --
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JUDGE COOKE:
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MR. SNYDER:
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JUDGE COOKE:
MR. SNYDER:
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Right.
Okay.
misunderstanding.
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I'm sorry --
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Right.
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JUDGE COOKE:
That's correct.
JUDGE COOKE:
privilege log.
it done.
JUDGE COOKE:
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It was done.
So eTreppid's
Thank you.
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I did not wish to give the impression that the Court had any
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One, though, I
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All right.
of the Minutes.
Let's see.
Just so
Source Code.
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JUDGE COOKE:
Yes.
I'm sorry.
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compel.
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the record.
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Status Conference.
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But if you
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MR. SUNSHINE:
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JUDGE COOKE:
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MR. PEEK:
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JUDGE COOKE:
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about it.
All right.
So there's no dispute
correct, sir?
MR. PEEK:
THE COURT:
MR. SUNSHINE:
JUDGE COOKE:
Correct, Mr. --
heard?
there.
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eTreppid.
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MR. PEEK:
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one though, by the way, is, again, and maybe that will be
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of the issues that we hadn't yet worked out with counsel for
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process.
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JUDGE COOKE:
All right.
and I can work out those scheduling issues with the parameters
JUDGE COOKE:
All right.
this.
It sounds like
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All right.
So
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item 11.
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But,
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prejudice the motion for Protective Order, and finds that the
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a waiver.
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It's actually
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And
wholly insufficient.
questions.
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MR. PEEK:
right away?
JUDGE COOKE:
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MR. PEEK:
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JUDGE COOKE:
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Yes, sir.
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MR. PEEK:
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JUDGE COOKE:
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I received.
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THE CLERK:
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JUDGE COOKE:
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MR. PEEK:
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JUDGE COOKE:
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to clerk.
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Some serious
That's fine.
MR. PEEK:
I want to
JUDGE COOKE:
Certainly.
Miss Clerk.
THE CLERK:
JUDGE COOKE:
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I will.
All right.
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laundry list of what was leftover from July that we've taken
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anything only about the -- and I guess, Judge Pro, they want
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MR. SUNSHINE:
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MR. PEEK:
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JUDGE COOKE:
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MR. TELLIS:
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JUDGE COOKE:
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But if there is
So if there's
news.
All right.
Report, they had suggested, in 796, a new date for dates for
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being reported.
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Do you see --
JUDGE COOKE:
that.
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MR. SCHWARTZ:
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JUDGE COOKE:
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JUDGE PRO:
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can certainly sit down and take those and fashion them.
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MR. SUNSHINE:
We
But
I welcome
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JUDGE PRO:
MR. PEEK:
And, you
If we could
Mr. Peek.
Your Honor, I think that Mr. Sunshine
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is correct.
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think, certainly, I think that they have really set forth what
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JUDGE PRO:
They did.
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MR. PEEK:
-- proposal.
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that before everybody leaves and we, you know, run away.
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JUDGE COOKE:
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JUDGE PRO:
Yes.
So,
Judge Cooke, of
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MR. PEEK:
Mr. Sunshine,
apologize.
JUDGE PRO:
MR. PEEK:
Tellis.
Tellis.
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least a time.
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because it's already pretty much drafted, but the time to add
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But,
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added in there.
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JUDGE PRO:
Okay.
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the part of the Court, and much happier on the part of the
with Judge Cooke this week, this is an issue that Judge Cooke
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JUDGE COOKE:
Right.
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MR. PEEK:
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JUDGE COOKE:
-- as well.
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needs to be included.
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Thank you.
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there were some discovery issues that the parties had talked
are some issues that you're dealing with, but I guess I'll
But is
MR. SUNSHINE:
JUDGE COOKE:
MR. PEEK:
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JUDGE COOKE:
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MR. TELLIS:
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JUDGE COOKE:
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MR. ROHDE:
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JUDGE COOKE:
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JUDGE PRO:
Mr. Tellis?
No, Your Honor.
Mr. Rohde.
Nothing further, Your Honor.
All right.
Thank you.
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I'm sorry.
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It's been --
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MR. SUNSHINE:
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JUDGE COOKE:
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JUDGE PRO:
He is in the courthouse.
Well, could you go get him.
Yes.
hearing.
MR. SUNSHINE:
THE COURT:
MS. ROBB-PECK:
We will do that.
Great.
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JUDGE PRO:
that to happen.
Go ahead.
Goodness.
We don't want
Thank you.
MR. PEEK:
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MS. ROBB-PECK:
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JUDGE PRO:
Thank you.
