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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHRISTOPHER V. LANGONE, ) Docket No. 12 C 2073 

) 

 Plaintiff, ) Chicago, Illinois 

) June 13, 2013 

 v. ) 9:16 a.m. 

)

PATRICK KAISER and FAN DUEL )

INC., )

 )

 Defendants. )

TRANSCRIPT OF PROCEEDINGS - Motion Hearing 

BEFORE THE HONORABLE THOMAS M. DURKIN 

APPEARANCES: 

For the Plaintiff: LAVERY LAW FIRM LLC by 

MR. MARK T. LAVERY 

180 North LaSalle Street 

Suite 3700 

Chicago, Illinois 60601 

For the Defendants: ZWILLGEN PLLC by 

MR. BART F. HUFF 

300 North LaSalle Street 

49th Floor 

Chicago, Illinois 60654 

Court Reporter: LAURA R. RENKE, CSR, RDR, CRR 

Official Court Reporter 

219 S. Dearborn Street, Room 1728 

Chicago, Illinois 60604 

312.435.6053 

laura_renke@ilnd.uscourts.gov 

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(In open court.)

THE COURT: Okay.

THE CLERK: 12 C 2073, Langone v. Kaiser.

MR. HUFF: Good morning, your Honor. Bart Huff on

behalf of the defendants.

THE COURT: Good morning.

MR. LAVERY: Good morning, your Honor. Mark Lavery

for Christopher Langone.

THE COURT: Good morning.

I apologize in advance -- well, not in advance. I

apologize directly right now. You don't have a decision from

me, obviously. And that has caused Mr. Lavery to ask for a

partial lift of the discovery stay.

I noted in reading that that you weren't able to reach

an agreement on that. Is that true?

MR. LAVERY: Yes.

MR. HUFF: Judge, could I give you a little background

on that?

THE COURT: Sure. You both can. But go ahead first,

Mr. Huff.

MR. HUFF: A couple of weeks ago, Mr. Lavery contacted

me and said, you know, because we haven't gotten a ruling yet,

he would like to cut a subpoena to this one entity.

THE COURT: Sure.

MR. HUFF: We thereafter had a conversation. And

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during that conversation, two topics came up: one, this

subpoena, and a second, was there any possibility of

settlement.

So I went back to my clients and I talked to them

about that.

And during that initial conversation, I suggested to

Mr. Lavery I don't think -- his concern was that the company

might purge the records or go out of business or something and

he wouldn't be able to get them.

I said I don't think you need to cut the subpoena in

order to do that. Just send them a preservation request. I'll

even try and get you a contact to do that. That deals with

your concern.

He said that he would, you know, consider that; it

sounded reasonable. But we also were having settlement

conversations.

Early this week, on Monday afternoon, I sent

Mr. Lavery an e-mail saying I don't think that settlement prior

to the disposition of the motion to dismiss is going to happen.

It just -- things are sticky, and I don't want to go into all

of that.

THE COURT: All right.

MR. HUFF: But I said, you know what? I'll still try

and get you the contact for the preservation request.

And what I got back was an e-mail saying, well, I

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don't think we can come to any agreement. We're going to file

our discovery motion.

THE COURT: Okay.

MR. HUFF: I thought we had come to some accord on how

we were going to deal with the topic today. And that seems to

still make much more sense -- and I can go into the reasons if

you care to hear me on it why it makes more sense to have a

preservation, a lit hold on these records, as opposed to a

subpoena and production of the records at this point.

THE COURT: Well, Mr. Huff, do you represent the

parties that Mr. Lavery wants to subpoena?

MR. HUFF: No.

THE COURT: Okay. Okay.

Well, Mr. Lavery, let's hear from you.

MR. LAVERY: Yes, your Honor. My concern was just we

had talked about this last time when we were before you, as you

may recall. I was concerned that this site -- and I mentioned

it on the record -- might go out of business. They're one of

the smaller sites. They're a small operation and -- but

they're very important to our case.

But there's been a number of sites that are going out

of business now. You know, they try it and they find out they

can't make it or whatever because there's Fan Duel who

dominates the market.

So this is not Fan Duel. And so this is sort of the

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one piece of the puzzle that we need to preserve.

And so I called Mr. -- I sort of had it on my tickler

that -- you know, I understood that obviously you inherited

many, many cases, and it may take up to six months or whatever

it is. So I said, well, I don't think we can wait any more

because it's been eleven months, which is an unusual amount of

time.

And then in response to that, Mr. Huff brought up

settlement. I wasn't calling about settlement. He asked me to

talk to my client --

THE COURT: I'm glad anytime the both of you talk you

talk about settlement.

MR. LAVERY: Sure, right, no. And I called my client.

My client authorized an offer; we made an offer.

But I made it clear to Mr. Huff that my main concern

was I wasn't calling about settlement or anything else.

THE COURT: All right.

MR. LAVERY: I just want to get the information from

this site.

