No. 04 C 5312 Page 4d

CONCLUSION
For the reasons stated above, TT’s motion to enforce schedule and preclude taking of
untimely discovery is denicd, with the exception of the deposition of Doug Moneison, which

is hereby precluded.

B.

JAMES B. MORAN
Senior Judge, U. 8. District Court

Ong D4 2007.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TRADING TECHNOLOGIES
INTERNATIONAL, INC.,

Plaintiff,
vs. No. 04 C 5312

eSPEED, INC., cSPEED, INTERNATIONAL,
LTD., and ECCO WARE, LTD.,

Defendants,
MEMORANDUM OPINION AND ORDER
Plaintiff Trading Technologies International, Inc. (“TT”), and defendants eSpeed, Inc.,
eSpeed International, Inc., EecoWare LLC, and Ecco LLC (collectively “eSpeed”), are once
again engaged in a discovery dispute. IT implores this court to grant a protective order

regarding depositions of Marc Lorin and Doug Moneison, and a new expert report by Jim

Vaughan", arguing that the requests for depositions and the filing of the additional report

come too close to trial and thus are prejudicial to plaintiff. Finally, TT asks us to preclude
eSpeed from relying on the alleged prior art known as “Trade Pad” because related defendant
GL Trade (“GL”) has withheld highly relevant cvidence, The briefs are both accusatory and
defensive, with each side pointing to the allegedly dilatory discovery practices of the other side
and scrambling to explain its own tardiness.

We begin with the depositions. Lorin is currently an employee of Calyon Futures and

used to trade at Carr Futures. According to eSpeed, TT spoke with Lorin in its prior effort

TT's opening brief cites eSpeed’s new expert as Steve Young, but, in rebuttal to eSpeed’s opposition,
identifies the expert as Jim Vaughan. As eSpeed also refers to the expert as Jim Vaughan, we assume that
TT’s initial citation was in error.



No, 04 € 5312 Page 2

to locate GL users from 1998 to 1999 to determine whether Trade Pad was offered for sale at
that time. TT is no longer interested in Lorin’s testimony and suggests that eSpeed is
improperly attempting to gather evidence of another sale of the alleged prior art known as
Trade Pad. Any pursuit by eSpeed of new theories of invalidity, TT suggests, would
“materially prejudice TT’s ability to take rebuttal testimony and prepare for the upcoming
trial” (TT’s motion, at 3). eSpeed’s opposition brief does not indicate that it is pursuing a new
avenue of invalidity, but rather that it wants to speak to Lorin to discover whether “Lorin
personally saw Trade Pad during the relevant time” (eSpeed response, at 2). eSpeed suggests
that Lorin has not opposed the deposition and that it should take no more than two hours. We
offer a compromise—eSpeed may depose Lorin at his convenience for no morc than two hours.
Lorin’s deposition testimony, if supportive of eSpeed’s claim that GL Win with Trade Pad
existed in the relevant time period, may be introduced only to support that contention, and for
no other purpose.”

eSpeed also seeks to depose Doug Moneison, Citing TT’s use of Moneison’s declaration
in support of its opposition to eSpeed’s motion for summary judgment of invalidity based on
prior art, eSpeed seeks time te speak with Moneison. TT, in its reply, stated that it will not call
Moneison as a witness or rely directly on his declaration at trial. Therefore, we see no reason
why eSpeed must depose Moneison, and grant T'T’s request for a protective order as to his
deposition.

Next we turn to TT’s request that we strike eSpeed’s new expert report filed on August

TT dropped a footnote in its reply brief arguing that for the reasons it argued ugainst the deposition
of Lorin, eSpeed should not be permitted to present Steve Good us a witness at trial. Because the argument in
the footnote was conflated with the argument regarding Lorin, and because eSpeed was not given an

opportunity to respond, we reject TT’s request.



No, 04 € $312, Page3

16,2007. Vaughan is a forensic expert and is seeking to testify as to his analysis of hard drives
produced by the Chicago Mercantile Exchange (“CME”). eSpeed recognizes that the report
was submitted after the deadline, but declares that the report assesses critical CME hard
drives that TT has long known about, and addresses and rebuts statements made by TT’s
expert David Klausner. Because we have long been aware of the potential use of the CME,
hard drives at the trial, we will allow eSpeed to file this additional report.

Finally, we address TT’s reinstated petition that this court preclude eSpeed from relying
on Trade Pad as potentially invalidating prior art because GL has allegedly withheld highly
relevant evidence. Specifically, TT asserts that through an internet search it uncovered
relevant documents on www.gltrade.net, Although plaintiff was denied access to the site
before being able to thoroughly review its entire contents, plaintiff argues that it located a
number of relevant documents not yet produced by GL. The documents, TT asserts, relate to
GL’s products known as Quicktrade, Tradepad, and Mosaic, GL filed a response to such
accusations, indicating that it has produced the very evidence TT claims it withheld and that
much of the allegedly withheld evidence is irrelevant to Trade Pad and eSpeed’s prior art
claims, While we recognize that there might be some relevancy, albeit minimal, of documents
that do not refer to Trade Pad or a vertical static price ladder, GL is not under an obligation
to produce all matcrial it has on every one of its products, including those developed
significantly after the critical date of TT’s patents. We reject TT’s suggestion that eSpeed be
precluded from introducing its Trade Pad prior art defense at trial. We do rule, however, that
GL do another scarch of its website using the keywords “TradePad,” “Trade Pad,”
“TradingPad,” and “Trading Pad,” and immediately produce to both TT and eSpeed any

documents not previously produced containing those terms.