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Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 1 of 11
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` Pages 1 - 10
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`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) NO. CV 17-05659-WHA
` )
`JUNIPER NETWORK, INC.,
`)
` )
` Defendant.
`)
` )
`
` San Francisco, California
` Wednesday, July 18, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff:
` KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, CA 94025
` BY: KRISTOPHER B. KASTENS, ESQUIRE
`
`
`For Defendant:
` IRELL & MANELLA LLP
` 840 Newport Center Drive - Suite 400
` Newport Beach, CA 92660
` BY: REBECCA L. CARSON, ESQUIRE
`
` IRELLA & MANELLA LLP
` 1800 Avenue of the Stars - Suite 900
` Los Angeles, CA 90024
` BY: CASEY M. CURRAN, ESQUIRE
`
`
`Reported By: Pamela A. Batalo, CSR No. 3593, RMR, FCRR
` Official Reporter
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 2 of 11
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` 2
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`Wednesday - July 18, 2018
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` 10:46 a.m.
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`P R O C E E D I N G S
`
`---000---
`
`THE CLERK: Calling CV 17-5659, Finjan, Inc. vs.
`
`Juniper Network, Inc.
`
`Counsel, please state your appearances for the record.
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`MR. KASTENS: Kristopher Kastens here on behalf of
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`Finjan, Inc., from Kramer Levin Naftalis --
`
`THE COURT: Thank you. Have a seat back there.
`
`All right. And?
`
`MS. CARSON: Good afternoon. Rebecca Carson from
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`Irell & Manella on behalf of Juniper Networks. I have here
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`with me Casey Curran. She's a 2015 graduate from UCLA, and she
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`will be arguing today. And we have also brought a summer
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`associate, Jordan Nafeth.
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`THE COURT: Welcome to all of you.
`
`Let's hear your motion.
`
`MS. CURRAN: Thank you, Your Honor.
`
`We believe we're entitled to the unredacted version of the
`
`notes that Mr. Garland sent along via email that Finjan has
`
`filed in the public record and that were used to refresh the
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`witness' recollection prior to his deposition.
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`THE COURT: All right. Good, succinct summary.
`
`Your turn.
`
`MR. KASTENS: Your Honor, I think if you look at the
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 3 of 11
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`entirety of the deposition transcript, Mr. Garland -- it's
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`clear that he did not use the document to refresh his
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`recollection.
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`Furthermore, to the extent it wasn't work product, that
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`we've already produced it. I don't know if you've had a chance
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`to look at what the produced version is, but there is just
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`minor portions that are asserted as work product that are
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`remaining.
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`And --
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`THE COURT: I'm sorry. I'm confused. I thought you
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`were withholding the notes.
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`MR. KASTENS: So, first of all, I would just like to
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`clarify, they're not notes. They're an email from Mr. Garland
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`to in-house counsel at Finjan. So they're specifically related
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`to his request in anticipation of litigation.
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`Furthermore --
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`THE COURT: Is that what he looked at before his
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`deposition?
`
`MR. KASTENS: Yes. It was what he looked at before
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`his deposition.
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`And to the extent that it wasn't work product, we've
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`already produced it. It's attached as the final exhibit to our
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`opposition.
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`THE COURT: Find it in here for me.
`
`MR. KASTENS: It is Exhibit 4, Your Honor.
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 4 of 11
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`THE COURT: Put a tag on it for me.
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`Have you looked at the unredacted portions? Have you seen
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`any of it?
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`MS. CURRAN: Yes. So we have Exhibit 4, the copy that
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`they filed on the record, which is redacted in places. We
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`don't -- have not had access to a version which was not
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`redacted. They're claiming work product over those redactions.
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`THE COURT: Well, how am I supposed to know what's
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`under the blacked-out part?
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`MR. KASTENS: I mean, Your Honor, it's just mental
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`impressions and -- that are --
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`THE COURT: But that's for me to decide. How do I --
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`where can I find the -- I thought you were telling me that
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`this -- wait a minute.
