[00:00:50] Speaker 01:
Okay, the next argued case is number 17, 1632, RQ squared LLC against the United States Postal Service.

[00:01:00] Speaker 01:
Mr. Miller.

[00:01:01] Speaker 04:
Good morning.

[00:01:03] Speaker 04:
May it please the Court, Adam Miller, for the appellant RQ squared.

[00:01:06] Speaker 04:
At the outset of this case, the Court of Federal Claims determined that RQ squared's complaint stated a claim, but barely.

[00:01:13] Speaker 03:
In the blue brief at pages 33 to 49,

[00:01:17] Speaker 03:
You attempt to identify a genuine issue of material fact.

[00:01:21] Speaker 03:
Yes, Your Honor.

[00:01:22] Speaker 03:
But when I looked at the record, your citations are all to a proposed statement of facts.

[00:01:29] Speaker 04:
Well, we submitted a statement of facts in opposition to the government's motion for summary judgment, and I would think that's what we are referring to, if I could take a look.

[00:01:49] Speaker 04:
Your Honor, I believe that the answer is that we are referring to our statement of facts that we did submit in opposition to the government's summary judgment motion.

[00:01:59] Speaker 04:
I can pull up the appendix.

[00:02:02] Speaker 03:
Well, you know, you can look.

[00:02:05] Speaker 03:
Sure, it is a proposed statement.

[00:02:07] Speaker 03:
And my question is, are we expected to, number one, are we expected to rely on those statements of fact as a basis to say there was a genuine issue of material fact?

[00:02:19] Speaker 03:
And number two, do you expect us to sift through that proposed statement to determine which facts are disputed and which aren't?

[00:02:30] Speaker 04:
In answer to your first question, Your Honor, I believe the statement of facts cites specific evidence.

[00:02:35] Speaker 04:
And so yes, you should rely on the evidence we've cited.

[00:02:38] Speaker 04:
And no, of course, we do not expect you at the court to sift through the entire thing.

[00:02:42] Speaker 04:
I believe we've identified certain facts that we think give rise to genuine issues requiring trial.

[00:02:59] Speaker 03:
Go ahead.

[00:03:00] Speaker 03:
OK.

[00:03:00] Speaker 04:
Thank you, Your Honor.

[00:03:02] Speaker 04:
At the outset of the case, the court said that the dispositive issue, her words, were whether UPS already possessed the concept and technology for its dual-label system that became flexible access before RQ squared allegedly shared its concept and technology with the Postal Service.

[00:03:19] Speaker 04:
And we've referred to this issue as a shorthand as the novelty issue.

[00:03:22] Speaker 04:
And after allowing RQ squared very limited discovery on the novelty issue, the court granted the government's motion for summary judgment on two grounds.

[00:03:30] Speaker 04:
First, the court held that there were no genuine issues of material fact on the novelty issue.

[00:03:35] Speaker 04:
But in doing so, and as Your Honor has anticipated our argument, the court failed to draw the inferences and construe the facts in RQ2's favor.

[00:03:43] Speaker 04:
The court also refused RQ2's request for very limited specific additional discovery under Rule 56D.

[00:03:50] Speaker 04:
We wanted to take three additional depositions of individuals who had worked both on the RQ2 project with the Postal Service,

[00:03:57] Speaker 04:
and on the UPS project with the Postal Service, just three.

[00:04:00] Speaker 00:
How would that of testimony, had you been able to have it, relate to the novelty issue?

[00:04:05] Speaker 04:
Well, Your Honor, what that testimony may have shown is individuals who were involved in both projects would have been forced to explain how information got from one project to the other.

[00:04:15] Speaker 04:
And if it did so, and that's really the issue that's in dispute.

[00:04:18] Speaker 00:
But if UPS and the novelty issue had developed

[00:04:23] Speaker 00:
the technology on its own in advance of any such discussions, then how would it relate to the novelty issue?

[00:04:32] Speaker 04:
If UPS had developed the technology on its own in advance, then that testimony wouldn't be necessary.

