Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 1 of 198
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` Volume 1
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` Pages 1 - 197
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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
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) No. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC.,
`)
` )
` Defendant.
`)
` ) San Francisco, California
` Monday, December 10, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` JAMES HANNAH, ESQ.
`
` KRAMER LEVIN NAFTALIS AND FRANKEL LLP
` 1177 Avenue of the Americas
` New York, New York 10036
` BY: CRISTINA LYNN MARTINEZ, ESQ.
`
`
`(Appearances continued on next page)
`
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Jo Ann Bryce, CSR No. 3321, RMR, CRR
` Official Reporters
`
`
`
` Volume 1
`
` Pages 1 - 197
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) No. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC.,
`)
` )
` Defendant.
`)
` ) San Francisco, California
` Monday, December 10, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` JAMES HANNAH, ESQ.
`
` KRAMER LEVIN NAFTALIS AND FRANKEL LLP
` 1177 Avenue of the Americas
` New York, New York 10036
` BY: CRISTINA LYNN MARTINEZ, ESQ.
`
`
`(Appearances continued on next page)
`
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Jo Ann Bryce, CSR No. 3321, RMR, CRR
` Official Reporters
`
`
`
`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 2 of 198
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`APPEARANCES (CONTINUED):
`
`For Defendant: IRELL & MANELLA LLP
` 1800 Avenue of the Stars, Suite 900
` Los Angeles, California 90067-4276
` BY: JONATHAN S. KAGAN, ESQ.
` ALAN J. HEINRICH, ESQ.
` JOSHUA GLUCOFT, ESQ.
` CASEY CURRAN, ESQ.
`
` IRELL & MANELLA LLP
` 840 Newport Center Drive, Suite 400
` Newport Beach, California 92660
` BY: REBECCA CARSON, ESQ.
`
`
`
`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 3 of 198
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`I N D E X
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`
`Monday, December 10, 2018 - Volume 1
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` PAGE VOL.
`Jury Voir Dire
`28
`1
`Preliminary Jury Instructions
`150
`1
`Opening Statement by Mr. Andre
`155
`1
`Opening Statement by Mr. Kagan
`173
`1
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`PLAINTIFF'S WITNESSES PAGE VOL.
`
`BIMS, HARRY
`(SWORN)
`Direct Examination by Mr. Andre
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`192
`193
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`1
`1
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 4 of 198
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`PROCEEDINGS
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`Monday - December 10, 2018
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` 7:32 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: Good morning. We're here for trial.
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`We'll get started.
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`THE CLERK: Calling Civil Case Number 17-5659, Finjan,
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`Inc. versus Juniper Networks.
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`Will counsel please step forward and state your
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`appearances for the record.
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`MR. ANDRE: Good morning, Your Honor. Paul Andre
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`Andre for Finjan. And with me today is Lisa Kobialka, James
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`Hannah, and Cristina Martinez.
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`THE COURT: Welcome to all of you.
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`MR. KAGAN: Good morning, Your Honor. Jonathan Kagan,
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`of Irell & Manella, for defendant Juniper Networks. With me at
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`counsel table today are Rebecca Carson.
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`MS. CARSON: Good morning.
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`MR. KAGAN: Alan Heinrich.
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`MR. HEINRICH: Good morning.
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`MR. KAGAN: Josh Glucoft, and Casey Curran.
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`MS. CURRAN: Good morning.
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`THE COURT: Okay. I guess with all the lawyers here
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`this case must be worth millions of dollars. That's the way a
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`jury is going to see it. Always works that way.
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`All right. We're here for trial. We're going to call the
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`jury in in 30 minutes, get started. I want you to know, the
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`way I run the courtroom, we don't dawdle.
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`So what issues do you want to take up before we bring in
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`the potential jury?
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`MR. KAGAN: Your Honor, the first issue that the
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`defendant would like to raise regards to insufficiency or lack
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`of sufficiency of the offer of proof that Your Honor ordered to
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`be served at 5 o'clock on Friday.
