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, OCR'ing any sealed documents as requested, preserving all redactions 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
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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CARD CONNECT, LLC,
Plaintiff,
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SHIFT4 PAYMENTS, LLC f/k/a
PRESS1PAYMENTS, LLC, and
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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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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"?
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MR. MOORE: Objection to form.
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THE WITNESS: I believe I was
6 referencing the Merchant Link transaction.
7 MR. FRUCTMAN:
8
Q. Okay. What makes you say that?
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A. Based on my understanding of the
10 timeline of when we were discussing the Merchant
11 Link deal.
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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?
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MR. MOORE: Object to form.
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THE WITNESS: I mean, that's my
17 recollection today.
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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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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?
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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?
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A. Could be.
12
Q. Do you know for sure?
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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
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MR. MOORE: Objection to form.
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THE WITNESS: Generally speaking, I
19 would assume it would be reference to David Oder,
20 but I don't know for sure.
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MR. FRUCTMAN:
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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.
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So what does that mean to you, what you
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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 --
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MR. MOORE: Objection to form.
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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?
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MR. MOORE: Same objection.
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THE WITNESS: I'm not entirely sure. I
21 don't have a specific recollection.
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MR. FRUCTMAN:
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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.
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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.
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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."
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What does that mean in terms of
17 "pushback on price, and hasn't had a change to
18 see the numbers on X"?
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MR. MOORE: Objection to form.
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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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