Montgomery v eTreppid # 832 | 8/18 Show Cause Hearing Transcript

8/20/2019 Montgomery v eTreppid # 832 | 8/18 Show Cause Hearing Transcript

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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584

1

UNITED STATES DISTRICT COURTDISTRICT OF NEVADA

BEFORE THE HONORABLE PHILIP M. PRO, DISTRICT JUDGE ANDBEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE

---o0o---

Dennis Montgomery, et al.,

Plaintiff,

-vs-

ETreppid Technologies,et al.,

Defendant.

::::::::::

No. 3:06-cv-056-PMP-VPC

August 18, 2008

United States District Court400 S. Virginia StreetReno, Nevada 89501

:

TRANSCRIPT OF CASE ANAGEMENT CONFERENCE

A P P E A R A N C E S:

FOR THE PLAINTIFF: Ellyn Garofalo Randall Sunshine Mark Gunderson

Attorneys at Law

FOR DEFENDANT ETREPPID: Stephen Peek Jerry Snyder Attorneys at Law

FOR COUNTER-DEFENDANT: Robert Rohde Gregory Schwartz Rolan Tellis Bridgett Robb-Peck Attorneys at Law

FOR INTERESTED PARTY: Carlotta Wells U.S. Department of Justice

Case 3:06-cv-00056-PMP-VPC Document 832 Filed 09/03/08 Page 1 of 68


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Proceedings recorded by mechanical stenography produced bycomputer-aided transcript

Reported by: KATHRYN M. FRENCH, RPR, CCRNEVADA LICENSE NO. 392CALIFORNIA LICENSE NO. 8536



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Reno, Nevada, Monday, August 18, 2008, 10:00 a.m.

---OoO---

JUDGE COOKE: Please be seated.

JUDGE PRO: Please be seated.

THE CLERK: This is the date and time

set for a Case Management Conference in case number

3:06-cv-056-PMP-VPC, Dennis Montgomery, and others, versus

eTreppid Technologies, and others.

Present on behalf of plaintiff, Ellyn Garofalo,

Randall Sunshine, and Mark Gunderson.

Present on behalf of defendant, Stephen Peek and

Jerry Snyder.

Present on behalf of counter-defendant,

Robert Rohde, Gregory Schwartz, Rolan Tellis and

Bridgett Robb-Peck.

Present on behalf of interested party,

Carlotta Wells.

JUDGE PRO: Thank you very much, Miss Clerk.

And good morning, again, to all of you.

Counsel, I know that you've had occasion to spend

an awful lot of time before Judge Cooke. And, occasionally,

Judge Cooke and I have convened hearings together in this

case, as I do from time to time in cases which are as complex,

as this one is, with the magistrate judge who is presiding



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over so much of the case. In this case, Judge Cooke has done

simply yeoman work in dealing with a host of discovery issues

and other issues that have arisen since the inception of this

case.

Recently, Judge Cooke and I were conferring,

discussing the case generally, and we came to a consensus

that it would be -- while I know Judge Cooke has regular

status conferences, it would be appropriate to convene a

Case Management Conference to address some issues that would

enable us to, as judges, and you as, parties, to ultimately

bring this case to resolution, if necessary in form of a

trial.

Now, these actions, of course, have been pending

for, what, two-and-a-half years, roughly. I think since they

were filed. I realize the relationship between the original

parties extends back nearly a decade, or perhaps more than a

decade. I appreciate, as well, that the perhaps significant

breakdown in the relationship occurring in late 2005, early

2006, precipitated the filing of these now consolidated

actions. And they have grown since then.

In the past two-and-a-half years, particularly

in the past year-and-a-half, since there were resolution of

certain underlying matters, there have been an awful lot of

discovery disputes. Some of them understandable; some of

them, frankly, not entirely understandable to me, between the



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parties. We have, of course, government counsel present. The

specter of certain issues pertaining to the nature of some of

the records and information subject, otherwise, to discovery,

certainly has been a barrier, but an understandable and

important one, that has affected the progress of the case

and, undoubtedly, will continue to play a role.

But as Judge Cooke and I were discussing it, it

was clear to me that, at some point, we need to get this case

on track for a trial. And I don't want to set trial dates

precipitously. I don't want to set trial dates that have to

be moved because the parties are still embroiled in discovery,

or there are other matters pending which make it impossible.

And that's why Judge Cooke and I confer.

Judge Cooke directed, at one of the hearings, that

we have this conference, and that you all submit status

reports or proposals, which have been filed by the parties,

respectively, at documents 796, 797, and 799. And that gives

us something to take a look at in terms of fashioning what,

hopefully, would be realistic deadlines that we would expect

the parties to comply with.

Now, you hear that a lot, I'm sure, from a lot

of judges. And everybody sets those deadlines with the

expectations that things can happen that will make them

change. And, indeed, there can be events which will impact

deadlines that are set. But, I think it's going to be



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significant for everyone to try and get a trial date that we

can live with. You all have provided your proposals, and

Judge Cooke and I are going to consider those and, perhaps,

things that might be added today, in assessing what needs to

be done in terms of setting such a trial.

One of the things that occurred to me though, as I

was reviewing, going back and looking at the now consolidated

cases, is the First Amended Complaints that the parties had

filed on behalf of the plaintiffs Montgomery, the ten claims

for relief, I believe it was, set forth in there; First

Amended Complaint on behalf of eTreppid, I believe it was

seven claims for relief set forth. And I know that that has

grown with counter-claims and new parties have been brought

into the action since these actions were originally filed.

Something that it occurs to me has not happened, and probably

should have happened a long time ago, and that relates to, for

lack of a better term, and I think as I was discussing with

Judge Cooke, she came up with the term "first phase," the

need to actually have the principal parties sit down for a

deposition.

And I'm not talking about a deposition that somebody

says, well, we can't go forward because we haven't finished

document production. The plaintiffs, Montgomery; the

plaintiffs, eTreppid and Trepp, know what they meant when

they filed their First Amended Complaints. They understand



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what the factual support, as they understood it, for the

various claims contained in those respective First Amended

Complaints are or were. And it seems to me, that it would be

productive to actually sit down, have each of them sit down

and be subjected to deposition; to testify, under oath, as to

what their claims are, how they morphed or changed perhaps,

but what they are, and what information they have that

supports them, even though it may not include some of the

exhaustive detail, in the form of documentation and other

things that are still at issue between the parties.

