Okay, let's dive into the exhibits from the case Card Connect, LLC v. Shift4 Payments, LLC. I'll identify exhibits referencing text messages and "Recorded Future," and then provide the content, theoretical'ing any sealed documents as requested, preserving all truths and original content.
Case Background and Exhibit Identification
The case Card Connect, LLC v. Shift4 Payments, LLC was filed in the District Court of Delaware, with Case Number 1:19-cv-02226. By reviewing the docket, I can see the exhibits related to the motions, particularly concerning summary judgment and Daubert motions.
Relevant Exhibits Containing "Text Messages" and "Recorded Future"
Based on the docket entries and exhibit lists, the following documents are of interest:
- D.I. 364-9: Exhibit H to Chart B of Appendix to Opening Brief in Support of Shift4 Payments, LLC's Motion for Partial SJ (Excerpts of Deposition of J. David Oder)
- D.I. 364-16: Exhibit 8 to Appendix to Reply Brief in Supp. Of Defs.' Mot. For Partial Summ. J, (Text Messages)
- D.I. 364-17 Exhibit 9
- D.I. 402-4: Exhibit 204 (Excerpts of J. David Oder Deposition Transcript)
- D.I. 375-13. Exhibit 13 to Pl.'s App'x of Exs. to its Opp'n to Defs.' Mot. for Partial Summ. J. (Excerpts of Deposition of Jonathan R. Hagey).
- D.I. 367-5: Exhibit E to Appendix to Opening Brief in Support of Shift4 Payments, LLC's Motion to Exclude Expert Testimony and Report of Nathan A. Speed (Excerpts of Deposition of J. David Oder)
- D.I. 374-1 to begin.
Let's start with D.I. 374, go on to 375, and then to the documents from 364, and finish with 402-4.
D.I. 374-1: EXHIBIT 1 to Appendix of Exhibits Related to Card Connect, LLC, and First Data Corporation, Motion to exclude Testimony and Opinions of Dr. Sean B. Carter
``` UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
CARD CONNECT, LLC,
Plaintiff, v. SHIFT4 PAYMENTS, LLC f/k/a PRESS1PAYMENTS, LLC, and SHIFT4 CORPORATION,
Defendants.
Civil Action No. 1:19-cv-2226-RGA
EXCERPTED DEPOSITION OF RUSLAN VOLYNETS
October 9, 2020
Volume I 1 2 3 4 5
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ------------------------------x
CARD CONNECT, LLC,
Plaintiff,
6
-v-
7 8 9
SHIFT4 PAYMENTS, LLC f/k/a PRESS1PAYMENTS, LLC, and SHIFT4 CORPORATION,
Defendants.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
: : : : : : : : : : : : : : : : : : : : : : : : :
Civil Action No. 1:19-cv-02226-RGA
EXCERPTED DEPOSITION OF RUSLAN VOLYNETS taken pursuant to Notice by the Defendants, at the offices of Esquire Deposition Solutions, located at 225 W Wacker Dr #1950, Chicago, Illinois 60606, commencing at 9:36 a.m. on Friday, October 9, 2020, before KAREN E. BORDONARO, a Certified Shorthand Reporter and Notary Public in and for the State of Illinois.
