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`PAUL J. ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`Casey Curran (SBN 305210)
`ccurran@irell.com
`Sharon Song (SBN 313535)
`ssong@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`
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`Case No.: 3:17-cv-05659-WHA
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`[PROPOSED] JOINT FINAL PRETRIAL
`ORDER
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`Trial Date: December 10, 2018
`Time:
` 7:30 a.m.
` Courtroom 12 – 19th Floor
`Place:
`Judge:
` Hon. William Alsup
`
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`
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC.,
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`Defendant.
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`JOINT PRETRIAL STATEMENT
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 2 of 16
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`Pursuant to Paragraph 2 of the Court’s Guidelines for Trial and Final Pretrial Conference
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`in Civil Jury Cases, plaintiff Finjan, Inc. (“Finjan”) and defendant Juniper Networks, Inc.
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`(“Juniper”) (collectively, “Parties”) hereby submit this Joint Proposed Final Pretrial Order.
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`I.
`
`THE PARTIES
`The Parties to this action are Finjan, a Delaware corporation with its principal place of
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`business at 2000 University Ave., Ste. 600, East Palo Alto, California 94303, and Juniper, a
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`Delaware corporation with its principal place of business at 1133 Innovation Way, Sunnyvale,
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`California 94089.
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`II.
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`SUBSTANCE OF THE CLAIMS AND DEFENSES
`This is an action for patent infringement arising under the Patent Act, 35 U.S.C. § 101 et.
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`seq. The Court has original jurisdiction over this controversy pursuant to 28 U.S.C. §§ 1331 and
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`1338(a). In the case at large, pursuant to 35 U.S.C. § 271(a), Finjan alleges that Juniper directly
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`infringes the following Finjan patents: U.S. Patent No. 6,154,844 (“the ’844 patent”); U.S. Patent
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`No. 6,804,780 (“the ’780 patent”); U.S. Patent No. 7,418,731 (“the ’731 patent”); U.S. Patent No.
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`7,613,926 (“the ’926 Patent”); U.S. Patent No. 7,647,633 (“the ’633 Patent”); U.S. Patent No.
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`8,141,154 (“the ’154 Patent”); U.S. Patent No. 8,677,494 (“the ’494 Patent”). Collectively, these
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`patents are referred to as the “Asserted Patents.” However, as described below, the trial set for
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`December 10, 2018 only concerns the ’494 Patent (the “’494 Trial”). The parties agree to meet
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`and confer in good faith to determine if the issues can be further narrowed for trial.
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`Finjan’s Position
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`By its February 23, 2018 Order, the Court instituted early summary judgment proceedings
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`in this action. Dkt. 35. Specifically, the Court ordered: “By JUNE 7, 2018, each side shall select
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`one asserted claim — presumably the strongest case for infringement and the strongest case for
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`noninfringement or invalidity, respectively — and file an early motion for summary judgment on
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`that claim…” Pursuant to this order, Finjan selected Claim 10 of the ‘494 Patent (“Claim 10”).
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`Claim 10 reads as follows:
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`A system for managing Downloadables, comprising:
`a receiver for receiving an incoming Downloadable;
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 3 of 16
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`a Downloadable scanner coupled with said receiver, for deriving
`security profile data for the Downloadable, including a list of
`suspicious computer operations that may be attempted by the
`Downloadable; and
`a database manager coupled with said Downloadable scanner, for
`storing the Downloadable security profile data in a database.
`On August 31, 2018, the Court granted in part Finjan’s motion for summary judgment of
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`infringement of Claim 10 of the ‘494 Patent. Dkt. 189. Specifically, the Court found that
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`“(1) Juniper’s SRX Gateways used in combination with Sky ATP; and (2) Sky ATP alone” meet
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`the first two limitations of Claim 10, but found factual disputes exist for “whether the accused
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`system includes a ‘database’ within the meaning of Claim 10.” Dkt. 189 at 16. The Court held:
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`“Factual disputes regarding whether ResultsDB constitutes a ‘database’ — either literally or
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`under the doctrine of equivalents — while thin, preclude a determination one way or the other on
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`the record provided with the degree of certainty required for summary judgment, particularly
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`when viewing the record in light most favorable to Juniper. This issue will have to be tried to a
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`jury.”