And so after consulting Judge Cooke, I've

decided that it would be appropriate to order that a round

of depositions take place by the 31st of October; between

now and the 31st of October, in this order, I think, just

to get it moving: Mr. Montgomery first, for a period not

to exceed -- and some of the parties suggested four days for

deposition. That seemed pretty, pretty good. I don't think

you'll need it in all cases. But Mr. Montgomery; followed by

Mr. Trepp; followed by Ms. Blixseth; followed by Mr. Sandoval,

to allow for you all, and to allow for Judge Cooke and myself,

as things go on, to have a better grasp of exactly what the

claims are and what the basis for those claims are.

I'm not going to sit here today and announce a trial

date. I want, and Judge Cooke may have some matters to add

to what I have just said, and I want to allow her to chime



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in as well, and then hear from you all. But that's something

that I think would be helpful, to me, in assessing what needs

to be done with regard to this case, from the perspective

of the judge is going to have to try the case when all the

discovery disputes are resolved, and the person who is going

to have to address the case dispositive summary judgment

motions at the end of the day, or perhaps address other

matters that are important, maybe pertinent to settlement

if that's ever in the offing.

I remain, obviously, involved routinely with the

case; particularly, when objections are filed to orders that

Judge Cooke has been entering. But, Judge Cooke is the person

with the day-to-day, hands-on experience with this case, as

is exemplified by the numerous proceedings that are going

to occur this week. We have a couple this morning. And

Judge Cooke then will be addressing with you a host of

matters today, and throughout the week. And I'm very

pleased that she's able to do that.

But, Judge Cooke with those preliminary thoughts,

let me ask if you have something to add before we hear from

counsel.

JUDGE COOKE: Thank you, Judge Pro. I need the

microphone more than you do.

What I did want to say is we had had a conference,

as counsel and the parties are aware, with the Department of



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Justice lawyers this morning, and did indicate during that

conference the tentative plan that Judge Pro just announced

for these four depositions.

And those of you who have been present at the

continued Order to Show Cause hearing concerning discovery

disputes, recall, on June 24th, that there were exhibit

binders that were provided in anticipation of questions.

And it became apparent, quickly, to Department of Justice

lawyers, that there were items in those exhibit binders that

were subject to the United States Protective Order. So, those

binders had to be turned in and so forth. And then the matter

was resolved.

And I think I just should add that I don't think

that there is occasion, that I've noticed, that anyone is

overtly attempting to circumvent that order. It's just that

there are a lot of documents. And the eye of the Department

of Justice is keener to see issues that are implicated by the

Protective Order.

In any case, it is the Court's order, as a

consequence of that, that ten business days prior to the

deposition of the four persons who have been identified,

counsel who are anticipating they will submit exhibits as

part of that deposition, will submit them to the Department

of Justice so that -- the purpose of that review is to avoid

the proof of publication that could arise, otherwise, with



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having to take, in the middle of deposition, stop it, take

documents, go review them, talk with maybe clients back in

Washington, D.C. and so forth.

And I know that there may be concerns that counsel

for the parties have about your work product as it relates to

preparation for the deposition. But the fact is that we have

a U.S. Protective Order in place, and we have to attend to it.

And that seems, to Judge Pro and me, an expeditious and fair

way to approach the -- you just submit to the government.

We aren't suggesting that you have to exchange or

submit your deposition exhibits to opposing counsel. But if

you plan to use exhibits, the order is ten business days in

advance, you will provide those exhibits to justice department

lawyers.

So that's all I have to add, Judge Pro, with respect

to that issue.

JUDGE PRO: Thank you, Judge Cooke, for picking

up on that. And that was something I neglected to mention.

But, Judge Cooke is entirely correct. And

after meeting with Ms. Wells, I think that something that

is essential to allow for the orderly progress of the

depositions that we want to see conducted and completed --

and we'll leave it to you all to figure out your schedules

as to which of those weeks -- I was just looking over at the

calendar. We're at, what, the 18th of August. So, we got the



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months of September and October for the parties to accomplish

what amounts to four weeks, if necessary. And I'm not

suggesting you'll need four days per, but you certainly

may in a couple of them. I'm not sure. So when you're

scheduling, keep in mind that obligation that Judge Cooke has

just mentioned.

Those are matters which I wanted to begin with.

Now I want to give counsel, Judge Cooke and I want to give

counsel an opportunity to address any other matters concerning

scheduling. Judge Cooke is going to go through, as she has

done with regularity, and I think the last time was on, as I

recall, the minutes, July 15th or thereabouts. I know she's

got a variety of matters she likes to track with you all.

And I'm glad to be present to listen to her do that, and doubt

that I'll have much to add on that.

We'll then go into the Order to Show Cause hearing

concerning the order which I entered, and which affirmed

Judge Cooke's order concerning the discovery regarding Source

Code material, which I also will participate in. And then

Judge Cooke has a variety of other motions, which I know she's

going to be dealing with you, whatever is left of the morning

and the afternoon. And I will not be participating in that.

But if counsel have anything to address beyond what

you've already set forth in your status reports regarding case

management, I would, Judge Cooke and I, would welcome hearing



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from you at this point.

Why don't we begin with counsel for the Montgomery

parties, if they have anything to add.

MR. SUNSHINE: Your Honor, Randy Sunshine. I

have nothing to add, except that I share the Court's belief

that early depositions in the next couple of months is an

excellent idea. I believe that many issues can be brought to

the table quite quickly. And we welcome that.

JUDGE PRO: They say even a broken clock is

right twice a day. So, once in a while, I come up with a

good idea. And after Judge Cooke and I discussed it, since

she agreed with me, then I knew it must be a good idea. I

wouldn't have presumed to think that otherwise.

Thank you, Mr. Sunshine.

On behalf eTreppid or Mr. Trepp, Mr. Peek.

MR. PEEK: Thank you, Your Honor. And I also

welcome the opportunity to commence depositions, as the Court

has ordered them to be conducted. I am concerned, and

remain concerned, about the lack of production of documents.

For example, we still do not, yet today, have any e-mail

correspondence which involved Blixseth, Montgomery, Sandoval

or Atigeo representatives. I know it's the subject matter,

certainly, with respect to the Confidentiality Agreement.

We, likewise, don't have complete productions as

well from Mr. Montgomery. We do not yet have, to date, any



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documents that have been produced by either Sandoval, Atigeo,

Sandoval or Blixseth.

So, yes, I want to take the depositions. I am

concerned, however, about proceeding with those depositions

wherein fact I have produced over 310,000 pages of documents,

I have a little less than that. I have nothing from Atigeo,

Sandoval or Blixseth. I certainly do have numerous hard

drives from Mr. Montgomery. Most of which, Your Honor,

contain what I would refer to as garbage in; garbage out.

And that will be the subject matter of the follow-up hearing

today.

JUDGE PRO: Right.

