1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI 2 3 VOICE TECH CORPORATION, 4 5 6 7 Plaintiff, Docket No. 4:20-cv-00111-RK v. MYCROFT AI, INC., Kansas City, Missouri April 14, 2020 Defendant. 8 9 10 11 .......................... TRANSCRIPT OF ORAL ARGUMENT BEFORE THE HONORABLE ROSEANN KETCHMARK UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceedings recorded by machine shorthand, transcript produced by computer-aided transcription. ______________________________________________________ Jean M. Crawford, RDR, CRR United States Court Reporter 400 East Ninth Street, #8420 Kansas City, Missouri 64106 816.512.5642 Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 1 of 18 2 1 APPEARANCES: 2 3 For the Plaintiff: 4 5 6 7 Mr. Tod T. Tumey Mr. Eric Michael Adams Mr. Silachi Nwogwugwu Tumey L.L.P. 5177 Richmond Avenue Suite 1188 Houston, Texas 77056 Ms. Stacey R. Gilman Berkowitz Oliver LLP 2600 Grand Boulevard Suite 1200 Kansas City, Missouri 64108 8 9 10 11 12 13 14 15 16 For the Defendant: Mr. Allen Justin Poplin Mr. Hissan Anis Avant Law Group 12980 Metcalf Avenue, Suite 180 Overland Park, Kansas 66213 Mr. Christopher M. DeBacker Law Office of Mark Brown, LLC 7225 Renner Road Suite 201 Shawnee, Kansas 66217 17 18 19 20 21 22 23 24 25 Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 2 of 18 3 1 (Proceedings commenced at 3:03 p.m.) 2 THE COURT: Good afternoon. We are on the record. This is Roseann 3 Ketchmark. And the Court is calling 4 case No. 20-cv-00111, Voice Tech Corp. versus Mycroft. 5 Mr. Phillips, are you able to hear me? 6 THE LAW CLERK: 7 THE COURT: 8 is April 14th, 2020. 9 time. Yes, Judge. All right. Let me first note that today It's 3:00 in the afternoon, Kansas City, And we are here for oral argument on plaintiff's motion 10 in document 14, plaintiff Voice Tech Corporation's motion for 11 relief to require decorous and civil conduct by the parties. 12 13 Let me first ask for entry of appearances by attorneys for the plaintiff. 14 (Simultaneous cross-talking.) 15 MS. GILMAN: 16 MR. ADAMS: No, no. 17 THE COURT: Ms. Gilman. 18 MS. GILMAN: I'm sorry, go ahead. Go ahead, Stacey. This is Stacey Gilman on behalf of 19 Voice Tech Corporation. Would you like individual appearances, 20 or do you want me to run through our staff? 21 Tumey, Eric Adams, David Wooten, and Silachi -- and I'm going 22 to apologize in advance for butchering his last name -- 23 Nwogwugwu from the Tumey firm also on the line on behalf of 24 Voice Tech Corporation as well as Mo Khan from my firm. 25 just want to note for the record, Mr. Khan is a 2018 graduate We've got Tod Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 3 of 18 And I 4 1 from Georgetown and has just moved here from Colorado. 2 not a member yet of the Missouri bar. 3 pending, and so I wanted to make sure that it's okay with the 4 Court that he be at the hearing before he entered his 5 appearance officially. 6 7 THE COURT: that, Ms. Gilman. 8 9 Absolutely. He is His application is That's fine. Thank you for Anyone else for plaintiff? All right. Let me get entry of appearances for defense, beginning with Mr. DeBacker. 10 MR. DeBACKER: Yes. This is Chris DeBacker, Your 11 Honor, from the law firm Mark Brown on behalf of the defendant 12 Mycroft AI. 13 from Lathrop GPM. 14 15 Also on the line is Justin Poplin and Hissan Anis THE COURT: witnesses? 16 Very good. Anyone else? Anyone Anyone else on the line? All right. I have had an opportunity to read 17 plaintiff's filings in document 14 and their suggestions in 18 document 15 as well as several exhibits and also the 19 defendant's opposition in document 20 with the exhibits as 20 well. 21 So I guess I'd like to hear from both sides. But what my focus today is going to be on is whether 22 or not plaintiff has shown that the defense or any agents has 23 harassed plaintiff or counsel for plaintiff. 24 hasn't been a showing, I think the second level would be, was 25 it foreseeable that defendant's conduct would cause such And if there Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 4 of 18 5 1 harassment. 2 So that's kind of my focus. But I'm open to 3 whatever issues the parties want to include in their arguments. 4 And I anticipate your arguments -- since I've read the 5 complaint, the pleadings, reviewed the exhibits, that each side 6 would argue about ten minutes. 7 8 Ms. Gilman, will you be leading the arguments or will one of your co-counsels? 9 10 MS. GILMAN: I'm going to turn it over to Eric Adams to take the lead on this, Your Honor. 11 THE COURT: Very good. Mr. Adams, are you ready to 12 proceed with your statement, or do you have any issues we need 13 to take up ahead of time? 14 MR. ADAMS: I'm ready to proceed, Your Honor. 15 THE COURT: All right. 16 Mr. DeBacker, will you be the lead in the argument or will someone else? 17 MR. DeBACKER: 18 DeBacker, Your Honor. 