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`The Court also found the following:
`1.
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`The Court found that the Accused Products meet the preamble of Claim 10 of the
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`‘494 Patent, which reads “A system for managing Downloadables, comprising.”
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`2.
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`The Court found that the Accused Products meet the first element of Claim 10 of
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`the ‘494 Patent, which reads “a receiver for receiving an incoming
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`Downloadable.”
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`3.
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`The Court found that the Accused Products meet the second element of Claim 10
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`of the ‘494 Patent, which reads “a Downloadable scanner coupled with said
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`receiver, for deriving security profile data for the Downloadable, including a list of
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`suspicious computer operations that may be attempted by the Downloadable.”
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`4.
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`The Court found that except for whether there was a “database,” the Accused
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`Products meet the third element of Claim 10 of the ‘494 Patent, which reads “a
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`database manager coupled with said Downloadable scanner for storing the
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 4 of 16
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`Downloadable security profile data in a database,” limitation of the third element
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`of Claim 10 of the ‘494 Patent.
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`5.
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`The Court found that “Sky ATP stores results in three different storage solutions
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`provided by Amazon: (1) DynamoDB, (2) S3, and (3) MySQL (Dkt. No. 126 at
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`26). ResultsDB management is an interface overlaying these three storage
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`components.”
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`The Court, therefore, ordered a trial on four issues related to Finjan’s motion for summary
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`judgment of infringement of Claim 10, to include: “(1) whether the accused products meet the
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`‘database’ limitation; (2) Juniper’s Section 101 invalidity defense; (3) Juniper’s Section 287
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`defense on damages; and (4) the extent of damages.” Dkt. 189.
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`Finjan provided Juniper notice of the ‘494 Patent and that Juniper’s SRX Gateway in
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`combination with Sky ATP and Sky ATP alone infringed the ‘494 Patent since at least November
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`24, 2015.
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`Juniper’s Position
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`By its February 23, 2018 Order, the Court instituted early summary judgment proceedings
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`in this action. Dkt. 35. Specifically, the Court ordered: “By JUNE 7, 2018, each side shall select
`
`one asserted claim — presumably the strongest case for infringement and the strongest case for
`
`noninfringement or invalidity, respectively — and file an early motion for summary judgment on
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`that claim…” Pursuant to this order, Juniper selected Claim 1 of the ’780 Patent (“Claim 1”).
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`Claim 1 reads as follows:
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`A computer-based method for generating a Downloadable ID to identify a Downloadable,
`comprising:
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`obtaining a Downloadable that includes one or more references to
`software components required to be executed by the Downloadable;
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`fetching at least one software component identified by the one or
`more references; and
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`performing a hashing function on the Downloadable and the fetched
`software components to generate a Downloadable ID.
`On August 9, 2018, the Court granted in full Juniper’s motion for summary judgment of non-
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`infringement. Dkt. 180. Specifically, the Court found that “Finjan has not shown that the SRX
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 5 of 16
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`and Sky ATP perform a hashing function on the downloadable together with its fetched software
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`components.” Dkt. 180 at 10.
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`Also pursuant to the Court’s February 23, 2018 Order, Finjan selected Claim 10 of the
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`‘494 Patent (“Claim 10”). Claim 10 reads as follows:
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`A system for managing Downloadables, comprising:
`
`receiver for receiving an incoming Downloadable;
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`a Downloadable scanner coupled with said receiver, for deriving
`security profile data for the Downloadable, including a list of
`suspicious computer operations that may be attempted by the
`Downloadable; and
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`a database manager coupled with said Downloadable scanner, for
`storing the Downloadable security profile data in a database.
