Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 1 of 201
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` Volume 2
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` Pages 198 - 397
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`UNITED STATES DISTRICT COURT
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`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
` Tuesday, December 11, 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 2
`
` Pages 198 - 397
`
`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
` Tuesday, December 11, 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 336 Filed 12/17/18 Page 2 of 201
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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.
`
`
`
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 3 of 201
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` 200
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`I N D E X
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`Tuesday, December 11, 2018 - Volume 2
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`PLAINTIFF'S WITNESSES PAGE VOL.
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`BIMS, HARRY (RECALLED)
`(PREVIOUSLY SWORN)
`Direct Examination resumed by Mr. Andre
`Cross-Examination by Mr. Kagan
`Redirect Examination by Mr. Andre
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`HARTSTEIN, PHILIP
`(SWORN)
`Direct Examination by Ms. Kobialka
`Cross-Examination by Ms. Carson
`Redirect Examination by Ms. Kobialka
`
`KROLL, DAVID
`(SWORN)
`Direct Examination by Mr. Hannah
`Cross-Examination by Mr. Heinrich
`Redirect Examination by Mr. Hannah
`
`NAGARAJAN, CHANDRA
`By Videotaped Deposition
`
`COLE, ERIC
`(SWORN)
`Direct Examination by Mr. Andre
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`I N D E X
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`E X H I B I T S
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`TRIAL EXHIBITS
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 5 of 201
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`PROCEEDINGS
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`Tuesday - December 11, 2018
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` 7:28 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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`(Proceedings were heard out of the presence of the jury:)
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`THE COURT: All right. Be seated.
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`Okay. I want to first -- I tried very hard but could
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`not -- I'm handing back to Juniper all of those depositions
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`that you handed me yesterday. I can't believe that the lead
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`partner on this case didn't look at this before you -- look at
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`how -- look at some of those. Some of them are so blue.
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`They're over -- the blue highlighting is so dark you cannot --
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`it's, like, redacted. And I tried my best with my weak eyes at
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`age 73 to read through the blue, and I could not. I finally
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`gave up. You've got to resubmit it.
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`The other thing that's wrong, this is less. Please tag
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`every place that needs a ruling. There were no tags.
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`MR. KAGAN: Your Honor, these had tags when we
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`submitted them. I'm not sure --
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`THE COURT: Well, they didn't. I didn't take any tags
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`off.
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`Did we take any tags off?
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`THE LAW CLERK: Those were e-mailed Sunday so we
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`printed them out.
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`THE COURT: Well, where's the stack that you -- I
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`didn't hear you. Come up here and tell me.
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 6 of 201
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`PROCEEDINGS
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`Now, see, you're getting my law clerk in trouble. You
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`know that's going to be bad for you.
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`(Pause in proceedings.)
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`THE COURT: All right. So this stack right here, who
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`gave me that stack?
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`MR. KAGAN: This was from -- this was Finjan's
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`submission, Your Honor.
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`THE COURT: All right. Hand it to Finjan.
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`MR. ANDRE: Your Honor, these --
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`THE COURT: You're the one that's in trouble, and I'm
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`telling you I could not read that dark blue. I tried very
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`hard. I was almost going to give you an eye test to see if you
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`could read it right now.
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`All right. Now, that is impossible to read. So you've
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`got to resubmit it.
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`I did not -- I started trying to rule on them. I did make
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`a few rulings, but I'm just going to start over with a fresh
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`set.
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`My basic idea is all of it comes into evidence, but I am
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`not there yet. I should do my job and make rulings.
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`All right. So there. That's -- all right. So I
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`misunderstood.
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`Here, I got a different stack that looked exactly the
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`same. This one is from you and it does have the tags.
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`All right. Now, let's see -- but I'm handing it back
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`
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 7 of 201
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`PROCEEDINGS
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`because it's got dark blue too. Please. So I was correct
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`about the dark blue. I can't read through that. It can't be
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`so dark that it's effectively redacted. It has to be a
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`different color or something. I don't know, pink and yellow,
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`light green, but not dark blue.