19 THE COURT: Yes, Your Honor, it will be me, Chris And, Mr. DeBacker, do you have any 20 issues that we should take up before I turn it back over to 21 Mr. Adams? 22 MR. DeBACKER: 23 THE COURT: All right. 24 MR. ADAMS: Okay. 25 please the Court. None at this point, Your Honor. Mr. Adams, you may proceed. Thank you, Your Honor. May it I want to jump in and start addressing the Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 5 of 18 6 1 questions by the Court right away. We, of course, outlined 2 this in our Exhibit 97, which is a timeline of different 3 events. 4 that is associated with that event has also been submitted to 5 the Court. 6 events that have taken place that we're complaining about. 7 Really, the story -- to kind of focus in on the Each event is laid out in detail, and then the exhibit That's a good, kind of, road map of all of the 8 Court's question -- really starts at the end of January. We 9 served Mycroft with the lawsuit in Texas at the end of January. 10 And then, within a few days of that, we started getting 11 harassing phone calls at our firm. 12 breathing, hang up, and then this just was repeated over and 13 over again. 14 actually very unusual for our firm. 15 boutique down here in Houston. 16 Somebody would call, heavy That's -- and we put this in our suggestions, it's We're just a small patent A few days later, we saw that Josh Montgomery, one 17 of the co-owners of Mycroft and one of the -- or I guess he was 18 a former CEO -- he's now something called a first officer -- 19 submitted a -- I guess published an article on Mycroft's 20 website critical of us, using some slurs against us, calling us 21 patent trolls and explaining his feelings about the case. 22 at one point, he also points out that he thinks Tod Tumey, one 23 of the attorneys, is a patent troll, and he knows how to handle 24 them. And he says you should stab -- or I know how to handle 25 them. Stab, shoot and hang them, and then dissolve them in Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 6 of 18 But 7 1 acid. So that was the -- the first threatening language that 2 we saw come from Mycroft. 3 Now, after that, a few days later, there was this 4 flood of attempts to try to hack into our systems, different 5 online harassment, you know, signing us up for email lists, 6 pornography websites, all kinds of activity that stretched over 7 about a seven-hour period. 8 was all anonymous. 9 parties who did email us in response to Mr. Montgomery's 10 And a lot of that was -- or that There were a few individuals from third article, but they all identified themselves. 11 And if the Court looks at the timeline that I 12 referred to, Exhibit 97, it's clear, looking at February 8th, 13 2020, that this seven-hour tirade is all one person. 14 see it in the pattern. 15 different activities. 16 different accounts for our firm. 17 us up for pornography websites. 18 And there's just a pattern to it, which indicates that it's one 19 person. 20 You can You can see how they're going through At one point, they're trying to access At one point, they're signing Another point, email lists. After that, we looked at it, and we thought, you 21 know, this has got to be somebody at Mycroft. Who else would 22 be motivated to do this. 23 Montgomery or somebody helping him at Mycroft. 24 that it would be best to move this case to Missouri. 25 decided to dismiss the Texas case. We strongly suggested it was Josh And we decided And we So we dismissed it. Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 7 of 18 And 8 1 2 then all of a sudden, all the online attacks stopped. And we refiled it, of course, in this court and 3 moved forward. As soon as Mycroft made an appearance, we filed 4 this motion for relief. 5 that motion for relief, the attacks started up again. 6 somebody try to hack into our systems at our firm and somebody 7 was signing us up for online solicitation from companies, 8 basically claiming to be us and saying that we were interested 9 in their goods, so please give us as call. And a few days later, after filing We had So to us, the 10 timing of this is a major indication that this is somebody at 11 Mycroft, most likely Josh Montgomery. 12 The fact is, you know, as soon as we dismissed the 13 case, these attacks stopped. 14 for relief, they started up again. 15 not likely that some random third party is following this case, 16 has access to Pacer filings, has access to high key Law360 17 articles and is monitoring this case daily. 18 do something that they approve of, the attacks stop. 19 as we do something they don't approve of, these attacks start 20 up suddenly again. 21 As soon as we filed our motion And it's just -- it's just And as soon as we As soon So the evidence that we have that we've presented to 22 the Court is -- is circumstantial, but it is strongly 23 indicative of this being somebody at Mycroft performing these 24 online attacks. 