Case 3:17-cv-05659-WHA Document 510 Filed 06/04/19 Page 1 of 6
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`I R E L L   &   M A N E L L A  L L P
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`June 3, 2019
`
`Honorable Thomas S. Hixson
`U.S. District Court Magistrate Judge
`
`Re:
`
`Finjan, Inc. v. Juniper Networks, Inc.,
`Case No. 3:17-cv-05659-WHA (N.D. Cal.)
`
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`W E B S I T E :   w w w . i r e l l . c o m
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`W R I T E R ' S   D I R E C T  
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`J G l u c o f t @ i r e l l . c o m
`
`Dear Judge Hixson:
`The parties present this joint statement regarding defendant Juniper Networks, Inc.’s (“Juniper”)
`motion to quash Finjan’s noticed deposition of Shlomo Touboul in Israel. Counsel for Juniper and counsel
`for Finjan attest that they have met and conferred by telephone1 in good faith to resolve this dispute prior
`to filing this letter. See Ex. 1.
`
`Respectfully submitted,
`/s/ Joshua Glucoft
`Joshua Glucoft
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
`
`/s/ Kristopher Kastens
`Kristopher Kastens
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`Attorneys for Plaintiff
`Finjan, Inc.
`
` REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
`
`1 Counsel for Juniper is located outside of the Bay Area.
`
`

`

`Case 3:17-cv-05659-WHA Document 510 Filed 06/04/19 Page 2 of 6
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`Juniper’s Position
`
`At the first Finjan/Juniper trial in December of last year, Finjan tried to convince Judge Alsup to
`permit testimony by video from Shlomo Touboul, Finjan's founder and named inventor on the majority of
`its asserted patents. Judge Alsup flatly refused, telling Finjan that they needed to bring Mr. Touboul to
`the trial if they wanted his testimony.
`MR. ANDRE: He [Mr. Touboul] lives in Israel.
`THE COURT: Bring him. He’s your guy. He’s your founder. He works for you. You can get
`him on an airplane and get him over here. You’re not going to get away with doing that, no.
`MR. ANDRE: Your Honor, he has blood clot issues in his legs.
`THE COURT: Too bad. Too bad.
`Dkt. 336 (Trial Tr.) at 205:2-9.
`Now, in a clear effort to circumvent Judge Alsup’s prior ruling, Finjan has served a deposition
`subpoena for Mr. Touboul, seeking to depose him in Israel on June 11. There are two main problems with
`Finjan’s ploy: First, Mr. Touboul’s deposition would exceed the 10-deposition limit set by the Federal
`Rules of Civil Procedure (and Finjan has not even sought, much less obtained, leave for any additional
`depositions); second Finjan agreed in the Joint Case Management Statement (“JCMS”) that depositions
`of party employees would all take place in the Northern District of California, unless otherwise agreed
`(and there has been no such agreement in this case, despite Juniper’s willingness to schedule this
`deposition outside of the Northern District).
`FRCP 30(a)(2) requires a party to seek leave if it wants to take more than 10 depositions. As
`illustrated below, Finjan has already taken what amounts to 9½ depositions of fact witness—eight
`individual witnesses, and two Rule 30(b)(6) witnesses (one under 3½ hours and one over 3½ hours).2
`Because individual depositions count as a full deposition, Finjan cannot conduct any additional individual
`depositions—nor any Rule 30(b)(6) depositions in excess of 3½ hours—without leave.
