`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 1 of 28
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
`
`DKT. 261-9
`DKT. 261-9
`(REDACTED)
`(REDACTED)
`
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 2 of 28
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 2 of 28
`
`EXHIBIT 15
`EXHIBIT 15
`
`(cid:56)(cid:49)(cid:53)(cid:40)(cid:39)(cid:36)(cid:38)(cid:55)(cid:40)(cid:39)(cid:3)(cid:57)(cid:40)(cid:53)(cid:54)(cid:44)(cid:50)(cid:49)(cid:3)(cid:50)(cid:41)(cid:3)
`UNREDACTED VERSION OF
`(cid:39)(cid:50)(cid:38)(cid:56)(cid:48)(cid:40)(cid:49)(cid:55)(cid:3)(cid:54)(cid:50)(cid:56)(cid:42)(cid:43)(cid:55)(cid:3)(cid:55)(cid:50)(cid:3)(cid:37)(cid:40)(cid:3)
`DOCUMENT SOUGHT TO BE
`(cid:54)(cid:40)(cid:36)(cid:47)(cid:40)(cid:39)
`SEALED
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 3 of 28
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`ERIC B. COLE, PH.D. - 11/14/2018
`ERIC B. COLE, PH.D. - 11/14/2018
`
`·
`
`∑1∑ ∑ ∑ ∑ ∑ ∑IN THE UNITED STATES DISTRICT COURT
`
`∑2∑ ∑ ∑ ∑ ∑FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`∑3
`
`∑4∑ ∑FINJAN, INC., a Delaware
`∑ ∑ ∑Corporation,
`∑5
`∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑Plaintiff,∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑Case No.
`∑6∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑ 3:17-cv-05659-WHA
`∑ ∑ ∑ ∑ ∑vs.
`∑7
`∑ ∑ ∑JUNIPER NETWORKS, INC., a
`∑8∑ ∑Delaware Corporation,
`
`∑9
`∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑Defendant.
`10∑ ∑_________________________________
`
`11
`
`12
`
`13∑ ∑ ∑ ∑ HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`14
`
`15∑ ∑ ∑ ∑ ∑VIDEOTAPED DEPOSITION OF ERIC B. COLE, PH.D.
`
`16∑ ∑ ∑ ∑ ∑ ∑ ∑ ∑Wednesday, November 14, 2018
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23∑ ∑Reported by:
`∑ ∑ ∑Cynthia Manning, CSR No. 7645, CLR, CCRR
`24
`
`25∑ ∑Job No. LA-196239
`
`Epiq Court Reporting Solutions - Woodland Hills
`Epiq Court Reporting Solutions - Woodland Hills
`1-800-826-0277
`www.deposition.com
`1-800-826-0277
`www.deposition.com
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 4 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 31
`
`·1· · · · Q.· So is it your opinion that there are any
`
`·2· ·viable noninfringing alternatives to Claim 10 of the
`
`·3· ·'494 patent?
`
`·4· · · · A.· I do not believe there is any viable
`
`·5· ·noninfringing alternatives.
`
`·6· · · · Q.· Do you have an opinion about what would
`
`·7· ·have been the next best alternative for Juniper if
`
`·8· ·it could not have used the technology recited in
`
`·9· ·Claim 10 of the '494 patent?
`
`10· · · · A.· Can you repeat the question again?
`
`11· · · · Q.· Do you have an opinion about what would
`
`12· ·have been the next best alternative for Juniper if
`
`13· ·it could not have used the technology recited in
`
`14· ·Claim 10 of the '494 patent?
`
`15· · · · A.· I believe some of the noninfringing
`
`16· ·alternatives that were discussed or might have been
`
`17· ·in the reports I read was essentially not to use a
`
`18· ·database and to essentially have to recalculate and
`
`19· ·re-perform analysis for every piece of malware that
`
`20· ·came in, which would be very process-intensive and
`
`21· ·also be very, very, very expensive to do.
`
`22· · · · Q.· When you say, "I believe some of the
`
`23· ·noninfringing alternatives that were discussed or
`
`24· ·might have been in the reports I read," what report
`
`25· ·did you read that talked about not using a database
`
`09:50
`
`09:50
`
`09:50
`
`09:50
`
`09:50
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:51
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 5 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 32
`
`·1· ·and essentially having to recalculate and re-perform
`
`·2· ·analysis for every piece of malware that came in?