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`Okay. That's enough on that subject.
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`Next, I got motions overnight. I want you to know
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`something. You can't just bombard me with miscellaneous,
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`big-firm objections. And this is not a deposition. This is a
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`trial and you are acting like a big firm sending me multiple
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`motions overnight telling me to knock out their case. Well, I
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`don't have much patience for that.
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`That first one, Juniper's Objections to finjan's Request
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`to Present the Deposition Testimony of Shlomo Touboul. All
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`right. In very short order, tell me what your objection is.
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`MR. KAGAN: So this is not a deposition that was taken
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`in this case. This is a deposition of their inventor from a
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`different case from 2015.
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`THE COURT: Is he still associated with Finjan?
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`MR. KAGAN: Yes, Your Honor.
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`THE COURT: No way we're going to let that. You've
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`got to bring him yourself. You can't get away with a
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`deposition from some other case.
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`MR. ANDRE: Your Honor --
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`THE COURT: Bring him from -- he lives in Israel;
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`
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 8 of 201
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`PROCEEDINGS
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`right?
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`MR. ANDRE: He lives in Israel.
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`THE COURT: Bring him. He's your guy. He's your
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`founder. He works for you. You can get him on an airplane and
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`get him over here. You're not going to get away with doing
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`that, no.
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`MR. ANDRE: Your Honor, he has blood clot issues in
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`his legs.
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`THE COURT: Too bad. Too bad.
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`MR. ANDRE: Okay.
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`THE COURT: He's your guy trying to make millions of
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`dollars off of this case.
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`MR. ANDRE: Your Honor, he's not --
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`THE COURT: That's what it is, and you're not going to
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`get away with an in-the-can -- the key guy, an in-the-can
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`presentation from some guy who deposed him in the year 2015 in
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`a different case. That's beyond the pale. Motion granted.
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`Next, Mathena, principal software engineer. Now, you
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`claim he's not an agent and so forth.
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`MR. KAGAN: He works -- we're hearing deposition read
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`from his supervisor.
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`THE COURT: All right. Let me ask you. Are you going
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`to present him yourself?
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`MR. KAGAN: No, Your Honor.
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`THE COURT: Why don't you just subpoena the guy?
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 9 of 201
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`PROCEEDINGS
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` 206
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`MR. ANDRE: Your Honor, we're actually -- we got this
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`letter late last night as well. We're going to withdraw
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`Mathena.
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`THE COURT: Thank you.
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`MR. ANDRE: So we'll make that move.
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`THE COURT: Thank you.
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`Scott Coonan.
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`MR. ANDRE: We're not withdrawing that one.
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`THE COURT: What?
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`MR. ANDRE: We're not withdrawing that one.
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`THE COURT: No, no. I'm either going to allow it --
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`it's ridiculous for you to object to this. Either you bring
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`Mr. Coonan in so that they can put him on the stand and do it
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`through him, or I'm going to let him use the deposition.
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`You're just trying to keep out that transcript where your
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`guy did some bad things. No way.
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`MR. KAGAN: That's not going to happen. We are
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`presenting Mr. Coonan in our case-in-chief.
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`THE COURT: No. Bring him so he can present him in
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`his case-in-chief, or I'm going to let him use the deposition.
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`MR. KAGAN: Okay. We'll make an election.
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`THE COURT: You can use the deposition. You can use
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`the deposition unless they supply you today with Mr. Coonan at
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`your convenience when you want to call him.
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`MR. ANDRE: Your Honor, he'll be for most likely
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 10 of 201
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`PROCEEDINGS
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`tomorrow.
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`THE COURT: All right. Then work it out. But if they
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`don't bring him, you get to use the deposition.
