`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 1 of 12
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`Pages 1 - 11
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Before The Honorable William H. Alsup, Judge
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`Finjan, Inc.,
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`Plaintiff,
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`VS.
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`NO. 17-CV-5659
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`Juniper Network, Inc.,
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`Defendant.
`
`San Francisco, California
`Thursday, February 22, 2018
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`TRANSCRIPT OF PROCEEDINGS
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`Official Reporter
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`KRAMER LEVIN NAFTALIS & FRANKEL LUIP
`990 Marsh Road
`Menlo Park, CA
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`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
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`94025
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`Mr. Paul Andre
`Mr. Kristopher Kastens
`
`IRELL & MANELLA LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA
`92660
`
`Ms. Rebecca Carson
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`Reported By:
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`Vicki Eastvold, RMR, CRR
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`
`
`Thursday - February 22, 2018
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`PROCEEDINGS
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`---000---
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`THE DEPUTY CLERK: Calling civil action 17-5659
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`Finjan, Inc., versus Juniper Network,
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`Inc.
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`Counsel, please approach the podium and state your
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`appearances for the record.
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`MR. ANDRE: Morning, Your Honor.
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`Paul Andre for
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`plaintiff Finjan.
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 2 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 2 of 12
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`is that right? Did I really say July 2?
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`MS. CARSON: Good morning, Your Honor. Rebecca Carson
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`for Juniper Networks.
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`MR. KASTENS: Kristopher Kastens for Finjan.
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`THE COURT: Unless you're about to tell me you've
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`settled your case,
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`I have a plan for your case. Are you ready?
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`It's a two-part plan. First part is a normal schedule.
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`Second
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`is the shoot-out schedule. Are you ready?
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`Any initial disclosures should have already been done, but
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`I'll give you until February 28 to make sure you've done them
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`correctly. Leave to add any new parties or pleading amendments
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`must be received by May 31.
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`Fact discovery cutoff will be
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`March 29 next year. That will also be the date your expert
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`report is due if you have the burden of proof on the issue.
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`March 29 next year.
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`The pre-trial conference would be
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`June 6 -- D Day -- next year. Trial will be July 2.
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`See,
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`
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`July 8 is what I meant. And that will be a jury trial.
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`I'll refer you to Magistrate Judge -- hope she will accept
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`this -- Susan van Keulen for settlement.
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`And I will have to ask this question: These patent cases
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`are so contentious and so unreasoned,
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`the lawyers are so
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`unreasonable in these cases that I normally keep all discovery
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`disputes. But patent cases the lawyers can't agree on
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`anything. However, if you promise me you will be reasonable on
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`both sides and that there will be very few discovery disputes I
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`will keep all discovery disputes.
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`MS. CARSON: Your Honor, we intend to be reasonable.
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`Assuming that the other party is reasonable, I think we can
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`limit discovery motions.
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`MR. ANDRE: Your Honor, we're very reasonable. We
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 3 of 12
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`This is plenty of time.
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`give up everything.
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`THE COURT: All right.
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`I'm giving -- I'm going to
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`keep them for myself and see if it works. Okay.
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`So that's the
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`overall case schedule.
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`Do you have any heartburn on this?
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`MS. CARSON: Your Honor, one comment.
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`The parties had
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`actually worked together to come to an agreed schedule.
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`THE COURT:
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`I know.
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`It was too leisurely.
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`It would
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`call for a trial in 2020. That would be the -- I won't even be
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`alive probably in 2020.
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`I've never set a case that far out in
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`my entire career. You lawyers are going to have to get going.
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`
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`MR. ANDRE: Your Honor, it's fine for plaintiff.
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`Works for us.
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`MS. CARSON: Your Honor, we think it's a little
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`advanced given the number of patents at issue in the case and
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`then --
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`THE COURT:
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`Too bad. You can do this. That's where
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`the shoot-out comes in. Are you ready? The shoot-out is a
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`great thing that I have come up with.
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`It works as follows:
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`How many claims are involved here?
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`MR. ANDRE: We've agreed to limit it to 16 claims on
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`the patents.
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 4 of 12
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`So you both are going to cross-move for summary
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`THE COURT: Sixteen from how many patents?
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`MR. ANDRE: Eight patents.
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`THE COURT:
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`Is that right?
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`MS. CARSON
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`That's correct, Your Honor.
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`THE COURT: Okay.
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`So of the 16, each of you get to
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`pick one. Plaintiff gets to pick your strongest claim and
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`Juniper gets to pick the weakest of the claims. And then
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`you're going to both make motions. We're going to each have
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`discovery.
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`I'11 give you reasonable discovery into those two.
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`This is in addition to all the other discovery that's going on.
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`But you get discovery into each of those two on kind of a
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`compressed schedule. And if anybody stonewalls, believe me
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`their motion won't get granted. You better cooperate on this
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`discovery.
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`
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 5 of 12
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`judgment.