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`The offer of proof was -- Mr. Heinrich can go into more
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`detail on this, but the offer of proof, which was on damages,
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`failed to include certain items such as the amount of damages
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`that Finjan is seeking in this case.
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`And, in addition, it included reference to evidence that
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`they were going to introduce to support its damages claim that
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`this Court expressly ordered excluded by the Daubert motion.
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`So, for example, they are seeking, as evidence to support
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`their damages claim, revenues for the SRX device by itself,
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`which this Court has already ordered is not an accused product
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`in this case.
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`So what they've done is continued to advance a defunct
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`theory to support damages. And they're still trying to hide
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`the ball in terms of what damages they're actually seeking and
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`what the basis is for the damages claim, which is why we
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`requested the offer of proof in the first place.
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`THE COURT: Okay. What do you say?
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`MR. ANDRE: Your Honor, we're not asking for damages
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`based on SRX alone. Just the opposite. We actually -- at the
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`pretrial conference you ordered the defendants to produce a
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`witness on the late-disclosed spreadsheet, the 17,000-page
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`spreadsheet. And they represented they were just adding one
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`column to their spreadsheet they produced back in April, you'll
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`recall.
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`Turns out that one column, or maybe two columns, had
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`60,000 rows that we found out as we took the deposition on
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`Friday afternoon.
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`THE COURT: Wait. Wait. You're saying in addition
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`to -- in addition to one new column, which was previously
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`blank, they added 60,000 new rows?
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`MR. ANDRE: Yeah. The original spreadsheet had
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`30,000 --
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`THE COURT: Is that true?
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`MR. HEINRICH: No, Your Honor.
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`THE COURT: He said it's not true.
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`MR. ANDRE: Well, we asked at deposition -- the
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`original deposition spreadsheet had 30,000 rows; the new one
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`had 90,000. Now, my math --
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`THE COURT: What do you say to that?
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`MR. HEINRICH: So, it's not correct --
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`THE COURT: Anytime a lawyer starts with "so," that
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`means they are in trouble.
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 7 of 198
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`PROCEEDINGS
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`MR. HEINRICH: No, Your Honor.
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`THE COURT: I've learned that the hard way. That
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`means they don't want to give you a direct answer.
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`Give me a direct answer. Is it true that there are more
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`rows or not?
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`MR. HEINRICH: No.
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`THE COURT: He says no.
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`All right. What else do you want to say?
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`MR. ANDRE: We then talked to their witness and said,
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`Tell us the revenues for the SRX and Sky ATP combined, both the
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`ones you give away for free and ones you charge a license for.
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`And she created two spreadsheets. One was the price of
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`$15.9 million for those two combined. The other was
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`7.2 million.
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`The 7.2 was when they went back and tried to recalculate
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`the free versions of the Sky ATP with SRX, the sales of SRX for
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`7.2 million. So roughly over $23 million in revenue of
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`spreadsheets that their witness created. They say that that is
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`SRX by itself.
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`We have the spreadsheets. We have the exhibits. And it
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`says "Sky ATP and SRX." And that's the best that she could do.
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`They said, well, she couldn't verify the accuracy of that
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`information on their own spreadsheets. I'm like, well, she's a
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`30(b)(6) witness. I don't know what else to do here.
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`We found out that they have been advancing a total revenue
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`number of 1.8 million. And no one knows how they got to
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`1.8 million. And we figured it out at this deposition.
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`They had their expert write a piece of software, some
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`script, to run a program to gin up this $1.8 million revenue
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`based on average cost and expectation and whatnot.
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`We've never been provided that piece of software or script
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`to test it on our own and see even what it was about. But
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`their witnesses or fact witnesses could not re-create that
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`number.
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`So not only do we have a lot of additional information on
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`the spreadsheet that was produced very late in the case, then
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`they used that spreadsheet, without us having access to it, to
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`write a piece of software to gin up a number of $1.8 million,
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`to sandbag us with our damages expert.