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`Next. Finjan's motion to seal because of -- no. No way
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`we're going to do that. Those documents -- you're just
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`trying -- Finjan wants to seal the courtroom and keep all these
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`people out so that the rest of the world won't see what you're
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`up to. No way. No way.
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`MR. ANDRE: Your Honor, we're required to do that by
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`agreement with the third party.
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`THE COURT: Fine. You've tried. Denied.
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`MR. ANDRE: Thank you.
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`THE COURT: The public is going to see what Finjan is
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`up to.
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`Next, three, Finjan's Objections to Juniper's Exhibits for
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`Late Disclosure. I don't know what this is even about. What
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`is that motion about?
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`MR. ANDRE: This is what is called the 282 disclosure.
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`THE COURT: Yes?
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`MR. ANDRE: They didn't make one.
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`THE COURT: What do you mean 282?
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`MR. ANDRE: 35 U.S.C. 282 requires a defendant in a
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`patent case to disclose any prior art or state of the art
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`references 30 days before trial. They just didn't make a
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`disclosure.
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`
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 11 of 201
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`PROCEEDINGS
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`We didn't think they were going to bring in prior art
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`because validity is not in the case.
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`THE COURT: Well, then how do you get around that?
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`MR. HEINRICH: Well, we made multiple disclosures in
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`this case, Your Honor.
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`THE COURT: Did you do it within 30 days?
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`MR. HEINRICH: Absolutely. We did invalidity
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`contentions in this case.
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`THE COURT: No. I mean, earlier than 30 days.
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`MR. HEINRICH: Yes. Earlier than 30 days we did
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`invalidity contentions back in April. We did an opening expert
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`report in September.
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`THE COURT: Did you disclose the specific prior art?
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`MR. HEINRICH: Absolutely.
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`THE COURT: Well, then, Mr. Andre, what are you
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`talking about?
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`MR. ANDRE: Your Honor, under 35 U.S.C. 282, giving
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`discovery responses is not enough. You have to go in and give
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`very specific disclosures. When I do defense work, this is
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`something on my calendar every single time.
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`Now, we didn't think they would be using any prior art or
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`state of the art because that's not in the case; but yesterday
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`they disclosed a bunch of prior art exhibits, and so --
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`THE COURT: All right. Is this coming up for their
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`case?
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 12 of 201
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`PROCEEDINGS
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`MR. ANDRE: Their case.
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`THE COURT: I've got a little bit of time on this
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` 209
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`then.
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`MR. ANDRE: Yes.
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`THE COURT: Is it true that the law requires a
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`specific disclosure?
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`MR. HEINRICH: No. In fact, the law is the opposite.
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`282 says it has to be in pleadings or otherwise in writing.
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`There's a Federal Circuit case, Eaton v. Appliance Valves.
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`It's 790 Fed. 2d 874 from the Federal Circuit. And that case
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`says that the purpose of this is to avoid unfair surprise.
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`It's not a formalistic requirement.
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`THE COURT: But did that decision allow somebody to
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`get away with doing it the way you did it?
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`MR. HEINRICH: Well, it was much -- they did much less
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`in that case, Your Honor. They --
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`THE COURT: All right. Stop. What's the name of that
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`decision?
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`MR. HEINRICH: All right Eaton v. Appliance Valves.
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`THE COURT: What do you say to Eaton?
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`MR. ANDRE: Your Honor, I'm not familiar with that
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`case. We cited the case in our letter we sent to you, a
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`Federal Circuit case, that said just the opposite. So I'd have
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`to go back and look at Eaton. They didn't give us that case
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`last night.
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 13 of 201
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`PROCEEDINGS
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`It's not going to be up until tomorrow or the next day,
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`so --
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`THE COURT: Well, okay. You need by 5:00 p.m.
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`today -- look at all these lawyers. By 5:00 p.m. today, one of
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`these lawyers will submit a three-page brief on this subject,
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`both sides, by 5:00 p.m. today.
