GMO Gamecenter USA, Inc. v. Whinstone US, Inc.

eek wee gD DOCUMENT Ww ELECTRONICALLY FILED Whinstone shall respond to this letter by August 22, DOC #: 2025. This response shall include the names of the DATE FILED: 08/20/2025 attorneys who will be taking the deposition and/or in ———————J y_ |attendance. 500 Pearl Street, Room 750 SO ORDERED: 08/20/2025 New York, NY 10007 Re: GMO Gamecente! HON, KATHARINE H. PARKER No. 1:22-cv-05974 UNITED STATES MAGISTRATE JUDGE Dear Judge Parker: We write on behalf of Plaintiffs GMO Gamecenter USA, Inc. and GMO Internet Group, Inc. (collectively, “GMO”) to request this Court’s assistance to determine location, date, and length of the deposition of Masatoshi Kumagai.! GMO requests that this Court order that the deposition occur at the U.S. Embassy in Tokyo on September 24 and 25, for a total of no more than seven hours of record time, or on any other consecutive dates for which the deposition room at the U.S. Embassy is available. In the alternative, GMO requests that the Court order that the deposition occur in Hawaii on any date between September 1 — 15 or 20 — 30, for no more than seven hours of record time. Whinstone noticed Mr. Kumagai for a single-day deposition (unlike the two-day notices it served for other non-English-speaking witnesses) on the last day of discovery (April 21, 2025). See Exhibit A. Recognizing the obvious burden to the witness to appear in New York, Whinstone offered to conduct the deposition in Japan, Los Angeles, or anywhere in Asia. See ECF 361 at 21 (“[A]Ithough Whinstone noticed Mr. Kumagai’s deposition for New York . .. Whinstone is willing to hold his deposition at a more convenient location for Mr. Kumagai, such as in Los Angeles, or even at the consulate in Japan if available (or another location in Asia) if Mr. Kumagai would prefer.”). Whinstone now refuses to proceed anywhere but in New York and also insists that the deposition should be two full days. Thus, this Court’s intervention is necessary. 1, Whinstone’s expanding, unreasonable demands have impeded any agreement. After this Court ordered that Mr. Kumagai could be deposed (without specifying the length or location), GMO provided Whinstone with Mr. Kumagai’s availability to be deposed in Japan, based on Whinstone’s offer to proceed there. See Exhibit B at 10. As it communicated to Whinstone, the dates offered for August were available at the U.S. Embassy in Tokyo. /d. at 2. When the parties jointly requested an extension until August 22 to conduct the deposition (corresponding to the day after GMO’s proposed August dates), Whinstone reaffirmed to this Court that ““Whinstone is open to considering Tokyo as a possible deposition location.” See ECF 384 at 6. Hearing nothing more from Whinstone, including no requests for additional dates, GMO’s counsel sought confirmation that Whinstone was making arrangements to secure the deposition room at the U.S. Embassy. See Exhibit B at 1. Whinstone never responded to this message. Instead, days later, GMO learned through Whinstone’s court filing that Japan was apparently off the table due to “additional information concerning the practicalities of holding a deposition” there. See ECF 403 at 23-24. The suggestion that Whinstone’s counsel was previously unaware of the logistics involved in conducting a deposition in Japan is fanciful. Whinstone’s ' GMO makes this request subject to a reservation of rights while its objection to the denial of its motion for a protective order is pending. ECF 388. HAYNES DOONE □□□ counsel maintains an office in Tokyo. At least half of the lawyers associated with its Tokyo office are visibly engaged on this matter, including one who is reputedly the “Best Lawyer in Japan” according to his biography. In any case, the “additional information” that Whinstone claims renders it impracticable to proceed in Japan (i.e., the capacity of the deposition room) has at all times been readily available on the U.S. Embassy website, including before Whinstone committed to going to Japan. Regardless, the ability of additional attendees to attend remotely (e.g., lawyers, videographers, stenographers, interpreters) obviates any real capacity limitation.* Moreover, Whinstone cited no conflict with proceeding on August 20 and 21. See ECF No. 403 at 23-24 (referencing only that Michael Carlinsky had a trial scheduled before the deposition dates). Thus, despite receiving an offer that fell precisely within the bounds of what Whinstone unambiguously represented it would agree to, and having no conflict on the dates, it unilaterally prevented the deposition from being scheduled in August in Japan and demanded more dates. This time, Whinstone demanded two days of testimony in New York—trevealing that not only would it not proceed in Japan, but it would not proceed in any of the locations it had previously offered. See Exhibit C at 11. Hoping to avoid court intervention, GMO offered to conduct the deposition in Hawaii on August 20. This time, Whinstone rejected the date due to Michael Carlinsky’s purported unavailability.? See id. at 8. Counsel did, however, indicate that no conflicts would prevent a deposition the final week of September, consistent with Whinstone’s request to extend the date to complete the deposition until September 30. See ECF 454 at 3. Ina final effort to reach an agreement, GMO last offered Whinstone essentially its pick of dates in Hawaii for September (and several options in Japan as well), which again, Whinstone has rejected. See Exhibit C at 3-5. I. A seven-hour deposition in Japan (or at least Hawaii) is fair and reasonable. Whinstone noticed the deposition for a single day, which is dispositive to the question of length. See Exhibit A. If it had believed more than seven hours of testimony was required, then (as it has done with other witnesses) Whinstone should have noticed the deposition for two days. Of course, merely indicating two days on the notice would not have entitled it to extra time. The Federal Rules presumptively limit depositions to “1 day of 7 hours” and Whinstone has made no showing that the limited topics on which it believes Mr. Kumagai has knowledge will require more than one day to cover. See Fed. R. Civ. P. 30(d)(1). Certainly, GMO’s willingness to allow fourteen hours for certain witnesses does not extend to an apex witness who the parties had agreed would not be deposed in the first place. Nor does previously agreeing to such an accommodation imply that a blanket doubling of time is necessary when interpretation is needed. Indeed, Whinstone can arrange for simultaneous translation instead of seriatim translation, obviating the issue entirely. Similarly, Whinstone’s offer to conduct the deposition in Japan can and should be enforced. “[I]t is essential to our system of justice that lawyers and litigants, above all, abide by their agreements and live up to their own expectations.” Arista Recs. LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 433 (S.D.N.Y. 2009). Even absent Whinstone’s representation that it would go to Japan, “there is no absolute rule as to the location of the deposition of a nonresident plaintiff,” particularly, as here, “where the plaintiff has no choice of forum” due to the forum selection clause in the Texas Agreement. Spiegler v. Mish Mish Inc., 719 F. Supp. 3d 374 , 376 (S.D.N.Y. 2024). Assuming Whinstone had not agreed to go to Japan, then this Court should consider whether ? See https://jp.usembassy.gov/services/depositions-in-japan/ (“We have had successful video depositions where videographers, stenographers, and interpreters join remotely from the U.S. or Japan.”). 