25 just want to set a baseline of behavior going forward. And really, what we're asking for here is we Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 8 of 18 We 9 1 shouldn't have to deal with these kind of attacks. 2 you know, everybody to agree let's just treat each other 3 professionally, with courtesy, and focus on the merits of the 4 case. 5 these attacks just get unbearable and go back to the Court with 6 everyone asking, well, if it were such a big deal, why did you 7 wait so long. 8 beginning of the case. 9 We want, We don't -- we didn't want to wait a year and then have So that's why we're bringing it up now at the As far as whether -- well, we believe it was Mycroft 10 or, most likely, Josh Montgomery. 11 second question, whether this would be foreseeable that this 12 kind of conduct would lead some third party to act this way. 13 The fact is, these attacks did happen, and we've submitted the 14 evidence to support it. 15 the very least, the evidence incited someone to act this way, 16 if it was not Josh Montgomery, someone at Mycroft. 17 I know the Court had a And so I think it's very clear that at THE COURT: All right. 19 MR. ADAMS: And -- 20 THE COURT: Were you through? 18 21 Thank you. And let me ask -- I'm sorry. Mr. Adams, were you through? 22 MR. ADAMS: Yes, Your Honor, I am. 23 THE COURT: All right. Thank you. I have a few questions. As 24 part of your prayer for relief in your document 14 motion, you 25 asked that the defendant be required to remove comments that Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 9 of 18 10 1 they've published that threaten or suggest or incite violence. 2 That is still -- that remains your position; is that correct? 3 MR. ADAMS: Yes, Your Honor. That's a reference to 4 the initial article that Mr. Montgomery published on Mycroft's 5 website. 6 dissolve them in acid. 7 8 The reference is to stab, shoot and hang them and THE COURT: And it's just that sentence. What about "punch him square in the face and nuke them from orbit? 9 MR. ADAMS: The "nuke them from orbit" is -- you 10 know, is an obvious reference to a movie line. We're not 11 concerned about that. 12 threat, not as serious, but it should be removed as well. 13 like I said before, we're not trying to make them take down 14 this complete article. 15 free to make those known. 16 gag order on them. 17 out. 18 limit of our request. 19 THE COURT: All right. 20 All right. Mr. DeBacker. 21 MR. DeBACKER: "Punch him in the face" would be a And, If they have criticisms of us, they're We're not trying to put any kind of We just want that one little threat taken We just think it sends the wrong message. And that's the Thank you. You may proceed. Thank you, Your Honor. And may it 22 please the Court. I just wanted to first, you know, latch on 23 to the -- the fact that they do admit that it's circumstantial 24 evidence. 25 Mr. Montgomery's categorically denying any of this activity. And we've submitted a declaration of Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 10 of 18 11 1 And, you know, Mycroft would be the first to formally 2 admonish and deny any of these personal attacks. 3 believe that anybody, counsel, companies should be subjected to 4 this type of harassment. 5 earlier today that today is national be kind to lawyers day, so 6 it's something that attorneys sometimes have to deal with in 7 the face of these situations. 8 threatened attack and phone calls and harassment. 9 no evidence whatsoever that any of these activities were They don't And it's fitting -- I found out But nobody should have a But there is 10 performed by Mycroft or Mr. Montgomery or any person instructed 11 to do these attacks by Mr. Montgomery. 12 You know, we would certainly be interested in seeing 13 the digital file of these emails in discovery and seeing if 14 maybe we can't identify these particular parties for the 15 plaintiff. 16 that they could potentially track down these individuals. 17 you know, they asked who else would be motivated to do this. 18 And, you know, as we pointed out in our response in opposition, 19 there is a large segment of the technological society and 20 inventors all over the country that are against the type of 21 activity that Mycroft is of the opinion Voice Tech is taking on 22 here. 23 Mycroft has resources and some technical experience The tautologism is patent troll. But, You know, the 24 courts have used that term, Congress has used that term to 25 describe nonpracticing entities and these individuals that -- Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 11 of 18 12 1 the language that the plaintiff is locked in on, the "stab, 2 shoot and hang them and then dissolve them in acid" -- 3 Mycroft's position is that's referring to the fictional 4 creature of the troll, has to deal with the troll. 