`
`·3· · · · A.· Honestly, sitting here today, I wasn't --
`
`·4· ·because I consumed so much information in a short
`
`·5· ·period of time over the last week, I wasn't sure if
`
`·6· ·it just came up on the phone call or if that was in
`
`·7· ·Dr. Rubin's report or not.· I know it was discussed
`
`·8· ·last week, but I can't remember which one it came
`
`·9· ·from, so I would have to go back and check on that.
`
`10· · · · Q.· Okay.· So is the concept of reprocessing
`
`11· ·files as opposed to storing results in a database,
`
`12· ·is that an alternative that you came up with?
`
`13· · · · A.· Once again, I don't remember.· I know it
`
`14· ·was discussed on the call.· I don't remember if they
`
`15· ·asked me and I came up with that or if they
`
`16· ·suggested it and asked my opinion or if I read that
`
`17· ·in Dr. Rubin's report.
`
`18· · · · Q.· When you say "they," who are you talking
`
`19· ·about?
`
`20· · · · A.· That would be the damages expert and the
`
`21· ·attorneys that were on that call.
`
`22· · · · Q.· Okay.· So let's go back to before you
`
`23· ·submitted your original report, okay, before you
`
`24· ·submitted your report in September.
`
`25· · · · A.· Okay.
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:52
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:53
`
`09:54
`
`09:54
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 6 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 34
`
`·1· ·received, as opposed to storing them in a database?
`
`·2· · · · A.· Once again, I know it was discussed on the
`
`·3· ·last call.· I'm not sure -- I believe it might have
`
`·4· ·been, since I think that was a premise for some of
`
`·5· ·the damages.· But like I said, I'd have to go back
`
`·6· ·and check.
`
`·7· · · · Q.· Did you affirmatively tell Mr. Arst that
`
`·8· ·reprocessing files, as opposed to storing the
`
`·9· ·security profiles in a database, would have been a
`
`10· ·viable option for Juniper?
`
`11· · · · · · MR. HANNAH:· Objection; form.
`
`12· · · · · · THE WITNESS:· Once again, I want to be
`
`13· ·careful, because you added the word "viable" in
`
`14· ·there.
`
`15· · · · · · We -- we typically discuss noninfringing
`
`16· ·alternatives, and this was one of the noninfringing
`
`17· ·alternatives that I felt wasn't viable because of
`
`18· ·the additional processing and the additional cost
`
`19· ·and the additional latency to the customers and many
`
`20· ·other factors.
`
`21· ·BY MS. CARSON:
`
`22· · · · Q.· So it's your opinion that, had Juniper not
`
`23· ·been able to use the technology recited in Claim 10,
`
`24· ·it wouldn't have been able to implement the concept
`
`25· ·of reprocessing files each time they are received
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`09:55
`
`09:55
`
`09:55
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:56
`
`09:57
`
`09:57
`
`09:57
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 7 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 35
`
`·1· ·instead of storing the security profiles in a
`
`·2· ·database in a way that was commercially viable; is
`
`·3· ·that fair?
`
`·4· · · · · · MR. HANNAH:· Objection; form of the
`
`·5· ·question.
`
`·6· · · · · · THE WITNESS:· Is there a way, maybe, you
`
`·7· ·can simplify it?· It seemed like a compound -- I
`
`·8· ·think that was a long question.
`
`·9· ·BY MS. CARSON:
`
`10· · · · Q.· In your opinion, would reprocessing files,
`
`11· ·instead of storing the security profiles in a
`
`12· ·database, be a commercially viable alternative for
`
`13· ·Juniper at the time of the hypothetical negotiation
`
`14· ·in 2015?
`
`15· · · · · · MR. HANNAH:· Objection; form.
`
`16· · · · · · THE WITNESS:· It could have been a
`
`17· ·noninfringing alternative, but I don't believe it
`
`18· ·would be commercially viable because of the
`
`19· ·additional processing, the latency and other
`
`20· ·negative impacts, which is the reason why I believe
`
`21· ·that they chose to utilize the '494 technology,
`
`22· ·because of the huge benefits it provides.