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`Have you produced everything in this exhibit except what's
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`redacted?
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`MR. KASTENS: Yes, Your Honor.
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`THE COURT: Is that true?
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`MS. CURRAN: That's accurate. They have redacted what
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`seems like -- if you flip to the next page, it's just
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`individual words. We can't understand how that possibly
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`constitutes work product, especially given that the entire
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`email could be characterized as his impression of what
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`happened --
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`THE COURT: As I see it, there are three blacked-out
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 5 of 11
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`parts.
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`MR. KASTENS: Correct, Your Honor.
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`THE COURT: But you haven't given me the -- what's
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`under the blacked-out parts.
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`MR. KASTENS: Correct, Your Honor. Those are --
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`that's what -- that's in our privilege log as the work product.
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`THE COURT: All right. I misunderstood. I thought
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`you were trying to tell me you had given me the withheld stuff
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`in camera for me to evaluate, but I -- so for clarity of the
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`record, that's not true. All you've given me is exactly what
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`was given to counsel.
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`MR. KASTENS: Yes, Your Honor. My apologies.
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`THE COURT: Have both sides finished their argument?
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`MS. CURRAN: Your Honor, we would request --
`
`THE COURT: Let me -- have you finished your argument?
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`MR. KASTENS: I would just like to say that I believe
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`this clearly is work product and we've established it as so.
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`It's on our privilege log. And Mr. Garland submitted a
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`declaration that's Exhibit 3 which says that this was -- excuse
`
`me. The privilege log is Exhibit 3.
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`Exhibit 1 is Mr. Garland's declaration stating that he
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`made this email because he thought Juniper was unwilling to
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`engage in licensing negotiations and that he wanted legal
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`advice because he anticipated that we were going to be in
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`litigation with Juniper.
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 6 of 11
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`THE COURT: All right. Anything more?
`
`MS. CURRAN: Yes, Your Honor.
`
`So we believe they've waived any right to claim work
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`product over any part of this email given they delayed in
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`providing their privilege log until we moved to compel.
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`Further, he used this document to refresh his recollection
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`prior to giving his deposition testimony, and there is no
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`evidence and they have not contended that he reviewed the
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`redacted version of the email.
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`Further, I don't believe his declaration is strong enough
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`to support to show work product. If anything, it sounds like
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`he is asserting attorney-client privilege which they have not
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`asserted in their privilege log, and it's not clear that this
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`email was made for the purposes of preparing for litigation.
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`Finjan's a licensing company, and Mr. Garland is a
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`licensing consultant. We think these type of notes were
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`created in the ordinary course of business.
`
`THE COURT: Done?
`
`MR. KASTENS: Just one small point, Your Honor.
`
`The email -- it was an email, not his contemporaneous
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`notes that was directed to in-house counsel at Finjan.
`
`THE COURT: Well, again, I ask you this question: Are
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`there any handwritten notes anywhere at any time?
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`MR. KASTENS: Not that I'm aware of and certainly not
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`that was reviewed before any deposition.
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 7 of 11
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`THE COURT: Do you have any contrary evidence?
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`MS. CURRAN: No, Your Honor.
`
`THE COURT: All right. Okay. Here's the ruling:
`
`The ruling is -- first to describe what we're fighting
`
`over. It has all of the appearances of an email from John
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`Garland to Julie Mar-Spinola, "Subject: Confidential Juniper
`
`Network's licensing discussions update," and then it says in
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`bracket, "Attorney work product/client privileged. Internal
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`purposes only."
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`And then it begins, "Julie, I had my 30-minute call with
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`Scott Coonan," C-O-O-N-A-N, and then the rest of that sentence
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`which looks to be about 7 to 12 words is blacked out, redacted,
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`so we don't know what that says. But then the rest of the page
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`is fully revealed, and it's at least 20 to 30 lines of text.
