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Case: 1:04-cv-06756 Document #: 528-7 Filed: 07/24/15 Page 1 of 9 PageID #:5631

Exhibit G

Case: 1:04-cv-06756 Document #: 528-7 Filed: 07/24/15 Page 2 of 9 PageID #:5632

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

vs.

Plaintiffs,

U.S. FUTURES EXCHANGE, L.L.C.,
et al.,

)
) No. 04 CV 6756
)
)
)
) Chicago, Illinois
)
) January 25, 2013
BOARD OF TRADE OF THE
)
CITY OF CHICAGO, INC., and
CHICAGO MERCANTILE EXCHANGE, INC.,)
)
) 10:24 o'clock a.m.

Defendants.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE JAMES B. ZAGEL

For the Plaintiffs:

MORGAN, LEWIS & BOCKIUS, LLP
BY: William P. Quinn
1701 Market Street
Philadelphia, Pennsylvania 19103
(215) 963-5775

For the defendants:

SKADDEN ARPS SLATE MEAGHER & FLOM, LLP CH
BY: Albert Lee Hogan, III
155 North Wacker Drive
Suite 2700
Chicago, Illinois 60606-1720
(312) 407-0700

Court Reporter:

Blanca I. Lara, CRR, RPR
219 South Dearborn Street

Room 2318

Chicago, Illinois 60604

(312) 435-5895

Case: 1:04-cv-06756 Document #: 528-7 Filed: 07/24/15 Page 3 of 9 PageID #:5633

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10:22:23

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(Proceedings taken in open court:)

THE CLERK: 2004 C 6756, U.S. Futures, et al., versus

the Board of Trade, et al.

MR. HOGAN: Good morning, Judge.

Al Hogan of Skadden, Arps for CME defendant.

MR. QUINN: Good morning.

Bill Quinn for plaintiffs.

(Brief pause).

THE COURT: The last time we were here we were

discussing what you turned over to DOJ that might be

producible.

MR. HOGAN: Correct, Judge. Again, Al Hogan for the

CME group.

Maybe I can take a stab because I believe you're

right. At the last hearing the burden was on us, I believe, to

go and think about the DOJ production and to try to come up

with a sample of that production for the Court's benefit, and

because I believe the Court envisioned that in the disposition

of the motion to compel and discovery going forward the Court

wanted to have a sense for what that DOJ production looked

like.

If Your Honor has a few minutes, I guess a couple of

things I would say first is that, I was here at the status

hearing in December. There was a fair amount of discussion

about what the purposes of the summary judgment motion were

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that Your Honor reviewed.

I filed my appearance in this case in the middle of

last year. So I'm more of a bystand- -- I'm not a bystander,

I'm more of a historian about where the case has been in trying

to get up to speed in the case.

I noted in preparation for this hearing that when that

summary judgment process was initiated, Your Honor observed,

and actually committed to plaintiff, that the summary judgment

process would not end the case and that instead Your Honor had

designed to streamline the case to resolve some issues to

hopefully figure out what issues were still around and what the

methods of proof might be to further resolve the case.

So I thought that was interesting. There was a lot of

discussion last time about whether it was a success or failure.

Your Honor envisioned that the case would actually continue

beyond the summary judgment exercise.

So at the status hearing we did talk about the DOJ

production, which has been, I believe, the parties' next focus

about how to move forward in the case. And since that time,

we've gone out and attempted to learn what that DOJ production

is, we've attempted to come up with a sampling methodology to

educate Your Honor on what it is, and we believe we have a

proposal.

I have some slides. I don't want to take up a ton of

time, but I have some slides that I'd love to hand up --

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THE COURT: You're the last case on this morning's

call. You can take all the time you think you need.

MR. HOGAN: I saw that. Thank you, Judge.

I have some slides. I have a copy for Mr. Quinn. And

if I can hand those up, I think it will assist you in

understanding what we believe we know and what would like to

proceed with.

Is one copy sufficient?

THE COURT: Sure.

(Document handed to Court and Counsel:)

MR. HOGAN: So, Judge, what is the DOJ production?