[00:04:38] Speaker 00:
But I thought that's what the fact was.

[00:04:41] Speaker 00:
I thought that that's what the court below concluded.

[00:04:43] Speaker 04:
That is what the court below concluded, and we believe that the court did so in error, that the court failed to construe certain facts in our favor.

[00:04:50] Speaker 04:
The main reason why the court concluded that UPS had developed the technology in advance is because it had a prior program referred to as UPS Basic, which, like Flexible Access, involved a so-called dual label.

[00:05:02] Speaker 04:
In other words, a shipping label that had barcodes for UPS and the Postal Service.

[00:05:07] Speaker 04:
But the similarities between these two programs were very superficial.

[00:05:10] Speaker 04:
UPS Basic was just that.

[00:05:12] Speaker 04:
It was basic.

[00:05:13] Speaker 04:
It was a bulk drop-off program where

[00:05:16] Speaker 04:
UPS could tender a bulk shipment of packages, or I should say a number of packages at once, to the Postal Service for delivery to certain rural areas.

[00:05:25] Speaker 04:
That program did not allow for real-time tracking of the packages in both company systems.

[00:05:30] Speaker 04:
It did not allow customers to choose whether to initiate a shipment with UPS or the Postal Service, which is really the most valuable part of our QSWARE's invention.

[00:05:39] Speaker 04:
And it also didn't focus, and referring to BASIC, didn't focus on

[00:05:44] Speaker 04:
a very specialized shipping market, which is the market for shipping products back to retailers.

[00:05:50] Speaker 01:
Flexible access.

[00:05:51] Speaker 01:
Just to be clear, you're not saying that the software was copied, is that right?

[00:05:57] Speaker 01:
You're talking about the broader view of the steps and the procedures.

[00:06:04] Speaker 04:
That's correct, Your Honor.

[00:06:05] Speaker 04:
What we are saying happened here is RQ2 developed a concept.

[00:06:09] Speaker 04:
for a shipping program that would enable these features that flexible access wound up offering to customers.

[00:06:15] Speaker 04:
The ability to initiate a shipment with either carrier, for instance.

[00:06:19] Speaker 04:
And then RQ Squared worked with Federal Express and the Postal Service to develop this concept, bring it from the drawing board to something that was ready for launch.

[00:06:26] Speaker 04:
And in the course of that effort, which took place over approximately two years, they figured out how to make this work.

[00:06:33] Speaker 04:
They figured out how to solve all the problems.

[00:06:34] Speaker 04:
To make the company's systems, and these are competitors, interact with each other.

[00:06:39] Speaker 01:
What do you mean by figured out how to solve the problems, the problems of programming or the or the conceptual problems?

[00:06:46] Speaker 04:
Well, I think it's everything.

[00:06:47] Speaker 04:
It's everything to bring the program from an idea that was hatched on a blackboard into reality.

[00:06:52] Speaker 04:
And so to be to be frank, your honor, there isn't a lot in the record below about this process because the court limited our discovery and asked us to focus on

[00:07:00] Speaker 00:
It's your process, though, right?

[00:07:02] Speaker 00:
It's your client's process that you're talking about?

[00:07:04] Speaker 00:
Yes.

[00:07:04] Speaker 00:
Why did you need discovery on your client's process?

[00:07:07] Speaker 04:
Well, it's a fair question, Your Honor.

[00:07:08] Speaker 04:
I think that to some degree, this was more than 10 years ago.

[00:07:12] Speaker 04:
And RQ Squared, my client, has been out of business for a few years.

[00:07:16] Speaker 04:
And frankly, I think a lot of information has been lost.

[00:07:18] Speaker 04:
That's not to say we have no information.

[00:07:20] Speaker 04:
We do.

[00:07:21] Speaker 04:
And we submitted it.

[00:07:21] Speaker 00:
Why would the government have your information?

[00:07:24] Speaker 00:
I mean, I understand what you're saying.

[00:07:25] Speaker 00:
claim is, but you're saying you've, anyway, continue to answer the question.

[00:07:29] Speaker 04:
I'm sorry for interrupting.