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`Next. I want to go over this. I sent out something that
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`I'm concerned about this issue of apportionment. How does
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`it -- I understand the Blue Coat decision, I think, but how
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`does it work?
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`It does make some statement. I'll read you the statement.
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`This is the Federal Circuit talking (reading):
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`"In such cases" -- this is a quote now. "In such
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`cases the patentee must," quote, "give evidence tending to
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`separate or apportion the infringer's profits and the
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`patentee's damages between the patented features and the
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`unpatented features and such evidence must be reliable and
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`tangible and not conjectural or speculative."
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`And that's citing to some case called Garretson versus
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`Clark, U.S. Supreme Court 1884. Now, I just love it when they
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`can find something that old. That's good. That's good. I
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`wish we could go back to those simpler days, but here we are.
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`They got it.
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`Okay. (reading)
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`"Finjan as the" -- this is your -- it was against you.
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`"Finjan as the present patent holder had the burden of
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`proving damages by a preponderance of the evidence."
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`Now, I haven't had this -- I've thought about this problem
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`in the past but it's been a few months or years. Who has the
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`burden of showing what the unpatented features are of an
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`accused device?
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`MR. ANDRE: Your Honor, I think that would be the
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`patentee's burden. I think it's our burden, and what we're
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`doing is --
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`THE COURT: You haven't done that.
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`MR. ANDRE: Well, we haven't -- we're just presenting
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`our damages case and we're going to put a fact-based case on.
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`And what we have -- and I'll just take a step back.
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`I actually argued the Finjan/Blue Coat case at the
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`Federal Circuit so I got --
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`THE COURT: You got your head handed to you.
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`MR. ANDRE: Just on that issue. I won everything
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`else.
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`THE COURT: Okay. Okay, yeah. Sorry. Good lawyers
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`win some and they lose some, otherwise they wouldn't be any
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`good because they can't bat 1,000.
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`All right. Go ahead.
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`MR. ANDRE: All right. So in that case I argued that
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`what they called the DRTR was the small sellable unit;
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`therefore, we get 100 percent of --
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 15 of 201
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`THE COURT: Don't tell me about that case. I'll never
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`get it. Just tell me, do you have the burden to show the
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`unpatented features and then show the patented features and
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`then apportion between them?
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`MR. ANDRE: Yes. And so what we're doing in this case
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`is we're doing that.
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`THE COURT: How are you going to do that without an
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`expert?
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`MR. ANDRE: Well, we have their corporate
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`representative.
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`THE COURT: Who?
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`MR. ANDRE: The corporate representative, 30(b)(6)
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`witness --
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`THE COURT: Yeah.
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`MR. ANDRE: -- who went in and said that all the files
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`that come into Sky ATP, only 40 percent of them get processed
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`through the infringing components. So only 40 percent of all
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`files.
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`So we've already apportioned down to the -- what the
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`Federal Circuit says the infringing and noninfringing uses. So
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`the 60 percent is noninfringing. They do other things. They
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`do antivirus. They do geolocation, whatever else.
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`But 40 percent of the files come in. We have this
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`right -- they actually ran a test. The 30(b)(6) witness ran a
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`test and said only 40 percent of the files coming into Sky ATP
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 16 of 201
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`is the infringing use, the one that gets scanned and stored in
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`the database.
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`So we've already apportioned down to what the
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`Federal Circuit says the infringing and noninfringing
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`functions. The noninfringing functions would be the antivirus,
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`for example.
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`THE COURT: It didn't say "functions." It says
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`"features."
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`MR. ANDRE: Yeah. Also in the next paragraph when you
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`talk about the DRTR after the WebPulse, it says (reading):
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`"DRTR, which stands for ratings as part of WebPulse,
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`and it performs both infringing and noninfringing
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`functions."
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`THE COURT: Where do you see the word "functions"?
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`MR. ANDRE: It's the paragraph right here
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`(indicating). It's right up here (indicating). It starts with
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`"DRTR, which stands for..."