`
`
`Deponent Count
`
`Date
`
`Alex
`Icasiano
`
`0.5 11/30/2018
`
`Khurram
`Islah
`
`1
`
`2/7/2019
`
`TOTAL
`
`1.5
`
`Length of
`Deposition
`Finjan time:
`3 hours 29 minutes
`47 seconds
`Juniper time: 4
`minutes 43 seconds
`Finjan time: 3
`hours 30 minutes
`18 seconds
`Juniper time: 1
`minute 8 seconds
`
`
`
`
`
`Deponent
`Yuly Tenorio
`Rakesh Manocha
`Raju Manthena
`Chandra Nagarajan
`Meredith McKenzie
`Michael Bushong
`Scott Coonan
`Shelly Gupta
`TOTAL
`
`Count
`1
`1
`1
`1
`1
`1
`1
`1
`8
`
`Date
`5/9/2018
`5/16/2018
`5/30/2018
`5/31/2018
`11/14/2018
`11/15/2018
`11/16/2018
`11/16/2018
`
`
`2 Finjan has actually taken another 30(b)(6) deposition of Shelly Gupta on 12/7/2018, which lasted
`approximately 3 hours. Juniper and Finajn disagree as to whether this deposition counts towards Finjan’s
`10-deposition limit, but this dispute is immaterial for purposes of this motion because Finjan would still
`exceed the 10-deposition limit by deposing Mr. Touboul.
`
`
`
`
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`

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`Case 3:17-cv-05659-WHA Document 510 Filed 06/04/19 Page 3 of 6
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`Although Juniper has repeatedly asked Finjan to identify why good cause exists for additional
`individual depositions, Finjan has refused to provide this information to Juniper. Ex. 2 (Correspondence)
`at 1-2. Rather, Finjan has argued that none of the Rule 30(b)(6) depositions it has taken count against the
`10-deposition limit because Judge Alsup’s Standing Order states that “[e]ach witness-designee deposed
`for one half-day or more in a FRCP 30(b)(6) deposition shall count as a single deposition for purposes of
`the deposition limit . . . .” Standing Order ¶ 32(b); Ex. 2 (Correspondence) at 2-3. Juniper understands
`this provision to mean that a 30(b)(6) deposition that lasts less than half a day will not count as a full-day
`deposition, so that two half-day 30(b)(6) depositions could be combined to count as a single day. Finjan,
`on the other hand, claims that Rule 30(b)(6) depositions that last less than half a day simply do not count
`at all against the FRCP limit. Thus, Finjan argues that it is still well under the FRCP limit because it
`disregards each of its half–day 30(b)(6) depositions.
`In addition Finjan ignores the February 7, 2019 Rule 30(b)(6) deposition of Khurram Islah that
`lasted over 3½ hours. Finjan claims (incorrectly) that the Islah deposition was under 3½ hours after
`subtracting time spent during Juniper’s re-direct examination. In fact, Juniper’s examination took less
`than 2 minutes, and Finjan questioned the witness for its full 3½ hours, as shown in the table above.3
`Finjan also argues that Judge Alsup explicitly ordered Finjan to depose Mr. Touboul. This is false;
`Judge Alsup told Finjan that it would be allowed to play videotaped testimony of its witnesses who could
`not come to the trial due to a conflict with another Finjan’s trial before Judge Bencivengo. See Dkt. 465
`(5/9/19 Hr. Tr.) at 46:23-49:7 (and indeed, Finjan’s witnesses already have videotaped deposition
`testimony from earlier in the case). As both that trial and the Juniper trial are currently scheduled for late
`October—more than 5 months away—there is no reason at this time to believe Mr. Touboul will be unable
`to personally attend both. Indeed, Finjan has not even represented that Mr. Touboul will be attending the
`other trial, much less that he would have a conflict on the dates he would be scheduled to testify. Contrary
`to Finjan’s argument, Judge Alsup did not grant Finjan carte blanche to present testimony from its
`witnesses by videotape, much less permit it an unlimited number of depositions to do so.