3 During a meet and confer, Whinstone’s counsel admitted she did not know the precise reason for his unavailability. HAYNES DOONE □□□ “factors of cost, convenience, and litigation efficiency militate in favor of holding the deposition outside of the witness’ district.” Six W. Retail Acquisition v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 107 (S.D.N.Y. 2001). The cost factor is at most neutral: GMO’s Japanese lawyers and employees will be spared the cost of travel, as will Whinstone’s Japanese lawyers, and with the capacity limitations of the deposition room, at most, four people will have to travel to Japan. The efficiency factor is also neutral, as the deposition will occur on roughly same schedule, regardless of location. In assessing convenience, the convenience of the witness is paramount. See Deviin v. Transp. Communic. Int’l Union, 2000 WL 28173 , at *4 (S.D.N.Y. Jan.14, 2000) (“In any event, the convenience of counsel is less compelling than any hardship to the witnesses.”); Sony, 203 F.R.D. at 108 (ordering depositions in Japan for “high-ranking executives of a major corporation, whose busy schedules would obviously be disrupted by a trip to the United States” and whose “absence at work would also adversely affect” the party). Mr. Kumagai’s prolonged absence from GMO would adversely affect the company as traveling to New York would render him largely unavailable for a week, given the travel time, the time difference, and the hours spent preparing for and conducting the deposition. Thus, convenience weighs heavily in favor of proceeding in Japan, or at least in Hawaii. While it would have been possible to conduct the deposition on August 20 and 21 (had Whinstone honored its offer), the earliest available dates at the U.S. Embassy in Tokyo are now September 24 and 25.4 Given Whinstone’s request for an extension until September 30 to conduct this deposition, and its implied availability at the end of September, a brief extension of the time to complete the deposition will not prejudice Whinstone. Accordingly, GMO has provisionally reserved these dates. With an order from this Court in the form of the proposed order, attached hereto as Exhibit D, the deposition may proceed in Japan.” Such an order is required by Japanese law, and it is not possible to proceed without it. This Court should further order Whinstone to cooperate with GMO as needed to supply the Embassy with any requested information, including to complete the proposed order. The Embassy has requested this order be received by August 25. In the alternative, this Court should at least order that the deposition proceed in Hawaii. Hawaii presents a true compromise, and outside of the need for its lawyers to travel, it resolves all of Whinstone’s concerns about the practicalities of proceeding in Japan. Afterall, GMO is a counterclaim-defendant, and GMO has deposed multiple of Whinstone’s witnesses at the location in which they reside. Regarding dates to proceed in Hawaii, GMO’s offer to make Mr. Kumagai available from September 1-15 or 20-30 will entail rescheduling longstanding commitments that are important to GMO’s business. This concession is feasible only due to the comparatively lower burden of traveling to Hawaii versus New York, which will be significantly less disruptive to Mr. Kumagai’s schedule due to the closer proximity to Tokyo. While GMO will make any one of those days work if the Court should order it, counsel prefers to avoid September 9-12 due to the currently scheduled proceeding in Germany in this matter. Likewise, GMO is hopeful that by offering so much flexibility on dates, it will be possible to avoid a conflict with the to-be-scheduled continued Riot 30(b)(6) deposition, which GMO has agreed to conduct in Denver for the witness’s convenience. + The U.S. Embassy in Tokyo is currently the only location in Japan where a deposition can legally occur. 5 GMO understands that due to limitations in the business hours of the U.S. Embassy, it is prudent to reserve two dates to obtain seven hours of testimony. Thus, although the deposition will occur over two days, this Court should still strictly limit the deposition to no more than seven hours of record time. HAYNES BOONE iy Respectfully submitted, too Leslie C. Thorne EXHIBIT A UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X : GMO GAMECENTER USA, INC. and : GMO INTERNET GROUP, INC., : : Plaintiff, : : Civil Action No. 1:22-cv-05974-JPC -against- : : : NOTICE OF DEPOSITION WHINSTONE US, INC., : OF MASATOSHI KUMAGAI : Defendant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X : WHINSTONE US, INC., : : Counterclaim-Plaintiff, : : -against- : : : GMO GAMECENTER USA, INC. and : GMO INTERNET GROUP, INC., : : Counterclaim-Defendant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X PLEASE TAKE NOTICE THAT pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure, Defendant and Counterclaim-Plaintiff Whinstone US, Inc. (“Whinstone”), by their undersigned attorneys, will take the oral deposition of Masatoshi Kumagai on April 21, 2025, beginning at 9:30 a.m. EST, or at another date and time agreed upon by counsel, and continuing from day to day (Sundays and holidays excluded) until completed at the office of Quinn Emanuel Urquhart Sullivan, LLP, 295 5th Avenue, New York, New York, 10016. The deposition will take place before a person authorized by law to administer oaths, pursuant to Fed. R. Civ. P. 28, and will be recorded by a stenographer and videographer in accordance with Fed. R. Civ. P. 30(b)(3). The deposition is being taken for purposes of discovery, for use at court hearings or trial, and for other purposes permitted under the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the Southern District of New York. Dated: New York, New York March 28, 2025 QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Meredith M. Shaw Michael B. Carlinsky Meredith M. Shaw 295 5th Avenue New York, New York 10016 Telephone: (212) 849-7000 michaelcarlinsky@quinnemanuel.com meredithshaw@quinnemanuel.com DEBEVOISE & PLIMPTON LLP Maeve L. O’Connor Elliot Greenfield Brandon Fetzer 66 Hudson Boulevard New York, New York 10001 (212) 909-6000 mloconnor@debevoise.com egreenfield@debevoise.com bfetzer@debevoise.com Attorneys for Whinstone US, Inc. CERTIFICATE OF SERVICE I, Mary Trainor, associated with Quinn Emanuel Urquhart & Sullivan, LLP, attorneys for Defendant / Counterclaim-Plaintiff herein, certify: I am over eighteen (18) years of age. On the 28th day of March 2025, I served copies of the within Notice of Deposition of Masatoshi Kumagai by electronic mail to counsel for the