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`We went in --
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`THE COURT: Well, but even if it was 7.2, your number
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`was 70 million. You still came up with an astronomical number.
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`So how would the 7.2 even get you close to 70 million?
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`MR. ANDRE: It wouldn't, Your Honor. We're not saying
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`that. The 7.2 and the 15.9, the 23 million total, it would
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`be -- still our number would be high. But the numbers we had
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`in the original spreadsheets, you couldn't even decipher the
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`23 million. The number we had in the original spreadsheet was
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`several-hundred million. So our 60 to 70 million wasn't
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`outrageous when you looked at the several-hundred million.
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`But we're not arguing that now. We're arguing this offer
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`of proof. And this offer of proof is we took the deposition on
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`Friday. Their witness came up with a couple of spreadsheets.
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`They're objecting to the spreadsheet, saying she could not test
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`the authenticity -- couldn't say that she was -- it was
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`accurate numbers. She just couldn't tell. So that was their
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`30(b)(6) witness.
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`That's what they are saying that we are now offering SRX
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`by itself.
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`THE COURT: What do you say to this?
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`MR. HEINRICH: So many inaccuracies.
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`I'm going to start with the 7.2 million. So we provided a
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`wealth of information in that spreadsheet. We were able to
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`determine that there were only 120 SRX devices that were used
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`in combination with Sky ATP during the damages period.
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`So what we did is we used the Juniper financial
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`information to determine the price and the net sales of those
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`120 --
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`THE COURT: How do you know if it was used or not?
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`MR. HEINRICH: Well, because that information is in
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`the Cloud. We're able to determine which devices actually --
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`it's called bootstrap to Sky ATP.
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`So our fact -- our engineers were able to write a script
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`that derived that information, what were the devices actually
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`bootstrapping to Sky ATP. And we used the serial number for
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`those devices, and we extracted financial information.
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`And what we included in that financial information was
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`information on the shipments that those units that were
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`actually used in combination with Sky ATP were included in.
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`So, for example, the customer orders 200 SRX devices. We're
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`able to determine that only one of those devices was ever used
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`in combination with Sky ATP.
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`What they did is they included the entire revenues from
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`those 200 devices to come up with their 7.2 million. They were
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`manipulating the spreadsheet in a way that ignored the 120
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`units that were actually used and, instead, included the
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`revenues for all of the SRXs included together in the same
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`shipment.
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`And that's exactly the problem that -- I mean, it's the
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`same problem that the Court resolved in the Daubert ruling,
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`which is that they can't include revenues for SRX devices alone
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`that were never used in combination with Sky ATP.
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`That's just one example. The fundamental problem here is
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`that their offer of proof confirms that they don't have a
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`legally viable damages opinion. They say, oh, well, we can put
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`on evidence of an $8 per user license.
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`That's -- they already floated that theory in another
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`trial. The Federal Circuit vacated the jury verdict because
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`the Federal Circuit said they just plucked that out of thin
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`air.
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`THE COURT: Which trial was that?
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`MR. HEINRICH: That was the Finjan v. Blue Coat trial.
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`THE COURT: That verdict got reversed.
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`MR. HEINRICH: That's correct. Now they say they want
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`to do the same $8 per user license model again. They're also
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`saying a 32-cent-per-scan license, where they've never actually
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`done a per-scan license at all. It's just another number that
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`was plucked out of thin air as well. It fails under Finjan v.
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`Blue Coat.
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`Evidence -- they have a starting point license of
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`8 percent for hardware. But now they say they want to apply
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`that to the revenues for the entire security division of
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`Juniper, which not only includes SRX devices alone, but it also
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`includes the site for ATP appliance, that the Court excluded,
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`but they cite for revenues in their offer of proof as the basis
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`for a damages claim. They're flouting the Court's orders.
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`They're ignoring and flouting the Federal Circuit's rulings.
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`And the problem here is that in a few moments we're going
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`to have folks coming in here, taking time away from work, away
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`from their family, and their offer of proof confirms that they
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`don't have a damages case that would withstand a Rule 50(a)
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`motion. That's the problem.