[00:07:31] Speaker 04:
I'm sorry.

[00:07:32] Speaker 04:
So anyways, you know, this happened a long time ago.

[00:07:34] Speaker 04:
Information has been lost.

[00:07:36] Speaker 04:
We do have some information and we cited information in declarations in opposition to the government's motion for summary judgment.

[00:07:42] Speaker 04:
Our claim on this point was simply that there's undoubtedly more out there.

[00:07:45] Speaker 04:
The Postal Service ought to have it.

[00:07:47] Speaker 04:
to the extent it was done in collaboration, and we ought to have been given a chance to discover it.

[00:07:51] Speaker 03:
Let me take you back to my initial question.

[00:07:55] Speaker 03:
I'm going to give you a specific place.

[00:08:01] Speaker 03:
Footnote 19 on page 40.

[00:08:04] Speaker 04:
Are you in our brief, Your Honor?

[00:08:06] Speaker 03:
Yes, in the blue brief.

[00:08:10] Speaker 03:
And you say in the second clause, the third clause of that sentence,

[00:08:16] Speaker 03:
Ms.

[00:08:16] Speaker 03:
Sheppard-West could not testify as to who, if anyone, hatched the idea of dual entry.

[00:08:22] Speaker 03:
Yes.

[00:08:22] Speaker 03:
See appendix 1302, statement of fact number 52.

[00:08:26] Speaker 03:
So turn to 1302.

[00:08:28] Speaker 03:
OK.

[00:08:45] Speaker 03:
Yes, Your Honor.

[00:08:47] Speaker 03:
And you want paragraph 52.

[00:08:52] Speaker 04:
Yes, and I see that we have an error because... You have lots of errors, but that's one example.

[00:08:59] Speaker 03:
So turn to 1304 and go to paragraph 52.

[00:09:03] Speaker 03:
Yes, Your Honor.

[00:09:03] Speaker 03:
And that takes me to the Shepard West deposition, 308 to 309.

[00:09:10] Speaker 03:
Okay.

[00:09:11] Speaker 03:
I did a lot of scrutinizing in order to find that.

[00:09:14] Speaker 03:
It's in the appendix of 1468, 1469.

[00:09:16] Speaker 03:
Now remember, you're citing it for the proposition that she could not testify as to who hatched the idea, as you put it.

[00:09:34] Speaker 03:
So we go to that, and the question is, do you recall any particular spark that led to the idea?

[00:09:39] Speaker 03:
And the answer is,

[00:09:41] Speaker 03:
The product development process is iterative.

[00:09:46] Speaker 03:
It's difficult to pinpoint it to a time and place or a specific person.

[00:09:50] Speaker 03:
Where does she say she couldn't recall who hatched the idea?

[00:09:54] Speaker 04:
Well, Your Honor, I think if you look at the top of 1468, and perhaps we ought to start at the bottom of 1467, the question was, do you remember?

[00:10:04] Speaker 03:
Maybe we should, but you didn't refer me to that.

[00:10:06] Speaker 03:
You gave me specific lines of a deposition.

[00:10:09] Speaker 03:
I see your point, Your Honor, and I apologize to these panelists.

[00:10:12] Speaker 03:
Well, it's more than that, because that kind of sloppiness runs all the way through everything you refer to in your proposed statement of facts.

[00:10:22] Speaker 04:
I understand, Your Honor.

[00:10:23] Speaker 03:
And given that it's a proposed statement of facts, I take you back to my initial question, which is, how the heck can we possibly rely on it?

[00:10:31] Speaker 04:
Well, Your Honor, all I can do at this point is refer you to the testimony on the prior page where the question was,

[00:10:36] Speaker 04:
who came up with the idea.

[00:10:39] Speaker 00:
She says it's a team.

[00:10:41] Speaker 00:
She says I can't recall who came up with the idea.

[00:10:43] Speaker 00:
It's a team that works on these things.

[00:10:44] Speaker 04:
Right.

[00:10:45] Speaker 04:
And our point, Your Honor, was that this was a very lucrative and successful program that was unlike anything that came before UPS.