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`It could turn out that -- it could turn out like in
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`any summary judgment motion that there are fact issues that are
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`impossible to resolve. But in the past it's quite clear that
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`one side or the other is absolutely correct. What does that
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`mean?
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`It means that it either leads to an immediate
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`preliminary injunction -- that would be bad for Juniper -- or,
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`it leads to a sanctions motion against the plaintiff. Or it
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`might even be a sanctions motion against the defendant.
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`This is -- it just cuts to the heart of the case so
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`quickly.
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`I promise you by August of this year the case will be
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`over because one of you -- I know these patent cases. They're
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`very few where there's a fact issue; maybe one out of three.
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`way off base, which was true in the last case that I did, or
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`that the Juniper side is way off base.
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`And there's nothing wrong with a preliminary injunction
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`right off the bat.
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`In fact, it would be a permanent injunction
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`because it's the result of summary judgment if you in fact are
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`infringing. You don't have to wait until the end of the case.
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`Whamo,
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`the product goes off the shelf.
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`They withdrew eight -- eight - claims in seriatum.
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`Two out of three it's quite clear that either the plaintiff is
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`So this gets it done to one -- each side has one.
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`Now here's the other trick I found in doing this. That as
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`soon as the Juniper side decides, Oh, we're going to go with
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`claim number eight on the XYZ patent, and you withdraw that
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`patent.
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`
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`And finally -- this is how bad it was in the other case.
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`I
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`don't know if you're going to do that or not.
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`So I'm going to give you two weeks from today to withdraw
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`whatever you want. After that you're stuck with it.
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`Sorry,
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`Ms. -- not Ms. Juniper, but you're Ms. --
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`MS. CARSON: Carson.
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`THE COURT:
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`How do you say it?
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`MS. CARSON:
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`"Carson."
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 6 of 12
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`something else.
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`THE COURT: Carson.
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`I don't see you on here.
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`It's
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`not on my list.
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`Is it on here? Maybe I got the wrong list.
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`Anyway, Ms. Carson, if -- so after two weeks you can pick the
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`weakest one they have. That's what I want you to do.
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`Pick the
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`weakest one they're asserting against you. And if it turns out
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`you're just crystal clear on that one, even if you might lose
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`on the other one, you're going to get sanctions against them if
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`it warrants sanctions. And they will have to pay that right
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`off the bat. Could be hundreds of thousands of dollars for
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`having brought a bogus claim against Juniper.
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`But if they win on theirs, it's injunction city.
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`So this
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`is why it's called a shoot-out.
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`It's like the shoot-out at the
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`OK Coral in Tombstone, Arizona. Where the lawyers go in there
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`and they just shoot it out and one of them comes out alive.
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`I shouldn't use that. That's a terrible example to use
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`these days so I'm going to take that back. Maybe I'll call it
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`
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`MR. ANDRE:
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`It would be the Earps on this side.
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`THE COURT:
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`It's not going to be -- it's not going to
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`be -- maybe shootout is the -- showdown. That's what it is.
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`It's a showdown.
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 7 of 12
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`built in there for each of you to have an extra week on
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`All right.
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`So I'm giving you two weeks from today to do
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`the -- two weeks from today to do the withdrawal. And then
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`after that you get to pick one on the -- two weeks -- so that
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`would be -- I can't read very well anymore. What is two weeks
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`and a day from now? March 8 is what day of the week?
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`THE DEPUTY CLERK: Thursday.
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`THE COURT: Okay.
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`On March 9 by letter each of you
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`have to notify the other one as to which one -- well,
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`that's
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`not quite fair to you because what if they withdraw the one you
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`-- no.
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`I'm going to give you two weeks after that.
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`So it will
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`be March 8 is two weeks from today. And it will be March --
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`THE DEPUTY CLERK:
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`22.
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`THE COURT:
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`-- 22 would be whenever you have to notify
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`the other one as to which one of your going to be pursuing.
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`And then the summary judgment motions on this have to be
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`filed June 7.
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`So you have a period of a few months in there to
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`do your discovery, get your -- if I needed to give you some
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`short continuances on that date I will. But then do it ona --
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`we'll do these on a 49-day track so you'll have a chance to
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`depose the experts on the other side.
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`So there's one week
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`
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`opposition.
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`So June
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`-- 7 plus 49. What would that hearing date give
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`me?
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`49.
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`It's probably around the end of July.
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`THE DEPUTY CLERK:
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`July 26, Your Honor.
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`THE COURT:
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`July 26. Okay.
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`So on July 26 I
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 8 of 12
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`So this gets to the heart of the matter so quickly and so
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`anticipate that there will be banners in the sky for one side
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`or the other as total victory is proclaimed. At least -- so on
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`the other hand I could be wrong and it could turn out to be one
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`of those cases where there's fact issues and I have to deny
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`--
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`But I'll tell you,
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`I learn a lot about -- even if that's
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`the way it is,
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`I will learn a lot.
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`It will be effectively a
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`tutorial for me.
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`So that's the way we're going to proceed.
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`Go back and
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`tell your clients that the day of reckoning is close at hand.
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`All right.
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`I'11 get out an order that -- be sure to read
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`the order whenever it comes out on this summary procedure.
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`And then we'll eventually get around to all the other
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`claims in the case.
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`So don't worry that there will be some --
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`there will be other -- we'll deal with everything. But it may
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`be that as the case goes along we have a permanent injunction
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`against a product that's no longer being sold. That could
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`happen. Or it could be Mr. Andre has to pay $300,000 in fees
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`to the other side for bringing a frivolous claim. Or maybe you
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`have to pay $300,000 to him because you picked a bad one.
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`
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`cleanly instead of you all treating me like your early neutral
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`evaluation judge and two years later I'm still trying to figure
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`out which end is up.
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`All right.
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`I had one other question for you. What is the
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`PTAB situation?
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`In other words, of these 16 claims are any of
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`them in the PTAB right now?
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`MS. CARSON: Your Honor,
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`they haven't yet told us the
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`16 claims, so I'll leave that to Mr. Andre.
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`THE COURT: Oh, really? That was a nice little slight
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`of hand.
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`How come you haven't told them?
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`MR. ANDRE: We agree it would be 16 claims. We put
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`that in the schedule that we proposed to the Court. But we can
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`do that obviously earlier.
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`THE COURT: Well,
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`I think you should do it.
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`I thought
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`you should do that today.
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`Can you do that today?
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`MR. ANDRE:
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`I can't do it off the top of my head, Your
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 9 of 12
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`to withdraw any of
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`THE COURT: Will you do it by tomorrow at noon?
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`MR. ANDRE: Sixteen claims, we can do it by tomorrow
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`THE COURT: Okay. 16 claims tomorrow at noon.
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`MR. ANDRE:
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`It was baked into the schedule.
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`16
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`THE COURT: Those will be the 16.
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`Then I'm still
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`giving you two weeks from today,
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`I guess,
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`
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`10
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`MR. ANDRE: Okay.
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`THE COURT:
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`Now you can't go -- once you limit it to
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`16, and you withdraw one, you can't substitute some other one.
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`You don't get to do that.
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`So if you withdraw one,
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`then you're
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`down to 15.
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 10 of 12
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`How many of these patents are still
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`MR. ANDRE: Your Honor, as far as the PTAB situation
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`goes,
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`the patents that are involved in this case I think
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`they've been subject to about 25 or 30 IPR petitions.
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`Nothing's in the PTAB except for one. One of the patents --
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`the patents have all survived multiple PTAB challenges. And so
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`the claims that we'll select,
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`there's a chance that one of the
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`patents has been instituted but has not been final. And so
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`that's the only patent that has anything that would be
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`implicated in the shootout.
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`THE COURT: Well, my thought is that that won't affect
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`us. We'll just push ahead.
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`If you pick one that's going to be
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`at the PTAB or you pick one that's at the PTAB,
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`I'm just going
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`to ignore the PTAB and make my own decision.
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`So unless you two
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`could stipulate to something I might figure out a -- but the
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`PTAB will not resolve any of these by August. Right?
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`MS. CARSON: That's correct. There's also a number of
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`recent proceedings that have been filed but not yet reached the
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`institution decision phase by other defendants.
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`THE COURT:
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`
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 11 of 12
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`11
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`MR. ANDRE:
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`I think five. Maybe four.
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`Four or five
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`of them.
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`Some have died of natural causes; you know, natural
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`death of time. But the PTAB petitions keep coming. Like we've
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`faced like 60 or 70 of them at this time for these patents.
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`And they keep getting denied or confirmed valid, but they keep
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`coming nonetheless.
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`MS. CARSON:
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`A number of them are also expired or will
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`expire soon.
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`THE COURT: Well,
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`that would mean that if Mr. Andre
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`picked one that has expired as his best claim, he could not try
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`to get an injunction. Obviously, he can't do that.
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`So if you
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`---000---
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`want an injunction out of this process, you have to pick one
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`that still has life in it come August. Okay.
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`MR. ANDRE: That complicates things a bit. Could we
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`get a --
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`THE COURT:
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`Up to you.
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`I don't care which one you
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`pick.
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`I don't care which one you pick. You could just pick
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`your strongest one.
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`It may just be for damages purposes.
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`That's okay. That's up to you.
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`All right. That's all I can do for you today. Good luck
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`to both sides.
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`I'11 get an order out pretty soon.
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`Thank you.
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`MR. ANDRE:
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`Thank you.
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`MS. CARSON:
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`Thank you, Your Honor.
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`CERTIFICATE OF REPORTER
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`I certify that the foregoing is a correct transcript
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`from the record of proceedings in the above-entitled matter.
`
`DATE:
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`Thursday, February 27, 2018.
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`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 12 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 12 of 12
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`Vicki Eastvold, RMR, CRR, U.S. Court Reporter
`
`