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`THE COURT: Well, there are other issues to try.
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`MR. HEINRICH: If they --
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`THE COURT: There's infringement to try.
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`MR. HEINRICH: If they don't have damages, then this
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`whole case is moot. The patent is expired.
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`THE COURT: Now that we have gotten this far, I'm not
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`going to dismiss the jury.
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`Look, I'm going to deny your motion. I'm going to explain
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`why.
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`It's not -- I want to tell Mr. Andre first, I have grave
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`doubt that you're going to have a damages case after I hear it
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`all. And I may have to direct a verdict against you on the
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`issue of damages. I want to be very clear about that.
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`Let's just start with one word: apportionment. All right.
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`That right there may be a deal killer for you.
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`But here's the problem: This is coming up to me out of
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`left field by the defendant, and it's a problem that you caused
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`by coming up with this last-minute spreadsheet that you
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`yourself injected into it. So I allowed a deposition to try to
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`cure your default with a last-minute disclosure.
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`And then on Friday night -- this is Monday. I'm talking
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`to the Court of Appeals now. This is Monday morning, at
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`7:45 a.m. And -- on Friday -- is it Friday night? I think it
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`was Friday night, Juniper filed this massive motion to knock
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`out the entire damages case.
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`I've done the best I can to assess it. I think there are
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`a lot of good points in that motion. But is it good enough to
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`say that they -- that I can cut them off at the knees now? No.
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`It may be. It may be that I will be convinced in
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`Juniper's favor after hearing the evidence. So at the end of
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`the plaintiff's case I may direct a motion for directed verdict
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`on that issue. But we've got a lot of other issues to try in
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`this case, and we're going to do it.
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`This is Juniper trying to swing for the fences. You're
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`trying to swing for the fences. You're trying to eliminate the
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`fact that you may well infringe this thing, and avoid that.
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`The jury may rule against you on that point. We're going to
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`find out. So that motion is denied.
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`However, again, Mr. Andre, don't take heart in this. I
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`think you've got an uphill battle, and you may win on
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`infringement but lose on damages because you don't have a case.
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`You swung for the fences and struck out like Babe Ruth.
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`So that's the end of that one.
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`Now, what's next?
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`MR. ANDRE: Your Honor, this is the deposition we took
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`on Friday. And this is where the 60,000 lines come from.
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`THE COURT: I don't want to hear about it now.
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`MR. ANDRE: Okay.
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`THE COURT: I want to say one other thing. I want to
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`say one other thing.
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`If we go all the way through and you lose in this case, it
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`would be -- if you could genuinely prove to me that the people
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`from Irell & Manella lied to you and lied to me, that would be
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`a grounds for a new trial if it was material. If it was
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`material and they pulled the wool over my eyes in the way that
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`you're accusing them of, maybe that would be a ground for a new
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`trial. I would give that serious consideration.
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`You patent lawyers do this to each other and to the judges
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`all the time. You misdirect the Court. And I can't tell who's
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`telling me the truth here. One of you is fudging, and I don't
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`know who it is. But it's too -- I'm going to hear the
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`evidence. I will understand it better at the end of the trial.
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`And if it turns out you can demonstrate to me that in a
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`material way Irell & Manella -- that's your firm; right? --
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`that your firm misled me, that could be grounds for a new
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`trial. So I put that out there.
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`So we're -- your damages case, you can put it in to the
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`jury the best -- you know, whatever you can muster. And it
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`could be that at the end of that I'm going to say "not good
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`enough." And it may be your remedy at the end is a motion for
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`a new trial.
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`I'm not going to say you're going to win it, Mr. Andre,
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`I'm just saying to you, when I get these kinds of accusations
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`of misconduct by the other side, it troubles me. And I don't
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`know if you're telling me the truth or the other side, or
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`whether or not that truth, if I finally understand it, would be
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`material enough.