[00:10:54] Speaker 03:
You're not answering my question.

[00:10:57] Speaker 03:
I'm sorry, Your Honor.

[00:10:58] Speaker 03:
Don't take me to the top of the page.

[00:11:00] Speaker 03:
Tell me how on earth we as an appellate court can take this

[00:11:06] Speaker 03:
thing and rely upon it.

[00:11:17] Speaker 03:
I don't mean these pages.

[00:11:19] Speaker 03:
I mean your references to the proposed statement of facts, which is rife with mistakes.

[00:11:25] Speaker 03:
And as I said to you, do you expect us to scrutinize the entire record?

[00:11:29] Speaker 03:
Because I did a bunch.

[00:11:31] Speaker 03:
And every time I did, I found an error.

[00:11:33] Speaker 04:
Well, Your Honor, I

[00:11:34] Speaker 04:
I don't know what I can say other than to the extent there are errors that you have my apologies.

[00:11:39] Speaker 04:
And we did our best to identify the information that was relevant and to specify it.

[00:11:45] Speaker 04:
And to the extent we fell short, that's my responsibility.

[00:11:47] Speaker 04:
And I apologize to the court.

[00:11:49] Speaker 04:
I do not expect you to go through the entire record.

[00:11:51] Speaker 04:
I expect you to look at the things we cited.

[00:11:53] Speaker 04:
And to the extent we cited things that are not on point, there's nothing more you can do.

[00:11:59] Speaker 04:
Perhaps.

[00:12:00] Speaker 04:
Yes.

[00:12:00] Speaker 04:
It appears that way.

[00:12:04] Speaker 04:
Your Honor, going back to Judge Stoll's question, the reason that we focused on this point was that this was a very lucrative and profitable new program, unlike anything that had come before.

[00:12:14] Speaker 04:
It was the first thing UPS touted in their annual report the year after it was launched.

[00:12:18] Speaker 04:
And our point was, this was such a big deal for UPS, that if UPS really came up with it, you would think that somebody would be able to raise their hand and say, yeah, we had the idea.

[00:12:28] Speaker 04:
I had the idea.

[00:12:29] Speaker 04:
This is how it happened.

[00:12:31] Speaker 04:
have any information like that.

[00:12:32] Speaker 04:
It was all very vague.

[00:12:33] Speaker 04:
It was a team, and we don't really remember.

[00:12:35] Speaker 04:
And we just didn't think that that made sense, given the success of this program, Flexible Access for UPS.

[00:12:44] Speaker 04:
And so we think that suggests that UPS really didn't come up with it.

[00:12:47] Speaker 04:
And I would like to direct the court to, there was a presentation, and this is at appendix page 1738.

[00:13:01] Speaker 04:
It's a two-page presentation.

[00:13:04] Speaker 04:
It's the initial kickoff meeting between UPS and the Postal Service in May of 2008.

[00:13:08] Speaker 04:
And in this meeting, according to the notes we have that were produced by UPS, on page two, it states that the Postal Service expressed interest in UPS using postal channels for drop-off acceptance points.

[00:13:24] Speaker 04:
Now, that is evidence that particularly when

[00:13:28] Speaker 04:
construed in the light most favorable to RQ squared suggests that it was not UPS who came up with the genesis of this idea for flexible access.

[00:13:36] Speaker 04:
Because remember, the key to flexible access... How does it suggest that?

[00:13:40] Speaker 04:
Well, because it suggests that the Postal Service, or it doesn't suggest, it says that... Let me get the exact words.

[00:13:49] Speaker 03:
The idea is the entry of two addresses on the same form.

[00:13:54] Speaker 03:
Is that not correct?

[00:13:56] Speaker 04:
Not quite, Your Honor.

[00:13:57] Speaker 04:
The key to flexible access is that a customer with a shipment that they want to send back to a merchant has the option of entering that shipment either through the postal service, in other words, put it in your mailbox, or UPS.

[00:14:10] Speaker 04:
In other words, take it to a UPS location.