other parties to this action at the following addresses: Leslie C. Thorne leslie.thorne@haynesboone.com Alexandra Larkin alexandra.larkin@haynesboone.com Michael Freyberg michael.freyberg@haynesboone.com HAYNES AND BOONE, LLP 30 Rockefeller Plaza, 26th Floor New York, NY 10112 Telephone: (212) 659-7300 Facsimile: (212) 918-8989 Pursuant to 28 U.S.C. § 1746 , I certify under the penalty of perjury that the foregoing is true and correct. Executed on March 28, 2025. /s/ Mary Trainor Mary Trainor EXHIBIT B From: Larkin, Alexandra To: Fetzer, Brandon; Freyberg, Michael; Tancil, Jillian Ce: "Alex Ng"; Bottini, Aishlinn; Corey, Chelsea Subject: RE: June 5 letter Date: Wednesday, June 18, 2025 12:02:46 PM Brandon, We wanted to iron out some of the details for the Kumagai deposition. Our agreement on these issues is of course subject to a full reservation of rights, as our objection to the denial of the protective order is pending and it is our position that no deposition should occur. Per your representation to the court that Whinstone will depose Mr. Kumagai in Tokyo, on June 5, GMO provided you dates that Mr. Kumagai is available to be deposed that coincided with the availability of the deposition room at the U.S. embassy (August 20 and 21). As we assume you are already aware, the embassy website indicates the deposition room is still available on August 20, while August 21 does not appear to be available any longer. Please confirm that you booked the August 21 date; if not (as we previously advised you to do) Whinstone should immediately reserve August 20. In terms of the mechanics, we understand the deposition room at the embassy has capacity for 5 people only. The parties should discuss the necessary in-person attendees, and which attendees can appear remotely. There is also a requirement to obtain a court order to conduct the deposition in Japan, and we are happy to put together a joint letter requesting that. We are available to discuss these matters this week. However, and as noted, if Whinstone has not already reserved August 21 at the embassy, Whinstone should immediately reserve what is now the sole remaining date. Thanks, Alex HAYNES BOONE Alex Larkin | Counsel | She/Her/Hers alexandra.larkin@haynesboone.com | (t) +1 212.835.4830 From: Fetzer, Brandon <bfetzer@debevoise.com> Sent: Friday, June 6, 2025 12:03 AM To: Freyberg, Michael <Michael.Freyberg@haynesboone.com>; Tancil, Jillian <jtancil@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; ‘Alex Ng’ <alexng@quinnemanuel.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP We can’t agree to a location without talking to our client. As Jillian said earlier, this is something the parties will need to continue to discuss. Brandon Fetzer | Counsel | Debevoise & Plimpton LLP | bfetzer@debevoise.com | +1212 909 6880| www.debevoise.com This e-mail message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. If you are not the intended recipient, please do not disseminate, distribute or copy this communication, by e-mail or otherwise. Instead, please notify us immediately by return email (including the original message in your reply) and by telephone (you may call us collect in New York at 1-212-909-6000) and then delete and discard all copies of the e-mail. Thank you. The latest version of our Privacy Policy, which includes information about how we collect, use and protect personal data, is at www.debevoise.com. From: Freyberg, Michael <Michael. Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 11:58 PM To: Tancil, Jillian <jtancili@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; 'Alex Ng’ <alexng@quinnemanuel.com> Subject: RE: June 5 letter *EXTERNAL* Brandon and Jillian, We heard from Brandon that you are ok with our position going first. We also shrunk your table size to get us under the 6-page limit. We also added Brandon's signature. Please confirm you are signed off, as just discussed. Also, the Embassy has the August dates we offered available. Are you agreeing to conduct the deposition in Tokyo? HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael. freyberg@haynesboone.com | (t) +1 303.382.6233 From: Tancil, Jillian <jtancil}@debevoise.com> Sent: Thursday, June 5, 2025 9:23 PM To: Freyberg, Michael <Michael Freyberg@haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; 'Alex Ng’ <alexng@quinnemanuel.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP We disagree on the ordering. We view this as our request as this largely relates to the timing of the recent miner data productions from GMO, so we think our section should be first. We did add a footnote (see fn 2). We're signed off on the attached. Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1212 909 6530| www.debevoise.com From: Freyberg, Michael <Michael Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 11:16 PM To: Tancil, Jillian <jtancili@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; 'Alex Ng’ <alexng@quinnemanuel.com> Subject: RE: June 5 letter *EXTERNAL* Jillian, GMO’s section should come first, since we are the plaintiff. We are otherwise signed off. If you have changes, please send those to us by 11:30 so that we can consider them in time to potentially respond and meet the filing deadline. HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael. .freyberg@haynesboone.com | (t) +1 303.382.6233 From: Tancil, Jillian <jtancil@debevoise.com> Sent: Thursday, June 5, 2025 8:57 PM To: Freyberg, Michael <Michael. Freyberg @haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; 'Alex Ng’ <alexng@quinnemanuel.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP Please use this version. Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1212 909 6530| www.debevoise.com From: Tancil, Jillian Sent: Thursday, June 5, 2025 10:46 PM To: ‘Freyberg, Michael’ <Michael.Freyberg@hayvnesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter Attached. Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1212 909 6530| www.debevoise.com From: Freyberg, Michael <Michael. Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 10:44 PM To: Tancil, Jillian <jtancii@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter *EXTERNAL* Brandon and Jillian, Please send your section. We're nearly 15 minutes past the agreed upon exchange time. HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael. freyberg@haynesboone.com | (t) +1 303.382.6233 From: Freyberg, Michael Sent: Thursday, June 5, 2025 8:33 PM To: Tancil, Jillian <jtancii@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter Here’s our latest. Please send yours as well. Thanks. HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael. □□□□□□□□□□□□□□□□□□□□□□□□ | (t) +1 303.382.6233 From: Tancil, Jillian <jtancil}@debevoise.com> Sent: Thursday, June 5, 2025 8:12 PM To: Freyberg, Michael <Michael. Freyberg @haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP 10:30 works. Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1212 909 6530| www.debevoise.com From: Freyberg, Michael <Michael. Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 10:04 PM To: Fetzer, Brandon <bfetzer@debevoise.com> Ce: Tancil, Jillian <jtancil@debevoise.