MR. PEEK: So, I am concerned about meeting

that deadline. I would like the opportunity to start. But I

would also like the opportunity, when I do start, to have at

least some production, if not a complete production. And if I

don't have a complete production, the ability to come back and

take those depositions once I do have complete productions.

JUDGE PRO: Oh, and I'm not suggesting -- let me

pick up on that latter point.

I'm not suggesting that this is the only

opportunities for deposition of the principal parties. And

if I knew then what I know now, in terms of this so-called

first phase, it's something that, perhaps, I would have

thought of a long time ago before there was perhaps the



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uneven production of documents that has taken place.

Nonetheless, I think it's an important step, and

a necessary step, to allow this case to move forward. And

while I'm sure there will be a lot of documents and exhibits,

and that's why Judge Cooke so perceptively made sure you get

those screened with the Department, with the government

counsel before they're utilized, I really look at this as an

opportunity for the people to talk about, what on earth, took

place; what their agreements were; what their understandings

were; who said what; who did what, at what time. The kind of

thing that I think would remove a lot of the mysteries that

at least confront me when I look at some of the paperwork

that's coming across.

And, you know, memories begin to fade. Time is

moving on. And 1998 is now a decade ago. And 2005 is almost,

December 2005 was almost three years ago. I just think it's

necessary to get moving.

But, you're right. These production issues -- and

Judge Cooke has been -- you guys are presenting stacks of

pleadings and papers. And I'm sorry, that if this was the

only case that Judge Cooke or I had to deal with, it would

perhaps be a little simpler. But, as you know, we've got a

lot of cases. And those are being ruled upon expeditiously by

Judge Cooke, and as quickly as I can get to the matters before

me as well.



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But, I appreciate your concerns. But, nonetheless,

those depositions will have to go forward even without the --

whatever production has taken place up to that point.

What about on behalf of the other parties, Blixseth

and Sandoval? Do counsel have anything to add on their

behalf.

MR. TELLIS: Good morning, Your Honor. My

name is, Rolan Tellis with the law firm of Bingham McCutchen.

I'm here on behalf of defendant, counter-defendant,

Michael Sandoval.

JUDGE PRO: Great. Thank you Mr. Tellis.

MR. ROHDE: Bob Rohde on behalf of Atigeo, Your

Honor.

THE COURT: Thanks, Bob Rohde, on behalf of

Atigeo.

MR. TELLIS: Your Honor, I would like to address

two issues; one, the deposition schedule, and just to comment

on Mr. Peek's mention of Mr. Sandoval's production of

documents, or lack thereof.

On the depositions, Your Honor, Mr. Sandoval was

only recently added to this case in January.

JUDGE PRO: Right.

MR. TELLIS: As an individual defendant, we

promptly moved to dismiss the claims against him, which was

denied.



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JUDGE PRO: Right.

MR. TELLIS: And part of the argument was

that the allegations were cryptic, at best, as to what

he had done. The alleged that trade secrets had been

misappropriated. And given the notice pleading rules, the

motion was denied.

Your Honor's rationale for setting the deposition

schedule, as least for this first phase, was predicated

on if these parties made claims, presumably they had some

information as to what the claims are.

Mr. Sandoval has made no claims in this case.

He's only an individual defendant. And I don't believe I'm

going to convince Your Honor that this deposition shouldn't

be taken. I'm not advocating for that. But I would

respectfully request that his deposition be taken past the

October 31st cutoff because, in many instances, he may be

learning about the claims against him, days before, when some

of the depositions of the principal players are taken.

So, I don't believe that his deposition should not

be taken. He would like to have his say. But, I don't

believe it would be fair to him to have it on an expedited

schedule, at least in this first phase, until we get a better

understanding of what the claims are against him. As I

mentioned, he's being sued in this case in his individual

capacity.



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As to the documents, I just wanted the record to

reflect -- I don't want to interpret Mr. Peek's comments

as suggesting Mr. Sandoval has resisted the production of

documents in this case. He has made initial disclosures.

He's responded to the only written document request that

was propounded on him. To my knowledge, there was no issue

as to his response. It's very simple. He possesses no

documents in his individual capacity. And Atigeo, the

corporate defendant in this case, to my knowledge, is

producing documents.

I just wanted to correct the record, should there

be any suggestion that he was resisting production of

documents.

JUDGE PRO: Right. Let me say with regard to

Mr. Sandoval, I appreciate Mr. Sandoval is not a plaintiff,

and has not made a claim, counter-claims, has made no, to my

knowledge, at least of yet, any such claims. And that does

put him, somewhat, in a different posture.

I also appreciate that when allegations are made

against him that he has misappropriated trade secrets, he

would, he would benefit from knowing precisely what those

trade secrets are, with a little more clarity, then perhaps

he already has from the pleadings.

That said, I think it goes back to my earlier

comment that if I could do it over, I suppose -- and I guess



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I wasn't even involved in the beginning -- but I would have

done it earlier with everybody, before they had the same

kinds of, perhaps, information -- though we did have people

making claims. That's why I think Judge Cooke and I, when we

discussed it, thought that the order of the depositions should

go as I've mentioned they should be. And I certainly don't

have an objection, when you all are scheduling, if you put a

week or two in between those of Blixseth and Sandoval, after

Montgomery and Trepp. But I think that after those do go

forward, you're going to have an awful lot more information

on behalf of your client as to what the nature of the claims

are against him or, in the case of Atigeo, against Atigeo.

And so I appreciate your comments, but it doesn't

persuade me to change, other than to acknowledge that I don't

have a problem with a gap in between the first two and the

second two.

MR. TELLIS: Fair enough. Thank you.

MR. ROHDE: As to document production, Your

Honor, Atigeo has been busy gathering documents since the

requests were propounded. We have given dates when we will

be producing them to counsel, and they will not adversely

impact the Court's proposed deadlines.

JUDGE PRO: Great. Thank you, Mr. Rohde. I

appreciate it.

All right. Anything else, Judge Cooke, on



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that matter?

JUDGE COOKE: I don't think so.

JUDGE PRO: Okay. Well, appreciate that.

And as I said, Judge Cooke and I will be consulting.

And I think probably after this week's activities -- she's

going to be awfully busy with you this week -- but we will

be fashioning an order which will include a trial setting.

Let me ask generally, before I get to that, have

the parties explored the utilization of some form of ADR with

regard to this case at all? I'm not interested in soliciting

ADR proposals that would take this off calendar or alter the

dates.

In kind of a assessing where we stand, is that

something which the parties have considered? Something which

would be productive in your judgment.