`Moreover, even if Finjan had sought and obtained leave to take an additional deposition (which it
`has not), Finjan would still be required to meet and confer with Juniper about the time and location of this
`deposition (which it has also failed to do). See Judge Alsup’s Standing Order at ¶ 26 (requiring parties to
`“consult in advance with opposing counsel . . . to schedule depositions at mutually-convenient times and
`places.”)(emphasis added). Judge Alsup’s Order is particularly relevant to this dispute, as the parties had
`already agreed in the JCMS that “depositions of party employees will occur in a mutually agreeable
`location within the Northern District of California, unless otherwise agreed.” Dkt. 31 at 7 (emphasis
`added). Although Juniper would be willing to conduct Mr. Touboul’s deposition in other districts, it
`would be extremely inconvenient and expensive for Juniper to travel to Israel for this deposition. Despite
`Judge Alsup’s Order and the JCMS, Finjan has been unwilling to discuss other locations (or even dates)
`for the deposition of its founder and “advisor.” Ex. 1 (Correspondence) at 1-4. Juniper thus requests
`that—even if Finjan does ultimately seek and obtain leave for additional depositions—the Court require
`Finjan to comply with Judge Alsup’s Standing Order and the JCMS.
`Finally, Finjan has argued that it is not required to bring Mr. Touboul to the United States because
`Mr. Touboul is not really a Finjan employee. Ex. 3 (Correspondence). This argument is disingenuous.
`
`
`3 If the Court allows, Juniper will file the Islah deposition transcript that includes time stamps for
`the Court to make an independent calculation.
`
`
`
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`Case 3:17-cv-05659-WHA Document 510 Filed 06/04/19 Page 4 of 6
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` per year as a “consultant and advisor” to Finjan.4 (Ex.
`Finjan currently pays Mr. Touboul over
`4 at FINJAN-JN 414080). Further, Mr. Touboul’s employment contract expressly acknowledges “
`
`” (Ex. 5 at FINJAN-
`JN 412658). There is thus no merit to the argument that Mr. Touboul was unaware that his work for
`Finjan might require him to travel abroad, and that might be required to travel to earn his
` salary.
`Finjan’s effort to subvert Judge Alsup’s prior ruling on Mr. Touboul’s testimony—while clever—
`fails because Finjan has failed to even attempt to comply with the requirements of the FRCP and the
`JCMS. If and when it becomes clear that Mr. Touboul will be unavailable to appear at the October 21
`trial in this matter because of a conflict with the trial before Judge Bencivengo, Juniper will commit to
`meet and confer with Finjan about taking Mr. Touboul's deposition at a mutually convenient time and
`location.
`
`Finjan’s Position
`Finjan is permitted to depose Mr. Touboul because (1) it was explicitly ordered to do so, (2) his
`deposition was properly noticed and is compliant with the FRCP and the JCMS, and (3) his testimony is
`necessary as recognized by the fact that Finjan and Juniper listed him on their initial disclosures.
`A. Finjan Was Ordered to Record the Testimony of Unavailable Witnesses by Video.
`Judge Alsup explicitly ordered Finjan to record the testimony of any unavailable trial witness by
`video, and Finjan intends to do so. During the first trial in this case, Finjan learned its lesson when it tried
`to introduce Mr. Touboul’s recorded testimony from a different case and was chastised for trying to use
`testimony from a different case. Ex. 6 at 204-205. Finjan provided videotaped testimony from depositions
`taken in this case, but not from Mr. Touboul because he was not deposed in this case. The timeline of
`Judge Alsup’s ruling regarding videotaped testimony is instructive:
` December 11, 2018 – Judge Alsup ruled at trial that Finjan could not present Mr.
`Touboul’s testimony by videotape taken in a different case, and stated that if
`Finjan wanted his testimony at that trial it would have to bring him to trial in
`person. Dkt. 336 (Trial Tr.) at 204-205 (Ex. 6)
` May 9, 2019 Hearing – Judge Alsup set the current trial date of October 21,
`2019, and instructed Finjan to “videotape the testimony” of any unavailable
`witnesses. See, e.g., 5/9/19 Hearing Tr. at 48 (Ex. 7).
` May 23, 2019 Order – Judge Alsup ordered “To repeat, Finjan witness(es) with
`a trial conflict may appear by video.” Dkt. 487 at 2 (Ex. 8).