5 quote itself is actually written to another article unrelated 6 to this matter. 7 language that -- other than hyperbole that would direct 8 somebody to perform these types of act. 9 And the So Mycroft doesn't view that as any sort of And Mycroft would like to point out also that 10 they're -- they have nine full-time employees. They're going 11 up against giants like Google and Amazon. 12 defendants here. 13 paramount to why they need the ability to inform their 14 customers, inform their investors. 15 the plaintiff isn't suggesting a full gag order here. 16 seems like really that language is what they're latching on to. 17 And I don't know that removing by word is going to stop some 18 individual out there on the internet who has a strong opinion 19 about, you know, patent -- abusers of the patent system 20 from defensively continuing this activity, which Mycroft cannot 21 control and cannot stop. 22 Amendment rights to express its opinion and to continue 23 informing its communities about the ongoings of the case, 24 informing its customers, and it will continue to provide 25 quality product to -- you know, continue to assure its investor And they are the They didn't bring this case. So that's And we're glad to hear that But it But at the same time having First Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 12 of 18 13 1 that they're going to defend this type of case and all future 2 types of cases like this against what they consider an attack 3 on their own business. 4 So while they are not aware of this activity that is 5 being accused of, they deny any form of activity. 6 not -- they did not participate in any of the activity. 7 did not contact Mr. Tumey or his firm. 8 you know, the signing up for various services or attempts to 9 hack their website can be proven to have come from Mycroft or any of its associates. 11 activity in Mr. Montgomery's declaration. 12 sums up our position on this matter. THE COURT: They None of the online -- 10 13 They did And they categorically deny any of that All right. And that pretty much Here is where the Court is 14 landing. 15 20, in that exhibit, it is a posting by Techdirt. 16 the sentences in that writing -- the paragraph begins with, As 17 Tumey recounts, the various angry, immature, internet trolls 18 then did a bunch of other mean stuff to Tumey, such as signing 19 him up for mailing lists. 20 but it's kind of what often happens when you do something 21 stupid and the internet finds out about it. 22 In your Exhibit 5 to your opposition in your document And one of This is, again, childish behavior, And I find that there is sufficient evidence that 23 the harassment that plaintiff's counsel has received is induced 24 or inspired by the postings of Mr. Montgomery. 25 the initial blog posting on February 5th where his -- the In particular, Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 13 of 18 14 1 posting is, basically, I want you to do something for me. 2 he says, I'd like -- I don't often ask this, but I'd like for 3 everyone in our community to share the post in any which way 4 they can. 5 action to get the word out. 6 And And so that is what -- he is calling folks into And then as he describes and educates the readers as 7 to what a troll is, then he explains what their internal 8 policy -- how they're going to combat this. 9 it in equating plaintiff as a bully and the language of And he describes 10 punching a bully in the face; stab, shoot, hang them; and 11 dissolve them in acid; and nuke them from orbit; and that he is 12 turning into a hunter, a troll hunter. 13 though he may not be directly the source of the harassment, his 14 actions are foreseeable and that that is what would happen 15 based on his conduct. 16 I think that even So I am going to order, at least for the pendency of 17 this case, or until ordered otherwise, for defense to 18 assertively take down the sentence that begins with "I don't 19 often ask this," to delete that portion until the section where 20 "a brief history of patents in the United States." 21 order defense to assertively search and take down in those 22 similar -- whether it's Facebook or blogs or whatever, the 23 remainder of the writing beginning with "the thing is, once you 24 pay the bully, he just comes back again and again and again." 25 And so from that sentence -- that can stay in, but where it I'd also Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 14 of 18 15 1 begins with "Eventually, the lunch money adds up to a lot more 2 than a doctor's visit." 3 that posting, for that to be deleted. 4 asking that all that blog be taken down, just those sections. 5 From "eventually" until the end of And I do -- I'm not I don't know that a written order is required and 6 that this on-the-record order should be sufficient. 