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`But that's -- we're dealing -- all of this is coming to me
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`in a flurry over the weekend, and you expect me to sort it out
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`in 30 minutes before the jury comes in? I can't do that.
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`We're going to go through this. You put in your case as best
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`you can.
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`All right. What's the next issue?
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`MR. ANDRE: Your Honor, I think the only thing that
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`will probably come today is there are some objections to the
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`demonstrative slides.
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`THE COURT: Let's go through them. I looked at them
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`briefly. I looked at them briefly.
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`MR. ANDRE: If you have --
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`THE COURT: All right. Number 1, Ugone, is that his
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`name?
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`MR. KAGAN: Ugone, Your Honor.
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`THE COURT: Ugone. What's wrong with letting him
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`testify? You're --
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`MR. ANDRE: Well, Your Honor, he's a rebuttal witness.
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`THE COURT: That's a phony-baloney argument. Think of
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`how phony that is.
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`MR. ANDRE: Okay.
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`THE COURT: You're saying that Ugone is relevant only
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`if your guy testifies. Well, certainly would be if your guy
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`testifies. But your guy's history now, because he swung for
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`the fences and struck out. Or he did. Maybe you -- you
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`didn't.
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 16 of 198
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`All right. So, then, okay. But I'm letting you put on a
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`damages case anyway. Well, this is their response to your
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`damages case.
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`MR. ANDRE: That's fair enough, Your Honor.
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`THE COURT: All right. Yeah, it is fair enough.
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`MR. ANDRE: Thank you.
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`THE COURT: Okay. What's the next problem?
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`This one right here, I'm going to let them use it because
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`if it turns out to be a lie, and you can prove it's a lie, then
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`you're going to get a home run, probably, out of this case
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`after all. So you should be praying that they put in a false
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`statement. Okay. So I'm overruling that objection.
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`Okay. What's next?
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`MR. ANDRE: It is the accused product revenues.
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`THE COURT: Yes, same thing.
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`MR. ANDRE: Okay.
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`THE COURT: Same thing.
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`I want the other side to know I'm not here to protect
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`Irell & Manella. I'm going to let them try to show that these
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`numbers are as false as the day is long.
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`And so I'm not saying that they are false, but it's not my
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`job to protect you from discovery abuse or whatever. So no.
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`If you can prove that these numbers are false, God bless you.
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`Okay. Now, what's next? Noninfringing alternative. This
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`one I do have a problem. Didn't I throw this out?
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`MR. ANDRE: You did, your Honor.
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`THE COURT: We had an agreement here, right in the
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`court, that this was not going to come into evidence.
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`MR. KAGAN: No, Your Honor, there are two different
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`issues.
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`THE COURT: See, this is the kind of slick behavior.
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`I was right here and I heard you say noninfringing should come
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`out; and you agreed.
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`MR. KAGAN: Your Honor, what we agreed, there are two
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`different motions in limine. The first was to exclude
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`Dr. Cole, who is Finjan's expert, from talking about
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`noninfringing alternatives because Your Honor had excluded the
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`damages expert who is going to be discussing noninfringing.
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`That was one motion, and that's what we had said was out.
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`Our expert has his analysis of noninfringing alternatives,
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`which is different than their expert's noninfringing
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`alternatives.
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`THE COURT: I will consider it at the time he
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`testifies, but this will not -- n-o-t -- be used in the opening
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`statement.
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`MR. KAGAN: Yes, Your Honor.
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`THE COURT: All right. Same thing on the next one,
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`called "Juniper had many noninfringing alternatives."
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`MR. KAGAN: Understood, Your Honor.
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`THE COURT: Maximum royalty. What's wrong with this?
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 18 of 198
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`MR. ANDRE: Your Honor, given previous rulings, we'll
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`withdraw our objection to this.
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`THE COURT: Thank you.
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`Look at that. They're shaking hands. They're shaking
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`hands. That's the first time I've seen that in this case.
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`All right. Finjan's assertion of history for the '494.
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`What's wrong with this one?