`On August 31, 2018, the Court found that factual disputes preclude fully granting Finjan’s motion
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`for summary judgment of infringement of Claim 10 of the ‘494 Patent. Dkt. 189. Specifically,
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`the Court stated: “Factual disputes regarding whether ResultsDB constitutes a ‘database’ — either
`
`literally or under the doctrine of equivalents — while thin, preclude a determination one way or
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`the other on the record provided with the degree of certainty required for summary judgment,
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`particularly when viewing the record in light most favorable to Juniper. This issue will have to be
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`tried to a jury.”
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`Regarding Juniper’s 35 U.S.C. § 101 invalidity argument, the Court found that “Claim 10
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`of the ’494 Patent does not itself recite any step beyond the mere identification of suspicious
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`operations within a received Downloadable (and then storing the information somewhere). It
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`stops short of claiming any non-fundamental, routine step, such as comparing the security profile
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`with the access control list or any kind of protective measure. As such, Claim 10 is directed to an
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`abstract idea rather than an improvement on computer functionality.” Dkt. 189 at 19. The Court
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`further held that “[a]t this juncture, this order will postpone on reaching the issue of whether
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`Claim 10 survives under Alice step two. Rather, the Court will wait to have the benefit of the trial
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`record before determining whether Claim 10 contains an inventive concept such that it is patent
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`eligible.” Dkt. 189 at 19.
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 6 of 16
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`On Juniper’s 35 U.S.C. § 287’s argument, the Court stated “this order declines to reach
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`the issue of marking on Finjan’s motion for summary judgment of infringement. A jury will have
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`to decide.” Dkt. 189 at 20.
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`The Court, therefore, ordered a trial on four issues related to Finjan’s motion for summary
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`judgment of infringement of Claim 10, to include: “(1) whether the accused products meet the
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`‘database’ limitation; (2) Juniper’s Section 101 invalidity defense; (3) Juniper’s Section 287
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`defense on damages; and (4) the extent of damages.” Dkt. 189.
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`III.
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`STATEMENT OF ALL RELIEF SOUGHT
`Finjan’s Position
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`For the purposes of this ’494 Trial, Finjan seeks a judgment that Juniper infringes
`
`Claim 10, that Claim 10 is valid, and an award of monetary damages for Juniper’s patent
`infringement in an amount no less than a reasonable royalty.1 Finjan also seeks prejudgment and
`post-judgment interest. Finjan’s Amended Complaint and Answer to Juniper’s Counterclaims
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`identifies the following points of relief regarding Claim 10:
` an entry of judgment that Juniper is infringing Claim 10;
` an entry of judgment that Claim 10 is valid;
` an award of damages to compensate Finjan for Juniper’s infringement of Claim
`
`10;
` a finding that the case is exceptional;
` an award of Finjan’s costs and reasonable attorneys’ fees permitted under
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`35 U.S.C. § 285;
` an accounting of all infringing sales and revenues, together with post judgment
`
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`interest and prejudgment interest from the first date of infringement;
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`1 As set forth in Finjan’s Second Amended Complaint and Rule 26(a)(1) disclosures, Finjan seeks
`monetary and equitable relief for the remaining Asserted Patents that are not expired and are not
`at issue in the ’494 Trial, but are still at issue in this case at large. Finjan seeks a reasonable
`royalty for Juniper’s infringement and, separately, injunctive relief for future infringement of the
`remaining unexpired Asserted Patents.