7 to give each side an opportunity to make any requested changes 8 to my order. 9 But I want Let's start with plaintiff. MR. ADAMS: Your Honor, we're fine with your order 10 being in the record being taken down by the court reporter. 11 And we don't have any other recommendations or suggested 12 changes to it. 13 THE COURT: All right. 14 MR. DeBACKER: Defense? Yes, Your Honor. I just wanted some 15 clarity. To remove the sentence starting from "I don't often 16 ask this" through the link and the posting. 17 sentence near the end starting with "Eventually, that lunch 18 money adds up" through the end of the -- the post; is that 19 correct? 20 THE COURT: Yes. And then the So they need to take down "I don't 21 often ask this, but I'd like for everyone in our community who 22 believes that patent trolls are bad for open source to repost, 23 link, tweet, and share this post. 24 word out by sharing this post on Facebook, LinkedIn, Twitter, 25 or email." Please help us to get the All of that is to be deleted. Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 15 of 18 16 1 In addition, towards the end, beginning with, 2 "Eventually, that lunch money adds up to a lot more than a 3 doctor's visit." 4 remainder, which includes Tod Tumey's confidential 5 correspondence information and the email 1, 2, 3, email 4, 6 final notice letter link. 7 for the image attribution. And that continues on. And to take down the And then there shouldn't be any need Does that clarify your concern? 8 MR. DeBACKER: Yes, Your Honor. 9 And I -- also, if I may, Mycroft is sort of an open 10 source network. 11 situations such as the (inaudible) and other things. 12 going to be an issue? 13 THE COURT: 14 said. 15 again. 16 And they do often post asking for support in Is that I didn't clearly understand what you That they asked for support in what manner? MR. DeBACKER: Tell me So often -- they are part of an open 17 source network that collaborates with other open source 18 innovators. 19 be able to continue to ask for support outside of this matter 20 with sharing links and such with their open source network, if 21 they post on other forums, if they're going to be allowed to 22 request aid and other things like that, as long as they're not 23 directing it towards codes like this. 24 25 And I just want to be clear that they're going to THE COURT: comes. Well, I'll just have to see it as it I don't want to have to rule on that now. I know just Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 16 of 18 17 1 in my own little messing around on my phone, I see that they 2 may be seeking financial assistance with attorneys' fees. 3 know, that I'm not -- that doesn't have anything to do with 4 this issue. 5 just -- I mean, I think it's common sense what the Court's 6 focus is. 7 8 So I don't know what else you're referring to, but MR. DeBACKER: Honor. 9 You That should be sufficient, Your Thank you. THE COURT: All right. And, you know, on the word 10 patent trolls, that really is -- it was on 60 Minutes as well. 11 I saw a little piece -- I think it was 60 Minutes. 12 that is -- I'm not going to rule that they are not able to use 13 that term in any of their communications. 14 that is part of the plaintiff's request, that is denied. 15 16 I think So that part -- if Let me ask plaintiff, are there any other requested relief? 17 MR. ADAMS: No, Your Honor. 18 THE COURT: Okay. 19 MR. ADAMS: No, Your Honor. 20 THE COURT: Defense, anything further? 21 MR. DeBACKER: 22 THE COURT: Anything further from plaintiff? No, Your Honor. Let me ask the attorney in chambers 23 that's assigned to manage this case, Mr. Phillips, are there 24 any other issues or clarifications we need to take up before we 25 end the conference call? Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 17 of 18 18 1 THE LAW CLERK: Just one thing, Judge. The record 2 speaks for itself. 3 follow this up with a written order from the Court, but we will 4 follow it up with just a notation from me on the docket sheet 5 that is a minute entry that just described what was discussed 6 and will essentially state as ruled on record. 7 8 THE COURT: THE LAW CLERK: 10 THE COURT: 14 15 Without getting into any of the Right. Okay. Anything else, Mr. Phillips, you can think of that we need to take up? 12 13 Yes. details. 9 11 So my understanding is we're not going to THE LAW CLERK: No. I think that's it. Judge. THE COURT: Okay. Everyone. And this will end our conference call. Thank you very much. Goodbye. 16 (Proceedings concluded at 3:32 p.m.) 17 * * * * * 18 CERTIFICATE 19 20 Thank you, I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 21 22 April 20, 2020 23 24 25 /s/Jean M. Crawford JEAN M. CRAWFORD, RDR, CRR United States Court Reporter Case 4:20-cv-00111-RK Document 23 Filed 04/20/20 Page 18 of 18