`
`23· ·BY MS. CARSON:
`
`24· · · · Q.· Is it your opinion that reprocessing the
`
`25· ·files would have been Juniper's next best
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:57
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`09:58
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 8 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 36
`
`·1· ·alternative to infringing Claim 10 of the '494
`
`·2· ·patent?
`
`·3· · · · A.· I would have to do additional analysis.· It
`
`·4· ·was just sort of asked -- and you ask could I think
`
`·5· ·of a noninfringing alternative.· And that was one,
`
`·6· ·but that wasn't a direct task that I wrote a full
`
`·7· ·report on.· So I would have to go back and perform
`
`·8· ·analysis of whether that was really the best, but I
`
`·9· ·know that was one of the items that I came up with
`
`10· ·or that was discussed.
`
`11· · · · Q.· At the time that you were doing your report
`
`12· ·back in September and you were talking to Mr. Arst,
`
`13· ·did you consider any other noninfringing
`
`14· ·alternatives besides reprocessing the files each
`
`15· ·time they're received?
`
`16· · · · A.· There very well --
`
`17· · · · · · MR. HANNAH:· Objection; form.
`
`18· · · · · · THE WITNESS:· There very well could have
`
`19· ·been, but I'm not recalling any right now, sitting
`
`20· ·here today.
`
`21· ·BY MS. CARSON:
`
`22· · · · Q.· Is it fair to say, at the time you
`
`23· ·submitted your report, you did not do a complete and
`
`24· ·thorough analysis of all noninfringing alternatives
`
`25· ·that might have been available to Juniper?
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`09:58
`
`09:58
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`09:59
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 9 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 37
`
`·1· · · · A.· That was something that we've discussed on
`
`·2· ·the phone and I gave some opinions, but it wasn't a
`
`·3· ·direct task, to look at every and all to come up
`
`·4· ·with a complete list.
`
`·5· · · · Q.· And do you recall whether the potential
`
`·6· ·alternative of reprocess- -- strike that.
`
`·7· · · · · · Do you recall whether the potential
`
`·8· ·alternative of reprocessing files was your idea or
`
`·9· ·an idea from Finjan's counsel or Mr. Arst?
`
`10· · · · · · MR. HANNAH:· Objection; form.
`
`11· · · · · · THE WITNESS:· Honestly, I don't remember.
`
`12· ·I know it was discussed on the phone, so I'm not
`
`13· ·sure.· It could have been something I came up with,
`
`14· ·or it could have been something that they bounced
`
`15· ·off me.
`
`16· · · · · · MS. CARSON:· Can we take a quick break?
`
`17· · · · · · MR. HANNAH:· Sure.
`
`18· · · · · · THE WITNESS:· Sure.
`
`19· · · · · · THE VIDEOGRAPHER:· We are off the record at
`
`20· ·10:01 a.m.
`
`21· · · · · · (Recess taken)
`
`22· · · · · · THE VIDEOGRAPHER:· We are back on the
`
`23· ·record at 10:14 a.m.
`
`24· ·BY MS. CARSON:
`
`25· · · · Q.· Okay.· Before the break, we were talking
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:00
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:01
`
`10:14
`
`10:14
`
`10:14
`
`10:14
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 10 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 44
`
`·1· ·noninfringing alternatives presented and they asked
`
`·2· ·my opinion of that topic, and based on my industry
`
`·3· ·expertise, I gave them some feedback, but that
`
`·4· ·wasn't the initial focus.· That was to support the
`
`·5· ·damages.
`
`·6· · · · · · And, once again, I believe a lot of that
`
`·7· ·discussion happened after my report was submitted,
`
`·8· ·after we received Dr. Rubin's report.
`
`·9· ·BY MS. CARSON:
`
`10· · · · Q.· So I just want to be clear on what your
`
`11· ·opinions are and what you're going to offer.
`
`12· · · · · · You did not include an opinion, in your
`
`13· ·report in September of 2018, about what the
`
`14· ·potential next best alternative would have been to
`
`15· ·Juniper to infringing Claim 10 of the '494 patent;
`
`16· ·correct?
`
`17· · · · · · MR. HANNAH:· Objection; form of the
`
`18· ·question.