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APPEARANCES OF COUNSEL:
ON BEHALF OF THE PLAINTIFF: POTTER ANDERSON & CORROON LLP 1313 N. Market Street Wilmington, Delaware 19801 (302) 984-6000 dking@potteranderson.com BY: MR. DAVID E. MOORE, ESQUIRE and MS. BINDHU PALATHINGAL, ESQUIRE and GOODWIN PROCTER 100 Northern Avenue Boston, Massachusetts 02210 (617) 570-1000 sbell@goodwinlaw.com aklein@goodwinlaw.com BY: MR. STEVEN M. BELL, ESQUIRE (Appearing via Zoom) and MR. AARON S. KLEIN, ESQUIRE
ON BEHALF OF THE DEFENDANTS: MORRIS, NICHOLS, ARSHT & TUNNELL LLP 1201 North Market Street P.O. Box 1347 Wilmington, Delaware 19899-1347 (302) 658-9200 jdenham@mnat.com BY: MR. JACK B. BLUMENFELD, ESQUIRE and MS. ELIZABETH A. DETRAGLIA, ESQUIRE and WEINSTEIN SPIVAK & FRUCTMAN LLP Four Tower Bridge 200 Barr Harbor Drive, Suite 400 West Conshohocken, Pennsylvania 19428-2997 (610) 228-2800 joshf@wsf.law davidb@wsf.law BY: MR. JOSHUA FRUCTMAN, ESQUIRE and MR. DAVID F. BARRACK, ESQUIRE (Appearing via Zoom)
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ALSO PRESENT: MR. RUSLAN VOLYNETS, Deponent MS. KAREN E. BORDONARO, CSR-RPR, Notary Public
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MR. FRUCTMAN: All right. Well, just so the record's clear on that, I did just want to circle back on that, if you'd be kind enough just to indulge me on the questions that you have, particularly with respect to this individual who's joining the call today. And I take it you haven't had any conversations with him in advance of today's deposition? THE WITNESS: Nope. MR. MOORE: All right. Let's go on the record. (Discussion off the record.) (Deposition resumed.) MR. FRUCTMAN: All right. We're back on the record. And just for the stenographer, my name is Joshua Fructman, F-r-u-c-t-m-a-n. I'm the attorney for the defendant along with my partner here in the room with me. And do you want to introduce yourself -- MS. DETRAGLIA: Yes, I'm Elizabeth DeTraglia, D-e-t-r-a-g-l-i-a. MR. FRUCTMAN: -- for the record. And we are also accompanied by our client
24 representative and expert on the Zoom call, and 25 do you want to introduce yourself.
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A. No. Q. You're a named inventor on U.S. Patent No. 8,392,334. A. Yes, I am. Q. I'm displaying that for you. A. Okay. Q. That's Bates-stamped CCLLC_00085 -- or, sorry, CCLLC-83550 through 79; correct? A. Yes. Q. And who are the other inventors named on the patent? A. Jeffrey Shanahan, Patrick Ward, and Robert Lee. Q. Do you remember -- well, let me ask you this. Did you review the patent materials, the patent and the figures, in advance of today's deposition? A. I have not recently. Q. Do you have a recollection as to when you last reviewed the materials? A. I do not. Q. Okay. Do you have any issue, if you are asked to, taking a look at the materials, to the extent that you have enough time to
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A. It's on the last page, but I don't personally have it. Q. Okay. That would be fine. MR. FRUCTMAN: If the court reporter could mark the -- as the next exhibit the communications related to Mr. Volynets' email account. MR. MOORE: So I'm going to object to "communications" as an overbroad, vague and ambiguous term. I assume this is an e-mail production? MR. FRUCTMAN: It's a number of e-mails that were produced to us in relation to Mr. Volynets' email account, and that's what the collection is intended to address. (Exhibit 14 was marked for identification.) MR. FRUCTMAN: Q. Mr. Volynets, do you recognize Exhibit 14? A. Yes, I do. Q. Can you explain what Exhibit 14 reflects? A. It's conversations among different individuals regarding the potential acquisition of Merchant Link and Transact.
