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Trading Techs. Int’l, Inc. v. GL Consultants, Inc., No. 05 C 4120 & 5164, Slip Op. (N.D. Ill. Oct. 20, 2010) (Schenkier, Mag. J.).
Judge Schenkier denied plaintiff Trading Technologies’ (“TT”) motion for jurisdictional discovery as moot because defendant GL Consultants withdrew its motion to dismiss. The Court also set an abbreviated process for filing the pending motion for a protective order. Click here for the procedures required of the parties before filing a discovery motion.
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Continue Reading Trading Technologies: No Need for Jurisdictional Discovery Because Defendant Withdrew Its Motion to Dismiss

Trading Techs. Int’l, Inc. v. GL Consultants, Inc., No. 05 C 4120 & 5164, Slip Op. (N.D. Ill. Oct. 20, 2010) (Schenkier, Mag. J.).
Judge Schenkier set without the following procedures the parties were required to follow before filing discovery motions with the Court, beyond the standard Local Rule 37.2 meet and confer requirement:
Moving party must send opposing counsel a letter setting forth with specificity the relief it was seeking and the basis for the argument, including citing authority;
Opposing counsel has seven days to respond to the letter in writing with similar specificity, including any areas of agreement;
Within five days of opposing counsel’s letter, the parties must have a face-to-face Local Rule 37.2 meet and confer including counsel with full authority to resolve the dispute;
The parties then have five days to prepare a joint statement of the results of the meet and confer not to exceed twenty-five pages; and
The moving party then has five days to file a motion, without a supporting brief, not to exceed five pages.
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Continue Reading Trading Technologies: Court Requires Cooperation & Live Meetings Before Discovery Motion

Trading Technologies Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Aug. 21, 2007) (Moran, Sen. J.).
Judge Moran denied the parties’ cross motions for summary judgment regarding whether GL Win with Trade Pad (“GL Trade Pad”) was invalidating prior art to plaintiff Trading Technologies’ (“TT”) patents. Defendant argued that the GL Trade Pad product was on sale prior to the critical date (the critical date was either March 2, 1999 or June 9, 1999, the Court previously held that it was a question of fact for the jury) based upon a February 19, 1999 software license (“February License”). But because the February License did not specifically name the GL Trade Pad software as part of the licensed software, both parties relied upon extrinsic evidence to prove whether GL Trade Pad was part of the February. The Court held that oral invalidity testimony must be corroborated by evidence other than additional interested oral testimony. eSpeed, therefore, corroborated its main witness’s testimony with Trade Pad software code and catalogs. eSpeed argued that this evidence showed that the Trade Pad software was made and sold on or before the February License and would have been included in the February License. But the Court held that eSpeed’s evidence did not meet its evidence of proving the sale by clear and convincing evidence. TT challenged each piece of eSpeed’s evidence and the Court could not decide summary judgment of invalidity based upon eSpeed’s remaining evidence – oral testimony of an interested party (GL is a defendant in a related case). The jury must weigh competing testimony and judge the witnesses’ credibility.
Trial started in this case the week of September 10. Expect to see several more opinions in this case and its related cases (there are two weighty summary judgment opinions still in my queue, as well as several other smaller opinions and orders). Additionally, I have some other obligations, but am planning to blog some of the trial. Stay tuned.
*You can read much more about this case and related cases in the Blog’s archives.
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Continue Reading Jury Must Decide Whether Software is Prior Art

Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, 2007 WL 1628352 (N.D. Ill. Mar. 1, 2007) (Moran, Sen. J.).
Judge Moran denied plaintiff Trading Technologies’ (“TT”) motion for a protective order to prevent the deposition of Robert Klinger, related to defendant eSpeed’s inequitable conduct defense (more on this case in the Blog’s archives). The Court held that discovery is a “balancing act.” eSpeed’s assertion that Klinger was involved in drafting a response to a USPTO Office Action at the center of its inequitable conduct claim outweighed TT’s best argument — that the deposition was duplicative because defendants had deposed or have scheduled the depositions of two lead outside patent prosecutors, TT’s in-house patent prosecutor and the relevant patent examiner. The Court also noted that the case is approaching the discovery close, so we may start seeing fewer discovery motions in the case and more substantive motions.
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Continue Reading Duplicative Deposition May Go Forward

Trading Techs. Int’l., Inc. v. GL Consultants, No. 5 C 4120, Slip Op. (N.D. Ill. May 17, 2007) (Gottschall, J.).*
Judge Gottschall denied defendant GL Trade SA’s (“GL SA”) motion to dismiss for lack of personal jurisdiction, with leave to refile after completion of jurisdictional discovery. GL SA is a French company located in Paris. GL SA does not have an office or any assets in Illinois, but it does have a subsidiary, defendant GL Americas, Inc. (“GL Americas”). GL Americas maintains a regional office in Chicago. The Court noted that despite three rounds of briefing on jurisdiction, neither party “provided anything of substance to the court.” Plaintiff Trading Technologies (“TT”) treated GL SA’s subsidiary GL Americas as GL SA, and had not submitted evidence of GL SA’s specific contacts with Illinois. GL SA submitted several declarations, but none sufficiently clarified that GL SA did not have minimum contacts with Illinois. As a result, the Court held that it lacked sufficient evidence to rule upon the motion, and granted TT’s motion for jurisdictional discovery.
After ruling on the motions, the Court continued to offer some of its jurisdictional analysis as a “framework” for the issues the parties should address through the discovery process. First, the Court pointed out that neither party had detailed GL SA’s specific contacts with Illinois. Neither party identified which software products were GL SA products and which were GL Americas products. Furthermore, neither party identified any sales of GL SA or GL Americas products to Illinois consumers. The Court noted that if none of the GL SA products at issue were sold in Illinois, the Court would not have specific jurisdiction over GL SA. And if there were sales to Illinois consumers, discovery was still required to show whether GL SA had a purpose and intent to serve the Illinois market. Finally, the Court noted that TT must make its case for the Court’s jurisdiction over GL SA based upon GL SA’s actions, without imputing GL America’s actions or contacts to GL SA.
*More analysis of opinions from this case and the various related TT cases, can be found in the Blog’s archives.
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Continue Reading Court Lacks Sufficient Evidence to Rule Upon Personal Jurisdiction

