Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 1 of 9
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` Pages 1 - 9
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Before The Honorable William H. Alsup, Judge
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`)
`FINJAN, INC., a Delaware
`)
`Corporation,
` )
` Plaintiff, )
` ) NO. C 17-05659 WHA
` vs. )
` )
`JUNIPER NETWORKS, INC., a
`)
`Delaware Corporation,
`)
` ) San Francisco, California
` Defendant.
`)
` )
` Thursday, July 5, 2018
`
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff Finjan, Inc.:
` Kramer Levin Naftalis and Frankel LLP
` 990 Marsh Road
` Menlo Park, CA 94025
` (650) 752-1700
` (650) 752-1800 (fax)
` BY: KRISTOPHER KASTENS
`
`For Defendant Juniper Networks, Inc.:
` Irell & Manella LLP
` 1800 Avenue of the Stars
` Suite 900
` Los Angeles, CA 90067
` (310) 277-1010
` BY: CASEY MAY CURRAN
`
`
`
`
`Reported by: Lydia Zinn, CSR No. 9223, FCRR, Official Reporter
`
`
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` Pages 1 - 9
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`)
`FINJAN, INC., a Delaware
`)
`Corporation,
` )
` Plaintiff, )
` ) NO. C 17-05659 WHA
` vs. )
` )
`JUNIPER NETWORKS, INC., a
`)
`Delaware Corporation,
`)
` ) San Francisco, California
` Defendant.
`)
` )
` Thursday, July 5, 2018
`
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff Finjan, Inc.:
` Kramer Levin Naftalis and Frankel LLP
` 990 Marsh Road
` Menlo Park, CA 94025
` (650) 752-1700
` (650) 752-1800 (fax)
` BY: KRISTOPHER KASTENS
`
`For Defendant Juniper Networks, Inc.:
` Irell & Manella LLP
` 1800 Avenue of the Stars
` Suite 900
` Los Angeles, CA 90067
` (310) 277-1010
` BY: CASEY MAY CURRAN
`
`
`
`
`Reported by: Lydia Zinn, CSR No. 9223, FCRR, Official Reporter
`
`
`
`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 2 of 9
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`Thursday - July 5, 2018
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` 8:18 a.m.
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`P R O C E E D I N G S
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`---000---
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`THE COURT: Now we go to Finjan.
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`THE CLERK: Calling Civil Action 17-565, Finjan,
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`Inc., versus Juniper Networks, Inc. Counsel, please approach
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`the podium and state your appearances for the Record.
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`MR. KASTENS: Your Honor, Kristopher Kastens, from
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`Kramer Levin, for Finjan, Inc.
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`MS. CURRAN: Good morning. Casey Curran, on behalf
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`of Juniper Networks.
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`THE COURT: Say your name again.
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`MS. CURRAN: Casey Curran.
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`THE COURT: All right, now. Kristopher Kastens and
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`Casey Curran. Okay. How can I help you this morning?
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`MR. KASTENS: Finjan is seeking to amend its
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`Complaint to add an additional patent to the case, based on a
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`deposition that took place in early May; the first technical
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`deposition that took place in this case.
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`THE COURT: Why shouldn't I grant that?
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`MS. CURRAN: We believe they delayed in seeking leave
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`to amend. We think that the information that came out in the
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`depo -- the pertinent information -- was already public as of
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`September 2017 in an administrative guide, and, further, would
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`have been able to be discovered in Juniper's source code, which
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 3 of 9
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`PROCEEDINGS
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`they reviewed in March, prior to their first motion for leave
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`to amend, which we did not oppose.
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`THE COURT: What do you say to that?
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`MR. KASTENS: I say that -- I mean, it contradicts
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`what they've actually filed.
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`So we attached our Amended Complaint, and we included the
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`material that came out through the deposition.
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`And they submitted a declaration with a motion to seal,
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`saying that that was all confidential information that was not
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`publicly available, and Juniper keeps it as a closely guarded
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`secret.
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`We've also set forth in the papers about how the technical
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`implementations of their cloud systems are not publicly
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`available. So --
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`THE COURT: I got a different question for you. You,
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`Ms. Curran, have a separate motion that I haven't put on
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`calendar for today, to require notes from the 30(b)(6)
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`designee. I want to hear how you could possibly, on the Finjan
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`side, not produce those.
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`MR. KASTENS: I know the work-product doctrine.
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`We've submitted a --
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`THE COURT: That's going to be overruled. He used
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`them to refresh his memory.
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`MR. KASTENS: Your Honor, if -- we would like the
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`opportunity to submit other portions of the declaration, which
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 4 of 9
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`PROCEEDINGS
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`maybe clarifies that.
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`THE COURT: No, no. Hold off. I'm going to let you
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`have that opportunity, but on the main motion -- I'm not going
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`to rule on that until I see --
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`If you're playing games with work product, you're not
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`going to get this amendment.
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`MR. KASTENS: Okay.
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`THE COURT: You're going to do equity to get equity
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`in this Court. So we're going to wait and see on 30(b)(6).
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`I've only read their side, but if their side is correct, I
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`don't like it. That's not the way it works.
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`Somebody -- it could be privileged all day long. And if
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`you use it to refresh your memory, it is waived. Do you
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`understand that?
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`MR. KASTENS: Yes, Your Honor.
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`THE COURT: And then you know what else I'm going to
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`do? When the jury is here I'm going to tell them, Mr. Kastens
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`wrongfully withheld this document, because it is wrongful all
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`day long. No.
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`So what day? Have we set a hearing date for this yet?
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`MS. CURRAN: No, Your Honor. We just submitted the
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`letter brief.