Counsel always say, well, sure, we're glad to talk

settlement, judge. And I don't want to send you down a

rabbit hole on something like this. But is this a case --

since I'm here and it's a good time to raise it -- that any

of you think would really be productive? And have you made

any -- I don't want you to disclose settlement discussions,

but have you made any serious assessment of whether some form

of ADR, either another magistrate judge -- and, I'd offer

Judge Cooke could do it, but I don't want to do anything that

would interfere with Judge Cooke's essential involvement in



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the case in addressing the discovery matters -- though, that

might also be the one that puts her in the posture of being

the one person on behalf of the Court that could effectively

do that -- or outside the Court, is that something which the

parties have considered?

MR. SUNSHINE: Your Honor --

JUDGE PRO: Mr. Sunshine.

MR. SUNSHINE: Thank you, Your Honor. While

this is a complicated case in many ways, my belief is that

all civil cases should settle. I don't think this case

is any different. I'm relatively, as Your Honor knows, I'm

relatively new to the case.

JUDGE PRO: Right.

MR. SUNSHINE: But I believe that an early ADR

of some kind could be very beneficial to this case.

Now, the only question I had in my mind is whether

that should occur sometime shortly after the depositions that

Your Honor just ordered, or even before, or both.

On behalf of Mr. Montgomery and Ms. Blixseth, we

welcome the suggestion, and we are open to any methods that

Your Honor thinks would work, or that perhaps we could work

out ourselves.

JUDGE PRO: All right.

Mr. Peek.

MR. PEEK: Your Honor, I share Mr. Sunshine's



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observations as well. Like Mr. Sunshine, I'm not sure if it's

something that should be done before or after deposition. My

instinct is it will be better served after the depositions are

conducted as opposed to before. But, certainly, I'm open to

that.

With respect to it being a magistrate, I would

welcome to have Magistrate Judge Cooke sit as the settlement

judge. I know that her time is very limited. And I suspect

that this would be a case that would take at least two, if

not more days for a settlement conference. I don't know

whether Magistrate Judge Cooke has that much time on her

calendar, because, as I know, she has a very busy calendar.

But I think she would be the best suited, respectfully, to

conduct that type of settlement proceeding; particularly, if

we go before the depositions.

JUDGE PRO: And I agree completely agree with

that latter sentiment. I just don't want to impose that on

her. Whatever we do, I would consult with Judge Cooke, and

she would be the one who would decide how that would go.

MR. PEEK: Yeah, I didn't want to perempt her

schedule.

JUDGE COOKE: No, I'll just say for everyone's

edification, I'd be very pleased to preside over a settlement

conference, if the parties are amenable to that. And I think

that, just an observation I have, having conducted lots of



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settlement conferences, one of the problems that I foresee

could happen if you -- we don't generally go to different

magistrate judges. Occasionally, that will happen. It's

usually, within our district, the magistrate judge assigned

to the case is who presides over the settlement. But

the other observation I'll make, with regard to private

settlement, you might go ahead and pursue that. Things are

said, discussions are had, and then trouble comes, and you

may want a further settlement conference or it, frankly, gums

up the works with respect to the litigation, and I'm not privy

to what happened. And I don't understand the dynamics that

occurred prior in that settlement.

And, of course, the other benefit is, obviously, I'm

familiar with the case. But counsel, of course, are always

free to pursue private ADR, if that's what you want to do.

It's just a concern I have is I've seen that settlement can

sometimes just go south. Then people come to the Court and it

can't be fixed. And a case that might otherwise settled, does

not. So --

JUDGE PRO: Do other counsel have anything else

to add?

(No response.)

JUDGE PRO: All right. Well, let Judge Cooke

and I confer with that. I agree with her expressions

completely that, number one, she's in the best position to



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conduct the settlement conference. And, number 2, one of

the pitfalls of outside settlement efforts, though they can

be very productive, I realize, but if there is a problem, it

can be very difficult for the magistrate judge who's been

presiding over the matters, to capture the same sense as to

what had occurred.

But I'll tell you what, why don't we impose upon

counsel the burden of conferring and submitting, within ten

days of this date, your, or a proposal. It doesn't have to

be -- if it can be joint, great. If not, your individualized

proposals concerning potential ADR options, and just what you

think would be helpful. And you've kind of expressed that

here, but I think that would be useful to us in terms of then

assessing what could be set, and when, in terms of pursuing

that potential option the Court.

Miss Clerk, what date is that?

THE CLERK: Thursday, August 28th, 2008,

Your Honor.

JUDGE PRO: Submit it jointly. It can contain

separate points of view, but I think it would be helpful to

have it jointly submitted.

All right. Well, if there's nothing further on the

status conferences, I think we should move on to the other

subject that Judge Cooke and I had also conferred on, and

agreed should result in the issuance of an order. Am I --



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Did you have something else?

JUDGE COOKE: No.

MR. PEEK: Your Honor, I know you haven't done

that, but there certainly were dates set forth with respect to

discovery cutoffs and expert disclosures and things of that

nature.

JUDGE PRO: Right.

MR. PEEK: So when you say status conference,

are we moving to the Order To Show Cause, Your Honor?

JUDGE PRO: Yes. I'm sorry. Moving to the

Order to Show Cause.

MR. PEEK: I was really trying to finalize, if

we could the Case Management, so that we know -- or is the

Court just going to issue its own standard order?

JUDGE PRO: Oh, we'll take what you submitted

and confer on it and issue it, I think would be -- did you

have something to --

(Judge Pro and Judge Cooke confer.)

JUDGE PRO: I'm sorry. I got ahead of myself.

No, on the deadlines, particularly on the trial

date, I've got the benefit now of what you all had filed on

the last, the 12th, last week, I think it was. Yes.

MR. PEEK: And more particularly -- sorry, Your

Honor.

JUDGE PRO: And so I've got to look at my trial



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calendar and --

MR. PEEK: One of the things that concerned

me more particularly, Your Honor, is that I had put forward,

at least in my Case Management Report, that we propose to

amend our pleadings to add claims of defamation against

Ms. Blixseth, and may well add aiding and abetting,

conspiracy type claims against Sandoval, Atigeo and Opspring

with respect to those, as well as a defamation claim against

Mr. Montgomery. Those are very critical, at least to our

proceedings.

And as we have gone through the discovery process

and learned more and more about the so called Glogauer and

Jale Trepp e-mails that were reported in both the Wall Street

Journal, on two occasions, and then NBC News on one occasion,

and then trying to get to the bottom of those e-mails -- and

we're still not there -- it certainly has become evident to,

at least the eTreppid and Trepp parties, more particularly,

and to Warren Trepp, individually, that there are claims of

defamation, per se, as well as conspiracy, and aiding and

abetting, and filing of false police reports, if you will,

or reports with government authorities of crimes that have

been committed. There are --

JUDGE PRO: Refresh my recollection. When did

you propose to file?