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`MR. ANDRE: Well, a lot of these people we didn't have
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`to assert the patents against. They say "settled." We didn't
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`settle the case. We entered into a license agreement. We
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`never sued them. This is just some false information on here.
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`We had some cases, but they say "cases settled." And I don't
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`think that's accurate.
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`THE COURT: I don't understand your point. You're
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`saying that some of these were never litigated?
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`MR. ANDRE: I believe that's correct, Your Honor.
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`THE COURT: Was that after a demand letter?
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`MR. ANDRE: Negotiations, yeah, talks. Your Honor,
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`we'll -- if they want to play this game, we'll withdraw the
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`objection.
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`THE COURT: Thank you.
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`What's next?
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`MR. ANDRE: Well, they're trying to put in an
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`exhibit --
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`THE COURT: By the way, you can explain that. You can
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`say that. You can say: They're going to put this chart up
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`there. Be aware that those were never even litigated.
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`What's next?
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`MR. ANDRE: Last one is an email from John Garland.
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`This is an exhibit that's not in evidence yet, and we're going
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`to object to the exhibit most likely. Mr. Garland --
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`THE COURT: Tell me, who is who here? I don't know
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`these people.
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`MR. ANDRE: John Garland, he is sitting back in the
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`courtroom. He's our director of licensing. Not a good picture
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`of him. They tend to do that as well.
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`THE COURT: They probably went through -- I could see
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`this was what they told the legal assistant: Go through that
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`video and find the worse picture you can of Mr. Garland.
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`I've had that happen in other cases. But it's not such a
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`bad picture. What's wrong with that picture? That's not so
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`bad. I'm not going to dig in on that ground.
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`Okay. So it's a statement by your own guy. It's going to
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`come into evidence. How can you avoid it not coming into
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`evidence?
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`MR. ANDRE: Well, it's not in evidence yet. And, you
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`know, I think opening statement --
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`THE COURT: What is your objection to it then? How
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`can it not come into evidence? It's from your own guy.
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`MR. ANDRE: Well, Your Honor, I think there is -- it's
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`not relevant to anything, because this is a statement by
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`Mr. Garland to Juniper. And this is prejudicial, saying that
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`he somehow reneged on the offer and accusing the other side
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`from doing some bad behavior. I believe what they're going to
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`try to do, Your Honor --
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`THE COURT: It's your guy -- who is Scott, anyway?
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`MR. ANDRE: He's the guy who recorded the phone
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`conversation of Mr. Garland. I think they're going to try to
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`explain that away by saying he recorded it because he wanted to
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`protect himself because he thought Mr. Garland was being
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`untruthful.
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`THE COURT: They can use this because it's so clearly
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`going to come into evidence. They can use this slide in the
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`opening statement.
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`MR. ANDRE: Okay.
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`THE COURT: Is that it?
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`MR. ANDRE: That's it from our side.
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`THE COURT: All right. Good. What else do I need to
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`decide?
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`Tracy, would you call over there and see if the jurors are
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`ready yet.
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`THE CLERK: They are ready.
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`THE COURT: Anything else before we bring in the jury?
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`MR. ANDRE: Your Honor, I think the last thing is some
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`deposition clips that were submitted to you.
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`THE COURT: Yes. I want to say something to you
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`lawyers. Don't do it the way you did it. You were supposed to
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`give me the hard copies with the color coding. And, instead,
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`you took it upon yourself to send an email to my CRD that came
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`in all redacted. I can hardly read it. It was blocked out.
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`And I spent a lot of time on it, trying to read through the
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`darkness, to see what you all were fighting over.
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`And your excuse was, well, it was the weekend. Too bad.
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`You've got to do it earlier than the weekends if you want it.
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`Now, I read every one of those, and I'm overruling every
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`objection to everything on the original one.
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`Then after I go through all that trouble, my law clerk
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`said, oh, they submitted a revised version which they
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`stipulated.
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`I don't know what you stipulated to, but on the original
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`version I overruled every objection. And I read every one of
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`them, and it's proper testimony on both sides.