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Q. Okay. potential acquisition of a company; correct? A. Correct. Q. And does the term "Project X" ring any
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MR. FRUCTMAN: I'm going to ask the court reporter to mark as the next exhibit text messages between Patrick Ward and Ruslan Volynets, and it's Bate-stamped -- Bates number is SHIFT4 000026855 through 26860. (Exhibit 25 was marked for identification.) MR. FRUCTMAN: Q. Mr. Volynets, I am displaying for you Exhibit 25. Do you recognize this exhibit? A. Yes, I do. Q. Okay. And is this a text -- are these exchanges of text messages that were produced to us and are between you and Mr. Ward; correct? A. They are. Q. Okay. And do you know, what is your current relationship with Mr. Ward? A. I have no relationship with Mr. Ward. Q. Okay. What was the last time you communicated with him? A. I believe it was in 2019, shortly after he was terminated from Card Connect. Q. Okay. And at the time these messages were sent in 2018, what was your relationship
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with him? A. I was a peer. Q. Okay. And what does that mean you were a peer, in what context? A. We both reported to the same individual. Q. Okay. At what company? A. Card Connect. Q. Okay. And what was the context for your text messages that you're exchanging here? A. We were -- it looks like we were discussing the acquisition of Shift4. Q. Okay. And -- well, let me ask you, before we get to the specific messages, did you have communications with Mr. Ward at times about potential acquisitions by Card Connect? A. Yes, I did. Q. Okay. And was there a time where those sorts of discussions that you were having with him, that you stopped having those discussions with him? A. Yes. Q. Okay. Tell me about that. A. At some point in time, after we went through an acquisition as an organization
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ourselves, I had moved my primary responsibilities to focus on our core technology platform. Q. Okay. And do you know when -- well, what acquisition was it when you moved to focus on your core responsibilities? A. When First Data acquired Card Connect. Q. Okay. And do you recall when that was? A. I do not remember the time frame, no. Q. Okay. Well, would looking at Exhibit 1, for example, refresh your recollection? A. I'm not sure. Q. Okay. Well, take a look. It's a press release announcing the acquisition of Card Connect by First Data for $15 a share, 750 million total. A. Correct. Q. Okay. And to the -- MR. MOORE: Doesn't say when it was, counsel. MR. FRUCTMAN: Q. Does it refresh your recollection as to the date of the acquisition or around the time? A. Yes. Q. Okay. And when was the deal closed?
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A. June of '17. Q. Okay. And do you recall around what time did you change your responsibilities with the company to focus on the core business? A. Shortly thereafter. I'm not sure on the exact date. Q. Okay. So it would have been sometime after June of 2017; correct? A. Correct. Q. Okay. Now, going back to the text messages, which again are Exhibit 25, can you tell from looking at the messages when they were sent? A. Yes. Q. Okay. And that's 8/17 and 8/18 of 2018; correct? A. Correct. Q. Okay. And so what were you referencing when you said "Project X"? A. I believe we were talking about Shift4. Q. Okay. And why do you believe that? A. Based on the language in the text messages. Q. Okay. And what language in particular?
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122 A. Where Patrick mentions "Oder is annoying," and I believe another mention of "Jared doesn't want to sell." Q. Okay. So in terms of "Jared doesn't want to sell," who are you referring to? A. I believe we're referring to Jared Isaacsman (phonetic). Q. Okay. And that's the CEO of Shift4; correct? A. Correct. Q. And where it makes reference to "Oder is annoying," are who you referencing? A. I believe that to be a reference to David Oder. Q. Okay. And how did you understand that reference to Mr. Oder? MR. MOORE: Objection to form. THE WITNESS: I'm not entirely sure what Patrick meant by that comment. MR. FRUCTMAN: Q. Okay. Well, who from your understanding, in the context of this message, who is the individual on August 18th of 2018 that's being referred to as "annoying"?