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter *EXTERNAL* We need a bit more time — hopefully just 30 minutes. Can we plan for 10:30? We're fine with inputting the August 22 date as the deadline. We'll have that in our next turn. HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael. freyberg@haynesboone.com | (t) +1 303.382.6233 From: Fetzer, Brandon <bfetzer@debevoise.com> Sent: Thursday, June 5, 2025 7:03 PM To: Freyberg, Michael <Michael. Freyberg @haynesboone.com> Ce: Tancil, Jillian <jtancil@debevoise.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP Mike, How about 9:30? To be consistent with us, will you use the August 22 date for Kumagai? We think the court will want to see a date certain. Brandon Brandon Fetzer | Counsel | Debevoise & Plimpton LLP | bfetzer@debevoise.com | +1 212 909 6880| www.debevoise.com This e-mail message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. If you are not the intended recipient, please do not disseminate, distribute or copy this communication, by e-mail or otherwise. Instead, please notify us immediately by return email (including the original message in your reply) and by telephone (you may call us collect in New York at 1-212-909-6000) and then delete and discard all copies of the e-mail. Thank you. The latest version of our Privacy Policy, which includes information about how we collect, use and protect personal data, is at www.debevoise.com. From: Freyberg, Michael <Michael.Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 7:31 PM To: Fetzer, Brandon <bfetzer@debevoise.com> Ce: Tancil, Jillian <jtancil@debevoise.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter *EXTERNAL* Here you go. When should we next exchange? HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael.freyberg@haynesboone.com | (t) +1 303.382.6233 From: Freyberg, Michael Sent: Thursday, June 5, 2025 5:25 PM To: Fetzer, Brandon <bfetzer@debevoise.com> Ce: Tancil, Jillian <jtancil@debevoise.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: RE: June 5 letter Sounds good — we will plan to exchange at that time (in 5 minutes). HAYNES BOONE Michael Freyberg | Associate | He/Him/His michael. freyberg@haynesboone.com | (t) +1 303.382.6233 From: Fetzer, Brandon <bfetzer@debevoise.com> Sent: Thursday, June 5, 2025 5:02 PM To: Freyberg, Michael <Michael. Freyberg @haynesboone.com> Ce: Tancil, Jillian <jtancil@debevoise.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Alex Ng <alexng@quinnemanuel.com> Subject: Re: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP Sure. We'll plan for 730. Brandon Fetzer | Counsel | Debevoise & Plimpton LLP |bfetzer@debevoise.com | +1 212 909 6880] www.debevoise.com This e-mail message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. If you are not the intended recipient, please do not disseminate, distribute or copy this communication, by e-mail or otherwise. Instead, please notify us immediately by return e-mail (including the original message in your reply) and by telephone (you may call us collect in New York at 1-212-909-6000) and then delete and discard all copies of the e-mail. Thank you. The latest version of our Privacy Policy, which includes information about how we collect, use and protect personal data, is at www.debevoise.com. On Jun 5, 2025, at 6:39 PM, Freyberg, Michael <Michael. Freybergq@haynesboone.com> wrote: *EXTERNAL* Not yet. As | noted on our call, we’ve got some folks traveling, so it’s taking a little longer to finalize. Can we plan for an hour from now? If we are ready sooner, | will let you know. <image001 .jpg> Michael Freyberg | Associate | He/Him/His michael. freyberg@haynesboone.com | (t) +1 303.382.6233 From: Fetzer, Brandon <bfetzer@debevoise.com> Sent: Thursday, June 5, 2025 4:35 PM To: Freyberg, Michael <Michael.Freyberg@haynesboone.com>; Tancil, Jillian <jtancil@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; 'Alex Ng’ <alexng@quinnemanuel.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP Mike, Are you ready to exchange? Brandon Fetzer | Counsel | Debevoise & Plimpton LLP | bfetzer@debevoise.com | +1 212 909 6880| www.debevoise.com This e-mail message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. If you are not the intended recipient, please do not disseminate, distribute or copy this communication, by e-mail or otherwise. Instead, please notify us immediately by return e-mail (including the original message in your reply) and by telephone (you may call us collect in New York at 1-212-909-6000) and then delete and discard all copies of the e-mail. Thank you. The latest version of our Privacy Policy, which includes information about how we collect, use and protect personal data, is at www.debevoise.com. From: Freyberg, Michael <Michael. Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 1:55 PM To: Tancil, Jillian <jtancili@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com> Subject: RE: June 5 letter *EXTERNAL* That works. Thanks. <image001 .jpg> Michael Freyberg | Associate | He/Him/His michael. .freyberg@haynesboone.com | (t) +1 303.382.6233 From: Tancil, Jillian <jtancil}@debevoise.com> Sent: Thursday, June 5, 2025 11:54 AM To: Freyberg, Michael <Michael.Freyberg@haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP How’s 2 pm ET (in a few minutes)? I'll send an invite, but if you need more time, let me know. Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1212 909 6530| www.debevoise.com From: Freyberg, Michael <Michael.Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 1:51 PM To: Tancil, Jillian <jtancii@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com> Subject: RE: June 5 letter *EXTERNAL* Yes, we're available anytime. <image001 .jpg> Michael Freyberg | Associate | He/Him/His michael. freyberg@haynesboone.com | (t) +1 303.382.6233 From: Tancil, Jillian <jtancil}@debevoise.com> Sent: Thursday, June 5, 2025 11:46 AM To: Freyberg, Michael <Michael Freyberg@haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Ce: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP Thanks. Are you all available to briefly confer on the schedule this afternoon? Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1212 909 6530| www.debevoise.com From: Freyberg, Michael <Michael. Freyberg@haynesboone.com> Sent: Thursday, June 5, 2025 1:26 PM To: Tancil, Jillian <jtancii@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com> Subject: RE: June 5 letter *EXTERNAL* Jillian, We propose the following: 1. July 11: Whinstone serves deposition on written questions for a witness familiar with GMO’s miner data, limited to 75 questions regarding GMO’s miner data. 1. GMO maintains that no additional deposition is even permitted, but in the interest of reaching a resolution, is willing to offer a deposition on written questions. We also believe the written format is the most efficient way to obtain testimony regarding how to properly understand GMO’s miner data. 2. July 31: GMO responds to deposition on written questions for a witness familiar with GMO’s miner data, limited to 75 questions regarding GMO’s miner data. 3. August 8: Deadline for all motions for spoliation sanctions, including with respect to GMO’s miner data and the various witnesses’ phone data. 1. As discussed on our call this week, we hope to be able to resolve these spoliation issues, but believe more time is warranted to allow Whinstone to evaluate GMO’s miner data and for GMO to evaluate the incoming productions of cell phone data. As a further update, we are still working with Mr. Harris and Ms. Brooks-Anderson to obtain their phone data, but do not expect to have it all for at least another week or two. 4. Mid-August: Deposition of M. Kumagai. 