And, thanks,
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Is he far away?
MR. SUNSHINE:
that was an hour ago.
But
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JUDGE PRO:
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JUDGE COOKE:
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MR. PEEK:
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Okay.
I think he's --
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JUDGE COOKE:
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JUDGE PRO:
Sure.
Why don't we take a five-minute
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(RECESS TAKEN.)
THE CLERK:
JUDGE PRO:
All right.
me to no end.
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in these proceedings.
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anyone, since the very action that has been consuming your
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Discovery.
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But,
It's recited in
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on and on.
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There were
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before the Circuit, which, you know, is all well and good from
file it.
because you say you may file it, or you're thinking that you
are filing it, that you have fiat to disregard orders of the
Court.
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If somebody is going to
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that
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Judge Cooke's order, which was then nearly two months old, and
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Parties' Report Re: Compliance with the Court's May 29, 2008
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It's styled:
"Montgomery
It says
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read that, that are sitting before you, is that, you know, we
don't care what your order is, we disagree with it and, hence,
that that provoked the Order to Show Cause, which Judge Cooke
Mr. Montgomery and Ms. Klar show cause why they should not
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And
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Cause.
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MR. SUNSHINE:
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JUDGE PRO:
And that
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addressed.
You're right.
MR. SUNSHINE:
peripheral vision.
In fact,
We just received
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it today.
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or so.
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JUDGE PRO:
previously?
It's --
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we filed the first report, this law firm made its best
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all of that Source Code within three weeks, and will -- and
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JUDGE PRO:
MR. SUNSHINE:
few days earlier than that, but for the fact that, again,
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the Court that we're producing all the Source Code within
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three weeks.
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JUDGE PRO:
All right.
I'm here -- as
I'm representing to
have questions.
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JUDGE COOKE:
I do.
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of August.
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apart from, I'll tell you, any judge reading this order would
have the same, I suspect, reaction that Judge Pro and I did
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We want to
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everybody's right.
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do it.
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Court's order.
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That's
Go ahead.
But,
That is inexcusable.
That is inexcusable.
And we
And
because this pattern that I'm seeing has recurred time and
statement here today about how the Montgomery parties and your
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number one.
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expensive.
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do it.
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It's outmoded.
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And we're
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June, by in steganography.
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this tactic.
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this report that said, you know, we're just not going to do
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says, well, you know, we're not doing this until this.
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The
We try
JUDGE PRO:
And
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MR. SUNSHINE:
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JUDGE PRO:
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MR. SUNSHINE:
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JUDGE PRO:
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MR. SUNSHINE:
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JUDGE PRO:
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MR. SUNSHINE:
That's correct.
-- of May 29.
That's correct.
All right.
Well --
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JUDGE PRO:
a long period of time.
MR. SUNSHINE:
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JUDGE PRO:
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Not
say then?
MR. SUNSHINE:
JUDGE PRO:
All right.
you can tell that Judge Cooke has a very solid grasp on the
Mr. Peek pointed out earlier today, there has been significant
But as
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production by eTreppid.
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Source Code, at every turn, Judge Cooke has been met with
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it was telling the Court to take a long walk off a short pier.
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production idea.
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merits.
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can ensure that the case is resolved based on its merits, not
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based upon some procedural default which may end the case,
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I had
I don't
case.
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If relief
It
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that occurs.
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rolling production.
JUDGE PRO:
JUDGE COOKE:
JUDGE PRO:
JUDGE COOKE:
Absolutely.
-- in total.
Absolutely.
So roll, roll away.
Go ahead.
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the Court, all understand what that day is, I think that
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would be appropriate.
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JUDGE PRO:
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MR. SUNSHINE:
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JUDGE PRO:
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All right.
So understood, Your Honor.
Thank you.
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the future.
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it.
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And,
Ultimately,
professionals.
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And I certainly
JUDGE COOKE:
No.
parties.
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look at that.
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eTreppid.
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hearing.
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We'll
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would like fees and costs with respect to all of the efforts
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and the oppositions and the work product that we've had to
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I would like to be
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But certainly
relief from the first motion, all the way through every
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costs every time that we've had to address the Source Code
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JUDGE PRO:
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MR. PEEK:
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JUDGE PRO:
I understand that.
I will allow you to submit a
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concerned, was the date where the parties knew what they
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were confronting.
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MR. PEEK:
JUDGE PRO:
JUDGE COOKE:
Thank you.
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But, submit
(Court Adjourned.)
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-o0o-
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DATE