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`Then we go to a second page, and there's a half page that
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`is single spaced, another 20 to 30 lines, and on this page,
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`only possibly two -- there's two redactions. The first one is
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`short, and it's either one or two words at the top of the page,
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`possibly three short words, and then also near the top of the
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`page, it looks like a one- or two-letter word or number is
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`deleted -- not deleted but redacted, and everything else is
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`revealed.
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`So I'm going to rule that all of this has to be turned
`
`over. Everything.
`
`So you 2015 graduate of the law school get to go home and
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 8 of 11
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` 8
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`say you won.
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`MS. CURRAN: Thank you, Your Honor.
`
`THE COURT: But I want to explain why you win, and
`
`that is that this document was used to refresh the memory of
`
`the witness. He said so in the deposition.
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`Now, it's true that immediately before that, he said that
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`his -- he had a "bright" -- I think that was the word he
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`used -- "memory of the conversation." But that was a clever
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`answer because yes, after you read the document, you surely
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`would have a bright memory. That's the way I read the
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`testimony. He didn't say, "I had a bright memory before I read
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`the document." He said he had a bright memory and that was
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`after he read the document. So that's number one.
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`Now, then, number two, he was woodsheded, in my view.
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`There was a break in the testimony, and counsel took him
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`outside in the hallway, and he came back and said later that it
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`didn't refresh his memory. Well, I practiced for 25 years.
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`I've been in this job 20 years. I know exactly what happened.
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`Counsel got out there and told him to fix his testimony.
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`That's the way I view it. And I give very little weight to
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`that after-the-break testimony to try to take back and fix up
`
`what actually was said. So I have been around the block and
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`I'm not going to fall for it. So that's number one.
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`Number two, though, is a completely different point.
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`Ninety nine percent of this document has been produced and the
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 9 of 11
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`plaintiffs want to use it for their purposes, but they want to
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`selectively withhold parts of what is -- you can't do that.
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`Under the Rule of Completeness, the whole thing is going to be
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`an open book, not just the 99 percent that plaintiffs want
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`everyone to see. So that's crazy. You can't do that.
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`So this whole document is going to be produced. I might
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`get into whether or not -- I'm assuming for the sake of
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`argument that it was privileged to begin with and I'm not
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`ruling on the lateness of the log. That's a fair point, but I
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`don't know whether you did the same thing. Maybe you got a
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`late log yourself. So I don't want to go down that path
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`without knowing a lot more than I know now. But it's
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`sufficient for me to make the ruling based on the points that I
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`have laid out.
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`So you've got to produce the document. End of story.
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`I'll give you until next Monday at noon to produce the
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`document. All right.
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`Anything more today?
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`MS. CURRAN: I believe there's a pending motion to
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`amend the Complaint. Finjan would like to add a patent to the
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`case.
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`THE COURT: Yeah. I've got to think about what to do
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`on that. And we're going to get an order out this week telling
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`you what the answer is on that. Okay?
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`MR. KASTENS: Your Honor, if I could just --
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 10 of 11
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`THE COURT: There will be no more arguments about this
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`document.
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`MR. KASTENS: Yes, Your Honor.
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`THE COURT: It's been submitted. We're not going to
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`argue about it. All right?
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`Go forth, do good.
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`MS. CURRAN: Thank you, Your Honor.
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`MS. CARSON: Thank you.
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`MR. KASTENS: Thank you, Your Honor.
`
` (Proceedings adjourned at 11:00 a.m.)
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`Case 3:17-cv-05659-WHA Document 164 Filed 07/19/18 Page 11 of 11
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`
` CERTIFICATE OF REPORTER
`
` I certify that the foregoing is a correct transcript
`
`from the record of proceedings in the above-entitled matter.
`
`DATE: Thursday, July 19, 2018
`
`
`
`
`
`
`_________________________________________
`Pamela Batalo Hebel, CSR No. 3593, RMR, FCRR
`U.S. Court Reporter
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