We did talk about a preservation agreement because we

had entered into preservation agreements prior in our poker

cases. But in that case, we had the DOJ's assistance because

at the time we had our preservation agreement, we had a stay of

discovery pending the ruling. The DOJ had frozen all their

assets for the sites that we wanted information from, and they

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had also made an agreement with the DOJ as part of the

settlement allowing some monies to be released that they would

preserve all the records.

THE COURT: Okay.

MR. LAVERY: So we felt pretty safe to do a

preservation agreement in that case.

We don't have that here. The DOJ is not involved yet.

They may be at some point with this industry as it was with

poker, but right now they don't.

So we thought -- and plus it's so simple. It's

basically just the account information from this guy, one guy,

Patrick Kaiser. We also think getting his PayPal stuff may be

good, but PayPal does have a longer period, a record retention

period, and we'll admit that. We just thought it would be good

to get now. Why not?

But we're willing to limit it just to account

information from Fantasy Sports Live for Patrick Kaiser. And,

you know, we don't think that that's onerous. There's no

burden on the defendant. And we think it would be easier than

actually trying to negotiate a preservation agreement with the

principals of Fantasy Sports Live.

I was willing to give him a shot at it, but because he

didn't come up with it and just said, well, I don't have a

counteroffer for you, and I don't have a contact for you, I

just thought the best thing to do was move it forward and get

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this --

THE COURT: Well, I appreciate, Mr. -- well, go ahead.

MR. HUFF: Here's why I think it doesn't make sense to

lift the stay, as opposed to having the records preserved.

THE COURT: All right.

MR. HUFF: There was a reason the stay was put in

place, and that is that this is a very unusual case. It may be

completely disposed of by the motion to dismiss.

And part of our argument is that he hasn't alleged the

facts necessary to seek reimbursement on behalf of these

people. And so he's trying to flip it. He's trying to get the

information first before he has alleged what he needs to in the

complaint.

He can have the records preserved. We don't have to

worry about his concern at that point. But he shouldn't get

the fishing expedition before he has stated the cause of

action.

THE COURT: Well, we have an unusual set of facts

here, though, even though there's a strong motion to dismiss.

I'm not telling you which way it's going because I'm not sure.

But certainly it's not a frivolous motion to dismiss.

On the other hand, you were both caught in the gears

of a reassigned case that's been with -- for reasons that will

bore you, but the bottom line is you don't have a decision yet.

And I don't view it as a fishing expedition if there's

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a good-faith belief that certain records that if a motion to

dismiss is denied may not exist after that. PayPal is a

well-known, legitimate company who has, I'm sure, a very strong

document retention policy and is not likely -- certainly is

unlikely to go out of business during the pendency of waiting

for a decision from the Court.

I don't know anything about -- well, your motion calls

it Fantasy Day Sports. Is that the same name as the entity --

MR. LAVERY: That's the corporate name. 

THE COURT: Okay. 

MR. LAVERY: Correct. That's the entity. Their

website is Fantasy Sports Live.

THE COURT: Okay. I don't know anything about that

entity. And I'll take Mr. Lavery's representation, because

you're familiar with this industry, that that particular

company, there's no reason to believe it's got a strong

financial presence. They may, but there's no reason to think

that they may be here.

And I don't want the records that -- which seem

very -- frankly, very innocuous. But I don't want records that

may end up being central to the plaintiff's case to be lost

because of a -- the pendency of a motion to dismiss.

So I'm going to allow the granting -- the partial

lifting of the stay to allow you to issue subpoenas to Fantasy

Day Sports or whatever the corporate entity name is for the

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limited information you represented today, the corporate --

Well, tell me again. Put on the record exactly what

your subpoena is going to say.

MR. LAVERY: It will be the account information. It

will be the transaction history of the financial transactions

between them.

THE COURT: Between Mr. Kaiser and them. Is that

correct?

MR. LAVERY: Yes.

THE COURT: All right.

MR. LAVERY: Yes.

THE COURT: And for what period of time?

MR. LAVERY: Back to two and a half years before the

filing of the complaint.

THE COURT: All right.

MR. LAVERY: Which I think is his entire history.

THE COURT: And what's the statute of limitations on

this particular statute, if you know?

MR. LAVERY: It's -- it's six months, of course,

because, you know, the loser has the six months.

THE COURT: Right.

MR. LAVERY: And then it's two years as -- a two-year

general any kind of statutory penalty --

THE COURT: All right.

MR. LAVERY: -- under Illinois law.

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THE COURT: Well, knowing how I've ruled, Mr. Huff,

any objection to that scope?

MR. HUFF: Not exactly -- well, it depends on -- I

guess I don't want to waive the objection that I think that

some of that very well may be irrelevant even if the case goes

forward depending on how you rule on the motion to dismiss.

THE COURT: The amount of material that is obtained by

way of subpoena that's irrelevant in federal court and state

court litigation greatly outweighs what ends up being relevant.

But it's still something that I'm not in a position to

determine relevancy at this point, nor probably are you.