[00:14:12] Speaker 04:
UPS has a better network for these kind of returns.

[00:14:17] Speaker 04:
But the postal service has more access points in.

[00:14:21] Speaker 03:
Speaking hypothetically, if UPS had already designed that system,

[00:14:25] Speaker 03:
then the Postal Service's statement that it would really like to do that thing doesn't necessarily point to anything, does it?

[00:14:34] Speaker 04:
Well, that's correct, but UPS had not already designed that system, especially when construing the facts in the light most favorable to RQ2.

[00:14:41] Speaker 04:
There's no evidence of that.

[00:14:41] Speaker 04:
This was a brand new project that they were undertaking at this time.

[00:14:45] Speaker 04:
This document is either the first or second meeting, I believe it's the first meeting between UPS and the Postal Service to launch this project.

[00:14:55] Speaker 04:
And so, viewed in the light most favorable to RQ2, this suggests that it was not UPS who came up with the idea for flexible access and certainly did not have the idea already in the hopper.

[00:15:06] Speaker 04:
This was the Postal Service who came up with this idea, proposed it to UPS, and did so based on the information that the Postal Service had obtained in the course of working with RQ2 on its project, which had been terminated less than two years earlier.

[00:15:20] Speaker 00:
What about the finding on page, I just want to know how what you just said relates to the finding in the court's opinion on page A2119 that there's no dispute that UPS possessed and deployed dual barcode mailing label technology at least by 2004 before RQ2 allegedly disclosed dual label concepts and technology to the Postal Service.

[00:15:41] Speaker 04:
Yes, Your Honor, there is no dispute that they had a dual label and that was the UPS basic program that I referred to a few moments ago.

[00:15:49] Speaker 04:
But the label is only a very small part of the overall program.

[00:15:53] Speaker 04:
The basic shipping program was vastly different from flexible access.

[00:15:58] Speaker 04:
Flexible access, as I mentioned, had all kinds of capabilities that BASIC did not have.

[00:16:04] Speaker 04:
I see that my time is up.

[00:16:04] Speaker 04:
May I conclude?

[00:16:07] Speaker 04:
Flexible access had all kinds of capabilities that BASIC did not have.

[00:16:11] Speaker 04:
And we submitted an expert declaration, which was unrebutted, attesting to those.

[00:16:14] Speaker 04:
We also identified many of those in our brief.

[00:16:16] Speaker 04:
And so the mere fact that there was a dual label, meaning a label with barcodes for both entities, is only a very small part of the story.

[00:16:25] Speaker 04:
A rotary phone and an iPhone are both phones, but they're very, very different.

[00:16:28] Speaker 04:
And that's the kind of thing we're talking about here.

[00:16:31] Speaker 01:
OK.

[00:16:31] Speaker 01:
Thank you.

[00:16:32] Speaker 01:
We'll show you rebuttal time, Mr. Moore.

[00:16:34] Speaker 04:
Thank you, Your Honor.

[00:16:43] Speaker 01:
Mr. Kerr.

[00:16:44] Speaker 02:
Thank you, Your Honor.

[00:16:45] Speaker 02:
May it please the Court.

[00:16:47] Speaker 02:
The Court of Federal Claims discovery schedule shows that RQ2 was allowed the discovery it needed to explore its claim.

[00:16:54] Speaker 02:
The Court of Federal Claims allowed discovery on the technology UPS relied upon developing the flexible access program, the nature of any materials and information provided by the Postal Service in the development of flexible access,

[00:17:09] Speaker 02:
and the personnel at UPS and the Postal Service who dealt with one another in developing Flexible Access Program.

[00:17:16] Speaker 02:
This discovery went way beyond the novelty issue, as RQ2 describes it.

[00:17:22] Speaker 02:
If there had been evidence of any proprietary information that the Postal Service gave to UPS, it would fall within the scope of this discovery that the Court of Federal Claims allowed.

[00:17:33] Speaker 02:
RQ2's discovery requests show that it took advantage of this opportunity to explore its claim.