`
`19· · · · · · THE WITNESS:· Identifying, analyzing and
`
`20· ·critiquing noninfringing alternatives was not part
`
`21· ·of the September report.
`
`22· · · · · · But as I mentioned, I know last week, after
`
`23· ·getting Dr. Rubin's report and some additional
`
`24· ·information which came out after my report, that's
`
`25· ·when we had some of those detailed discussions about
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:28
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`10:29
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 11 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 48
`
`·1· ·BY MS. CARSON:
`
`·2· · · · Q.· Do you have an opinion, though, out of --
`
`·3· ·let's just focus on the three technical ones, as
`
`·4· ·opposed to the delayed release.· We'll set that
`
`·5· ·aside for now, okay?
`
`·6· · · · · · Do you -- actually, strike that.
`
`·7· · · · · · Do you have an opinion, out of the four
`
`·8· ·noninfringing alternatives that have been provided
`
`·9· ·by someone on Finjan's side and Dr. Rubin, as to
`
`10· ·which would have been Juniper's next best
`
`11· ·alternative?
`
`12· · · · · · MR. HANNAH:· Objection; form.
`
`13· · · · · · THE WITNESS:· I was asked just to critique
`
`14· ·and provide feedback on whether they could be done,
`
`15· ·which they could, but then what the impact to
`
`16· ·Juniper or the customer or others were.· I didn't
`
`17· ·actually go in and prioritize the order of those.
`
`18· ·BY MS. CARSON:
`
`19· · · · Q.· So you don't have an opinion as to which
`
`20· ·one would be the best option for Juniper; is that
`
`21· ·fair?
`
`22· · · · A.· I could very well do that, but that would
`
`23· ·take some additional time for me to prioritize
`
`24· ·what's the proper order of them.
`
`25· · · · · · But I did look at all of those options, and
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 12 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 49
`
`·1· ·they would all have inferior product, potentially
`
`·2· ·lost customer share, less competitiveness in the
`
`·3· ·market, or great increased cost to Juniper.
`
`·4· · · · Q.· But you didn't assess which one would have
`
`·5· ·been the best option out of the four; correct?
`
`·6· · · · A.· I was not asked to go in and rank order
`
`·7· ·those options.
`
`·8· · · · Q.· Okay.· So let's start with the option of
`
`·9· ·delaying release.
`
`10· · · · · · Okay?
`
`11· · · · A.· If we're going to get into these, could I
`
`12· ·get a copy of Dr. Rubin's report --
`
`13· · · · Q.· Sure.
`
`14· · · · A.· -- so I can look at what he is saying
`
`15· ·specifically?
`
`16· · · · · · MS. CARSON:· Could we actually mark your
`
`17· ·report as Exhibit -- I think we're on 116.
`
`18· · · · · · THE REPORTER:· '72.
`
`19· · · · · · MS. CARSON:· '72.· And then this will be
`
`20· ·1163 --
`
`21· · · · · · THE REPORTER:· '73.
`
`22· · · · · · MS. CARSON:· '73.
`
`23· · · · · · MR. HANNAH:· What are the numbers?
`
`24· · · · · · THE WITNESS:· My report is '72, and this is
`
`25· ·1173, Rubin's.
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:35
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:36
`
`10:37
`
`10:37
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 13 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 146
`
`·1· ·actual sandboxing is done by Joe Sandbox on separate
`
`·2· ·servers.
`
`·3· ·BY MS. CARSON:
`
`·4· · · · Q.· So given that, the AWS invoices do not
`
`·5· ·reflect any charges for the processing that occurs
`
`·6· ·in connection with dynamic analysis; is that fair?
`
`·7· · · · · · MR. HANNAH:· Objection; form of the
`
`·8· ·question.
`
`·9· · · · · · THE WITNESS:· Because the sandboxing is
`
`10· ·done by Joe Sandbox on separate servers, I would not
`
`11· ·expect that the Amazon AWS invoices would reflect
`
`12· ·the Joe Sandbox dynamic analysis.
`
`13· ·BY MS. CARSON:
`
`14· · · · Q.· Do you see -- I want to direct your
`
`15· ·attention to the very bottom of page 13 and the
`
`16· ·sentence that starts "the cost savings."
`
`17· · · · · · Are you with me?