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`So you all fix it up. I spent a lot of time. You've got
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`to do it my way. You can't take it upon yourself to run the
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`courtroom. All right. This applies to both of you.
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`MR. ANDRE: And, Your Honor, I think the biggest issue
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`was with the counter-designations --
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`THE COURT: I'm not going to hear it. I've already
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`ruled. They're all coming in.
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`MR. ANDRE: Okay.
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 22 of 198
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`THE COURT: All right. I considered it. I considered
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`your objection. You said it was not responsive, so forth. I
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`thought it was responsive enough. Okay.
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`Anything else?
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`MR. KAGAN: Your Honor, there are some interrogatories
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`that were going to be read into the record or that were
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`designated.
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`THE COURT: Give them to me. I'm sorry, what do you
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`want me to do with them?
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`MR. KAGAN: Well, we may not need to deal with it
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`right now because I don't believe they will be coming in
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`immediately. But there were -- we've been having some
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`difficulty working together in terms of getting the items to
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`the Court. There are some corrections --
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`THE COURT: Your thing has a handshake.
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`(Laughter)
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`THE COURT: You all are so good.
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`MR. KAGAN: One thing we'll be able to agree at, by
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`the end of trial, is that the maximum royalties in this case
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`are less than a hundred thousand dollars and be able to shake
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`on that.
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`THE COURT: So what? $1, they get the $1. So what's
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`your problem?
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`MR. KAGAN: We don't have a problem with that. There
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`were some interrogatory discovery responses submitted to the
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 23 of 198
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`Court, and the package was not complete. Finjan submitted the
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`package. There were some additional materials that weren't
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`included in that.
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`So perhaps our request from the Court is to have the
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`parties try to work together to correct that situation so all
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`the materials are submitted to the Court.
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`THE COURT: Please do that. I want you to meet and
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`confer and reduce to a minimum the problems you two have before
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`you serve it up to me. But I will then give it priority
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`treatment so you can be ready.
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`You've got to give me enough time, at least overnight, to
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`be able to rule on the objections.
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`MR. KAGAN: Understood, Your Honor.
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`MR. ANDRE: And, Your Honor, I think with the
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`interrogatory responses, the one issue that has come up is they
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`want to change one of their responses we intend to read.
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`THE COURT: You do not get to change a response.
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`MR. KAGAN: Your Honor, there was -- there was a
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`typographical error on one --
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`THE COURT: Too bad. You read it the way it is. And
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`put the witness on the stand, and they can explain it away.
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`They always say it's a typo.
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`MR. KAGAN: Well --
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`THE COURT: But no.
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`MR. KAGAN: Understood.
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`THE COURT: All right.
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`MR. KAGAN: The other problem was they have an
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`interrogatory response where they want to submit the response.
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`And they defined a term in a particular way in their
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`interrogatory, and they don't want the jury to know the
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`definition.
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`THE COURT: The definition has to be part of it.
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`Obviously, you've got to read -- if a definition is used in the
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`interrogatory, before you can read it to the jury you must read
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`the definitions. Then you read the response.
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`MR. KAGAN: We'll meet and confer and clean that up
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`for the Court, Your Honor.
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`THE COURT: Good.
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`MR. KAGAN: Your Honor, we do have -- you had asked
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`for a binder of key documents. We have our binder.
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`THE COURT: That's great. Thank you.
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`All right.
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`MR. ANDRE: Your Honor, is that board placed okay for
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`you, the timeline you asked for?
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`THE COURT: I can't read it from over here.
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`MR. ANDRE: We can move it closer with an easel. We
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`didn't know if you were using that easel for the voir dire.
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`THE COURT: We don't need -- we'll find a good place
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`for the timeline.
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`Tracy, can you bring the names and all that over.
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`Case 3:17-cv-05659-WHA Document 335 Filed 12/17/18 Page 25 of 198
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`By the way, the way this is going to work is that -- a
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`couple of things to be aware of. Couple of things to be aware
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`of.
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`
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