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`THE COURT: Yeah.
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`MR. ANDRE: At the end of that first sentence "both
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`infringing and noninfringing functions."
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`(Pause in proceedings.)
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`THE COURT: All right. I see the word "functions" in
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`that paragraph. Hold that thought.
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`All right. What does the other side say about what I just
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`heard?
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 17 of 201
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`MR. HEINRICH: So there's a different and profound
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`apportionment problem here. There are two components in the
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`$1.8 million damages base that we've been referring to. There
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`are the Sky ATP license revenues, which are just $550,000.
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`That's -- you know, if the 40 percent applies to anything, it
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`would apply to that.
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`But then we also included in the damages base 100 percent
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`of the revenues of every SRX device that was enabled to use --
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`THE COURT: You said that's what you did?
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`MR. HEINRICH: Well, every --
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`THE COURT: You said "we." You said "we."
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`MR. HEINRICH: So, yeah. In the $1.8 million -- so
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`Juniper included the revenues of the -- 100 percent of the
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`revenues of every SRX device that was enabled for use with
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`Sky ATP. That's 1.25 million.
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`So of that 1.25 million, that covers all of the
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`functionalities of an SRX. It uses a router. It uses a
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`firewall. Substantial uses, the vast majority of which have
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`absolutely nothing at all to do with Sky ATP.
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`THE COURT: Perhaps that's right, but if you yourself
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`have included it all in the damages base -- I guess it's the
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`damages base -- then why do you even have a grievance? Why
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`can't they do the same thing?
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`MR. HEINRICH: Well, you have to apportion. They have
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`the burden to apportion those revenues.
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 18 of 201
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`THE COURT: Did you apportion it?
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`MR. HEINRICH: So our expert, he looked at various
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`value indicators and he came up with his $100,000 royalty, but
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`their burden is to --
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`THE COURT: But did you apportion it?
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`MR. HEINRICH: So Dr. Ugone apportioned it
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`differently.
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`THE COURT: How did he do that?
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`MR. HEINRICH: He looked at multiple value indicators;
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`for example, Juniper's noninfringing alternatives. He looked
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`at Finjan licenses. And those value indicators all pointed to
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`a reasonable royalty in the range of $100,000.
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`But the important thing here is that the revenues
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`associated with SRXs, those revenues, it's their burden to
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`apportion those revenues; and they can't do that because the
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`SRX used as a firewall, used as a router, that's the main
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`99 percent use case of these devices, and they have no evidence
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`at all to do anything with SRX revenues.
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`So the 40 percent that we just heard, that would be
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`40 percent of 550,000. So, then, that would make this case
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`about, like, a $200,000 damages base.
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`THE COURT: Well, you know, there was a time in my
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`life when that wasn't worth fighting over. I am not saying you
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`can't -- people go to trial over -- you know, when I was a
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`teenager, there was a case that got all the way to the
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 19 of 201
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`Supreme Court over one cent. It was a postage due. The
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`government put a one cent postage due and refused to deliver so
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`the guy had to pay the one cent and he sued. And the U.S.
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`Supreme Court hated the Post Office so much, they took the case
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`and ruled for the one guy and gave him his one cent back.
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`So if Finjan wants to fight over $100,000, God bless them.
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`It's okay.
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`MR. HEINRICH: So I totally agree, but they should not
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`get to put on a damages case that has anything at all to do
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`with SRX revenues because they have zero evidence to apportion
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`those revenues.
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`THE COURT: Oh, I'm going to -- all right. No, I'm
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`not sure yet. You may be right but you may be wrong, and I
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`think the safe thing is for me to at least hear -- I'm going to
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`at least hear the plaintiff's case and then I'm going to decide
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`if it's sufficiently apportioned. I'm going to consider that
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`question then.
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`But you've helped me on the point that bothered me the
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`most, which is the way I read it, which I agree with you, this
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`is the way I probably would have read this is that you have the
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`burden to apportion in some not just rational way, something
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`that meets the standard of the Blue Coat decision.
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`MR. ANDRE: Your Honor, we will do so.
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`THE COURT: All right. I will -- that's yet to be
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`determined, but we will see.
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 20 of 201
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`All right. Now, I have more questions.
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`All right. I've covered everything on my list.
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`All right. Do you have anything to bring up?
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`MR. ANDRE: A couple housekeeping matters from our
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`point, Your Honor. One is, you said at the pretrial conference
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`if the parties agreed to hand in the witnesses' witness
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`binders, we could do so. The parties have stipulated to that.
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`I just wanted to give Your Honor a heads-up. We talked to the
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`clerk.
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`THE COURT: All right. But you should be aware --
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`that's fine. You should be aware that whatever goes into
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`evidence is what Tracy, my courtroom deputy, has got; and if
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`there is a glitch and she has something in her stack that turns
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`out to be what you didn't understand, too bad. It's strict
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`liability. Whatever Tracy has, if Exhibit 17 goes into
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`evidence, whatever she has with 17 on it goes into the jury
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`room whether you think you were tricked or not.
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`It's your burden to check these and I'm telling you, the
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`lawyers in other cases just like those redactions, just like
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`those highlighting that you gave me, they're impossible to
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`read, somebody on somebody's team will make a mistake and then
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`you'll be trying to get -- I will not bail you out. It's
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`strict liability. Once Tracy's got it, that's it.
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`Fine. So you can use your notebooks.
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`MR. ANDRE: The second --
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 21 of 201
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`THE COURT: You're both taking a risk. I guess it's
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`fair.
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`MR. ANDRE: The second issue is the procedure you
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`would like us to use for the depositions that we do play --
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`there are some that will be played today and possibly
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`tomorrow -- how you would like that to go into evidence. The
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`transcript itself, do you want us to submit a written
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`transcript?
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`THE COURT: All right. That's a very good question,
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`and here's the only practical way to do this. First, the court
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`reporter does not take it down. The court reporter takes down
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`spoken words here, not things that are played, not recordings.
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`You-all understand that. So it will be a blank spot. It will
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`just say "Recording Played."
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`So the only way the Court of Appeals can see or the jury
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`can see it again is that you have to have a disc of what was
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`shown to the jury, and then that disc gets marked as an exhibit
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`that you both vet and then you give it to Tracy and that
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`becomes part of the clerk's record. So I have to trust you to
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`do it exactly right. So it's not going to be a transcript. It
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`will be the video.
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`MR. ANDRE: Okay. Thank you, Your Honor.
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`MS. CARSON: Your Honor, just two issues with two
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`demonstratives for witnesses today. So plaintiff disclosed for
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`Mr. Hartstein Demonstrative Number 2. It appears to be a
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 22 of 201
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`photograph of a flyer that was not produced or put on the
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`exhibit list, so we object to that as late disclosure.
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`THE COURT: Well, wait a minute. Was this
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`demonstrative attached to his report?
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`MS. CARSON: He's not an expert, sir.
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`THE COURT: Then who is he?
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`MS. CARSON: He's their CEO. So it's a -- it appears
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`to be a photograph of a document that was not produced during
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`discovery.
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`THE COURT: May I see it, please? Who are you again?
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`MS. MARTINEZ: I'm Cristina Martinez, Your Honor.
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`THE COURT: Are you a lawyer?
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`MS. MARTINEZ: I am, yes.
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`THE COURT: Okay. I don't get it. What's the --
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`MS. MARTINEZ: So, Your Honor, this is just a
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`demonstrative of one of Finjan's product offings. And it's not
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`being introduced into evidence. This was actually -- it's just
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`a blowup of a demonstrative that they had in their office.
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`THE COURT: "They" being the other side?
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`MS. MARTINEZ: Being Finjan.
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`And we disclosed it as a demonstrative board on Saturday
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`morning, a large board. We sent a picture over. We didn't get
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`any objection. It's actually right here (indicating). And
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`there was no objection to the demonstrative, and what we did
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`for Mr. Hartstein was we just shrunk that to a smaller version
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 23 of 201
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`so that it could be shown electronically to the jury as well so
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`that to the extent we need to zoom in at all.
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`THE COURT: Well, okay. But what is the basic point
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`that you're trying to make with this?
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`MS. MARTINEZ: This is just to show the product
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`offering of --
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`THE COURT: Whose product?
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`MS. MARTINEZ: Of Finjan.
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`THE COURT: Your own product?
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`MS. MARTINEZ: Correct.
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`THE COURT: And the purpose for that is to show that
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`you're a real company that has real products as opposed to an
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`NPE; right?
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`MS. MARTINEZ: Yes. Correct, Your Honor. And there's
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`also information about the product and then also the patent is
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`here at the bottom as well.
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`THE COURT: You mean Finjan sells that product down
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`there?
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`MS. MARTINEZ: Yes. This is their --
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`THE COURT: It looks like you sell your own phone.
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`MS. MARTINEZ: Not the phone, Your Honor. It's an
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`actual app. It's an app for your phone. So it's their
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`VitalSecurity app.
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`THE COURT: I see.
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`MS. CARSON: Your Honor, it appears on the bottom that
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`there is some marking, and we requested evidence of marking of
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`the product during discovery. They never produced this during
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`discovery. They never put it on their exhibit list. They just
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`put it on a poster board, and we don't think that's
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`appropriate.
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`THE COURT: But wait. What does it show about
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`marking? I don't get it.
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`MS. CARSON: So at the very bottom in fine print the
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`patent number appears.
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`THE COURT: I don't see anything. My eyesight --
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`here, draw a circle around what you want me to look at on that
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`document.
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`(Attorney complying.)
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`THE COURT: You can read that? I can't read it.
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`MS. MARTINEZ: That's why we put it on the board,
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`Your Honor; and the purpose of having disclosed this in a
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`smaller version is that if it's shown to the jury, we can --
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`THE COURT: Are you going to be trying to use this to
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`show that there was marking?
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`MS. MARTINEZ: Yes, Your Honor.
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`THE COURT: Well, that should have been turned over to
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`them. This is not demonstrative. This is being used as actual
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`proof; and then in the closing argument you're going to be
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`saying "We showed you the demonstrative" but it won't be in
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`evidence. A demonstrative doesn't come into evidence.
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`Case 3:17-cv-05659-WHA Document 336 Filed 12/17/18 Page 25 of 201
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`MS. MARTINEZ: Correct, Your Honor. We have other
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`documents as well that do show the markings. So this is just,
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`you know, a further -- further evidence.
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`THE COURT: No. You're not going to be allowed to use
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`something for substantive proof that you didn't disclose in
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`response to their -- well, you should have put it in your
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`initial disclosures. You should have --
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`Did you ask for it in a document request?
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`MS. CARSON: We did and also in an interrogatory.
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`THE COURT: Did they?
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`MS. MARTINEZ: They did, Your Honor.
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`THE COURT: Well, then, you should have produced this
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`document in response and you did not.
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`Now, I'm sure they are guilty of this too. So before the
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`trial is over, you'll get to say, "Remember, Judge, you
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`excluded this document." And then they will be coming up with
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`lame excuses trying to figure out a way around that.
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`But, remember, this is going to work against you too.
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`Okay. The Juniper people win on that one.
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`MS. CARSON: There's one more as well. It's a
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`demonstrative to their expert's testimony, also Demonstrative
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`Number 2, and it was not disclosed with expert reports. We
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`request that that be excluded as well.
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`THE COURT: All right. What do you say to that one?
`
`MR. ANDRE: Your Honor, it's a video of the CNM Web
`
`
`
`Case 3:17
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