`
`18· · · · A.· I am.
`
`19· · · · Q.· So that sentence reads:
`
`20· · · · · · "The cost savings are the same,
`
`21· · · · · · irrespective of whether Sky ATP sandboxing
`
`or
`22· · · · · · is performed on Amazon Web Services or
`
`iWeb."
`23· · · · · · iWeb."
`
`24· · · · · · Do you see that?
`
`25· · · · A.· I see that sentence.
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:48
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`14:49
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 14 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 147
`
`·1· · · · Q.· What was the complete basis for that
`
`·2· ·conclusion?
`
`·3· · · · A.· (Reviewing document.)
`
`·4· · · · · · This is referring to if you removed the
`
`·5· ·database and you had to do manual lookups and
`
`·6· ·couldn't look up in the database.· So because the
`
`·7· ·database is stored in Amazon AWS, that's why it's
`
`·8· ·saying, if we're replacing the component that stores
`
`·9· ·the database, it would have to do additional work.
`
`10· ·Because we only had access to Amazon, Juniper did
`
`11· ·not provide anything for Joe Sandbox that Amazon
`
`12· ·could be used as a representation of what those cost
`
`13· ·savings would be.
`
`14· · · · Q.· So I understand what you did.
`
`15· · · · · · I'm trying to figure out what evidence you
`
`16· ·relied on to conclude that the cost savings would be
`
`17· ·the same, irrespective of whether the sandboxing was
`
`or iWeb.
`18· ·performed on AWS or iWeb.
`
`19· · · · · · Did you rely on any evidence to make that
`
`20· ·conclusion?
`
`21· · · · A.· It was based on the fact that AWS is known
`
`22· ·to be a very cost-effective solution, so that would
`
`23· ·be a representation of what the costs would be.
`
`24· · · · Q.· AWS is a cloud-based server; correct?
`
`25· · · · A.· That is my understanding.
`
`14:49
`
`14:49
`
`14:51
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:53
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 15 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 148
`
`
`
`·1· · · · Q.· Do you know if iWeb is a cloud-based·1· · · · Q.· Do you know if iWeb is a cloud-based
`
`·2· ·server?
`·2· ·server?
`
`·3· · · · A.· I would have to check to verify.
`·3· · · · A.· I would have to check to verify.
`
`·4· · · · Q.· So you based your conclusion that the cost
`·4· · · · Q.· So you based your conclusion that the cost
`
`·5· ·savings are the same, irrespective of whether Sky
`·5· ·savings are the same, irrespective of whether Sky
`
`·6· ·ATP sandboxing is performed on AWS or iWeb, on your
`·6· ·ATP sandboxing is performed on AWS or iWeb, on your
`
`·7· ·general knowledge that AWS is well known in the
`·7· ·general knowledge that AWS is well known in the
`
`
`
`·8· ·industry to be a cost-effective source for·8· ·industry to be a cost-effective source for
`
`·9· ·cloud-based services; correct?
`·9· ·cloud-based services; correct?
`
`10· · · · A.· And that those were the invoices that we
`10· · · · A.· And that those were the invoices that we
`
`11· ·were provided.· So we were using what we had to be
`11· ·were provided.· So we were using what we had to be
`
`12· ·able to come up with an estimate.
`12· ·able to come up with an estimate.
`
`13· · · · Q.· Okay.· Is there any other evidence that you
`13· · · · Q.· Okay.· Is there any other evidence that you
`
`14· ·relied on in forming your conclusion that the cost
`14· ·relied on in forming your conclusion that the cost
`
`
`
`15· ·savings would be the same, irrespective of whether15· ·savings would be the same, irrespective of whether
`
`16· ·Sky ATP sandboxing is performed on AWS or iWeb?
`16· ·Sky ATP sandboxing is performed on AWS or iWeb?
`
`17· · · · A.· It would be what we discussed and what's in
`
`18· ·the paragraph in my report.
`
`19· · · · Q.· And the only thing you cite in the
`
`20· ·paragraph in your report are Juniper's interrogatory
`
`21· ·responses and RFP responses; correct?
`
`22· · · · · · MR. HANNAH:· Objection; form.
`
`23· · · · · · THE WITNESS:· Correct.· And my industry
`
`24· ·experience that since we only had the AWS invoices,
`
`25· ·that that could be used as a representative sample
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:54
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`14:55
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 16 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 149
`
`·1· ·to come up with the estimates.
`
`·2· ·BY MS. CARSON:
`
`·3· · · · Q.· Did you review Juniper's AWS invoices?
`
`·4· · · · A.· I believe they were discussed on the phone
`
`·5· ·call.
`
`·6· · · · Q.· Did you personally review them?
`
`·7· · · · A.· I would have to check, but I do not think
`
`·8· ·that I did.
`
`Q.· Have you ever reviewed an invoice from
`·9· · · · Q.· Have you ever reviewed an invoice from
`
`10· ·iWeb?
`10· ·iWeb?
`
`11· · · · A.· In general or in this case?
`11· · · · A.· In general or in this case?
`
`12· · · · Q.· In general.
`12· · · · Q.· In general.
`
`13· · · · A.· I believe at McAfee we utilized some iWeb
`13· · · · A.· I believe at McAfee we utilized some iWeb
`
`14· ·and AWS, so I have some experience that they are
`14· ·and AWS, so I have some experience that they are
`
`
`
`15· ·pretty similar in terms of the pricing structure.15· ·pretty similar in terms of the pricing structure.
`
`16· · · · Q.· How long ago was that?
`16· · · · Q.· How long ago was that?
`
`17· · · · A.· 2009-2010.· I don't always remember dates.
`17· · · · A.· 2009-2010.· I don't always remember dates.
`
`18· · · · Q.· Okay.· So it's your recollection that, back
`18· · · · Q.· Okay.· So it's your recollection that, back
`
`19· ·in 2009 or 2010 at McAfee, you guys used AWS and
`19· ·in 2009 or 2010 at McAfee, you guys used AWS and
`
`20· ·iWeb, and you recall looking at invoices for that?
`20· ·iWeb, and you recall looking at invoices for that?
`
`21· · · · A.· I just remember that the costs were what I
`
`22· ·felt to be fairly similar or comparable.
`
`or iWeb
`23· · · · Q.· But you didn't look at the AWS or iWeb
`
`24· ·invoices actually applicable to this case; correct?
`
`25· · · · · · MR. HANNAH:· Objection; form.
`
`14:55
`
`14:55
`
`14:55
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:56
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 17 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 150
`
`·1· · · · · · THE WITNESS:· Right.· That was for the
`
`·2· ·damages expert.· I was just performing some analysis
`
`·3· ·to support that.
`
`·4· ·BY MS. CARSON:
`
`·5· · · · Q.· Do you know whether AWS and iWeb have
`· Q.· Do you know whether AWS and iWeb have
`
`·6· ·similar pricing structures for Juniper?
`·6· ·similar pricing structures for Juniper?
`
`·7· · · · A.· Once again, that information wasn't
`·7· · · · A.· Once again, that information wasn't
`
`
`
`·8· ·provided for iWeb.· So we only had the AWS invoices.·8· ·provided for iWeb.· So we only had the AWS invoices.
`
`·9· · · · Q.· So is it fair to say you don't know one way
`·9· · · · Q.· So is it fair to say you don't know one way
`
`10· ·or another whether the pricing structure for AWS and
`10· ·or another whether the pricing structure for AWS and
`
`11· ·iWeb is similar with respect to Juniper?
`11· ·iWeb is similar with respect to Juniper?
`
`12· · · · A.· In that case, the information wasn't
`
`13· ·provided, so I used my industry expertise and
`
`14· ·experience as a comparable estimate.
`
`
`
`15· · · · Q.· Did you do any research on public sources Q.· Did you do any research on public sources
`
`16· ·to try to figure out more about the pricing
`16· ·to try to figure out more about the pricing
`
`17· ·structures for AWS or iWeb in connection with
`17· ·structures for AWS or iWeb in connection with
`
`18· ·offering your opinion that the cost savings are the
`18· ·offering your opinion that the cost savings are the
`
`19· ·same, irrespective of whether Sky ATP sandboxing is
`19· ·same, irrespective of whether Sky ATP sandboxing is
`
`20· ·performed on AWS or iWeb?
`20· ·performed on AWS or iWeb?
`
`21· · · · A.· Just that Amazon is known and provides very
`
`22· ·cost-effective solutions.
`
`23· · · · Q.· And that's just based on your general
`
`24· ·knowledge?
`
`25· · · · A.· And experience.· I work with a lot of
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:57
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:58
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 18 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 151
`
`·1· ·customers who utilize Amazon.
`
`·2· · · · Q.· Did you go on Amazon's website or call
`
`·3· ·Amazon to try to get information about their pricing
`
`·4· ·structure?
`
`·5· · · · A.· In general or for this specific case?
`
`·6· · · · Q.· For this case.
`
`·7· · · · A.· For this case, no, but my team has done
`
`·8· ·that on many occasions for other clients.
`
`Q.· Okay.· Did you look on iWeb's website or
`·9· · · · Q.· Okay.· Did you look on iWeb's website or
`
`10· ·try to give them a call to try to find out more
`10· ·try to give them a call to try to find out more
`
`11· ·about their pricing structure in connection with
`11· ·about their pricing structure in connection with
`
`12· ·your opinions in this case?
`12· ·your opinions in this case?
`
`13· · · · A.· No, I did not.
`13· · · · A.· No, I did not.
`
`14· · · · Q.· Do you know whether Juniper uses AWS for
`
`15· ·any products other than Sky ATP?
`
`16· · · · A.· That was outside the scope of my analysis,
`
`17· ·so I don't know.
`
`18· · · · Q.· So you didn't tell Finjan's damages expert,
`
`19· ·Mr. Arst, that the AWS invoices were solely for
`
`20· ·costs related to Sky ATP?
`
`21· · · · A.· I don't remember the exact conversation on
`
`22· ·those phone calls.· Like I said, we did talk about
`
`23· ·the information in general and the invoices.
`
`24· · · · Q.· Well, you didn't look at the invoices,
`
`25· ·though; correct?
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`14:59
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`15:00
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 19 of 28
`
`
`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLYHIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`
`ERIC B. COLE, PH.D. - 11/14/2018ERIC B. COLE, PH.D. - 11/14/2018
`
`Page 154
`
`·1· ·and interpret it the way that I did.
`
`·2· · · · Q.· Do you think that the standard for
`
`·3· ·interpreting discovery responses in litigation is
`
`·4· ·from the perspective of a POSITA?
`
`·5· · · · A.· Well, my report is.· And based on how
`
`·6· ·somebody would read -- somebody who would understand
`
`·7· ·Amazon Web Services would interpret that statement
`
`·8· ·in a similar way that I did.
`
`·9· · · · Q.· Okay.· Do you know if AWS charges by the
`
`10· ·amount of processing time?
`
`11· · · · A.· I believe they have different models; some
`
`12· ·are data usage, and some are processing.
`
`13· · · · Q.· Do you know which model it uses for
`
`14· ·Juniper?
`
`15· · · · A.· Based on the response to the RFP, it looks
`
`16· ·like it was reflecting data usage of the Amazon Web
`
`17· ·Services.
`
`18· · · · Q.· So that would not be time; correct?
`
`19· · · · A.· Once again, I'd have to look at the
`
`20· ·invoices of Amazon in a lot more detail to answer
`
`21· ·that.
`
` Q.· Do you know whether iWeb charges Juniper by
`22· · · · Q.· Do you know whether iWeb charges Juniper by
`
`23· ·the amount of processing time?
`23· ·the amount of processing time?
`
`
`
`24· · · · A.· My understanding that Juniper did not24· · · · A.· My understanding that Juniper did not
`
`25· ·provide the iWeb invoices, so I'm not sure.
`25· ·provide the iWeb invoices, so I'm not sure.
`
`15:03
`
`15:03
`
`15:03
`
`15:03
`
`15:03
`
`15:03
`
`15:03
`
`15:03
`
`15:03
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`15:04
`
`
`Epiq Court Reporting Solutions - Woodland HillsEpiq Court Reporting Solutions - Woodland Hills
`
`1-800-826-02771-800-826-0277
`
`www.deposition.comwww.deposition.comYVer1f
`
`
`
`Case 3:17-cv-05659-WHA Document 424-26 Filed 04/11/19 Page 20 of 28
`
`
`HIGHL