[00:17:40] Speaker 02:
For example, in its first round of document requests, RQ Squared asked for all communications between the Postal Service and UPS relating to the potential collaboration.

[00:17:51] Speaker 02:
And Defendant's response to that request is Defendant.

[00:17:56] Speaker 02:
Defendant interprets this request as requesting documents extending back to 2003.

[00:18:03] Speaker 02:
So RQ Squared's assertion that they didn't get discovery of the supposed

[00:18:07] Speaker 02:
Conversations and discussions in 2006 is simply not supported by the record.

[00:18:14] Speaker 02:
RQ Squared also asked for documents, all documents relating to the development of the flexible access program.

[00:18:22] Speaker 02:
And notably, all documents related to the process by which the label for flexible access program was developed.

[00:18:29] Speaker 02:
Again, if the Postal Service transferred RQ Squared's proprietary information to use in flexible access, it would have fallen under this discovery.

[00:18:37] Speaker 02:
It was therefore not unfair for the Court of Federal Claims to conclude that the United States has shown that there was no genuine issues of material fact on the issue of whether the Postal Service took the dual label or dual entry idea and technology from RQ squared and gave it to UPS.

[00:18:55] Speaker 02:
The evidence shows that UPS, not the Postal Service, proposed the dual label and the dual entry.

[00:19:02] Speaker 02:
And I believe I heard opposing counsel say that their proprietary information is not the software.

[00:19:07] Speaker 02:
which today's the first time they've made that admission.

[00:19:11] Speaker 02:
Up until this point, it's all been about the dual label or the technology behind the dual label.

[00:19:18] Speaker 02:
RQ Squared's attempts to show a genuine issue of material fact do not contradict this evidence.

[00:19:23] Speaker 02:
For example, there's no evidence that the UPS and the Postal Service began talking about flexible access in 2006.

[00:19:29] Speaker 02:
There's no evidence that John Gullo or Kristin Finazzo were meaningfully involved in the development of flexible access.

[00:19:38] Speaker 02:
And I want to emphasize there is no evidence in the record that the Postal Service proposed dual labels or dual entry to UPS for flexible access.

[00:19:48] Speaker 03:
You say in the red brief that the Postal Service proposed single entry and that the UPS came back with dual entry and so found the court.

[00:20:01] Speaker 02:
What evidence supports that?

[00:20:04] Speaker 02:
There are lots of documents that support that, Your Honor.

[00:20:07] Speaker 02:
There's a June 5th, 2008 presentation from the Postal Service.

[00:20:12] Speaker 02:
It's a PowerPoint.

[00:20:14] Speaker 02:
It's at Appendix 779.

[00:20:35] Speaker 02:
Pedic 779 is a PowerPoint.

[00:20:37] Speaker 02:
It's called the introductory meeting with UPS, June 5, 2008.

[00:20:41] Speaker 02:
And in this PowerPoint, for example, at 782, it shows the return service, and it originates at the post office, the postal.

[00:20:53] Speaker 02:
And each one, there are different versions, but each one originates only at the post office.

[00:20:57] Speaker 02:
Other evidence is the memo Council for RQ Squared was referring to at 767.

[00:21:03] Speaker 02:
That's the UPS.

[00:21:05] Speaker 02:
memo from May of 2008 in which it says, the Postal Service proposed UPS using Postal Service channels.

[00:21:16] Speaker 02:
I'm sorry, that's at 767 in the appendix.

[00:21:20] Speaker 00:
That's the first page.

[00:21:21] Speaker 00:
That's the first page.

[00:21:22] Speaker 02:
But where is it specifically?

[00:21:25] Speaker 02:
I'm sorry.

[00:21:26] Speaker 02:
On 769, there's a bullet point and then the sub-bullet point.

[00:21:31] Speaker 02:
The postal service expressed interest in UPS using postal channels for drop-off acceptance points.

[00:21:37] Speaker 02:
UPS customers would enter the UPS packages at any postal channel, which is a post office or mailbox.

[00:21:44] Speaker 02:
The postal service would scan the package and let UPS know to pick it up.