1. GMO reserves all rights in connection with this deposition. We and Mr. Kumagai are available for a deposition in Tokyo at the US Embassy on July 10 and 11, as well as August 20 and 21. Each day, he is available from 12:00 – 17:00 pm JST. 5. August 20: Initial expert reports. 6. August 29: Opposition to spoliation sanctions motions. 7. September 5: Replies in support of spoliation sanctions motions. 8. September 26: Rebuttal expert reports. 9. October 24: Close of expert discovery. 10. November 14: Motions for summary judgment. 1. We don’t believe a pre-motion letter is needed, in light of the court’s order setting the deadline for summary judgment motions. Please advise as soon as you can if these dates are acceptable to Whinstone. <image001.jpg> From: Tancil, Jillian <jtancil@debevoise.com> Sent: Wednesday, June 4, 2025 4:58 PM To: Freyberg, Michael <Michael.Freyberg@haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Cc: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com> Subject: RE: June 5 letter EXTERNAL: Sent from outside Haynes and Boone, LLP And please note this schedule remains subject to internal review. Sharing our current thinking in the interest of time. Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1 212 909 6530| www.debevoise.com From: Tancil, Jillian Sent: Wednesday, June 4, 2025 6:57 PM To: 'Freyberg, Michael' <Michael.Freyberg@haynesboone.com>; Fetzer, Brandon <bfetzer@debevoise.com> Cc: Larkin, Alexandra <Alexandra.Larkin@haynesboone.com> Subject: RE: June 5 letter Mike, See our proposed schedule below: 1. No later than July 31, 2025: Deposition of GMO employee familiar with GMO’s Miner Data 2. No later than [Mid August]: Deposition of M. Kumagai 3. August 20: Initial Expert Reports 4. August 27: Motion for Sanctions 5. September 10: Opp’n Mot. for Sanctions 6. September 17: Reply iso Mot. for Sanctions 7. October 15: Rebuttal Expert Reports 8. November 20: Close of Expert Discovery 9. December 11: Pre-motion letter for Summary Judgment Jillian Jillian Tancil | Associate | Debevoise & Plimpton LLP | jtancil@debevoise.com | +1 212 909 6530| www.debevoise.com From: Freyberg, Michael <Michael.Freyberg@haynesboone.com> Sent: Tuesday, June 3, 2025 2:14 PM To: Fetzer, Brandon <bfetzer@debevoise.com>; Tancil, Jillian <jtancil@debevoise.com> *EXTERNAL* Hi Brandon, Following up on our call yesterday, do you still expect to get back to us today after speaking with your experts about the miner data? We’d like to get moving on the joint letter due on Thursday. Thanks, Mike <image001.jpg> Michael Freyberg He/Him/His Associate michael.freyberg@haynesboone.com Haynes and Boone, LLP 675 15th Street Suite 2200 Denver, CO 80202 (t) +1 303.382.6233 vCard | Bio | Website CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. EXHIBIT C From: Bottini, Aishlinn To: wens Shaw"; Alex Ng; Thorne, Leslie; Corey, Chelsea; Larkin, Alexandra; Kamelhar, Joseph; Freyberg, Ce: Michael Carlinsky; Daniel Kelly; O"Connor, Maeve; Greenfield, Elliot; Fetzer, Brandon; Jillian Tancil Subject: RE: GMO v. Whinstone - ECF 458 Date: Tuesday, August 19, 2025 5:42:00 PM Meredith, We are also perplexed by how drawn out the scheduling of this deposition has become because (1) Whinstone noticed the deposition for a single day and (2) you represented to the Court that Whinstone was willing to conduct the deposition at a more convenient location, such as Japan, Los Angeles, or anywhere else in Asia. The only reason any negotiation has ensued is because Whinstone has doubled the amount of time it wants and unceremoniously reneged on its commitment to conduct the deposition in locations other than New York. On the first point, the deposition notice for Mr. Kumagai seeks a one-day deposition on April 21, which was the last day of fact discovery. By contrast, any time Whinstone sought a two-day deposition, the deposition notice contains two specific dates: e Yamashita Notice (“...will take the deposition on oral examination of Hirofumi Yamashita, at 9:30 a.m., on September 24 and 25, 2024” and “will continue from day to day or on adjourned dates until completed”); e Yanagi Notice (“...will take the deposition on oral examination of Masaya Yanagi, at 9:30 a.m., on October 14 and 15, 2024” and “will continue from day to day or on adjourned dates until completed”); e Matsui Notice (“... will take the deposition on oral examination of Hideyuki Matsui, at 9:30 a.m., on February 5 and 6, 2025” and “will continue from day to day or on adjourned dates until completed”); e Makita Notice (“...will take the oral deposition of Satoshi Makita on April 1 and 2, 2025 ... continuing from day to day (Sundays and holidays excluded) until completed”); e GMO 30(b)(6) (“... will take the oral deposition of [GMO] on April 4 and 5, 20285 ... continuing from day to day (Sundays and holidays excluded) until completed”). As a point of comparison, and consistent with how Whinstone noticed the deposition of Mr. Kumagai, when Whinstone sought one day for a deposition, the notice indicates a single day: e Morimoto Notice (“...will take the deposition on oral examination of Ami Morimoto, at 9:30 a.m., on September 20, 2024” and “will continue from day to day or on adjourned dates until completed”); and e Tsukahara Notice (“will take the deposition on oral examination of Hiroya Tsukahara, at 9:30 a.m., on December 12, 2024” and “will continue from day to day or on adjourned dates until completed”). Thus, when Whinstone wanted two days, the deposition notice expressly indicates that. You appear to realize this and therefore have contrived an argument that a “standing agreement and practice in this case” entitles Whinstone to a two-day deposition of Mr. Kumagai. Obviously, there was no such agreement or practice. If you're referring to the fact that Whinstone asked to depose specific witnesses for two days in some instances, and GMO agreed to that extra time as an accommodation, all you have done is highlight that on numerous occasions, GMO endeavored to avoid burdening the Court with unnecessary disputes and accommodated the request. Notably, when the parties discussed extra time for certain GMO witnesses, there was an agreement that discovery would not be sought from CEQs (which Whinstone violated). As you can also see, the language about the deposition continuing day to day until completed is boilerplate language that was included in every deposition notice (including in the notices for Whinstone’s witnesses). On the second point, you explained that Whinstone now refuses to proceed in Japan