Slide 2 sort of gives us a sense for what we believe that

production consists of. And the slide is entitled DOJ

Electronic Production. I want to talk about that in a moment.

But at the time of the DOJ production, CME and CBOT were

obviously separate entities, that's the whole point.

There were, roughly, 10 million pages of electronic

documents produced, that's what this front slide says. And

again, as a student of the history of this case and there's

some things that I saw on the record that I think I need to

make a comment on right now, and that is that in addition to

these 10 million pages, roughly 10 million pages of documents,

the CME produced approximately 370,000 pages of documents in

purely paper form. CBOT produced approximately 150,000 pages

in purely paper form.

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Now, what I need to make sure that we're clear -- and

that was referenced in some briefing, it was referenced in a

hearing in 2007. The focus has been on the 10 million pages of

electronic documents.

As to the CME, 370,000 pages of electronic documents,

I want to be clear that those documents, as presented to the

DOJ, are not available in the sense that, the collective

version of those documents, there are not 370,000 pages of

paper documents sitting around for review in this case. They

do not exist. Those pages, as produced to the DOJ, those pages

are gone.

What we still believe we have are, obviously, the

10 million pages of electronic documents, and I believe we have

the 150,000 of CBOT paper production because those were, we

believe, reduced to electronic form. But just to be completely

clear about the record, 370,000 pages of paper documents, we

cannot access those in the form that they were produced to the

DOJ.

So that's the overview --

THE COURT: Stop, stop for a second. You said cannot

reproduce in the form that they were produced to DOJ.

MR. HOGAN: Correct.

THE COURT: They can be produced in some other form?

MR. HOGAN: Correct. And two things on that appoint.

First of all, in this case, one of the things that the parties

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were able to accomplish was, I believe, a comprehensive paper

production was executed for this case in the middle of 2006.

So the parties had agreed on what the scope of discovery would

be, more or less, and I believe both parties went and pulled

the paper documents that were responsive in this case, that

production has already been completed.

The second thing is, you're right, the language I used

was very precise. What happened was, 370,000 pages were

gathered, put in boxes and sent to the DOJ. We don't have

those, but we have no reason to believe that the documents

weren't already produced for the Urex litigation. Those

documents that might still exist at CME, you know, don't cover

the entire universe, but I need to state that to be very clear

about what the DOJ production was and what we still have

access to.

So with that, Judge, the next slide, Slide 3, tries to

give a sense, a little more detail, about what is contained in

the CME electronic production. The next slide does the same

thing with respect to the CBOT production.

So I do just want to tick down a little bit because

there are some relevant data points here. As for CME, there

were 58 custodians who provided documents to the DOJ. 25 of

those custodians overlap with custodians who have been

identified, at this point, as potentially possessing responsive

documents in the Urex case. So there's some overlap but it's

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not a perfect overlap.

The data in terms of the number of documents, that is

what it is. Dropping down to this number of hard drives

produced, 22, and CD ROMs produced, 6, the thing to understand

about that is that the production was organized by custodian,

but as to any one custodian, that custodian's documents may

appear across multiple drives.

So, again, stated in a negative, this was a response

to a DOJ request--and we'll talk about that request--the

documents are not organized, as far as I can tell, in any

fashion as responsive to the specific DOJ requests. It is a

custodian-driven production. Having said that, the custodian

documents are spread across multiple drives to, more or less,

extend depending on the custodian. So that is the nature of

the CME production.

If you look at the next page, that's Slide 4, that is

also my understanding of the way the CBOT production was

executed, again not by responsiveness to a DOJ request but by

custodian. There were 55 custodians that participated in the

DOJ response, 22 of those overlap with the Urex identified

custodians, 21 hard drives for CBOT.

Another aspect of this production, and you'll see it

on both of these slides, we talk about shared drives. And so

roughly half of the documents produced to the DOJ--someone will

yell at me if I get that wrong--roughly half of the documents

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I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE

RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER

/s/Blanca I. Lara

date

_________________________

___________________

Blanca I. Lara

Date

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