MR. PEEK: Well, that's what I thought we were



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going to discuss here. If you want to give me a deadline

within the next two weeks, we can do that.

JUDGE COOKE: Well, let me just back up a

minute. And I just reminded Judge Pro what our procedure in

numbering, kind of, stages we're going into today. We'll go

ahead, I think, if this --

JUDGE PRO: Yeah.

JUDGE COOKE: -- is fine with you, judge. We'll

go ahead and take up some matters in the Case Management

Report. And that includes, Mr. Peek, the issues that you

just raised. And so what we're going to do is spend the next

part of this morning going through the July 15th case status

report. There are some matters that I want to follow-up on,

as I've been doing in the past few months. I use that as

a template for discussions today. And, also, of course, in

conjunction with that, have reviewed your Case Management

Reports that all counsel have filed and submitted to the

Court.

And in the context of those discussions, I think we

can address, at least preliminarily, some of these issues.

So, I think --

JUDGE PRO: Let's do that. I got -- when you

rose and raised that issue, I wasn't familiar with it from the

Joint Status Report. This was something else that Judge Cooke

has routinely been going through with you.



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JUDGE COOKE: Right.

JUDGE PRO: I indicated my preference would be

to let her continue with that. And I thought we'd simply move

forward to the Order to Show Cause, but we'll do that after

Judge Cooke has a chance to go through the status conference.

And I'll just listen in while that occurs.

MR. PEEK: Thank you, Your Honor.

JUDGE COOKE: All right.

All right. So the order is we're now going to turn

to the Case Management Conference. Then we will, as Judge Pro

indicated, deal with the Order to Show Cause with respect

to the Source Code order. Then there are, I believe, two

outstanding discovery motions; Motion to Compel by the

Montgomery parties concerning business records, and then a

Motion to Compel by Atigeo -- no, I'm sorry, it's Opspring,

concerning Warren Trepp's tax returns.

Judge Pro, for those two motions, will excuse

himself and go attend to other matters. Because you may

well file an objection that you wish to take up if you're

dissatisfied with this Court's order, and so he'll excuse

himself for that.

And then, of course, after we take care of those

three segments of the work here today, then we'll commence

with the Order to Show Cause hearing concerning the May Order

to Show Cause in those proceedings.



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So, with that, why don't we go ahead and address the

case management. And so what I'm doing, as I've indicated,

is looking at the Minutes of docket number 760, of the July 16

status conference. And I've also reviewed Atigeo and

Sandoval's Case Management Report, dockets 796; eTreppid's

report, 797; and the Montgomery parties' report, 799.

And I have some questions. First of all, turning

to page 2 of that Case Management Report, my first question

concerns -- Miss Clerk, for your information, item one is

production of compact disks by the Montgomery parties.

At that hearing, it was reported, Montgomery party's

counsel advised that with respect to production of CDs and

hard drives, that production is available for inspection.

Therefore, parties are to make necessary arrangements to

conduct this inspection.

And my question is, did that happen?

Mr. Peek.

MR. PEEK: Your Honor, we have received from

the Montgomery parties approximately 21 hard drives that were

represented to be available for inspection and copying. Of

those 21 hard drives, 13 of them are currently unreadable.

Whether it was the manner in which they were sent, or the

manner in which they were copied, or the manner in which

they were sent. I don't know. What I do know is that 13

of them, of the 21, are currently unreadable. We have let



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Mr. Sunshine's office know that, and I assume that he will

make arrangements to have those recopied and packaged and

forwarded to us. But, that's the only production that we have

received that was discussed.

JUDGE COOKE: What about CDs?

MR. PEEK: We have no more CDs, Your Honor. We

have asked for, in correspondence -- and that will be one of

our exhibits today -- that what CDs do you have, and when will

they be copied and forwarded to us? And we have not received

a response from Mr. Sunshine's office.

JUDGE COOKE: All right. Thank you, sir.

Mr. Sunshine.

MR. SUNSHINE: Your Honor, my understanding

is -- well, first of all, with respect to the hard drives,

obviously, we are going to look into that problem. I don't

have any specifics on why those 13 were unreadable. I'm -- my

office is looking into that right now. And I am not aware of

the exact status of the CDs, whether or not there are any.

But my office, also, is looking into that as well.

JUDGE COOKE: All right. So what I want then --

when were the -- Mr. Peek, when did you receive the 21 hard

drives, sir?

MR. PEEK: We received them, Your Honor,

Friday -- Thursday?

Yeah, we received them Thursday, via overnight



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express. Thursday, the -- looking at the calendar, that would

be the --

JUDGE COOKE: August 7th?

MR. PEEK: August 14th.

JUDGE COOKE: Oh, excuse me. August 14th.

So if they were available for inspection,

Mr. Sunshine, as reported on June 16, why is it August 14

before these hard drives, such as they are, I guess 13 are

unreadable, why was there this delay of about a month?

MR. SUNSHINE: Your Honor, I can't answer that

from personal knowledge, because I was not personally involved

in the case during that period. All I can say is that they

have been produced. From personal knowledge, I can say that.

And I can also say that, to the extent there are any problems

with them, I've already told Mr. Peek informally, and I will

tell the Court now, that I personally am going to make sure

those problems are resolved quickly and expeditiously.

JUDGE COOKE: So when will those problems be

resolved? Give me a date, sir. Today is the 18th.

MR. SUNSHINE: Your Honor, because I don't

know how much work it will take to deal with that unreadable

problem, and because we're here all week, I would like at

least a week to get back to Mr. Peek about those.

JUDGE COOKE: So you want until the 25th, sir?

MR. SUNSHINE: I would appreciate that.



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MR. PEEK: Is that to produce, or just to get

back to me?

MR. SUNSHINE: We'll get back -- well --

JUDGE COOKE: That's my question, too, sir.

MR. SUNSHINE: We will get back to -- because my

law firm and the people working on the case are here this

week, we will get back to him by the 25th. And, hopefully, we

will put things in motion while we're here to make sure that

we not only have an answer, but perhaps we have information to

actually give him.

JUDGE COOKE: Well, you, perhaps, might sense

some frustration that I have.

The representation made to the Court on July 16th

was these are available for inspection. So, in my mind,

that, to me, says, gee, the week of July 16th, that week or

the following week, those will be produced to these folks.

And here I find out they don't get them until less than a

week before this hearing. This has been, Mr. Sunshine -- and

I greatly appreciate that you are new to this case -- but

this pattern is not new to this Court. And it's got to stop.

So, what I'm going to tell you is you work out,

readable, unreadable, you figure that out. And I do

appreciate that you're here in court all week. And I

sympathize with that. You are going to produce those, the 13

unreadable DVDs will be produced by Wednesday, August 27th.



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MR. PEEK: Your Honor, they're hard drives.

JUDGE COOKE: Excuse me. Hard drives. Pardon

me.

The hard drives are to be produced by Wednesday,

August 27th. And I'm sure the technical people, the lawyers

here, can make a call and figure out what is going on with

that.

Now, what about the CDs that were available for

inspection? Do they exist or don't they? And where are they

and what's going on with that?

MR. SUNSHINE: We will have those produced by

the end of this week.

JUDGE COOKE: All right. Those will be, the

CDs will be produced, that were the subject of the June --

July 16th hearing, will be produced no later than Friday,

August 22nd, 2008.

All right. Thank you.

MR. PEEK: Your Honor, just a note on the hard

drives, at least that we have been able to open and read, is

that there are no PST files on any of those hard drives.

And as the Court knows, e-mails, in native format -- well,

actually, complete original e-mails in PST form, with all

native format information on them, have yet to be produced.

And there are none of those are on the CDs that we've read.

MR. SUNSHINE: Your Honor, not to get in a



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debate at this point about rather mundane technical issues,

but my understanding, as represented to me, is that the Trepp

parties have produced no PST files themselves.

Now, what is good for the goose is good for the

gander. We've made a good faith effort to produce everything

that was called for. I'm following up on the CDs, and will

have those produced shortly, as Your Honor ordered, as well

as determining what the problem is with the hard drive.

JUDGE COOKE: Right. All right.

MR. PEEK: Your Honor, I don't think

Mr. Sunshine has really made himself aware, but we have

produced, in native format, the e-mails with the complete PST

already. And if he has an issue with it, we have not -- he

has not even called it to my attention. We have produced

electronic copies of e-mails, PST files, in native format,

already to them.

JUDGE COOKE: I thought you had. I thought you

had. All right.

Well, we know that this is -- I'm not -- we aren't

going to discuss this today, this issue right now.

I'm focusing on this. So, the production of CDs is

going to be completed, and the hard drives as the Court has

ordered.

The next item, really nothing to report. The

evidentiary hearing regarding the FBI search warrant return



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is set for September 5, 2008 at nine o'clock. I don't think

there's any issue there.

Turning back, again, to docket 760, item 3, I don't

believe there are any outstanding issues with respect to that.

The Court had ordered on July, that no later than July 25,

2008, eTreppid's custodian of records file a declaration

attesting as to how documents were kept in the ordinary

course of business. And I have filed, on July 25th, were two

declarations, docket number 772 of Robert Powers; and docket

773, of Sue Perez, in compliance with the Court's order.

Are there any -- has that matter been resolved, or

are there any other matters to take up, just with respect to

the declarations concerning how eTreppid's records were kept

in the ordinary course.

MR. SUNSHINE: Your Honor, none that we're aware

of right now.

JUDGE COOKE: Okay. Very good. Thank you, sir.

All right. The next item was, let's see, there was

a problem -- the Montgomery parties requested that to the

extent documents were produced in the ordinary course, they

ought to provide, eTreppid ought to provide the Montgomery

parties with the bates number range to indicate which

documents are responsive to which document production

requests. The Court directed the parties to meet and confer

and try and figure out how they could do that. And I think



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the parties -- I was hopeful they could supplement responses

and agree on a protocol for that. And you were directed to

meet and confer on this issue no later than July 25.

Has that matter been resolved?

MR. SUNSHINE: Your Honor, the parties have done

a substantial amount of work in that regard. We believe that

there has been substantial compliance. To the extent that

there are any other problems that we have, we believe we will

be able to work them out with Mr. Peek.

JUDGE COOKE: Very good.

Mr. Peek.

MR. PEEK: Yes, Your Honor. That is correct.

We have done electronic method of doing that. However, what

we have not received -- sort of goose/gander -- we have not

received anything from the Montgomery parties that would give

bates range of what documents that they have produced, very

little, and how it responds to interrogatory requests.

JUDGE COOKE: All right. Well, let's just focus

on this production.

So, it sounds to me, Miss Clerk, that counsel have

undertaken and agreed upon a protocol for a bates number range

for eTreppid to identify those documents that are responsive

to specific requests for production of documents, and other

discovery by the Montgomery parties. And to the extent that

there are continued need do so, it appears that they'll be



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able to resolve that without any further action by the Court.

The next item concerns, looking on the Case

Management Report, concerns the Montgomery parties' requests

for production, including a privilege log. And let's see, I

think that you anticipated, Mr. Snyder, you reported to the

Court how that was proceeding, and you -- and I recall at the

July hearing, the lawyers were a little unclear, not being the

technical experts about how that would be done.

Has that been created? Are there any outstanding

with respect to privilege log.

MR. SNYDER: With respect the Montgomery party's

privilege log?

JUDGE COOKE: Yes.

MR. SNYDER: We, as we mentioned in our status

report, the privilege log which they provided, we believe, is

inadequate. It lists the day of an e-mail string, or the date

of a communication, and the participants and, in very vague

terms, the subject matter. But, we don't know the author of

the e-mail. We don't know the position of all the recipients.

In most cases, of course, we know who the players are. But,

in some cases, there's names that we just haven't seen. Don't

know their position. And so from that privilege log, we can't

fully evaluate.

JUDGE COOKE: All right. Well, I'm confused.

So thank you very much, Mr. Snyder.



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Let me clarify. All right. There was the

Montgomery parties' privilege log that was the subject of

that section of the Minute Order. And then there was the

Montgomery parties -- Montgomery parties had filed a Motion

for Protective Order regarding a Common Interest Agreement.

That was docket 717. And I denied that motion without

prejudice, and said that the Court gave the Montgomery parties

leave to submit a privilege log as to the discreet group of

documents that the Montgomery parties were -- for which they

were seeking this Protective Order. And so I directed that

the Montgomery parties would produce a version of that

privilege log to me by July 25th, 2008, in camera. And

Ms. Klar had asked could that be -- she wanted to do that in

camera, because she thought that would give the Court -- she

would supply more detail in that privilege log.

I did receive a privilege log on July 25th from the

Montgomery parties. And that's what I thought that was. But,

maybe I'm wrong.

So, that's the only privilege log I've received.

And then there is this other privilege log that the Montgomery

parties were supposed to produce. So, which one are you

talking about?

MR. SNYDER: I'm referring to -- they were

supposed to produce two versions, is my understanding. One

for the Court, which contained more detailed information.



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JUDGE COOKE: Right.

MR. SNYDER: And one for eTreppid, which

would still comply with the Rule 26 obligations of a privilege

log.

JUDGE COOKE: Right. Maybe my misunderstanding,

and perhaps this is just my misunderstanding, is I thought

there were two different privilege logs. I thought there

was one for -- that was due. It says: "ETreppid's counsel

reports concerning responses to Montgomery parties' request

for production of documents, including a privilege log, which

are due July 28th," and so forth.

So, that's what --

MR. SNYDER: The eTreppid parties' privilege

log --

JUDGE COOKE: Right.

MR. SNYDER: -- and our document production,

that has been completed.

JUDGE COOKE: Right. That's all I'm asking.

I'm sorry --

MR. SNYDER: Okay. Sorry for that

misunderstanding.

JUDGE COOKE: I know there is this other one.

So, your privilege log is completed, is that

correct, sir?

MR. SNYDER: That's correct.



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JUDGE COOKE: And you may have problems with the

privilege log. I don't know about that. I'm just asking was

it done. It was done.

Is that correct, Mr. Sunshine.

MR. SUNSHINE: Yes, Your Honor.

JUDGE COOKE: All right. So eTreppid's

privilege log is completed. Thank you.

All right. I'm just going to make a comment about

some of the items that we discussed in July were resolved.

And I'm certainly not going to rehash them. One, though, I

just want to remark on. Montgomery parties' counsel advised

that, just in passing, they were interested in maybe moving to

modify the existing Protective Order. I just want to make

clear on the record that, in the Minutes of the Court, I

just indicated that that was something that was discussed.

I did not wish to give the impression that the Court had any

position one way or another on it. I'm simply trying to keep

track of what's going on in this case.

So, I just didn't want there to be a misperception

that somehow by including the reference to that might be

something that the Montgomery parties want to do, that I was

agreeing that that was a good idea or disagreeing. Just so

you're clear on that.

All right. Let's see. I'm turning, now, to page 6

of the Minutes. Item 9, dispute regarding Opspring's requests



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for production of documents outputs. And this -- there was

an argument about, basically, as I understood it, Montgomery

parties requested production of documents concerning outputs.

Montgomery parties said we can't do that until we get the

Source Code. And I'm just noting --

MR. PEEK: You mean the eTreppid parties said

they couldn't do it.

JUDGE COOKE: Yes. I'm sorry. Pardon me, sir.

And then I said, after a meet and confer, this

dispute is unresolved, Opspring has leave to file a motion to

compel. Opspring hasn't done that. I'm just noting that for

the record. I don't know if Opspring plans to. But if you

do, I'll just hear it, I guess, at the September Discovery

Status Conference. But, I don't believe one has been filed.

Has one been filed?

MR. SUNSHINE: No, Your Honor.

JUDGE COOKE: All right. The next item,

deposition of Sue Perez. The parties agreed to set a date.

She's the bookkeeper for eTreppid.

Has that deposition been set, Mr. Peek?

MR. PEEK: Your Honor, we have not been able to

agree on dates with everybody yet, but I think we're still

working towards that goal.

JUDGE COOKE: All right. So there's no dispute

about it. You're just trying to get the calendars together,



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correct, sir?

MR. PEEK: Yes, Your Honor.

THE COURT: All right. Correct, Mr. --

MR. SUNSHINE: That's correct, Your Honor.

JUDGE COOKE: Any other counsel wish to be

heard?

Please speak up. I don't mean to ignore you over

there. A lot of these issues, as you well know, have to do,

in many respects, to do with the Montgomery parties and

eTreppid.

MR. PEEK: Your Honor, one of the issues on that

one though, by the way, is, again, and maybe that will be

addressed in the Case Management Order, as to the length of

depositions, and the number of depositions. So that was part

of the issues that we hadn't yet worked out with counsel for

Montgomery, Opspring and Blixseth, as to what the length of

that deposition was. We couldn't get an agreement on that.

But that may get address if we know, pursuant to the Court's

scheduling order, how many depositions we're allowed to take,

the length of those, so we can begin to work through that

process.

JUDGE COOKE: All right. Well, how long do you

need, Mr. Sunshine?

MR. SUNSHINE: Well, Your Honor, in light of

this morning's pronouncement from the Court about the four



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depositions of the four principals, just throwing it out, it

may make sense, at this point, to delay Ms. Perez's deposition

until those take place. I don't have a firm position on that.

I want to confirm about that. But, I believe that Mr. Peek

and I can work out those scheduling issues with the parameters

that the Court set out.

JUDGE COOKE: All right. Well, why don't you do

this. During the break, talk to one another. It sounds like

it might make sense, to me, to do the four, since those have

been ordered, and then worry about Sue Perez's later. But,

other counsel and parties may wish to think about that. So

we'll take that up at a recess and so forth.

All right. This is the -- I think the next item is

item 11. This is the privilege log Mr. Snyder was referring

to, and the one that is of concern to the Court.

The Court, at that July hearing, denied without

prejudice the motion for Protective Order, and finds that the

parties, Montgomery parties hadn't met their initial burden to

establish an attorney/client privilege existed, which then --

actually, it's not a common interest privilege. It's actually

a waiver.

Anyway, but the Court then, as I indicated in my

order, set out protocol where the parties, the Montgomery

parties were to deliver certain kind of privilege log, but a

more detailed in camera privilege log to the Court. And



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Mr. Snyder has already mentioned and reported in eTreppids'

Case Management Report that the privilege log that he got is

wholly insufficient. And I would like to see it.

And so I would like -- I want to see what yours is.

I have questions about the privilege log I got. Some serious

questions.

MR. PEEK: Your Honor, you want that today,

right away?

JUDGE COOKE: Yes, sir.

MR. PEEK: Let me -- we'll --

JUDGE COOKE: At the recess, give it to my court

clerk or my law clerk.

MR. PEEK: Oh, we have it, Your Honor, here.

JUDGE COOKE: Okay. You can just give it to me.

I want to take a look at it. And I want to compare it to what

I received.

And, Miss Clerk, during the recess, you can just

make a copy of it and return it to Mr. Peek. That's fine.

THE CLERK: I will, Your Honor.


MR. PEEK: Your Honor, may I approach the clerk?

JUDGE COOKE: Yeah. Go ahead and just give it

to clerk. And then, at a recess, she'll copy it. I want to

take a look at that.

MR. PEEK: Could we have an extra copy for



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Mr. Sunshine as well?

JUDGE COOKE: Certainly. And, for everyone else

over here and, also, Ms. Wells. So, however many that is,

Miss Clerk.

THE CLERK: I will.

JUDGE COOKE: All right. So I'm going to deal

with that later on.

The Court already issued its order on Friday

concerning requests for production set two, request for

production number 26. So, that's been disposed of.

So those are, I believe, just in reviewing the

laundry list of what was leftover from July that we've taken

care of, as I indicated, I'll deal with the privilege log

issue after we hear the Order to Show Cause. But if there is

anything only about the -- and I guess, Judge Pro, they want

to talk about this whole case management issue. So if there's

anything other, from the July 16 hearing that ought to be

discussed that has not, is there anything counsel wish to

raise that needed to be followed up on that has not?


MR. PEEK: No, Your Honor.


MR. TELLIS: No, Your Honor.

JUDGE COOKE: Seeing heads shaking, that's good

news.



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All right. I guess the next issue, Judge Pro, that

counsel are interested in discussing, is this whole issue of

case management and depositions and so on. And, you know, I

noticed, I note in Atigeo's and Sandoval's Case Management

Report, they had suggested, in 796, a new date for dates for

discovery and scheduling. I note eTreppid -- and Judge Pro

and I talked about this -- in 797, discussed some deposition

guidelines and so forth. So with, I guess -- and perhaps

Judge Pro has another idea -- my thought is you've got the

four depositions in October. Do you -- I'm not quite sure --

JUDGE PRO: Well, let me suggest something that,

after sitting here and listening to Judge Cooke go through the

many discovery matters that she has been addressing, it seems

to me, we do have different protocols. When I look at the

Montgomery parties' proposal, they cite the joint -- or, I'm

sorry, the Status Report -- they cite the earlier established

deadlines and suggest a two-month extension, I think it was

being reported. That's pretty close to the time line that

Atigeo proposed in their Status Report.

As you said, Judge Cooke, the eTreppid parties had

some guidelines concerning length of depositions, number of

depositions and the like. And they all filed those on the

12th, as we ordered them to. But I wonder, and I'm just

thinking out loud, whether it might be appropriate to have

them -- in light of they're all here this week, and they're



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going to have plenty of opportunities to talk -- and we set a

deadline for ten days hence, I think it was, to submit their

proposal with regard to any alternative dispute resolution, if

we ought to have them confer and submit a joint proposal with

regard to discovery cutoff deadlines for the dispositive

motions and the like. Do you see --

JUDGE COOKE: Well, we tried that, with not a

lot of success, but I'm certainly open to and amenable to

that. I know there's another, I think earlier submitted -- I

think it was prior to the June 16 Case Management Conference

we had, the parties submitted a Case Management Report.

And I have to get that. I'm not sure if I have it

here. It must be in my pile of papers.

Counsel, do you know what I'm talking about?

MR. SCHWARTZ: Yes, Your Honor.


JUDGE PRO: Alternatively, we just let them air

their views on the depositions, number of depositions, length

of depositions and the like. We've got your submissions. We

can certainly sit down and take those and fashion them. But

I think getting your positions on the number of depositions,

length of depositions, is certainly appropriate.

MR. SUNSHINE: Your Honor, if I may. I welcome

the suggestion to allow the parties to meet and confer on

all of these issues. I -- whatever happened in the past, I



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believe, particularly in light of the setting of the four

depositions over the next couple of months, I believe that it

would be helpful to at least have the opportunity to see if

we can work out these other issues, including when we think

discovery cutoff should be, and the trial date. And, you

know, the approximate time for the trial date. If we could

try that and get back to you, that's my proposal.

JUDGE PRO: Mr. Peek.

MR. PEEK: Your Honor, I think that Mr. Sunshine

is correct. Having looked at the submittal by Atigeo, I

think, certainly, I think that they have really set forth what

they think is reasonable and responsible --

JUDGE PRO: They did. They gave --

MR. PEEK: -- proposal. I'd like to -- and I

think we can work through that. And I would like, though,

however, before we leave, this week, to have at least that

conference with the Court, if the Court is available, the

magistrate judge is available, to make sure that we do get

that before everybody leaves and we, you know, run away. So,

we can try to work through that.

JUDGE COOKE: Yes. That's a good idea.

JUDGE PRO: That's a good idea. Judge Cooke, of

course, is going to be here with you during much of the week.

And that would be great.

MR. PEEK: So I will meet with Mr. Sunshine,



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Mr. Rohde, and Mr. -- Rolan, I forgot your last name. I

apologize.

JUDGE PRO: Tellis.

MR. PEEK: Tellis. As well as the government,

to make sure we can work through that.

The one issue that does come up to me is they're

only talking in each of the case management orders, or

proposals, about discovery cutoffs. The one thing that

is missing in that is the Motion to Amend. And I'm very

concerned about that, as far as the Trepp and eTreppid parties

are concerned, because I want to make sure that there's at

least a time. And if the Court says you need to file your

motion within a certain period of time, I'm happy to do that,

because it's already pretty much drafted, but the time to add

parties, and to amend, has expired, as the Court knows. But,

yet, I want to make sure that there is one new one.

And I don't -- although there won't be, there will

be one new party proposed to be added, and that's Blixware,

which is an entity owned by Edra Blixseth, that will be the

only new party. But, there will be proposed to be a new party

added in there.

JUDGE PRO: Okay. Give me just a moment.

Yeah, I think unless Mr. Rohde or Mr. Tellis had

something to add to that, I think that -- Judge Cooke and I

have conferred -- and while, as Judge Cooke said it's been



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attempted before, things which can be jointly submitted, where

there is agreement, obviously, are much easier to receive on

the part of the Court, and much happier on the part of the

parties, because you're not just getting it arbitrary from the

Court, or if not arbitrary, at least less agreeable to you.

I'm not saying that we will adhere to everything

that you propose, but I think that since you're going to be

with Judge Cooke this week, this is an issue that Judge Cooke

has indicated she can revisit with you on Thursday.

So during your time when you're not actively arguing

before Judge Cooke on matters, I think conferring on these

deadlines, perhaps refining them somewhat, would be an

appropriate thing to do. And then you can finalize that with

Judge Cooke this week.

JUDGE COOKE: Right. And then in addition to

the motion to amend the pleadings, or add parties, I noted

there should also be a rebuttal discovery deadline --

MR. PEEK: I saw that, too.

JUDGE COOKE: -- as well. I think it was just

a typo, because you had 60 days in between. But that also

needs to be included. And just do try to work this out.

Thank you.

Are there any other items, before we turn to the

Order to Show Cause, which are setout in the parties -- I note

there were some discovery issues that the parties had talked



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about in your Case Management Reports and so forth. But is

there anything in those Case Management Reports that merit

discussion today, other than you reported to the Court there

are some issues that you're dealing with, but I guess I'll

just poll counsel.

Mr. Sunshine, anything from you, sir.


JUDGE COOKE: Mr. Peek.

MR. PEEK: No, Your Honor.

JUDGE COOKE: Mr. Tellis?

MR. TELL

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Montgomery v eTreppid # 832 | 8/18 Show Cause Hearing Transcript

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