because when that option was offered, you did not know what you were offering. As surprising an explanation as that is, the offer was much broader than agreeing to proceed in Japan. You represented, “Whinstone is willing to hold his deposition at a more convenient location for Mr. Kumagai[.]” ECF 361 at 21. No explanation has ever been offered why that is no longer true. Taking these points together (that Whinstone noticed a one-day deposition and agreed to hold it at a convenient location), there is no reason GMO should have to have sought a protective order specifically dictating the time and location of the deposition. Nevertheless, GMO sought a protective order and specifically addressed that a deposition in New York would be unduly burdensome. See ECF 349 at 20-22. Although the deposition should fairly be conducted in Japan, we offered Hawaii as a compromise in the hopes that we could reach an agreement. We had hoped that agreeing to proceed on essentially any day that suited Whinstone would resolve this matter. Based on your response, we understand there is an impasse and will ask the Court to enforce the terms of the deposition as noticed, subject to Whinstone’s subsequent representation that it will conduct the deposition at a location convenient to the witness. Best regards, Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Meredith Shaw <meredithshaw @ quinnemanuel.com> Sent: Monday, August 18, 2025 11:49 PM To: Bottini, Aishlinn <Aishlinn.Bottini@ haynesboone.com>; Alex Ng <alexng@quinnemanuel.com>; Thorne, Leslie <Leslie. Thorne@ haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@ haynesboone.com>; Kamelhar, Joseph <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg@haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 EXTERNAL: Sent from outside Haynes and Boone, LLP ZAjQcmQRYFpfptBannerEindshlinn, We continue to be perplexed by GMO’s position that the location and hours of Mr. Kumagai’s deposition are a subject of negotiation. Mr. Kumagai’s deposition was noticed to take place at Quinn Emanuel’s offices in New York to “continu[e] from day to day (Sundays and holidays excluded) until completed.” That is consistent with the parties’ standing agreement and practice in this case: the depositions of all GMO executives have proceeded in New York, where GMO filed suit; and the depositions of all GMO executives who require an interpreter have proceeded for 14 hours, in recognition of the fact that 14 hours of testimony through an interpreter is the equivalent of 7 hours of testimony in English. GMO moved for a protective order to prevent Mr. Kumagai’s deposition, and the Court denied GMO’s motion—ruling that the deposition must go forward. See ECF 367 at 3. And GMO did not move for, let alone obtain, a protective order limiting the hours or changing the location of Mr. Kumagai’s noticed deposition. See, e.g., Meehan v. Gristede’s Supermarkets, Inc., 1997 WL 1097751 , at *2 (E.D.N.Y. Sept. 25, 1997) (“parties must take before the Magistrate Judge, not only their best shot but all of their shots”) (cleaned up). Accordingly, there is nothing to negotiate about where the deposition is to proceed, and for how many days. The only thing to be negotiated is the dates of Mr. Kumagai’s deposition, as the Court ordered the parties to find a “mutually convenient time” before September 20, 2025 for the deposition to proceed. See ECF 458 at 1. Despite Whinstone’s asking for weeks, GMO has refused to provide a single set of dates for Mr. Kumagai’s deposition to proceed in New York. As we expressed to you on our phone call last week, if Mr. Kumagai’s September schedule is such that he cannot sit for two days in New York before September 20, we are willing to work with GMO to seek approval from the Court if the next mutually convenient time for two days in New York is shortly after the September 20 deadline. GMO’s position that it “cannot see any reason [Whinstone] would even need a full day” is similarly perplexing. Judge Parker found that Mr. Kumagai’s own emails “show an executive intimately involved in every aspect of key strategic decisions within the nucleus of facts that are the subject of this lawsuit”; that Mr. Kumagai “was a very hands-on businessman who developed the major business strategies of GMO during the relevant time period”; that Mr. Kumagai “was intimately involved in directing and deciding key corporate actions at issue in the case”; and that “Mr. Kumagai’s deposition will provide unique evidence, as he clearly has personal knowledge of the underlying agreement that cannot be obtained from other sources.” ECF 367 at 2-3. Judge Parker similarly found that, “to the extent that his emails have been produced, [Mr. Kumagai] will clearly need to be examined (and cross-examined) regarding the content of those productions.” Id. at 3. From your emails of last night and today below, we understand that GMO is refusing to provide dates for Mr. Kumagai’s deposition to proceed in New York over the course understanding is incorrect. Thanks, Meredith From: Bottini, Aishlinn <Aishlinn.Bottini@ haynesboone.com> Sent: Monday, August 18, 2025 4:08 PM To: Alex Ng <alexng@quinnemanuel.com>; Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg@ haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 [EXTERNAL EMAIL from aishlinn.bottini@haynesboone.com] Hi Meredith, | tried giving you and Alex each a call but didn’t get through. Please let me know if you’d like to discuss the offer below or if things are the same as when we last spoke and Whinstone will not agree to anything less than a two-day deposition in New York. Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Bottini, Aishlinn Sent: Sunday, August 17, 2025 11:10 PM To: Alex Ng <alexng@quinnemanuel.com>; Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg@ haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@ debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 Meredith, We understand from our discussion on Thursday that Whinstone will not agree to anything less than a two-day deposition in New York. You know our position, that the deposition should be in Japan (because you represented that you would conduct the deposition there), and that Whinstone has no basis to seek anything more than a one day (though we cannot see any reason you would even need a full day). Accordingly, it appears we are already at an impasse. Nevertheless, we have been able to secure additional availability that should accommodate any scheduling needs on your end, so we are making this final offer to see if we can reach an agreement. While Mr. Kumagai has several conflicts in September and certain days are preferred to others, the travel time to New York is genuinely prohibitive. As a result, Mr. Kumagai is willing to go through great efforts to change his existing business commitments in order to make himself available for a deposition in Hawaii on any single day, as Whinstone’s deposition notice indicates, on the following dates: September 1-15 or 20-30. In the alternative, for a deposition in Japan, we have a reservation to proceed at the U.S. Embassy on September 24 and 25, which are the soonest available consecutive dates. Subject to availability at the U.S. Embassy, we are open to any two consecutive days in September for Mr. Kumagai to appear in Japan for no more than 7 hours of record time in total. | am available anytime Monday to discuss. Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Alex Ng <alexng@quinnemanuel.com> Sent: Thursday, August 14, 2025 2:51 PM To: Bottini, Aishlinn <Aishlinn.Bottini@haynesboone.com>; Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <Joseph. Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 That works for us. Please use this link: https://quinnemanuel.zoom.us/j/7151628069? omn=89834887727 Wing F. (Alex) Ng Quinn Emanuel Urquhart & Sullivan, LLP 295 Fifth Avenue New York, NY 10016 212-849-7484 Direct NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. From: Bottini, Aishlinn <Aishlinn.Bottini@ haynesboone.com> Sent: Thursday, August 14, 2025 2:26 PM To: Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie Thorne@haynesboone.com>; Corey, Chelsea <Chelsea. Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <loseph. Kamelhar@haynesboone.com>; Freyberg, Michael <MichaelL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 EXTERNAL EMAIL from □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Sure. Does 3:30 work? Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Meredith Shaw <meredithshaw@quinnemanuel.com> Sent: Thursday, August 14, 2025 1:56 PM To: Bottini, Aishlinn <Aishlinn.Bottini@haynesboone.com>; Thorne, Leslie <Leslie. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 Aishlinn and Alex, Do you have availability for a follow-up call this afternoon? Thanks, Meredith From: Bottini, Aishlinn <Aishlinn.Bottini@ haynesboone.com> Sent: Monday, August 11, 2025 3:48 PM To: Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie Thorne@haynesboone.com>; Corey, Chelsea <Chelsea. Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <loseph. Kamelhar@haynesboone.com>; Freyberg, Michael <MichaelL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 EXTERNAL EMAIL from □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Hi Meredith, 4:30 works. Thanks, Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Meredith Shaw <meredithshaw@quinnemanuel.com> Sent: Monday, August 11, 2025 1:21 PM To: Bottini, Aishlinn <Aishlinn.Bottini@haynesboone.com>; Thorne, Leslie <Leslie. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <loseph.Kamelhar@haynesboone.com>; Freyberg, Michael <MichaeL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 Aishlinn, As we stated on Friday, Michael Carlinsky will be taking the deposition (see also ECF 403 at 23) and he is not available on August 20. Accordingly, the deposition cannot proceed on August 20. | am available later this afternoon for a call to try to work together to find a “mutually convenient time” (ECF 458 at 1) for Mr. Kumagai’s deposition. Would 4:30pm work for you? If so, please let me Know, and we'll send an invitation with a zoom link/dial-in. Thanks, Meredith From: Bottini, Aishlinn <Aishlinn.Bottini@ haynesboone.com> Sent: Sunday, August 10, 2025 10:56 AM To: Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie Thorne@haynesboone.com>; Corey, Chelsea <Chelsea. Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <loseph. Kamelhar@haynesboone.com>; Freyberg, Michael <MichaelL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 EXTERNAL EMAIL from □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Meredith, Given the size and experience of Whinstone’s team of lawyers, and the work we have done to clear Mr. Kumagai’s schedule, this response is disappointing. In any case, | am happy to speak. | can be available any time after 9:15am on Monday morning. If another time is better, let me know. As a courtesy to Mr. Kumagai and the others who have rearranged their schedules to make August 20 work, if Whinstone absolutely refuses to proceed on that date, | kindly ask that you say so now so that | can pass the message along. Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Meredith Shaw <meredithshaw@quinnemanuel.com> Sent: Friday, August 8, 2025 8:20 PM To: Bottini, Aishlinn <Aishlinn.Bottini@haynesboone.com>; Thorne, Leslie <Leslie. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <loseph.Kamelhar@haynesboone.com>; Freyberg, Michael <MichaeL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 Aishlinn, Thank you for your email. Michael Carlinsky, who will be taking the deposition, is not available on August 20. And, as noted, the deposition is to proceed in New York over two days given that Mr. Kumagai will require an interpreter. Could you please provide a time or two early next week that you are available to discuss by phone? Thank you, Meredith From: Bottini, Aishlinn <Aishlinn.Bottini@ haynesboone.com> Sent: Friday, August 8, 2025 2:07 PM To: Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <loseph.Kamelhar@haynesboone.com>; Freyberg, Michael <MichaeL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 Meredith, As you state below, the parties have been directed to find “a mutually convenient time” for the deposition. Obviously, Whinstone’s idea of two days in New York—which as you point out, the Court did not order—is not a “mutually convenient time.” As you’re aware, GMO previously offered four options for a deposition in Japan, per Whinstone’s express offer to conduct the deposition there. However, Whinstone rejected all of these options because it no longer agreed to travel to Japan. We learned of Whinstone’s reversal in position through a court filing. Accordingly, the only reason Whinstone is demanding new options is because it improperly rejected the previous options that fit its stated criteria and complied with the order. Under the circumstances, this deposition should be conducted in Japan. Nevertheless, Mr. Kumagai has rearranged his schedule to be available on August 20. GMO strongly prefers to conduct this deposition remotely in order to maximize flexibility and convenience for the witness. For your awareness, Mr. Kumagai is planning to be in Hawaii for the purposes of minimizing the burden on Whinstone to comply with any special rules that may apply to conducting depositions in foreign jurisdictions. To minimize further disruptions to Mr. Kumagai’s and others’ schedules caused by indefinitely reserving time for this deposition, we kindly request your immediate response. Best regards, Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Meredith Shaw <meredithshaw@quinnemanuel.com> Sent: Tuesday, August 5, 2025 2:47 PM To: Bottini, Aishlinn <Aishlinn.Bottini@haynesboone.com>; Thorne, Leslie Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg@haynesboone.com> Cc: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 A Aishlinn, Mr. Kumagai’s idepositiosn was noticed to htake place at the offilces of Qiuinn Emnanuel in New York. nGMO moved for a p,rotective order to prevent that deposition as noticed. The Court denied GMO’s motion and ordered that Mr. Kumagai is to Mr. Kumagai’s deposition was noticed to take place at the offices of Quinn Emanuel in New York. GMO