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 7 of 16
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` prejudgment and post-judgment interest; and
` any further relief that the Court may deem proper and just.2
`Juniper’s Position
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`For purposes of the December trial on limited issues pertaining to the ’494 Patent, Juniper
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`seeks a judgment that Juniper does not infringe Claim 10, that Claim 10 is invalid, and a complete
`limitation on damages for failure to comply with statutory marking and notice requirements.3
`Juniper’s First Amended Answer to Finjan’s Second Amended Complaint identifies the following
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`points of relief regarding Claim 10 at issue for the upcoming trial:
` an entry of judgment that Juniper is not infringing Claim 10;
` an entry of judgment that Claim 10 is invalid under 35 U.S.C. § 101;
` an entry of judgment that Finjan is not entitled to any damages on Claim 10
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`because it failed to comply with the requirements of 35 U.S.C. § 287;
` a determination that this is an exceptional case under 35 U.S.C. § 285, and an
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`award of attorneys’ fees and costs to Juniper in this action; and
` any further relief that the Court deems just and equitable.
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`IV. UNDISPUTED OR STIPULATED FACTS
`For the purposes of the ’494 Trial, the undisputed facts are as follows:
`
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`2 Finjan’s position is that Juniper has waived the defenses identified in footnote 3 below by not
`raising them in its opposition to Finjan’s motion for summary judgment pursuant to the schedule
`set by the Court.
`3 As set forth in Juniper’s First Amended Answer to Finjan’s Second Amended Complaint and
`various disclosures, Juniper also contends that Claim 10 is unenforceable for inequitable conduct
`and unclean hands, and is invalid under §§ 102 and 103. Juniper has also raised numerous
`affirmative defenses that have not yet been addressed in this proceeding. Juniper maintains all its
`claims and affirmative defenses for Claim 10, but recognizes that those issues will be decided at a
`later phase in the litigation. Finjan’s position that Juniper somehow waived its other defenses by
`not raising them in response to Finjan’s motion for summary judgment on non-infringement is
`meritless. Juniper selected several defenses to raise in its summary judgment opposition on the
`basis that it believed there were no factual disputes and the Court could decide them. Juniper was
`under no obligation from the Court—or from any other rule—to address every defense it has in its
`opposition to Finjan’s motion for summary judgment on infringement. See Pandrol USA, LP v.
`Airboss Ry. Products, Inc., 320 F.3d 1354, 1365 (Fed. Cir. 2003) (“the issue of invalidity is a
`separate issue from infringement, and an alleged infringer’s failure to raise it in opposition to a
`motion for summary judgment of infringement is not a waiver.”).
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`1.
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`2.
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`3.
`4.
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`5.
`6.
`7.
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`Finjan is a Delaware corporation with its principal place of business at 2000
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`University Ave., Ste. 600, East Palo Alto, California 94303.
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`Juniper is a Delaware corporation with its principal place of business at 1133
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`Innovation Way, Sunnyvale, California 94089.
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`Finjan is the owner of the ’494 Patent.
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`Yigal Mordechai Edery, Nimrod Itzhak Vered, David R. Kroll, and Shlomo
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`Touboul are listed as inventors on the ’494 Patent.
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`The ’494 Patent was filed on November 7, 2011.
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`The ’494 Patent issued on March 18, 2014.
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`The ’494 Patent expired on January 29, 2017.
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`V.
`FACTUAL ISSUES THAT REMAIN TO BE TRIED
`Finjan’s Position
`
`For the purposes of the ’494 Trial, the factual issues that remain to be tried are as follows:
`1.
`
`Whether Juniper’s SRX Gateways with Sky ATP and/or Sky ATP alone satisfy
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`Claim 10’s limitation of a “database” in the element of “a database manager
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`coupled with said Downloadable scanner, for storing the Downloadable security
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`profile data in a database.”
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`Whether Claim 10 contains an inventive concept such that it is patent eligible
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`under Alice step two.
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`Whether Finjan provided notice or not to Juniper under 35 U.S.C. § 287.
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`The amount of damages if Juniper is found to have infringed Claim 10 of the ’494
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`2.
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`3.
`4.
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`Patent, if Claim 10 is found to have an inventive concept.
`Juniper’s Position
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`For the purposes of the ’494 Trial, the factual issues that remain to be tried are as follows:
`1. Whether Juniper’s SRX Gateways used in combination with Sky ATP and/or Sky
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`ATP alone satisfy Claim 10’s limitation of a “database” in the element of “a
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`database manager coupled with said Downloadable scanner, for storing the
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`Downloadable security profile data in a database.”