[00:21:48] Speaker 02:
That is not dual entry.

[00:21:50] Speaker 02:
That is single entry at post office, postal service channels only.

[00:21:56] Speaker 02:
And during this time frame,

[00:22:01] Speaker 02:
UPS is internally discussing, leveraging the basic technology, that is the dual barcode label and the systems behind it for using for flexible access.

[00:22:14] Speaker 02:
And these are internal UPS documents, and they're found at 774 and 778 in the same May-June timeframe where the Postal Service is proposing using single entry, single label.

[00:22:28] Speaker 02:
Just so I don't miss it, I'll point to the court to 786, where the single label is proposed.

[00:22:37] Speaker 02:
And in July of 2008, based on its internal discussions, UPS proposed using the dual label.

[00:22:45] Speaker 02:
And this is what allowed the dual entry, because now both the Postal Service and UPS could use the label for entry of packages.

[00:22:53] Speaker 02:
And then in September of 2008, documents... I apologize.

[00:22:56] Speaker 00:
What's the site for that last statement?

[00:22:59] Speaker 02:
July 2008, it's at 798 in the appendix.

[00:23:07] Speaker 02:
And that's the exhibit.

[00:23:08] Speaker 02:
And then the dual label is at 800 and 801.

[00:23:14] Speaker 02:
In September of 2008, a document shows that UPS, not the Postal Service, is considering UPS and Postal Service access points.

[00:23:22] Speaker 02:
which is dual entry.

[00:23:24] Speaker 02:
And that's at 813 in the appendix.

[00:23:30] Speaker 03:
And that, I believe, is an interim... Oh, it more than answers the question, yes.

[00:23:35] Speaker 02:
Thank you.

[00:23:35] Speaker 02:
Pardon me?

[00:23:35] Speaker 02:
It more than answers the question.

[00:23:39] Speaker 02:
Oh, good.

[00:23:39] Speaker 02:
Okay.

[00:23:39] Speaker 02:
And so I'll wrap that up.

[00:23:41] Speaker 02:
There's not a scintilla of evidence that the Postal Service proposed dual labels or dual entry.

[00:23:54] Speaker 02:
With regard to the Court of Federal Claims' use of 56D in both its oppositions to our original summary judgment motion and the opposition to our renewed summary judgment motion, RQ2 requested the targeted discovery that it now is disputing in this Court.

[00:24:13] Speaker 02:
It did not argue that the standards of Rule 26 should apply to 56D discovery, and therefore it waived this argument below.

[00:24:21] Speaker 02:
In fact, it even objected to our request to expand a discovery to include the identification of the proprietary information that RQ Squared's claim was based on.

[00:24:32] Speaker 02:
RQ Squared said this was outside of the scope of the Rule 56D discovery, and therefore they cannot now argue to this Court that the... Where's that?

[00:24:43] Speaker 02:
That's in the Court's discovery order.

[00:24:48] Speaker 02:
Yeah, it's in the record on the court's discovery order, the March, I believe it's March 30th, March 30th order at the appendix at 628.

[00:24:58] Speaker 02:
628.

[00:24:59] Speaker 02:
And 629 is where the court rejects our request for the very discovery that RQ squared now claims that they were deprived up below.

[00:25:17] Speaker 02:
Finally, there's no evidence that the Postal Service failed to retain or produce pre-2009 documents.

[00:25:26] Speaker 02:
And the best evidence that it didn't is the well-developed record of documents from 2008, which was the time period of the development of the Flexible Access Program.

[00:25:44] Speaker 02:
This record shows that there are no genuine issues of material fact.

[00:25:48] Speaker 02:
And therefore, we ask the court to affirm the Court of Federal Claims judgment.

[00:25:55] Speaker 01:
Any more questions?

[00:25:56] Speaker 03:
No, thank you.

[00:25:57] Speaker 01:
No questions?

[00:25:58] Speaker 01:
Thank you, Mr. Kerr.

[00:26:02] Speaker 01:
Mr. Miller.