And I think Mr. Lavery has a point here, and I'm going

to allow issuance of a subpoena with the limits that you've put

on the record.

MR. LAVERY: Yes.

THE COURT: And obviously turn that same information

over to Mr. Huff when you get it --

MR. LAVERY: Okay.

THE COURT: -- so you both have access to it.

MR. HUFF: Two things, Judge.

THE COURT: Go ahead.

MR. HUFF: Could I get this subpoena prior to it being

issued so that I can see that it's --

THE COURT: That's fine. That's reasonable.

MR. HUFF: -- it comports?

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THE COURT: I mean, but I will tell you if it is of

the same ilk as described, there's no point coming back here to

object to it.

MR. HUFF: Understood.

THE COURT: But if you want to see it in advance, I

have no problem with that.

MR. LAVERY: I mean, I can tell you, for the record,

I'll be asking for -- you know, in the standard form, in the

fill-in-the-blank area, you know, it will say all documents,

records, ESI that relate to kaiseroll13 or Patrick Kaiser,

account information and transaction history since date --

THE COURT: Yeah. No, that's how I envisioned what it

would look like.

Mr. Huff, a second point?

MR. HUFF: Again, given that I think a preservation

request would be more appropriate in this case, what about a

long return date? Then they will be under court order to

produce the records, but they don't necessarily get turned

over. It would give you some time to potentially rule on the

motion to dismiss without, as I -- I totally view it as a

fishing expedition to try and get more information.

He's also got two other cases in state court up now

on --

THE COURT: Well, one, he can't -- I don't know if

there's a protective order in the case, but the information

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you're obtaining is for this case.

MR. LAVERY: Yes.

THE COURT: Not for your state court case.

MR. LAVERY: Of course.

THE COURT: Two, the motion to dismiss is -- as I

recall from the argument, it's either going to be granted or

denied not based on information he gets from the subpoena.

It's going to be based on whether the legal theory is a proper

legal theory to advance the cause of action he's claiming.

It's not going to matter what he picks up on how I

rule. And it shouldn't. I don't believe it will. And I -- my

recollection of what the motion to dismiss looked like, this

won't make any difference. So I'm not going to put an

unreasonable -- put a long return date. You know, give them

30 days or whatever the standard time is.

But unless I'm mistaken, I don't think what he gets is

going to make any difference to the way I rule in the case.

MR. HUFF: I don't think it will make a difference on

how you rule.

If you rule in a certain way and allow him to then try

to amend to solve it, I think it then could have an impact.

THE COURT: All right. Well --

MR. HUFF: Because, for example -- 

THE COURT: Go ahead.

MR. HUFF: -- if you say you actually have to name the

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losers on whose behalf you are seeking recovery --

THE COURT: Right.

MR. HUFF: -- and then he subpoenas these records, he

then could at least potentially have the names of some losers

that he's seeking.

THE COURT: Right. But if that's my ruling, I'd

likely allow him to get that limited discovery anyway because

the mere fact that it's in someone else's hands but it exists,

I'd grant that request to lift the stay for discovery at that

point.

Discovery normally is not stayed during the pendency

of a motion to dismiss, so it's an extraordinary restriction on

him per the normal operation of Federal Rules of Civil

Procedure. So were I to come down with that kind of decision,

I'd likely give him the ability to subpoena the information to

amend his complaint anyway if I thought that there was a valid

complaint with that information in hand.

So I don't think it's going to make any difference.

So you can set the discovery date as -- or the return

date as a -- the reasonable date that you would normally for

any other document subpoena. Show it to Mr. Huff before you

send it out.

If there's something different from it than what

Mr. Lavery's represented, which I'm sure there won't be, feel

free to come back in. Won't bother me. You know, it's just

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another trip for everybody.

And if you do have to come in on anything else, call

in if you want for the status rather than taking the trip if

you're -- you're up in the suburbs, aren't you, or are you

downtown?

MR. HUFF: No, I'm downtown.

THE COURT: Oh, you're both downtown. Never mind.

You both can walk --

MR. LAVERY: I used to be in the suburbs.

THE COURT: Okay. Maybe that's what I understood.

But you both can walk over.

All right. So the motion to -- partial lift of the

discovery stay will be granted consistent with -- for the

reasons stated on the record and within the limits stated on

the record today.

And then otherwise, you're just waiting for me to rule

on the motion to dismiss. I don't think we have a date

otherwise in this case. And depending on how I rule, if it's a

grant of the motion to dismiss, the case is over. If it's a

denial, I'll have you back in for a status so we can set a

discovery schedule.

MR. HUFF: Very good.

THE COURT: Okay. Thank you.

MR. HUFF: Thank you, Judge.

(Concluded at 9:30 a.m.)

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C E R T I F I C A T E 

I certify that the foregoing is a correct transcript of the 

record of proceedings in the above-entitled matter. 

/s/ LAURA R. RENKE___________________ July 24, 2013

LAURA R. RENKE, CSR, RDR, CRR 

Official Court Reporter 

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