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`2.
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`3.
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`4.
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`Whether Claim 10 contains an inventive concept such that it is patent eligible
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`under Alice step two.
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`Whether Finjan is barred from obtaining any damages because it failed to comply
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`with the marking or actual notice requirements of 35 U.S.C. § 287.
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`The amount of damages Finjan has established (if any), if Juniper is found to have
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`infringed Claim 10 of the ’494 Patent, if Claim 10 is found to have an inventive
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`concept, and if Finjan complied with the statutory notice requirements under 35
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`U.S.C. § 287.
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`During summary judgment briefing, Juniper expressly raised Finjan’s failure to comply
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`with the marking and notice requirements of § 287, and explained that this failure precluded
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`Finjan from recovering any damages in this case because the ’494 Patent expired before Finjan
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`filed its lawsuit. In particular, Juniper argued Finjan incurred a notice obligation pursuant to
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`§ 287 because it and its licensees sold products that embody the ’494 Patent, and failed to mark
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`those products. Because (and only because) of this failure to mark, Finjan is only permitted to
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`collect damages after it provided Juniper with actual and specific notice of infringement pursuant
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`to § 287. Finjan disputed this issue on summary judgment, and the Court determined that there
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`were factual issues that needed to be determined by the jury. Dkt. 189 at 20.
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`Finjan now seems to be taking the position that it will not contest that it failed to mark its
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`products (thus triggering an actual notice requirement pursuant to § 287), but it has not been clear
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`or forthright about its new position. Specifically, when Finjan sent Juniper a draft of the joint
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`jury instructions it noted in the draft that “No instruction on marking is appropriate because
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`marking is not an issue for trial.” When Juniper asked Finjan to clarify why it believed that
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`marking is not an issue for trial, it stated that “Finjan is not asserting constructive notice of the
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`‘494 Patent at trial” and has took the position that only actual notice will be addressed. But actual
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`notice is only an issue if Finjan did not mark products embodying the ’494 Patent. Thus, it
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`appears that Finjan is conceding that it or its licensees had an obligation to mark and failed to do
`so. See § 287 (“In the event of failure so to mark, no damages shall be recovered by the patentee
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`JOINT PRETRIAL STATEMENT
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 10 of 16
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`in any action for infringement, except on proof that the infringer was notified of the infringement
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`and continued to infringe thereafter”) (emphasis added).
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`When Juniper pressed Finjan on this issue, it then provided an abbreviated “constructive
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`notice” instruction that only addresses the issue of whether the Vital Security product offered by
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`Finjan Mobile (a related entity) was marked. Juniper asked Finjan to directly answer the
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`following two questions: (1) Does Finjan intend to present evidence at trial that its licensees’
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`products do not practice the ’494 Patent? And (2) Does Finjan intend to present evidence at trial
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`that it made reasonable efforts to ensure that its licensees complied with the marking
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`requirements of Section 287? Finjan refuses to state its position on whether or not it complied
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`with § 287 with regard to its licensees. During summary judgment briefing, it argued that there
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`were factual issues preventing summary adjudication on this topic. Does Finjan believe there are
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`still factual issues regarding its compliance with § 287? If so, the issue will need to be decided by
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`a jury. If not, the jury should simply be instructed that Finjan did not comply with § 287 and
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`therefore incurred an obligation to provide actual notice to collect damages. While it is fine for
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`Finjan to change its position, it must clearly state its position so that the Court can enter an order
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`on the issue and the jury can be properly instructed. Instead, Finjan is playing games by trying to
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`unilaterally remove the issue of marking from the trial without formally acknowledging that it is
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`no longer contesting the issue.
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`VI.