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`THE COURT: I'm going to set a date now. I won't be
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`here next week. We'll say July 18. Look and see if that
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`works: July 18.
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 5 of 9
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`PROCEEDINGS
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`THE CLERK: You're here July 18.
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`THE COURT: We'll be here. At 8:00 a.m., please meet
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`and confer. At 11:00 a.m. we will have the hearing.
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`I could tell you how the hearing is going to come out,
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`unless you have something very good in your papers that I've
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`never heard of before; but from about the time that I was a
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`third-year lawyer, I knew that if somebody reads a document to
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`refresh their memory, it is waived. No privilege thereafter
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`exists.
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`MR. KASTENS: And, Your Honor --
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`THE COURT: So you'd better be -- if you're just
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`stalling, think about the jury over there, hearing how you
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`stalled on this.
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`I'm going to also wait on the pending motion before I --
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`I'm going to wait and see how this -- whether or not you do
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`equity to get equity in this Court.
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`MR. KASTENS: Can I just say two things really
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`quickly about that, Your Honor?
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`THE COURT: Yeah. Go ahead.
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`MR. KASTENS: I think there are further statements
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`within this deposition that show that he did not use it to
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`refresh his recollection.
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`THE COURT: What?
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`MR. KASTENS: There are statements where he clarifies
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`that he did not use it to refresh his recollection, in the
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 6 of 9
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`PROCEEDINGS
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`sense -- the legal sense that's required.
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`Furthermore --
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`THE COURT: Well, were these after woodshedding?
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`MR. KASTENS: No. During the same deposition.
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`THE COURT: "Woodshedding" means -- in other words,
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`are you the one, Ms. Kobialka [sic]? Is that you? No. You're
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`Ms. Curran. Well, anyway, she asked the right questions. She
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`made a good Record. And you'd better find something very good
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`in that deposition.
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`And you, then, tell me whether or not the the witness was
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`woodshedded in between. Do you know what "woodshedding" means?
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`MS. CURRAN: No, Your Honor.
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`THE COURT: All right. It means that he took him out
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`in the hallway, and told him to change his answers.
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`MS. CURRAN: I don't believe that we're contending
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`that that happened; but I don't think that he changed his
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`statement, such that on the Record it shows that it wasn't used
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`to refresh his recollection. I think the Record's pretty clear
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`in the deposition.
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`THE COURT: Well, I think it is very clear in your
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`letter; but counsel is saying he took it back later in the
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`deposition.
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`Okay. Maybe he took it back.
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`But in between, did counsel take the guy out in the
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`hallway, such that there was an opportunity to change his
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 7 of 9
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`PROCEEDINGS
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`answer? I have found 99 percent of the time that's what
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`happens when there's a changed testimony. I see right through
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`that.
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`Okay. You're going to get your chance.
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`MR. KASTENS: Yeah.
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`THE COURT: You're going to get your chance.
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`MR. KASTENS: Can I -- sorry. There was one other
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`thing --
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`THE COURT: Yeah. Sure.
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`MR. KASTENS: -- I wanted to say. So speaking of
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`issues with discovery, so this whole call that the notes are
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`over was recorded by the other party secretly, without --
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`without any -- the parties' notification, and produced. The
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`transcript of that call was produced after this, actually,
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`without giving the witness the opportunity to review the actual
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`transcript of what they recorded secretly without his
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`knowledge.
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`THE COURT: Well, is that true? You recorded it?
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`MS. CURRAN: Yes. An employee of Juniper Networks,
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`Inc., recorded the call.
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`THE COURT: What state was that person in?
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`MS. CURRAN: He was in North Carolina at the time; a
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`one-party-consent state for recording phone calls.
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`THE COURT: Well, so what's the problem?
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`MR. KASTENS: I think it's unfair to do extensive
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 8 of 9
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`PROCEEDINGS
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`questioning of a witness about a particular phone call, and not
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`produce and have a transcript of the actual phone call.
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`THE COURT: I don't know. Maybe. Maybe not. Maybe
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`that's right. That one, I'm more sympathetic to.
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`But on the other hand, if they had good reason to believe
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`that the witness was slippery, then maybe they were within
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`their rights in waiting to see what he would say based on his
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`notes.
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`But they're entitled to see those notes, anyway. He said
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`he refreshed his memory from them. So they don't have to
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`give --
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`You know, Counsel, you have such a --
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`Your theory is they've got to turn over their recording
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`first, so that he doesn't refresh his memory from his own
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`notes; and therefore, you don't have to turn them over?
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`I'm going to rule against that argument. He refreshed his
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`memory, using those notes, all day long. That's a waiver.
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`So you can -- but you're going to get a chance to put in
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`your brief. You've got to put in your brief by the Friday
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`before the hearing.
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`MR. KASTENS: Sorry. That would be?
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`THE COURT: It would be a week from tomorrow.
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`MR. KASTENS: By noon, Your Honor, or --
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`THE COURT: Noon, please.
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`THE CLERK: July 13.
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`Case 3:17-cv-05659-WHA Document 144 Filed 07/05/18 Page 9 of 9
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`PROCEEDINGS
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`THE COURT: And in the meantime, I'm not going to
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`rule on this motion on the Second Amended Complaint.
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`I think I don't like it when people withhold evidence.
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`All right. Are we done?
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`MS. CURRAN: Nothing further from me, Your Honor.
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`MR. KASTENS: Nothing further, Your Honor.
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`THE COURT: Thank you.
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`(At 8:28 a.m. the proceedings were adjourned.)
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`I certify that the foregoing is a correct transcript from the
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`record of proceedings in the above-entitled matter.
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` July 5, 2018
`Signature of Court Reporter/Transcriber Date
`Lydia Zinn
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