[00:00:00] Speaker 01:
Our last case for argument today is 24-1761, definitive holdings versus power tech.

[00:00:08] Speaker 03:
Good morning.

[00:00:10] Speaker 03:
Charles Roberts for plaintiff appellant, definitive holdings.

[00:00:14] Speaker 03:
The district court entered summary judgment that our patent was invalid.

[00:00:18] Speaker 03:
That judgment was based on hearsay evidence.

[00:00:21] Speaker 03:
That evidence specifically was testimony from a man named Jay Ramsey, who talked about third-party Hypertech's device.

[00:00:31] Speaker 03:
Mr. Ramsey testified that he joined Hypertech in 2018 when he bought the company.

[00:00:37] Speaker 03:
So he's the president owner of Hypertech.

[00:00:39] Speaker 03:
He also testified that those he talked to when he prepared for his deposition were not around at the time of the events that we're talking about.

[00:00:50] Speaker 01:
This case is a wonderful law school teaching case for like an evidence class.

[00:00:55] Speaker 01:
But what it really comes down to is you have a 30 v 6 witness who's not a party witness, right?

[00:01:02] Speaker 01:
He's a third party 30 v 6.

[00:01:06] Speaker 01:
And we have some

[00:01:08] Speaker 01:
limits on hearsay.

[00:01:10] Speaker 01:
Normally, a person can't testify to something they don't have firsthand information on, right?

[00:01:16] Speaker 03:
That's correct.

[00:01:16] Speaker 01:
But a 36 witness is a corporate representative.

[00:01:20] Speaker 03:
Yeah.

[00:01:20] Speaker 03:
And if I could expand on that,

[00:01:24] Speaker 03:
Rule 30b6 talks about the taking of depositions.

[00:01:29] Speaker 03:
Rule 32 talks about the use of depositions.

[00:01:32] Speaker 03:
And rule 32 says, well, the depositions can be used to the extent they're admissible under the federal rules of evidence.

[00:01:38] Speaker 03:
And we all know that rule 602 in the federal rules of evidence, the testimony has to be based on personal knowledge.

[00:01:44] Speaker 03:
So here we have Mr. Ramsey talking about things that happened

[00:01:47] Speaker 04:
20 years before he joined the company.

[00:01:55] Speaker 04:
the testimony doesn't have to be based on personal knowledge.

[00:01:58] Speaker 03:
No question.

[00:01:59] Speaker 03:
We all agree that 30B6 contemplates that you're going to have some testimony that's hearsay.

[00:02:06] Speaker 02:
OK.

[00:02:07] Speaker 02:
And the fifth, the seventh, and the 11th circuits, and maybe the sixth circuit also, have held that for purposes of summary judgment or trial, you can rely on the 30B6 witness, even though his testimony is technically hearsay, correct?

[00:02:23] Speaker 03:
No.

[00:02:24] Speaker 03:
No.

[00:02:24] Speaker 03:
Fifth Circuit, let's go through those because I think that's a very helpful exercise.

[00:02:30] Speaker 01:
I'm assuming you're going to answer Judge Dyke by explaining to him that in all three of those cases the 32-6 witness was a party witness.

[00:02:37] Speaker 01:
And then in all three of those cases, the party witness, huh, no?

[00:02:41] Speaker 03:
No, no, no.

[00:02:43] Speaker 01:
That was actually a softball, sir.

[00:02:47] Speaker 03:
It may have been, but the point is, first of all, my friends point to the 10th Circuit case in Sidlow and say that's by-and-precedent.

[00:02:56] Speaker 03:
Well, the 10th Circuit is not by-and-precedent, because in Sidlow, the question was the credibility, not the admissibility of the testimony.

[00:03:08] Speaker 03:
If I could refer to court, there are actually two district court opinions out of the District of Utah that address this issue and come out on our side, both authored by Judge Jill Parrish, who as we come back to the Fifth, Seventh, and Eleventh Circuits.

[00:03:22] Speaker 03:
Okay, Seventh Circuit, PPM Finance.

[00:03:26] Speaker 03:
PPM Finance, the Seventh Circuit found that the witness had actual knowledge.

[00:03:32] Speaker 02:
But it was an alternative grant.

[00:03:34] Speaker 02:
It was an alternative.

[00:03:35] Speaker 03:
It was an alternative grant.

[00:03:38] Speaker 03:
Judge Seeger's opinion, Kraft Food, out of District Court in the Northern District of Illinois, actually cited PPM Finance, but not for that proposition.

[00:03:48] Speaker 03:
I guess I would submit that if PPM Finance was binding precedent in the Second Circuit, Judge Seeger would rely on it.

[00:03:55] Speaker 03:
in his decision in Kraft Foods, where he spent 14 pages talking about this very issue.

[00:04:05] Speaker 03:
Let's talk about the Fifth Circuit.

[00:04:07] Speaker 03:
The Fifth Circuit in Union Pump has been cited by dozens of district courts.

[00:04:15] Speaker 03:
It comes out in our favor.

[00:04:17] Speaker 03:
My friends point to a decision in the Fifth Circuit

[00:04:24] Speaker 03:
cutting underwater technologies.

[00:04:28] Speaker 03:
The problem with cutting underwater technologies is that in the Fifth Circuit, they apparently have a practice similar or analogous to this Court's Rule 36 practice.

[00:04:39] Speaker 03:
And in cutting water technologies, what they said in that opinion was, we find, we agree with the District Court, and we're going to reprint the District Court's opinion as our opinion.

[00:04:52] Speaker 03:
And then they drop a footnote, and they say, well, the evidentiary questions in Section 3A were not appealed, and therefore, they form no basis, no part of our opinion.

[00:05:04] Speaker 04:
Counsel, do you agree that as long as someone could testify on behalf of Hypertech at trial to the substance of the pertinent 30B6 testimony, then that 30B6 testimony is admissible at the summary judgment stage?

[00:05:19] Speaker 03:
Well, who is that someone?

[00:05:21] Speaker 04:
I don't think we have to specifically identify that someone, but my point being is it doesn't have to be that 30B6 witness who could testify at trial to those points.

[00:05:32] Speaker 04:
In that context, do you agree that that testimony is admissible at the summary judgment stage?

[00:05:38] Speaker 03:
Well, I think the question is, how does the court determine that there is a credible, knowledgeable witness that's going to give the same testimony that the 30B6 witness gave?

[00:05:48] Speaker 04:
Wait, just, OK, I want you not to fight my high without.

[00:05:51] Speaker 04:
Okay, I want you to just take it on faith that we're going to be able to find someone.

[00:05:56] Speaker 04:
So in that instance, if we can find someone that can testify on behalf of hypertech, add trial to the substance of the pertinent 30B6 testimony, then with that 30B6 testimony, be admissible of the summary judgment stage.

[00:06:11] Speaker 03:
Well, rule 56C says that I can object that you can't find someone, and then the burden is on them to show.

[00:06:18] Speaker 04:
Okay, okay, I want you to not fight my hypothetical, except what I'm saying, but I do want you to answer this one question.

[00:06:24] Speaker 04:
I'm going to say it one more time, but let's see if we get an answer this time around.

[00:06:28] Speaker 04:
Do you agree that as long as someone could testify on behalf of hypertech at trial, assume someone can be found, to the substance of the pertinent 30b6 testimony, then that 30b6 testimony is admissible in the summary judgment?

[00:06:40] Speaker 03:
I think that's right.

[00:06:42] Speaker 03:
I think that's right.

[00:06:44] Speaker 03:
But again, the difficulty there is identifying that person.

[00:06:49] Speaker 03:
The founder of hypertech has passed on.

[00:06:54] Speaker 02:
They could surely find somebody who could be a document custodian who could satisfy the business records, hearsay exception, right?

[00:07:08] Speaker 03:
Possibly, possibly.

[00:07:10] Speaker 03:
The problem is, even if they do that, even if the documents come in, they don't have a case.

[00:07:16] Speaker 03:
They don't have a case.

[00:07:17] Speaker 03:
Without Mr. Ramsey's testimony, they don't have a case.

[00:07:21] Speaker 02:
They don't have a case?

[00:07:22] Speaker 02:
Why not?

[00:07:22] Speaker 03:
They don't have a case.

[00:07:23] Speaker 03:
Because the documents, what if they've got an operator's manual that says you plug in the device.

[00:07:29] Speaker 02:
It doesn't talk about it.

[00:07:30] Speaker 02:
They have a sales record which shows the sale of particular devices and they're connecting that using the user manual from 1996.

[00:07:41] Speaker 02:
which shows that those sales were of the PP3 device, right?

[00:07:46] Speaker 03:
They have a sales record, and that's page 6223.

[00:07:52] Speaker 03:
It does not even identify the device.

[00:07:55] Speaker 03:
We're talking about the power program of three.

[00:07:58] Speaker 03:
The sales record nowhere mentions the power program of three.

[00:08:00] Speaker 02:
But that's the point.

[00:08:01] Speaker 02:
They connect that to the owner's manual, which shows that those sales are PP3.

[00:08:15] Speaker 03:
The owner's manual is the power program of three.

[00:08:20] Speaker 03:
The sales document just says that all trans power program.

[00:08:24] Speaker 03:
So you need that testimony to link those documents together and to explain what they are.

[00:08:30] Speaker 02:
They're linked on their face, aren't they?

[00:08:31] Speaker 02:
Because the sales record shows the, what is it, Camaro and the owner's manual says that's PP3.

[00:08:42] Speaker 03:
Well, there's four at 95 Camaro.

[00:08:45] Speaker 03:
They have, I assume, a number of products that work for 95 Camaro.

[00:08:50] Speaker 03:
What appendix page are you looking at?

[00:08:52] Speaker 03:
I'm looking at the sales record on appendix 6223.

[00:08:58] Speaker 03:
It doesn't say power program of three.

[00:09:00] Speaker 03:
Someone's got to add testimony.

[00:09:02] Speaker 03:
No, but that's the point.

[00:09:03] Speaker 02:
They take the two business records, which together show that, no?

[00:09:07] Speaker 03:
No, because the installation guide, 4324, says the power program of three.

[00:09:14] Speaker 03:
So this is the third iteration.

[00:09:16] Speaker 03:
The sales record apparently was from the first iteration of the device.

[00:09:20] Speaker 03:
And then we've got the source code.

[00:09:21] Speaker 03:
It doesn't tell us what iteration of the device it was used on.

[00:09:25] Speaker 03:
It just has what your vision gave on it.

[00:09:27] Speaker 03:
There's no indication that that code was ever compiled, or if it was compiled, whether it was put into a device, and what device it was put in, and whether that device was ever sold.

[00:09:37] Speaker 04:
Do you agree that the zip file, Mr. Lane, for source code came from a 1996 box?

[00:09:45] Speaker 03:
No.

[00:09:47] Speaker 04:
Okay, why do you disagree and can you point me to something in the record to support why you disagree?

[00:09:53] Speaker 03:
What, why I disagree that it came from 1996?

[00:09:57] Speaker 03:
Yes.

[00:09:58] Speaker 03:
Well, he wasn't there in 1996.

[00:10:03] Speaker 04:
That doesn't mean that there couldn't be something available from 1996 just because Mr. Ramsey wasn't there.

[00:10:08] Speaker 03:
OK, well, how does Mr. Ramsey know that that document's from 1996?

[00:10:14] Speaker 03:
Well, he says he didn't even, in preparing, none of the engineers he talked to were even there in 1996.

[00:10:22] Speaker 03:
So he's talking to people who are as clueless as he was about what happened.

[00:10:27] Speaker 02:
On the face of it, it refers to 1996, right?

[00:10:30] Speaker 02:
On the face of it, it refers to 1996.

[00:10:33] Speaker 02:
On the face of it, yes.

[00:10:35] Speaker 04:
Well, that's evident.

[00:10:36] Speaker 04:
Honey, I see right here in the record testimony on appendix page 7074.

[00:10:40] Speaker 04:
And I won't read the exact statements that are there, because I think you may have marked some of this as confidential.

[00:10:53] Speaker 04:
But why doesn't that provide some support for the question that I posed to you?

[00:11:00] Speaker 03:
I'm sorry, what page of the actual deposition is that?

[00:11:05] Speaker 04:
Do you have access to the Appendix Center?

[00:11:07] Speaker 03:
Yeah, what page from the deposition?

[00:11:10] Speaker 04:
It says, okay, this is September 8, 2022, deposition page 54, with Appendix page 7074.

[00:11:17] Speaker 04:
It'd be good to use the Appendix page citations when talking to us.

[00:11:33] Speaker 04:
I'm at the top of that page.

[00:11:35] Speaker 03:
Yeah, yeah, yeah.

[00:11:35] Speaker 03:
Okay, so he found a device that says 1996 on it.

[00:11:40] Speaker 04:
And that was the year I was asking you about.

[00:11:48] Speaker 03:
Okay, well, so the device was manufactured and I guess I don't see why that particular version of software is tied to that device.

[00:12:01] Speaker 04:
I mean, the testimony says that that particular version was tied to that device.

[00:12:11] Speaker 01:
Maybe we should move on to some other issues.

[00:12:12] Speaker 01:
We're probably.

[00:12:13] Speaker 01:
I think we're also into his rebuttal today.

[00:12:15] Speaker 01:
Perhaps we should save some of this time for rebuttal.

[00:12:17] Speaker 01:
OK, thank you.

[00:12:31] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:12:33] Speaker 00:
PowerTech prevailed below because HyperTech sold its PP3 device that undisputably embodies every limitation of every asserted claim more than one year before the priority date, triggering Section 102B's on-sale bar.

[00:12:49] Speaker 00:
Definitive's appeal focuses on evidentiary objections.

[00:12:53] Speaker 00:
arguing that the district court abused its discretion in considering hypertext owner Mr. Ramsey's testimony at summary judgment as well as the evidence he discussed.

[00:13:02] Speaker 01:
Okay well let's just walk through the federal rules because the federal rules rule 30 says of course that a corporation can designate a

[00:13:11] Speaker 01:
person to speak on behalf of the corporation, correct?

[00:13:14] Speaker 01:
That's correct.

[00:13:14] Speaker 01:
Okay.

[00:13:15] Speaker 01:
And there's no doubt that a 30B6, you know, deponent witness is always someone who is representing the corporation's knowledge and not necessarily their own personal knowledge, correct?

[00:13:29] Speaker 01:
That's correct.

[00:13:29] Speaker 01:
They're allowed as a 30B6 deponent to testify to things that happened before they joined the corporation as long as it's within the corporation's knowledge

[00:13:37] Speaker 01:
But to be clear, whatever they say, even though they don't have personal knowledge, the corporation is going to be bound to that position because they're speaking as if they are the corporation.

[00:13:46] Speaker 01:
That's correct.

[00:13:47] Speaker 01:
All right.

[00:13:48] Speaker 01:
OK, but here's the weird little snafu that is not favorable to you.

[00:13:52] Speaker 01:
And it's rule 32.

[00:13:54] Speaker 01:
So you're allowed to depose somebody who is a 30B6 third party corporate witness or a 30B6 party corporate witness.

[00:14:04] Speaker 01:
But rule 32 explains

[00:14:07] Speaker 01:
how you can use depositions in court proceedings.

[00:14:10] Speaker 01:
And 32B says, to the extent it would be admissible under the federal rules of evidence, if the deponent were present and testified.

[00:14:21] Speaker 01:
And one of the concerns that seems to exist for me is that number three actually says an adverse party may use for any purpose the deposition of a party or anyone even under 30B6.

[00:14:36] Speaker 01:
But it doesn't say for a third party 30B6 opponent.

[00:14:41] Speaker 01:
So I'm trying to figure out how

[00:14:44] Speaker 01:
the 30B6 deposition testimony of a third party 30B6 witness is allowed to be introduced in these court proceedings.

[00:14:55] Speaker 00:
So, Your Honor, there's obviously a circuit split on this issue.

[00:14:58] Speaker 00:
Judge Dyke has referenced it.

[00:14:59] Speaker 01:
No, let's not talk about the circuit split.

[00:15:01] Speaker 01:
I want you, I don't really give a darn about a circuit split at the moment.

[00:15:04] Speaker 01:
I might later, in a few questions later, but right now what I'm concerned about are the federal rules.

[00:15:08] Speaker 01:
And so I want you to walk me through the federal rules and how they support, if at all, the introduction of testimony by a non-party, 30B6, and how it's not hearsay.

[00:15:22] Speaker 00:
I don't think it needs to come in that way, is the easy answer.

[00:15:25] Speaker 00:
I think this record, Mr. Ramsey had sufficient personal knowledge.

[00:15:29] Speaker 00:
Okay, stop.

[00:15:30] Speaker 01:
So are you telling me that you can't actually defend, under the federal rules, use of a corporate 30B6 deponent who is not a party being introduced?

[00:15:41] Speaker 00:
The only federal rule I would point to to defend the point is rule one, which supports the just, speedy, and inexpensive administration of justice.

[00:15:50] Speaker 00:
And I'll also point you to a statement in this court's case in ALPAC where it noted that the primary purpose of the sub-rejudgment federal rules are to avoid an unnecessary trial.

[00:16:01] Speaker 00:
So if you were to

[00:16:03] Speaker 00:
look at, construe the rules with those two things in mind.

[00:16:06] Speaker 00:
We want just, speedy, and inexpensive administration of justice.

[00:16:09] Speaker 00:
And we want to avoid an unnecessary trial.

[00:16:13] Speaker 00:
You could, therefore, interpret the rules that way.

[00:16:16] Speaker 00:
I think that's what other courts have done.

[00:16:17] Speaker 00:
But in this case, OK, why don't you now tell me what the other courts have done first?

[00:16:21] Speaker 01:
Because now I want to get you.

[00:16:22] Speaker 01:
I stopped you.

[00:16:23] Speaker 01:
I didn't let you get to the circuit split.

[00:16:24] Speaker 01:
Yes.

[00:16:25] Speaker 01:
Why didn't you get to the circuit split?

[00:16:26] Speaker 01:
Because I think you know where my next question is coming, right?

[00:16:29] Speaker 01:
Which is all those circuits that went in one direction

[00:16:33] Speaker 01:
And every one of those 30B6 deponents was a party witness.

[00:16:38] Speaker 01:
And the rules we just walked through created an exception for 30B6 party witnesses.

[00:16:43] Speaker 01:
But they did not create the same section for 30B6 non-party witnesses.

[00:16:49] Speaker 01:
So am I wrong about that?

[00:16:50] Speaker 01:
And is one of these circuit courts, either the Fifth Circuit or the Seventh Circuit or the Tenth Circuit, talking about a non-party 30B6?

[00:16:58] Speaker 01:
Because I read them all as talking about a party 30B6.

[00:17:01] Speaker 00:
I don't think they exclude the possibility of a non-party, but I agree with Your Honor's interpretation that the facts of those cases did involve party witnesses.

[00:17:09] Speaker 01:
And we just went through how the federal rules distinguish, rule 32 distinguishes, between party 30B6s and non-party.

[00:17:16] Speaker 01:
I promise I'm going to let you do that next time.

[00:17:19] Speaker 01:
Non-party 30B6 witnesses.

[00:17:20] Speaker 01:
So, okay, so now, why don't you move ahead.

[00:17:24] Speaker 01:
Now you're gonna tell me, I hope, that it's irrelevant that whether he's designated as a 30B6 or not, he's got personal knowledge over the relevant stuff.

[00:17:31] Speaker 00:
Exactly.

[00:17:31] Speaker 01:
Let me let you get to that.

[00:17:33] Speaker 00:
Thank you.

[00:17:35] Speaker 00:
So the panel doesn't need to reach the legal issue.

[00:17:37] Speaker 00:
It certainly can opine on the legal issue.

[00:17:39] Speaker 00:
I don't think you might love it if we did.

[00:17:42] Speaker 00:
But yeah, I don't know if I will either.

[00:17:44] Speaker 00:
But I will tell you that I think the facts of this case tell us that he did have sufficient personal knowledge to authenticate, lay a foundation for this evidence.

[00:17:56] Speaker 00:
This is what he testified to.

[00:17:58] Speaker 00:
He said he identified the tally of sales at the PP3 programmer.

[00:18:01] Speaker 00:
From 1994 to 2001, he identified the source code, testified how he saw it was put together, understood it was maintained in the ordinary course of business.

[00:18:10] Speaker 00:
He explained why it reflects the code incorporated into the commercial product sold prior to March 30, 2000.

[00:18:19] Speaker 00:
He testified about the revision tables and how, based on that, he can approximate when revision 1.17 was in the commercial product within a few weeks.

[00:18:29] Speaker 00:
And he could definitely confirm that revision 1.1, which is the source code that was in evidence here, was in the product before March 30, 2000.

[00:18:38] Speaker 00:
He authenticated and laid a foundation for that manual.

[00:18:41] Speaker 00:
He explained that the manual came out of a box that was in the corporate records, sealed.

[00:18:46] Speaker 00:
He looked at the serial number of the box and could figure out what year it was manufactured.

[00:18:51] Speaker 00:
He opened that box himself and he confirmed that the device that he inspected, as he expected, had revision 1.17 on it.

[00:19:01] Speaker 04:
This is so all that we need him to be is as an authenticating witness.

[00:19:05] Speaker 04:
Is that all that we need Mr. Ramsey for?

[00:19:08] Speaker 00:
He can sufficiently authenticate these documents, which is evidence.

[00:19:11] Speaker 00:
And there's no rebuttal.

[00:19:13] Speaker 00:
There's no evidence on the other side.

[00:19:15] Speaker 00:
They didn't rebut any of this evidence.

[00:19:17] Speaker 04:
Does he need to play any other roles when I'm asking you?

[00:19:19] Speaker 00:
He doesn't need to for us to prevail on summary judgment, because he was sufficient to be an authenticating witness.

[00:19:27] Speaker 00:
And the sort of level of knowledge that is required to do that, it's not nearly as high of a bar as opposing counsel has indicated.

[00:19:35] Speaker 00:
He doesn't need to have been there in 1996.

[00:19:37] Speaker 00:
And that's clear from many cases.

[00:19:39] Speaker 00:
We've cited United States versus Palmer in our brief, which admitted tribal documents from a Native American tribe where

[00:19:46] Speaker 00:
that custodian had been there at the time.

[00:19:48] Speaker 00:
There's other cases as well.

[00:19:50] Speaker 00:
I think there's no question that the federal rules don't require that.

[00:19:53] Speaker 00:
So that's how this evidence comes in.

[00:19:55] Speaker 04:
Do you agree that the permanent version we should focus on is the 1996 version and kind of some of that testimony that I pointed to opposing counsel?

[00:20:04] Speaker 00:
Yes, that is the pertinent testimony.

[00:20:06] Speaker 00:
But the records themselves are enough to establish.

[00:20:11] Speaker 00:
We have our source code.

[00:20:12] Speaker 00:
We have our manual.

[00:20:13] Speaker 00:
We have our sales records.

[00:20:15] Speaker 00:
That is enough to establish that he had personal knowledge sufficient to testify to those facts, such that they could be an admissible form at trial.

[00:20:23] Speaker 00:
And therefore, summary judgment was appropriate.

[00:20:26] Speaker 04:
Actually, OK, this is good.

[00:20:28] Speaker 04:
I'm glad we're getting to this point, in particular, a couple different things.

[00:20:30] Speaker 04:
One, you agree that source code is not usual.

[00:20:33] Speaker 00:
I agree it's not hearsay.

[00:20:35] Speaker 04:
Okay, why don't you wax a little poetic on why it's not.

[00:20:39] Speaker 00:
So it's a listing of computer instructions and we were in the 10th Circuit here and the 10th Circuit has said that an order or instruction is by its nature near their true new fall spring cannot be offered for its truth.

[00:20:50] Speaker 00:
That easily handles the instructions themselves.

[00:20:53] Speaker 00:
The comments, there's a challenge as to whether that is hearsay.

[00:20:57] Speaker 00:
I still think that's a business record exception.

[00:21:00] Speaker 04:
Do we need to reach the comments to rule in your favor?

[00:21:03] Speaker 00:
No, because the expert, Mr. Breglioli, he testified as to the source code.

[00:21:08] Speaker 00:
He didn't even rely on the comments.

[00:21:10] Speaker 00:
The comments weren't referenced at all in the opinion.

[00:21:12] Speaker 00:
And we don't even really need the source code because we have Dr. Breglioli's opinions as well.

[00:21:17] Speaker 00:
So that's another

[00:21:18] Speaker 00:
issue removed from the hearsay, why you don't need to reach whether or not source code is hearsay.

[00:21:22] Speaker 04:
And following up on some of the questions Chief Judge Moore asked, I thought you would have been really excited by the question I was asking in opposing counsel that I asked over and over to get a statement on in terms of whether something could be admissible at the summary judgment stage because of the fact that it could be even different people than the 36 witness who could testify at trial at those points.

[00:21:46] Speaker 04:
Do you feel like

[00:21:46] Speaker 04:
Perhaps Rule 56 would help with some of the reconciliation of the rules and the discussion you were having with Judge Moore?

[00:21:54] Speaker 00:
Absolutely, Your Honor.

[00:21:55] Speaker 00:
Yeah, I think that there could be other witnesses.

[00:21:59] Speaker 00:
Rule 36 is an efficient manner to gather testimony under Rule 1.

[00:22:03] Speaker 00:
We've discussed the need for efficiency.

[00:22:05] Speaker 00:
But, yeah, fortunately we just don't need that here because we just have such a strong record of the actual evidence and the business records that could come in.

[00:22:14] Speaker 01:
Just out of curiosity, is a summary judgment hearing a court proceeding?

[00:22:18] Speaker 01:
Yes.

[00:22:19] Speaker 01:
So is there some reason to think that Rule 32 only governs in trials as opposed to summary judgment hearings?

[00:22:29] Speaker 00:
I'd have to relook at my rules for sure, but I would assume that Rule 32 applies for witness testimony.

[00:22:35] Speaker 00:
Now, there was no live testimony at a summary judgment hearing.

[00:22:38] Speaker 00:
This was just decided on the paper.

[00:22:40] Speaker 01:
That's OK, because Rule 32 says using depositions in court proceedings.

[00:22:44] Speaker 00:
Yes.

[00:22:47] Speaker 00:
But here, again, we

[00:22:49] Speaker 00:
We can rely on the testimony, even if it's not in true admissible form, because it is a rule of summary judgment motion.

[00:23:03] Speaker 00:
Anything further?

[00:23:04] Speaker 00:
So unless the court wants me to address the separate 102B issue, I'm happy to rest on our briefs on that issue.

[00:23:11] Speaker 00:
But if the court has any other questions.

[00:23:15] Speaker 01:
You're good to go.

[00:23:15] Speaker 01:
Thank you so much.

[00:23:16] Speaker 00:
I'll return the rest of my time.

[00:23:17] Speaker 00:
Thank you.

[00:23:22] Speaker 03:
But the 102B issue is actually quite fascinating.

[00:23:24] Speaker 01:
No, you don't get to do that.

[00:23:25] Speaker 01:
I won't get into that.

[00:23:26] Speaker 01:
Well, you don't get to do that.

[00:23:27] Speaker 01:
She didn't address it.

[00:23:28] Speaker 01:
The rebuttal is for you to respond to what she addressed.

[00:23:31] Speaker 03:
Let me just say, without the hearsay.

[00:23:33] Speaker 01:
If you're trying to get into 102B, I will cut you off, and you'll be done.

[00:23:36] Speaker 01:
Because I just told you, you're not allowed to address it.

[00:23:38] Speaker 03:
That's not the way court works.

[00:23:41] Speaker 03:
Without the hearsay testimony, the documents alone do not make a prime official case for summary judgment, particularly what is here.

[00:23:48] Speaker 03:
The burden is clearly convinced in the evidence

[00:23:50] Speaker 03:
Anderson, the Liberty Lawyer, he tells us that that burden has to be factored in on summary judgment.

[00:23:55] Speaker 03:
There's just nothing to link the cells document with the source code and the product mandate.

[00:24:02] Speaker 03:
It's just not enough there to say all these things happened prior to the critical date.

[00:24:12] Speaker 03:
As I pointed out, the cells document doesn't identify the product with enough specificity to meet the clinic convincing evidence standard.

[00:24:19] Speaker 04:
What, if anything, is your argument as to why Mr. Ramsey couldn't be an authenticating witness in this context to authenticate the relevant documents for 102B?

[00:24:30] Speaker 03:
Well, he said he got the documents off a computer.

[00:24:33] Speaker 03:
Well, that's not the tech circuit standard.

[00:24:35] Speaker 03:
He's got to understand the storage method used to say I got them off a computer, like saying I got them out of a warehouse.

[00:24:42] Speaker 03:
He doesn't understand anything about the business records conventions at the company.

[00:24:49] Speaker 03:
He's just repeating what other people told him.

[00:24:54] Speaker 02:
What case do you have that says that he can't be a sufficient witness to identify the business records?

[00:25:01] Speaker 03:
Well, I think it's the 10th Circuit case, and I want to say it's Irvine, where they talked about the level of detail of understanding of the record-keeping system that the records custodian should have to testify to establish the business records exception.

[00:25:18] Speaker 03:
And he just saying, well, we found these documents.

[00:25:21] Speaker 03:
He doesn't understand anything about how those documents work.

[00:25:24] Speaker 02:
Well, he says they were kept by the corporation.

[00:25:26] Speaker 03:
Yeah, kept by the corporation.

[00:25:27] Speaker 03:
Yeah, but what was the system that was used?

[00:25:29] Speaker 03:
That's what's required in the 10th Circuit.

[00:25:33] Speaker 03:
Thank you, Your Honors.

[00:25:34] Speaker 01:
Okay, thank both counsels.

[00:25:35] Speaker 01:
This case is taken under submission.