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`ESTIMATE OF TRIAL TIME
`The Parties request that the Court allow 11 hours of trial time per side, not including jury
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`selection, voir dire, opening statements, and closing statements. The Parties agree that there will
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`be no more than one hour per side for opening statements and no more than one hour per side for
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`closing statements.
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`VII. STIPULATIONS REGARDING THE TIMELY EXCHANGE OF EVIDENCE
`The following stipulations regarding the exchange of evidence were agreed upon by the
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`parties and are made a part of this Pretrial Order:
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`Witnesses and Exhibits or Demonstratives
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`Except for good cause, the Parties agree to provide written firm notice of the order of
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`JOINT PRETRIAL STATEMENT
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 11 of 16
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`witnesses for the next court day and the exhibits (including demonstratives or merely illustrative
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`exhibits) to be used on direct examination (other than for true impeachment of a witness) by 2:00
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`p.m. on the calendar day immediately preceding the day the witness will testify or the exhibit will
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`be used. If party chooses to provide two calendar days’ written notice by 2:00 p.m. instead, or if
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`it provides two calendar days’ notice by 2:00 p.m. that no documents will be used, then all other
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`counsel must give written notice of all other exhibits to be used on cross-examination (except for
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`true impeachment) by 2:00 p.m. on the calendar day immediately preceding the testimony;
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`otherwise, other responding counsel need not give notice of exhibits they may use. The parties
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`agree that the requirement to disclose exhibits to be used on cross-examination does not apply to
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`demonstratives that might be used on cross examination. Any exhibit timely noticed by anyone
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`for the witness is usable as if timely noticed by everyone, subject to substantive objections.
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`Similarly, if reference is made to an exhibit during an examination (even if not offered in
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`evidence and even if not noticed for use with the witness), then in any follow-up examination by
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`others, the exhibit may be used to the same extent as if it had been timely noticed, subject to
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`substantive objections. All notices shall be sent by fax or electronically and be time-and-date
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`verifiable. If counsel decides not to call a noticed witness, then prompt written notice of the
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`cancellation must be given. Impeachment exhibits are ordinarily limited to statements signed by
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`or adopted by the witness. Compliance with a two-day notice period, of course, will not satisfy
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`compliance with FRCP 26 or any other disclosure rule.
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`The parties further agree that they will provide notice of any objections to the use of an
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`exhibit by 4:30 p.m. on the calendar day immediately preceding the date on which any exhibit is
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`to be used, and will meet and confer by telephone at 5:00 p.m. on the calendar day immediately
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`preceding the date on which any exhibit is to be used to discuss objections to the use of that
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`exhibit, and to the extent the parties do not agree, the party seeking to exclude the use of an
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`exhibit may email a short brief (not to exceed 4 pages in total) to the Court by 7:00 p.m. on the
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`calendar day immediately preceding the date on which any exhibit is to be used, and the party
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`seeking to admit the exhibit may submit a responsive brief by 10:00 p.m. Neither party is
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`obligated to submit written briefing for exhibit-related issues. For example, for exhibits that are
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`JOINT PRETRIAL STATEMENT
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 12 of 16
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`to be used on Monday, the parties will meet and confer at 5:00 p.m. on Sunday. If the parties do
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`not agree regarding objections for an exhibit, the party seeking to exclude the use of the exhibit
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`may email the Court by 7:00 p.m. on Sunday and the party seeking to admit the exhibit may
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`respond by 10:00 p.m. on Sunday.
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`Deposition Designations and Discovery Responses
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`The parties agree to the following procedures for the disclosure of deposition designations
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`and Request for Admission or Interrogatory responses, which are in line with paragraphs 20 and
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`21 of the Court’s Guidelines for Trial and Final Pretrial Conference in Civil Jury Cases before the
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`Honorable William Alsup:
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`By at least 5:00 p.m. on the fifth calendar day before each trial day, the parties shall
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`provide the “finished packet” of deposition designations to all other parties for the trial day in
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`question, pursuant to paragraph 20(a) of the Court’s Guidelines for Trial and Final Pretrial
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`Conference in Civil Jury Cases before the Honorable William Alsup. Also by at least 5:00 p.m.