[00:26:03] Speaker 04:
Thank you, Your Honor.

[00:26:04] Speaker 04:
Just briefly, the document I referred to earlier and which Mr. Kerr referred to was in May of 2008.

[00:26:12] Speaker 04:
And that is the document which refers to UPS customers entering their UPS package in postal channels.

[00:26:19] Speaker 04:
That is dual entry, because obviously a UPS package can be entered into a UPS channel.

[00:26:24] Speaker 04:
This, for the first time, would enable a customer to enter a UPS package in a postal channel.

[00:26:28] Speaker 04:
That didn't exist before.

[00:26:29] Speaker 03:
Did the USPS envision anything other than they were getting all the business?

[00:26:37] Speaker 04:
Well, I don't know exactly what the USPS envisioned, Your Honor.

[00:26:40] Speaker 04:
We weren't allowed to question anybody from the Postal Service.

[00:26:43] Speaker 04:
In fact, we identified two individuals.

[00:26:46] Speaker 03:
Didn't you get your posts and bunks from the Postal Service?

[00:26:48] Speaker 04:
I'm sorry, Your Honor?

[00:26:49] Speaker 03:
Isn't there a deposition of somebody?

[00:26:51] Speaker 04:
We were only allowed to take one deposition, and that was a woman who worked for UPS.

[00:26:55] Speaker 04:
No Postal Service employees.

[00:26:57] Speaker 04:
And in fact, we identified three Postal Service employees who worked on both

[00:27:01] Speaker 04:
the project with RQ Squared and the project with UPS.

[00:27:04] Speaker 04:
And we said in our 5060 request, we'd like to depose these three people.

[00:27:08] Speaker 04:
And candidly, there's two of them who are of primary importance, both of whom were at this May of 2008 meeting, which was the first meeting, Mr. Gullo and Mr. Cochran.

[00:27:17] Speaker 04:
And we weren't allowed to take that discovery.

[00:27:18] Speaker 04:
And so to really fully answer Your Honor's question, I think I would need to be able to depose these folks.

[00:27:26] Speaker 04:
And that's what we had asked for.

[00:27:27] Speaker 04:
And so our request, I'm sorry, Your Honor.

[00:27:29] Speaker 03:
It looks like you were about to do it.

[00:27:30] Speaker 03:
It looks like the documents are sort of racist, a lot quitter.

[00:27:33] Speaker 04:
Well, you know what?

[00:27:36] Speaker 04:
Okay.

[00:27:37] Speaker 04:
We don't see it that way.

[00:27:37] Speaker 04:
We think that this clearly indicates that the Postal Service was the one who first proposed dual entry.

[00:27:43] Speaker 04:
And yes, the documents that follow this one, which counsel referred to, do show UPS developing flexible access from that point.

[00:27:50] Speaker 04:
But what we'd like to know is, from Mr. Gullo, Mr. Cochran, the people who worked on both of these projects and were present when this idea was proposed in May of 2008,

[00:27:59] Speaker 04:
What did you say?

[00:28:00] Speaker 04:
What information did you rely on?

[00:28:02] Speaker 04:
What further conversations did you have with UPS over the following months as they developed their flexible access program?

[00:28:08] Speaker 04:
Because that would really get to the true facts about what happened, how this information moved from the RQ Square project to the UPS project, if it did.

[00:28:16] Speaker 04:
But we haven't been able to discover that because the court limited our discovery and denied our Rule 56D request.

[00:28:22] Speaker 04:
So that's the essence of our plan.

[00:28:26] Speaker 01:
Anything else, Jeff?

[00:28:27] Speaker 04:
Thank you, Your Honor.

[00:28:28] Speaker 01:
Thank you.

[00:28:28] Speaker 01:
Thank you both.

[00:28:29] Speaker 01:
The case is taken under submission.

[00:28:32] Speaker 01:
And that concludes our argued cases for this morning.

[00:28:36] Speaker 02:
All rise.

[00:28:39] Speaker 02:
The Honorable Court is adjourned until tomorrow morning, 8 o'clock AM.