Trading Techs. Int’l., Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. May 17, 2007) (Moran, Sen. J.).
Judge Moran denied plaintiff Trading Technologies’ (“TT”) motion to compel additional production from third party Chicago Mercantile Exchange (“CME”). TT served CME with a subpoena seeking, among other things, anything referring or relating to potential prior art to the patents at issue and communications between CME and any other entity regarding the patents at issue, including any joint defense agreement between CME and such parties. After TT filed the motion to compel, CME produced thousands of pages, including what it stated were all documents in its possession regarding possible prior art. Because all prior art documents had been produced, the Court denied TT’s motion to compel additional prior art-related documents.
The Court also denied TT’s motion to the extent it sought communications regarding the possible prior art. First, the Court considered any communications CME might have had with defendants in the currently pending cases. The Court referred to its May 1, 2007, order which required defendants to produce a list of all members in their joint defense agreement (that opinion and order, as well as numerous other opinions from this and its related cases, are in the Blog’s archives). The Court held that defendants’ list would allow TT to discover whether CME was involved in a joint defense and that no further discovery from CME was necessary.
Second, the Court considered CME’s communications, including potential joint defense agreements, with any parties not involved in TT’s pending suits. The Court held that the common interest doctrine could attach to communications even before the filing of a suit, so long as the parties anticipated litigation. Furthermore, the Court held that regardless of whether CME’s communications with other third parties were part of a joint defense, they were not discoverable because they were “irrelevant” to this case. The Court explained that while relevance is broadly defined, it does have boundaries and TT’s motion ran “up against such a boundary.”
* Because Westlaw has not published this opinion yet, here is a copy of Judge Moran’s original, signed opinion.
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Continue Reading Third Parties’ Communications With Other Third Parties Are Not Relevant

Trading Techs. Int’l., Inc. v. eSpeed, Inc., No. 05 C 4120, (N.D. Ill. May 16, 2007) (Moran, Sen. J.).
Judge Moran granted in part and denied in part plaintiff Trading Technologies’ (“TT”) motion to compel additional production from defendants GL Consultants, Inc. and GL Trade SA (collectively “GL”). The Court required GL to update certain interrogatory responses and to produce documents based upon a priority date GL had argued for, as opposed to stopping at TT’s alleged priority date. The Court also required GL to provide TT access to original source code and certain electronic archives, without regard to whether TT had provided GL similar access. Finally, the Court denied TT’s request to lower the confidentiality designation of the source code for GL’s GL Tradepad software. But what is most interesting about the Court’s opinion is its reminder to the parties about how the Court expects them to conduct discovery:
At the outset, we reiterate some of the points regarding discovery that we have stressed throughout this complicated and contentious litigation. First, parties should err on the side of over-production; relevance should he argued sparingly. Second, counsel are officers of the court and their word is generally sufficient. Third, there will always be additional persons to interview, additional documents to discover, and alleged prior art to be found; we must, however, put an end to discovery at some point. . . . With such guidelines in mind, we address the current dispute.
* Because Westlaw has not published this opinion yet, here is a copy of Judge Moran’s original, signed opinion.
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Continue Reading Court Reminds Parties of Their Discovery Obligations

Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, 05 C 1079, 05 C 4088, 05 C 4120, 05 C 4811 & 05 C 5164, 2007 WL 704525 (N.D. Ill. Mar. 1, 2007) (Moran, Sen. J.).
Judge Moran granted in part and denied in part plaintiff Trading Technologies’ (“TT”) motion to compel production of defendants’ communications between themselves (more on this case in the Blog’s archives). Defendants asserted claims of attorney-client and work product privileges regarding various communications and information exchanged as part of a joint defense agreement among, at least, the various defendants and DJ-plaintiff (collectively “defendants”) in the patent suits regarding TT’s patents. The Court explained that the joint defense privilege protects communications and exchange of information between parties that have expressly decided to cooperate in a litigation — with or without a written agreement. The Court held that defendants had expressed a sufficient intent to cooperate in their respective litigations against TT and, therefore, held that defendants need not produce communications made in relation to their joint defense. The Court required that defendants produce any written joint defense agreement or, in the absence of a written agreement, the identities of all members of the joint defense. The Court further held that third parties need not be identified to the extent that their identities are protected as work product, but that third parties should be identified if defendants’ communications with them are allegedly protected by attorney-client privilege. The Court also required that defendants produce all prior art in their possession, regardless of how it was located. And finally, the Court noted that “it must rely on the integrity of counsel to determine what is and is not privileged.” As a result, the Court required that defendants produce “any communications not protected by a legitimate privilege . . . .”
You can download the opinion here.
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Continue Reading Joint Defense Agreement May Protect Third Party Communications

Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, 2007 WL 704525 (N.D. Ill. Mar. 1, 2007) (Moran, Sen. J.).

Judge Moran granted plaintiff Trading Technologies’ ("TT") motion to compel production of documents and answers to interrogatories regarding defendant eSpeed’s patent licenses (more on this case in the Blog’s archives).  The Court…