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`on the fifth calendar day before each trial day, the parties shall provide a list of Requests for
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`Admission or Interrogatory responses that the party intends to present on the trial day in question.
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`By at least 5:00 p.m. on the fourth calendar day before each trial day, all other parties
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`must return the “adjusted packet” of deposition designations, along with any counter-
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`designations, to the designating party for the trial day in question, pursuant to paragraphs 20(b)-
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`(d) of the Court’s Guidelines for Trial and Final Pretrial Conference in Civil Jury Cases before
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`the Honorable William Alsup. Also by at least 5:00 p.m. on the fourth calendar day before each
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`trial day, all other parties shall provide any objections to the designating party’s list of Requests
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`for Admission or Interrogatory responses that the designating party intends to present on the trial
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`day in question.
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`At 5:00 p.m. on the third calendar day before each trial day, the parties must meet and
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`confer on their positions or objections regarding deposition designations and Requests for
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`Admission or Interrogatory responses, pursuant to paragraphs 20(c) and 21 of the Court’s
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`Guidelines for Trial and Final Pretrial Conference in Civil Jury Cases before the Honorable
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`William Alsup.
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`JOINT PRETRIAL STATEMENT
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 13 of 16
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`On the second calendar day before each trial day, the designating party must “collate and
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`assemble a final packet that covers the proffer and all remaining issues” for deposition
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`designations and Request for Admission or Interrogatory responses, and “[a]lert the Court on the
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`record that the packet is being provided and whether any rulings are needed,” pursuant to
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`paragraph 20(c) of the Court’s Guidelines for Trial and Final Pretrial Conference in Civil Jury
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`Cases before the Honorable William Alsup.
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`For example, for deposition testimony to be heard on Monday, the designating party shall
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`provide deposition designations on the Wednesday before at 5:00 p.m. The responding party
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`shall then provide an adjustment packet and objections on the Thursday before by 5:00 p.m. On
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`the Friday before, the parties must meet and confer. On the Saturday before, the designating
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`party must assemble the final packet and alert the Court on whether any rulings are needed.
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`Opening and Closing Statement Demonstratives
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`The parties agree to the following procedure for the disclosure of “any visuals, graphics or
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`exhibits to be used in the opening statements” (“Opening Demonstratives”), pursuant to
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`paragraph 10 of the Court’s Guidelines for Trial and Final Pretrial Conference in Civil Jury Cases
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`before the Honorable William Alsup.
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`By at least noon on the Saturday before opening statements (i.e., Saturday, December 8,
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`2018), the Parties agree to exchange Opening Demonstratives.
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`By at least 4:00 p.m. on the Saturday before opening statements (i.e., Saturday,
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`December 8, 2018), the Parties agree to exchange written notice of any objections to Opening
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`Demonstratives.
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`At 10:00 a.m. on the Sunday before opening statements (i.e., Sunday, December 9, 2018),
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`the parties will meet and confer on any objections to Opening Demonstratives, and to the extent
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`the parties do not agree, the parties will email short briefs (not to exceed 4 pages in total) to the
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`Court no later than 4:00 p.m. on the Sunday before opening statements (i.e., Sunday, December 9,
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`2018), identifying any disputes the parties request the Court to address on the morning of the first
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`day of trial, December 10, 2018.
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`The parties agree to continue to meet and confer on the disclosure schedule and exchange
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`JOINT PRETRIAL STATEMENT
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`Case 3:17-cv-05659-WHA Document 262 Filed 11/27/18 Page 14 of 16
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`requirements for “any visuals, graphics or exhibits to be used” in the closing statements that were
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`not a part of the Opening Demonstratives.
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`Physical Exhibits
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`Copies of physical exhibits will be available for inspection 48 hours before a party intends
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`to use the physical exhibit at trial. The parties reserve the right