moved for a protective order to prevent that deposition as noticed. The Court denied GMO’s motion and ordered that Mr. Kumagai is to be deposed, placing no unique limitations on hours, scope or location of the deposition. ECF 367. GMO has never filed a motion for a protective order to limit the hours, scope or location of the deposition. When GMO moved to stay Mr. Kumagai’s deposition pending a ruling on its objection pending before Judge Cronan, however, GMO did raise its position that Mr. Kumagai’s deposition should be limited to two hours and take place in Tokyo. ECF 447. On July 22, 2025, the Court denied GMO’s motion to stay, and ordered the deposition to be scheduled “at any mutually convenient time in the next sixty (60) days,” again placing no limitations on hours, scope or location of the deposition. ECF 458. Please comply with the Court’s order to schedule this deposition for dates before September 20, 2025 (on or before September 19, 2025, as September 20 is a Saturday), and provide date options for two days of deposition of Mr. Kumagai in New York by no later than this Friday, August 8, 2025, so that we do not have to raise GMO’s non-compliance with the Court. Thank you, Meredith From: Bottini, Aishlinn <Aishlinn.Bottini@haynesboone.com> Sent: Monday, August 4, 2025 1:39 PM To: Meredith Shaw <meredithshaw@quinnemanuel.com>; Thorne, Leslie <Leslie.Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Kamelhar, Joseph <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg@haynesboone.com> Cc: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 [EXTERNAL EMAIL from aishlinn.bottini@haynesboone.com] Meredith, As you are aware, the Court has not ordered Mr. Kumagai to appear for two days, nor has the Court ordered that the deposition occur in New York. Consistent with your prior offer, we are working on securing available dates at a location convenient to Mr. Kumagai. ECF 361 at 21 (“In all events, although Whinstone noticed Mr. Kumagai’s deposition for New York, in view of his busy schedule, Whinstone is willing to hold his deposition at a more convenient location for Mr. Kumagai, such as in Los Angeles, or even at the consulate in Japan if available (or another location in Asia) if Mr. Kumagai would prefer.”). Finding available times will require moving pre-scheduled obligations, which is underway, but entails coordination and time. This is especially true given that we had already secured Mr. Kumagai’s availability and offered multiple dates that the consulate in Tokyo was available which Mr. Kumagai could attend. Based on your failure to confirm those dates, we understand you to have rejected those days and/or that you failed to make timely arrangements to secure the deposition room. We appreciate your patience. GMO reserves all rights. Aishlinn HAYNES BOONE Aishlinn Bottini | Associate | She/Her/Hers aishlinn.bottini@haynesboone.com | (t) +1 212.659.4994 From: Meredith Shaw <meredithshaw@quinnemanuel.com> Sent: Thursday, July 31, 2025 4:34 PM To: Thorne, Leslie <Leslic. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; Larkin, Alexandra <Alexandra.Larkin@haynesboone.com>; Bottini, Aishlinn <Aishlinn Bottini@haynesboone.com>; Kamelhar, Joseph <loseph.Kamelhar@haynesboone.com>; Freyberg, Michael <MichaeL Freyberg @haynesboone.com> Ce: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: RE: GMO v. Whinstone - ECF 458 Counsel, Following up on our email from last Thursday below. Please provide date options for Mr. Kumagai’s deposition by no later than Tuesday, August 5. Thank you, Meredith From: Meredith Shaw Sent: Thursday, July 24, 2025 5:00 PM To: Thorne, Leslie <Leslic. Thorne@haynesboone.com>; Corey, Chelsea <Chelsea.Corey@haynesboone.com>; ‘Larkin, Alexandra’ <Alexandra.Larkin@haynesboone.com>; <Joseph.Kamelhar@haynesboone.com>; Freyberg, Michael <Michael.Freyberg@haynesboone.com> Cc: Michael Carlinsky <michaelcarlinsky@quinnemanuel.com>; Alex Ng <alexng@quinnemanuel.com>; Daniel Kelly <danielkelly@quinnemanuel.com>; O'Connor, Maeve <mloconnor@debevoise.com>; Greenfield, Elliot <egreenfield@debevoise.com>; Fetzer, Brandon <bfetzer@debevoise.com>; Jillian Tancil <jtancil@debevoise.com> Subject: GMO v. Whinstone - ECF 458 Counsel, Pursuant to the Court’s July 23, 2025 order (at ECF 458), please provide dates (two consecutive days for each option) that Mr. Kumagai is available for his deposition in New York within the 60-day deadline set by the Court. Thank you, Meredith Meredith M. Shaw Partner Quinn Emanuel Urquhart & Sullivan, LLP 295 Fifth Avenue New York, NY 10016 212-849-7075 Direct 212-849-7000 Main Office Number 212-849-7100 FAX meredithshaw@quinnemanuel.com www.quinnemanuel.com NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. CONFIDENTIALITY NOTICE: This electronic mail transmission is confidential, may be privileged and should be read or retained only by the intended recipient. If you have received this transmission in error, please immediately notify the sender and delete it from your system. EXHIBIT D UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GMO GAMECENTER USA, INC. and GMO INTERNET GROUP, INC., Plaintiffs, - against - WHINSTONE US, INC., Defendant. Civil Action No. 1:22-cv-05974-JPC WHINSTONE US, INC., Counterclaim Plaintiff, - against - GMO GAMECENTER USA, INC. and GMO INTERNET GROUP, INC., Counterclaim Defendants. COMMISION FOR THE DEPOSITION OF MASATOSHI KUMAGAI TO: ANY CONSUL OR VICE CONSUL OF THE UNITED STATES UNITED STATES EMBASSY TOKYO JAPAN Upon the application of Plaintiffs GMO Gamecenter USA, Inc. and GMO Internet Group, Inc., and pursuant to Article 17 of the United States - Japan Consular Convention, You have been duly appointed and you are hereby authorized to take oral depositions at the United States Embassy in Tokyo, Japan, of the following witnesses who will appear voluntarily: Masatoshi Kumagai (CEO of GMO Internet Group, Inc., having an address of Cerulean Tower, 26-1 Sakuragaokacho, Shibuya-ku, Tokyo 150-8512, Japan) commencing on or about September 24, 2025 at 8:30 am and terminating on or about September 25, 2025 no later than 4:00pm, for a total amount of record time not to exceed seven hours, and to mark any documentary exhibits in connection therewith. Counsel for defendants who will participate in said depositions are [TO BE SUPPLIED BY WHINSTONE] ; and counsel for plaintiffs who will participate in said depositions are Leslie C. Thorne, Chelsea J. Corey, Alexandra Larkin, Joseph Kamelhar, Aishlinn Bottini, Michael Freyberg, Tomohiro Takagi, Azusa Saito, Shuntaro Shimizu, Daigo Yamagishi, and Taiga Kobayashi. The proceedings will be reported, videotaped and/or interpreted by Esquire Deposition Solutions - American Realtime Court Reporters. Please cause the testimony of said witnesses to be reduced to writing and the depositions signed by said witnesses and annex said deposition testimony to your commission and close the same under your seal and make return thereof to this Court with all convenient speed. DATE: ________________________ SIGNATURE: ______________________________ Hon. Katharine H. Parker United States Magistrate Judge SEAL: