Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 1 of 217
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` Volume 3
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` Pages 398 - 614
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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
` Wednesday, December 12, 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.
` KRISTOPHER B. KASTENS, 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 3
`
` Pages 398 - 614
`
`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
` Wednesday, December 12, 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.
` KRISTOPHER B. KASTENS, 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 337 Filed 12/17/18 Page 2 of 217
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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 337 Filed 12/17/18 Page 3 of 217
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` 400
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`I N D E X
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`Wednesday, December 12, 2018 - Volume 3
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`PLAINTIFF'S WITNESSES PAGE VOL.
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`COLE, ERIC (RECALLED)
`(PREVIOUSLY SWORN)
`Direct Examination resumed by Mr. Andre
`Cross-Examination by Ms. Carson
`Redirect Examination by Mr. Andre
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`COONAN, SCOTT JAMES
`By Videotaped Deposition (not reported)
`
`GARLAND, JOHN
`(SWORN)
`Direct Examination by Ms. Kobialka
`Cross-Examination by Mr. Kagan
`Redirect Examination by Ms. Kobialka
`Recross-Examination by Mr. Kagan
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`547
`547
`568
`600
`606
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`426
`426
`483
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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 IDEN EVID VOL.
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`52
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`65
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`78
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`79
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`88
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`92
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`94
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`99
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`256
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`321
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`327
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`343
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`345
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`399
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`1025
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`1179
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`1760
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`458
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`462
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`427
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`434
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`471
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`454
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`437
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`451
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`538
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`569
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`585
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`598
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`591
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`461
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`596
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`495
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`515
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`3
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`3
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`3
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`3
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`3
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`3
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 5 of 217
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`PROCEEDINGS
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` 402
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`Wednesday - December 12, 2018 7:30 a.m.
`
`P R O C E E D I N G S
`
`---000---
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`(The following proceedings were held in open court,
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`outside the presence of the jury:)
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`THE COURT: Welcome, everybody.
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`THE CLERK: Please be seated. Court is now in
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`session.
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`THE COURT: All right. I have a few things that you
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`bombarded me with, that I need to try to get to you.
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`First, here are Finjan's designations. I made rulings on
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`the depositions.
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`With respect to the group that was given to me by Juniper,
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`there are two groups, and I made some -- I did not make many
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`rulings. I made some. In some cases nothing was even tagged.
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`I couldn't understand what the issue was.
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`And I want you to look at this group again to see if I --
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`what I'm missing on that.
`
`All right. Now, the second group of the Juniper
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`submission on depositions got my blood boiling because -- not
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`every single one, about eight of them, that's the second
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`group -- were depositions in other cases, not this case.
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`Now, I've often allowed depositions in other cases to be
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`read, but because of the objection that was made yesterday or
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`two days ago to the plaintiff wanting to bring -- play a
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 6 of 217
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`PROCEEDINGS
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`deposition from another case and Juniper objected, I have some
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`difficulty with the -- you trying to have it both ways. Now
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`you want to use a deposition from another case.
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`So I'm going to hand these back to you. And you're going
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`to have to do a full-scale brief that justifies the
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`high-handedness and the big-firm gimmickry of trying to have it
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`both ways. I'm not going to let you get away with that unless
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`you give me a full-scale brief that explains why you can do it
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`but they cannot do it.
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`MR. KAGAN: Your Honor, we're happy to give you a
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`full-scale brief --
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`THE COURT: Please.
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`MR. KAGAN: -- but can I mention something very
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`briefly?
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`THE COURT: Yeah.
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`MR. KAGAN: The deposition that Finjan wanted to
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`introduce was of their own witness. So that's obviously
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`hearsay. The depositions that we are seeking to introduce are
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`of their witnesses.
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`THE COURT: No, they're not. They're inventors. Some
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`of those people are just inventors.
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`MR. KAGAN: But they are Finjan witnesses.
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`THE COURT: See, that's the problem. I don't buy that
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`necessarily. These people don't work for Finjan anymore. So
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`you're going to have to give me a good brief that justifies
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 7 of 217
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`PROCEEDINGS
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`that, instead of big-firm gimmickry. That's what you're trying
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`to get away with there. Slick move, but it's not going to fly
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`yet. I might allow it, but you're going to have to work hard
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`for that one. Okay. That's it on that part.
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`Now, the next thing I pulled is from the criminal
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`calendar, home detention. It looks like I was about to put
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`Mr. Andre in home detention.
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`(Laughter)
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`MR. ANDRE: I would volunteer at this point, Your
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`Honor. If you want to send me home, I'll let Ms. Kobialka take
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`over.
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`THE COURT: I had another item I wanted to bring up.
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`Oh, I know what it is.
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`Where is that part about the 282? I thought I had it
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`right on top of my stuff. Did you pick it up?
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`All right. Thank you. I was talking to my law clerk.
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`Now, you're in trouble here a little, Mr. Fin- --
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`Finjan -- Mr. Andre.
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`All right. Is any member of the press here? Do you get
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`up this early? Okay. I guess not.
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`Whoever's out there, I want you to just -- this is what I
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`have to put up with and I have to work through. All right. So
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`there was a motion made yesterday by Mr. Andre to the effect
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`that they didn't comply with 282.
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`All right. Well, what is 282? 282 says that 30 days
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`
`
`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 8 of 217
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`before trial you have to give notice of the country, number,
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`date, name of any patentee of any patent, the title, date, and
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`page numbers of any publication to be relied upon as
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`anticipation of the patent-in-suit or -- except in the
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`United States Court of Federal Claims, as showing the state of
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`the art and so forth.
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`So okay. I like to comply with the law, so -- but then it
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`turns out that there was no 282 notice here at all; right?
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`There was nothing called a 282 notice; right?
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`MR. ANDRE: That's correct, Your Honor.
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`THE COURT: All right. So, now, it is true, I will
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`just say this, most times the lawyers do put in a 282 notice.
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`But you didn't do it in this case.
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`But, nevertheless, 282 came into existence at a time when
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`the patent lawyers were not so litigious. And we now have
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`procedures in place that go way beyond what 282 required. And
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`one of those is our local rules that require disclosure of
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`prior art.
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`And so you did, on the Juniper side -- I think this is
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`correct -- list in your prior art disclosures these items that
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`are -- you're criticized on now. Is that true?
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`MR. KAGAN: It is true, Your Honor. But if I may
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`introduce Kevin Wong to answer this.
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`THE COURT: A new lawyer.
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`MR. KAGAN: I can do it, Your Honor.
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 9 of 217
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`THE COURT: All right. You do it. All right.
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`But then we got to looking and read closer what Mr. Andre
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`was complaining about. So I said, well, maybe he's got a
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`point, but maybe not. Let me look.
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`So he says -- let's just start with the very first one.
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`Trial Exhibit 1070. I'm reading now from exactly what
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`Mr. Andre filed. Trial Exhibit 1070:
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`"Dynamic detection and classification of a computer
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`viruses" -- no, -- "of computer viruses using general
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`behavior patterns, Morton Swimmer."
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`Then Mr. Andre continues:
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`"This document references September 1995. There is no
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`evidence that this is the date of publication, and Juniper
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`has not affirmatively asserted the date of publication."
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`Now, I'm going to repeat that last part of the phrase.
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`This is Mr. Andre talking: "And Juniper has not affirmatively
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`asserted the date of publication."
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`So I said, well, all right, let me -- I said to my law
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`clerk, go dig out the invalidity contentions that -- do we have
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`the invalidity contentions here?
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`And she went and did some homework, and eventually we
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`found -- it took some time. This is not something we just push
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`a button and there it is. I got one person. Look at all the
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`people you have. I got one person.
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`So she found Defendant Juniper Networks patent LR33
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`
`
`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 10 of 217
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`invalidity contentions. And this is dated in December of
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`last -- this is odd. Okay. Yeah, filed December 11th, 2018.
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`But seems like this would have been earlier.
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`MR. KAGAN: Your Honor, I believe that is the date of
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`the exhibit as opposed to the date of the disclosure.
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`THE COURT: Yes. The date of the disclosure would
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`have been earlier, but I'm trying --
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`MR. ANDRE: April 23rd, Your Honor.
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`THE COURT: All right. April 23rd. All right.
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`Anyway, so -- April 23rd. So I find Morton Swimmer on
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`here. And here it is. Couldn't be clearer.
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`"Dynamic detection and classification of computer
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`viruses using general behavior patterns by Swimmer,
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`hereinafter Swimmer." And then period.
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`And then here's exactly what Juniper says:
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`"Swimmer was published in September 1995 and is thus
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`prior art," blah, blah, blah.
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`I'm going to repeat it:
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`"Swimmer was published in September 1995."
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`Now, compare that to what Mr. Andre said:
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`"There is no evidence that this is the date of
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`publication, and Juniper has not affirmatively asserted
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`the date of publication."
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`Well, that's just as false as the day is long. You say
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`Juniper has not affirmatively asserted the date of publication,
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 11 of 217
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`PROCEEDINGS
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`but this document that I read from -- says Swimmer was
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`published in September 1995.
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`Well, when I got to that absolutely false statement by
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`Mr. Andre -- Mr. Andre -- I said this motion is denied. We
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`don't have time to go through every one of these items.
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`Whenever there is a false statement that bad, I'm going to deny
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`the motion. So the 282 motion is history, is denied.
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`And, Mr. Andre, you should not have done that to me.
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`MR. ANDRE: Your Honor, I apologize if that was --
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`THE COURT: What do you mean "if"? How did you expect
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`me to -- because I took it that maybe there was a problem here.
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`I spent some time on this. And it turns out it was just BS.
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`It was just big firm BS.
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`MR. ANDRE: I apologize, Your Honor, to the Court, for
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`wasting the Court's time on that. We were under the belief
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`that a formal 282 disclosure was required. I --
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`THE COURT: Yeah. That's a different point. You made
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`an affirmative factual statement that they had never
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`affirmatively asserted the date of publication. They did.
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`They did exactly that in their local rule disclosure. So, you
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`know, too bad for you, but this motion is denied.
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`And then the 282 thing, I'm going to find that they
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`adequately put you on notice of what they were going to be
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`asserting here at trial.
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`And I need the help of the lawyers.
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 12 of 217
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`On your side over there, you want to have it both ways.
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`On your side over there, you made a lot of wasted time
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`overnight on your case.
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`All right. I've now vented. I'm ready to try to help the
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`lawyers with whatever problems you have this morning.
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`Please, go ahead.
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`MR. ANDRE: Your Honor, the first thing we want to
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`raise are demonstrative exhibits that were provided to us for
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`Juniper's expert, Dr. Rubin. They've provided 148 pages of
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`demonstratives.
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`THE COURT: Were these attached to the report?
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`MR. ANDRE: They were not.
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`THE COURT: Okay. It's out. O-u-t. It's out. No.
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`MR. GLUCOFT: Your Honor, this is Joshua Glucoft.
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`Every single demonstrative was, in fact, attached to
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`either Dr. Rubin's rebuttal report October 11th or
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`November 7th, which was related to damages. The only
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`exceptions are excerpts of patents or printed publications that
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`were expressly cited and, in most cases, quoted in his report.
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`And I understand that Your Honor's standing order allows
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`for things that are unequivocally in the expert reports to
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`be --
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`THE COURT: Well, all right. Okay.
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`MR. GLUCOFT: -- in the demonstrative form.
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`THE COURT: What I heard, is that true?
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 13 of 217
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`MR. ANDRE: That's not correct, Your Honor. So, first
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`of all --
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`THE COURT: Give me one of the -- let's just take one.
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`You say you've got 300. Give me your best example of something
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`they want to use which was not in any way put into the report.
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`MR. ANDRE: This was the -- they have several
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`statements here. It says Claim 10 is not inventive. This is
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`regarding 101. In their 101 report, they did not attach any
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`demonstratives whatsoever, zero.
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`So what they tried to do is bootstrap demonstratives into
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`their rebuttal, the damages report. And Your Honor ruled on
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`this already. I brought this up at the pretrial.
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`And Your Honor said there's no way -- "You can only use
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`demonstratives with the part of Dr. Rubin's testimony that ties
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`exactly to where he disclosed it. You can't piggyback some
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`later disclosure and then say, oh, well, the judge is going to
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`let it in."
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`THE COURT: Well, look. What he can -- if he attached
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`it -- look, if -- he's wearing two hats here; right? He's got
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`two reports?
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`MR. GLUCOFT: Three reports, Your Honor.
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`THE COURT: All right. When he is testifying on the
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`part of his report to which those exhibits were attached, he
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`can use those demonstratives.
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`But, see, this is another big-firm trick. What you want
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 14 of 217
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`to do is you don't want -- you're hoping that you don't even
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`get to -- we don't even get to damages so you don't even have
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`to put that part of your case on.
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`So you want to now use that part of the report for -- and
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`say he can use those demonstratives on some early report. I'm
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`not going to let you do that.
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`So if he testifies on damages, then he may attach -- he
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`may use anything that was literally attached. That's okay.
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`That's going to be the ground rule. That's what I said before.
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`MR. ANDRE: And so, Your Honor, what he did was, on
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`his 101 report, which they have the burden of proof, he didn't
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`attach any demonstratives at all. But then on his
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`noninfringement report and his damages report, he attached the
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`101 slides from his first report.
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`THE COURT: Well, he can use them on the damages part.
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`MR. ANDRE: But 101 is -- that's --
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`THE COURT: Look --
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`MR. ANDRE: Okay.
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`THE COURT: -- I'm not going to -- it's a big -- I
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`hate to keep saying big-firm trick. I was with a big --
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`listen, I know all the tricks. I was with a big firm. And I
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`don't like them. And I didn't do them myself, but I know them
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`when I see them. And we're not going to let you get away with
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`that.
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`It should have been on that opening report. Except if
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 15 of 217
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`he -- if we get to the damages part, whatever they were
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`attached to, if he testifies on that segment, then in
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`connection with that testimony he can use those exhibits.
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`MR. ANDRE: And, Your Honor, with respect to the --
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`the majority of the 149 pages of exhibits, they went through
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`and took the prior art and excerpted pieces out of it. That
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`was not in his report. And they say that you're --
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`THE COURT: Well, if it's in his report, it's okay.
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`MR. ANDRE: But the demonstrative is not in there.
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`THE COURT: That's all right. I'm going to let them
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`do that. If it's in the report, I think that's okay, unless
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`there's -- if it's -- if it's something egregious like they've
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`got a guy driving a stake through the heart of the vampire.
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`(Laughter)
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`MR. ANDRE: They have something similar to that.
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`THE COURT: No, no. But if it's just quoting from a
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`prior art, I'm going to let them do that.
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`MR. ANDRE: Well, it is a -- it's just not quoting,
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`it's characterizing as well. But, like I said, Your Honor,
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`we'll cross --
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`THE COURT: I think it's probably okay.
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`MR. ANDRE: Well, okay. I've been heard.
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`THE COURT: All right. You're done.
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`Okay. Anything on your side?
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`MR. HEINRICH: Yes. So two items. One is we wanted
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 16 of 217
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`to know how Your Honor handles Rule 50(a) motions. They'll be
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`resting today --
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`THE COURT: What is that? What do you mean by that?
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`MR. HEINRICH: Our JMOL on the issues on which they
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`have the burden after they've rested.
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`THE COURT: I will hear what you have to say, but I
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`can't guarantee you that I'm going to make a ruling. So you
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`better be prepared to move very promptly with your case.
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`It could be what I'm going to say is start -- I'm not
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`going to let -- I will say this. The jury will not -- we will
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`not waste their time.
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`If there is, say, 30 minutes left in the day, you have to
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`use that 30 minutes. And we might argue your motion later, but
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`we're not going to -- you're not going to get away with the
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`jury cools their heels while the lawyers drone on.
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`MR. HEINRICH: We're absolutely ready to just proceed
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`with our case. I just wanted to ask the Court about the
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`Court's practice in terms of the process. When they rest,
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`would you like to hear oral an motion?
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`THE COURT: What I might say is all Rule 50 motions
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`are deemed reserved until the jury goes home for the day or
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`maybe until after the trial is over. We'll just have to see.
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`But I will give you a chance, after the jury has gone home
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`for the day, for sure, to make your main points. But it'll be
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`like a 5-minute motion. It's not going to be lawyers drone on.
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 17 of 217
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`MR. HEINRICH: That's all I was asking. I just wanted
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`to know the process.
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`THE COURT: All right. Can you all see now why it is
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`that the judge takes with a grain of salt what the lawyers tell
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`him? I hope on both sides you can see that your integrity and
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`credibility means a huge amount. I have to be able to -- I
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`begin to have doubts that I can rely upon anything.
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`So make your best points, okay. I'm not criticizing you
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`now. I'm saying on your Rule 50 motion you should make your
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`best points.
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`MR. HEINRICH: Understood.
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`THE COURT: All right.
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`What do you have to say?
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`MS. MARTINEZ: Good morning, Your Honor. Cristina
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`Martinez.
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`We have some objections to cross exhibits that were
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`disclosed for our witness, who's going to be testifying today,
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`Mr. John Garland. Juniper disclosed various license agreements
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`that --
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`THE COURT: Various what?
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`MS. MARTINEZ: License agreements, and negotiations
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`regarding these license agreements. And our concern is
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`twofold. First, we have a concern about some confidentiality
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`requirements. We raised the motion to seal with Your Honor
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`yesterday, which was denied.
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 18 of 217
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`But we just wanted to make sure that -- we're not quite
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`sure how Juniper is planning on using the agreements, but there
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`are some --
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`THE COURT: Well, they're probably going to say
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`there's 2 percent royalty in that document, 5 percent royalty
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`in that document. But I think that's okay.
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`MS. MARTINEZ: And it's including mentioning the names
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`of some of the licensees. We just wanted to flag that issue
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`for the Court.
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`THE COURT: I think that should -- there is some -- I
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`recognize there is some -- not proprietary; that's too strong a
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`word -- business reason for wanting to keep it secret because
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`every company wants to -- doesn't want its information out
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`there. But, nevertheless, it's not that big a deal.
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`And here we are in a trial. We are the United States
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`District Court. The public has a right to look over our
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`shoulder and see what we're doing. We are not JAMS. We are
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`not AAA. We belong to the people of the United States, not to
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`your -- Finjan and not to Juniper. We belong to the people of
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`the United States.
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`And you all have brought yourselves in here. You're the
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`plaintiff. These are documents that -- so, I'm sorry, they're
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`going to be laid open to the public.
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`All right. End of that story. What's next?
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`MS. MARTINEZ: The second point, Your Honor, is
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 19 of 217
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`several of the licenses that they've disclosed and the
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`negotiations relate to licenses that the Court found -- did not
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`allow their expert to rely upon.
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`In the Daubert order, the Court found that only two
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`license agreements were comparable for purposes of establishing
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`a reasonable royalty.
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`THE COURT: I don't remember it. If that's what I
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`said, then you should only -- you shouldn't be using them on
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`cross-examination, something that I said was not a comparable.
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`MR. KAGAN: Well, Your Honor, with Mr. Garland we're
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`not going to be using those licenses to show the value or the
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`amounts of the licenses where the Court's excluded it.
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`We are going to be using those licenses to show that
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`Finjan has licensees who are practicing the patents, who are
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`not marking, which is a completely different issue than the
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`values of the license.
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`THE COURT: All right. What do you say to that?
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`That's a fair point. What's wrong with that?
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`MS. MARTINEZ: I think now that we have a little
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`clarification about how they're being used, the concern that we
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`had was that they would be introducing information about the
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`amount of these licenses, and so forth, without an
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`opportunity -- without establishing that technical and economic
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`comparability and suggesting to the jury that the -- that they
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`can look at these licenses and have it inform their analysis of
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 20 of 217
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`the appropriate damages.
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`THE COURT: How about this. When you get to one of
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`those, don't introduce it in evidence. Just show it to the
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`witness and say, Isn't it true that you entered into a license
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`agreement with Intel, and you didn't require marking and they
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`never marked?"
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`And then -- and if it turns out the witness gives you a
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`runaround, then I'll let it come into evidence, the whole thing
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`come into evidence. And then I'll give an instruction that
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`it's limited only to the marking issue.
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`I have to see how it plays out. I'm giving you some
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`general guidelines. I don't know the documents well enough,
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`and I haven't seen how evasive the witness is going to be. So
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`we'll just have to play it by ear.
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`MS. MARTINEZ: Understood. Thank you, Your Honor.
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`MR. KAGAN: Thank you, Your Honor.
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`MR. HEINRICH: And I have one more process question
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`for the Court.
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`THE COURT: Yeah.
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`MR. HEINRICH: So the Court overruled our objections
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`to Ms. Gupta's deposition testimony on financial issues. She
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`was asked a number of questions about revenues that were
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`attributable solely to SRX alone, not used in combination with
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`Sky ATP.
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`And there were two --
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 21 of 217
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`THE COURT: So what? If you're trying to go back and
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`revisit something, I'm not going to do it.
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`MR. HEINRICH: So I have -- it's a process question.
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`There were two exhibits that were used in her deposition.
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`These were exhibits that Finjan's counsel created from our
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`spreadsheet.
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`THE COURT: Yeah.
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`MR. HEINRICH: And to preserve our objections to these
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`exhibits, these are Trial Exhibits 490 and 494, can we just
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`state our objections on the record here, or do we need to
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`object during the deposition play?
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`THE COURT: I don't care. Now is good enough.
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`MR. HEINRICH: Okay. Great. So we do object to 490
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`and 494.
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`THE COURT: Are those the trial numbers or the depo
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`exhibit --
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`MR. HEINRICH: Trial exhibit numbers.
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`THE COURT: All right. You can do that now.
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`MR. HEINRICH: We object on relevance and 403 grounds.
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`THE COURT: Okay. Thank you for that.
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`What do you have?
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`MR. KASTENS: Kristopher Kastens, Your Honor.
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`This is related to the license issues that were just
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`discussed.
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`THE COURT: Is this double teaming?
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`
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 22 of 217
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`MR. KASTENS: No. I'm sorry. It's with a different
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`witness.
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`THE COURT: You're the second guy to come up.
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`MR. KASTENS: With one of their fact witnesses they
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`disclosed a bunch of licenses that were excluded from their
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`expert -- being used by their expert as comparable licenses.
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`We would just like an understanding of whether they can
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`introduce those through a fact witness even though --
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`THE COURT: Well, that's what she just asked me.
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`MR. KASTENS: Your Honor, it's just --
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`THE COURT: And I said if it was for marking, it was
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`okay.
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`MR. KASTENS: Well, these are their licenses. These
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`aren't Finjan's.
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`THE COURT: Oh, these are their licenses?
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`MR. KASTENS: Yes, Your Honor.
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`THE COURT: All right. That's a different point.
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`Okay. What do you say to that?
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`MS. CARSON: Sure, Your Honor. So one of the reasons
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`that we -- reasons that we included those licenses, Finjan has
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`alleged that Juniper did not engage in good faith with it and
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`that it does not take nonpracticing entities seriously.
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`So those licenses, in part, show that Juniper does, in
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`fact, engage with nonpracticing entities and has actually taken
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`many licenses with non- --
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 23 of 217
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`PROCEEDINGS
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`THE COURT: Why can't one of your witnesses just say
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`MS. CARSON: We may be able to accomplish it that
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`THE COURT: -- instead of putting all that paperwork
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`that --
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`way --
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`in?
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`MS. CARSON: Yeah. It really depends on how the
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`evidence comes in and whatnot.
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`THE COURT: Well, but I don't want those coming into
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`evidence if they've got numbers in there that I've already
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`ruled out are irrelevant.
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`MS. CARSON: Understood, Your Honor.
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`THE COURT: You'd have to redact that and say, you
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`know, big blank. All right.
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`MS. CARSON: Understood.
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`MR. KASTENS: Thank you, Your Honor.
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`THE COURT: All right. So.
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`MR. HANNAH: Your Honor, can I do one more?
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`THE COURT: How many of these are there?
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`MR. HANNAH: Well, Your Honor, I think this is simple.
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`This is their first fact witness. He has some demonstratives
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`in there. And I can just hand this -- if I can just hand this.
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`THE COURT: This is your fact witness?
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`MR. HANNAH: No, their fact witness. Their first
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`witness, Mr. Bushong.
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`Case 3:17-cv-05659-WHA Document 337 Filed 12/17/18 Page 24 of 217
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`PROCEEDINGS
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`THE COURT: Why does a fact witness have
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`demonstratives?
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`MR. HANNAH: Oh. That's one of our first issues. And
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`then the other issue is --
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`THE COURT: Who is the witness going to be?
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`MS. KOBIALKA: Mr. Bushong.
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`THE COURT: All right.
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`MR. HANNAH: So they have all of these demonstratives
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`in here that are talking about projected Sky ATP revenues and
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`margins.
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`As you can see, these are pulled out of thin air. He
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`wasn't at the company at the time in 2015 when, apparently,
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`these projections were made.
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`THE COURT: Why would this be demonstrative?
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`MS. CARSON: So it's an excerpt from a larger
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`spreadsheet that is an electronic document. So it's an
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`exhibit, an excerpt from an exhibit that we --
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`THE COURT: Was it previously produced?
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`MS. CARSON: It was, Your Honor.
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`THE COURT: So all this information was previously
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`produced?
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`MS. CARSON: Yes.
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`THE COURT: What's wrong with that?
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`Is it going to otherwise be in evidence, the big document?
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`MR. HANNAH: No, Your Honor. So that's the issue, is
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`the 11- -- Trial Exhibit 1170, it's an electronic spreadsheet.
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`It's huge. And they try --
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`THE COURT: Is this information in there?
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`MR. HANNAH: This is a snippet. This is not the
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`complete information.
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`THE COURT: No, no. My point is, is all of this
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`information in that gigantic trial exhibit?
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`MR. HANNAH: That information is in the exhibit.
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`THE COURT: Well, what's wrong -- they want to -- they
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`want to make it convenient to the jury to zero in on something
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`that's otherwise going to be in evidence anyway.
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`MR. HANNAH: Well, Your Honor, that spreadsheet has
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`the actual numbers, not these projected -- these projected
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`rates.
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`THE COURT: No, no. You told me that these exact
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`numbers were in there.
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`MS. CARSON: That's correct, Your Honor.
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`MR. HANNAH: So, Your Honor, it actually cuts off --
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`as you can see, it goe
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