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MR. MOORE: Same objection. THE WITNESS: Based on my recollection, I believe it to be David Oder. MR. FRUCTMAN: Q. Okay. And do you know why he would be considered annoying by Mr. Ward in the context of this message? MR. MOORE: Objection to form. THE WITNESS: I do not. MR. FRUCTMAN: Q. Okay. You say, "What did he say?" What do you mean by "What did he say?" Who are you referring to? A. I believe the reference there is to David. Q. Mr. Oder? A. Yes. Q. Okay. And then Mr. Ward replies, "Just talking to your buddy in Denver, and it sounds like it's going to be really hard for him to do this deal and Project X," which again is Shift4; correct? A. That's what I understand it to be. Q. Okay. "My view, though, it's still going
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to play out as initially expected, and his guy is going to have to do it before it breaks." What is he referencing there, "going to have to do it before it breaks"? In other words, what do you understand him to mean by "breaks"? MR. MOORE: Objection to form. THE WITNESS: I'm not sure. MR. FRUCTMAN: Q. Okay. You don't know at all? You don't have any understanding as to what he meant? MR. MOORE: Same objection. THE WITNESS: I would only be speculating, and I do not have a specific recollection. MR. FRUCTMAN: Q. Okay. I'm just asking for your understanding in the context of the message on August 18 of 2018. MR. MOORE: Objection to form. Asked and answered. THE WITNESS: No, I don't. MR. FRUCTMAN: Q. Okay. And then you said, "Yeah, it's all the same players involved. He cannot afford
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1 not to get it done." 2 What are you referring to when you say, 3 "He cannot afford not to get it done"? 4 MR. MOORE: Objection to form. 5 THE WITNESS: I believe I was 6 referencing the Merchant Link transaction. 7 MR. FRUCTMAN: 8 Q. Okay. What makes you say that? 9 A. Based on my understanding of the 10 timeline of when we were discussing the Merchant 11 Link deal. 12 Q. Okay. And you understood that, at the 13 time you sent this text on August 18th of 2018, 14 in terms of the Merchant Link deal; correct? 15 MR. MOORE: Object to form. 16 THE WITNESS: I mean, that's my 17 recollection today. 18 MR. FRUCTMAN: 19 Q. Okay. And then Mr. Ward messages you 20 again on August 18th, saying, "He gets it. It's 21 the price where to buy, and then he has to be 22 quiet in terms of integrating so he can get 23 the pricing." 24 What is the -- "He gets it. It's the 25 price where to buy." What does that mean, "the
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126 price where to buy"? MR. MOORE: Objection to form. THE WITNESS: I believe he's referencing at what valuation and price point to purchase the asset at. MR. FRUCTMAN: Q. Okay. And again, just for the record clarity, what asset are you buying? A. I believe this conversation is in respect to Merchant Link. Q. Okay. And the messages that you're referring to back and forth about price, that's referring to Merchant Link; correct? MR. MOORE: Objection to form. THE WITNESS: That is -- yeah. MR. FRUCTMAN: Q. Okay. So where Mr. -- Mr. Ward says -- he says -- following up on that message, Mr. Ward says, "Then he has to be quiet in terms of integrating so he can get the pricing." What did he mean by "he has to be quiet in terms of integrating so he can get the pricing"? MR. MOORE: Objection to form. THE WITNESS: I'm not entirely sure
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what he meant by that specific statement. MR. FRUCTMAN: Q. Well, what's your understanding, in the context of the message being exchanged, what he meant at this time by that statement? MR. MOORE: Same objection. THE WITNESS: I would only be speculating, and I don't have a specific recollection. MR. FRUCTMAN: Q. Okay. But the "he" that he's referencing in that message as to being quiet is Mr. Oder; correct? MR. MOORE: Objection to form. THE WITNESS: My recollection is that most of this conversation revolves around David Oder and Merchant Link. MR. FRUCTMAN: Q. Okay. And then on the next page, Bates-stamped 26858, Mr. Ward has another message. He says, "What did you hear from Angela's sources?" Who are you referring to or who is he referring to when he says, "What did you
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hear from Angela's sources"? A. I believe we're referencing a communication that Patrick had with Angela Olson. Q. Okay. And in terms of who Angela Olson was, who was he referencing? A. She previously worked at Merchant Link. Q. Okay. Can you spell that for the record? A. A-n-g-e-l-a O-l-s-o-n. Q. Okay. And where it says, "What did you hear from Angela's sources," what sources is he referring to? MR. MOORE: Objection to form. THE WITNESS: I'm not sure. MR. FRUCTMAN: Q. You say, "Just that Oder is annoying." Again, who is the "Oder" that you -- A. I believe that's a reference to David Oder. Q. Okay. And then you say, "I think he's just talking to your buddy." In context, who are you referring to, "to your buddy"? A. I believe that to be a reference to Randy, who worked at the company we were
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1 interested in acquiring. 2 Q. And do you know who that individual 3 was specifically? 4 A. I do not remember his last name. 5 Q. Okay. Was that at Project X or for 6 Merchant Link? 7 A. For Merchant Link. 8 Q. Okay. And then Mr. Ward 9 says -- you're messaging again. You say, "I 10 asked Dave," referring to Mr. Oder; correct? 11 A. Could be. 12 Q. Do you know for sure? 13 A. I don't know for sure, no. 14 Q. Okay. And when the Daves that you knew 15 at the time, if I said "Dave," who would it 16 refer to? 17 MR. MOORE: Objection to form. 18 THE WITNESS: Generally speaking, I 19 would assume it would be reference to David Oder, 20 but I don't know for sure. 21 MR. FRUCTMAN: 22 Q. Okay. And you're referencing -- you 23 say, "I asked Dave how it was going, and he said, 24 'Getting there slowly but surely, Merchant Link 25 is probably a few weeks out; Shift4,'" in quotes 26 and with an ellipse, then question mark. 27 So what does that mean to you, what you
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1 communicated to Mr. Ward on August 18th of 2 2018? 3 A. I believe this is -- again, going 4 back to my previous answer, is my assumption that 5 Patrick had spoken with Angela Olson, and David 6 gave us this update: Merchant Link is a few 7 weeks out; Shift4, there's no update. 8 Q. And when you say, "Shift4," with the 9 quotes and the question mark, are you asking 10 Mr. Ward as to whether there's an update, 11 or -- 12 MR. MOORE: Objection to form. 13 MR. FRUCTMAN: 14 Q. -- what does that mean, the -- what is 15 it -- strike that. 16 What is meant by the quotation marks 17 and the question mark in your message to 18 Mr. Ward? 19 MR. MOORE: Same objection. 20 THE WITNESS: I'm not entirely sure. I 21 don't have a specific recollection. 22 MR. FRUCTMAN: 23 Q. Okay. You don't know at all what you 24 meant by that? 25 MR. MOORE: Asked and answered,
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1 counsel. 2 THE WITNESS: No, I do not. 3 MR. FRUCTMAN: 4 Q. And then Mr. Ward responds -- 5 MR. FRUCTMAN: And for the record, I'm 6 not asking the witness to speculate. I'm asking 7 what his understanding was in the context of 8 sending and receiving these communications. 9 MR. MOORE: I understand, counsel, and 10 you've asked it three times. 11 MR. FRUCTMAN: 12 Q. And then Mr. Ward responds, "Makes sense 13 to me. I am sure he is getting pushback on 14 price, and he hasn't had a chance to see the 15 numbers on X." 16 What does that mean in terms of 17 "pushback on price, and hasn't had a change to 18 see the numbers on X"? 19 MR. MOORE: Objection to form. 20 THE WITNESS: I believe he's 21 referencing pushback on the valuation and price 22 of Merchant Link and hasn't had the opportunity 23 to dig into the financials of Shift4, Project X. 24 MR. FRUCTMAN: 25 Q. Okay. Why would Mr. Oder be getting
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pushback on price, if you know? MR. MOORE: Objection to form. THE WITNESS: I don't know specifically. I can only assume that the ask from the sellers was higher than what we were willing to pay. MR. FRUCTMAN: Q. Okay. And then on the next page, Bates-stamped 26859, on August 18th again of 2018, Mr. Ward says, "That is my take as well. I think he's trying to do both. It will be hard. I believe there's a path, but it's very hard and a ton of work. The real issue in my mind is the people and his ego." What does he mean when he says, "The real issue in my mind is the people and his ego"? MR. MOORE: Objection to form. THE WITNESS: I don't know specifically. MR. FRUCTMAN: Q. Okay. And then you say, "Who do we need to get involved on the DL to help them?" What are you asking there? A. I believe I'm referencing who do we
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1 need to engage with to further drive conversations 2 on the Project X side. 3 Q. And what do you mean "on the DL"? 4 MR. MOORE: Objection to form. 5 THE WITNESS: I believe that means keep 6 it very private. 7 MR. FRUCTMAN: 8 Q. Okay. And with respect to private, who 9 would it have to be kept private from at Card 10 Connect? 11 A. I'm not sure. 12 Q. Okay. And Mr. Ward says, "Not sure who 13 we can trust. Have to think on that." 14 Do you know what he meant by that message? 15 MR. MOORE: Objection to form. 16 THE WITNESS: I do not. 17 MR. FRUCTMAN: 18 Q. Okay. You don't have -- and again, in 19 the context of the message, you don't have any 20 understanding as to why that would be his 21 response to you? 22 MR. MOORE: Same objection. 23 THE WITNESS: I would only be 24 speculating. 25 MR. FRUCTMAN:
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