`Juniper primary argument for quashing Mr. Touboul’s deposition is based on a misrepresentation
`of Judge Alsup’s orders regarding using videotape depositions at trial. First Juniper provides an
`incomplete exert of Judge Alsup’s order from trial, and argues that Judge Alsup already ruled that Mr.
`Touboul’s testimony could only be in person – not just for the first trial, but in all subsequent trials. When
`read in its entirety, however, it is clear that the trial order excluded Mr. Touboul’s videotape testimony
`because it was from a previous litigation – not because the testimony was on videotape. Ex. 6 at 204-205.
`
`4 The terms of Finjan’s agreement with Mr. Touboul make him an employee under California law,
`notwithstanding the boilerplate disclaimer of an employer-employee relationship contained in his
`agreement. See Dynamex Operations W. v. Superior Court, 4 Cal.5th 903, 962 (2018) (“It is well
`established, under all of the varied standards that have been utilized for distinguishing employees and
`independent contractors, that a business cannot unilaterally determine a worker’s status simply by
`assigning the worker the label ‘independent contractor’ . . .”).
`
`
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`Case 3:17-cv-05659-WHA Document 510 Filed 06/04/19 Page 5 of 6
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`In fact, the basis for Juniper’s objection to Mr. Touboul’s videotape deposition was that it was from a
`different case. Ex. 6 at 204 (“So this is not a deposition that was taken in this case.”). Juniper next argues
`that Judge Alsup’s recent orders regarding videotaping Finjan’s witnesses somehow excludes Mr.
`Touboul. The orders do no such thing. Judge Alsup stated at the May 9 hearing:
`“You can videotape the testimony in my case, and I would allow you to
`present it by videotape. That would be fine. Or just a regular deposition.”
`Ex. 7 at 48. He then followed up his oral order with a written order stating “To repeat, Finjan witness(es)
`with a trial conflict may appear by video.” Ex. 8 at 2. Finjan, thus, already has a court order requiring it
`to depose all fact witnesses that may testify in both cases. At a minimum, even though no such showing
`is required here, Finjan has good cause to proceed because of Mr. Touboul’s unavailability.
`
`B. Finjan Has Depositions Available Under the FRCP and JCMS.
`
`Finjan has not exhausted its depositions in this case, as it has noticed and taken only 8 depositions.
`The depositions (both 30(b)(1) and 30(b)(6)) that Finjan noticed are as follows:
`
`Witness
`
`Yuly Tenorio
`Rakesh Manocha
`Raju Manthena
`Chandra Nagarajan
`Meredith McKenzie
`Michael Bushong
`Scott Coonan
`Shelly Gupta
`
`Date
`5/9/2018
`5/16/2018
`5/30/2018
`5/31/2018
`11/14/2018
`11/15/2018
`11/16/2018
`11/16/2018
`
`Juniper misstates the number of depositions by (1) miscounting how 30(b)(6) depositions count
`against the total number of depositions pursuant to the Court’s Standing Order on depositions, and (2)
`counting a court-ordered deposition as one of Finjan’s noticed depositions. Specifically, Juniper is
`counting 30(b)(6) depositions that lasted less than 3.5 hours as a full-day of deposition. The detailed
`Standing Orders instruct that depositions should be added together if the same witness is consecutively
`deposed on in individual and 30(b)(6) capacities. Standing Orders, ¶ 32(a). There is no such addition
`requirement for different 30(b)(6) witnesses testifying as to different topics, such as the 30(b)(6)
`depositions of Mr. Icasiano, Mr. Islah, and Ms. Gupta. Additionally, Juniper’s argument that Finjan went
`over 3.5 hours is incorrect, as Juniper improperly includes its own time on the record in its counts for Mr.
`Icasiano and Mr. Islah to inflate the length of their depositions. Thus, the depositions of Juniper’s
`corporate designees Mr. Icasiano, Mr. Islah, and Ms. Gupta cannot be combined nor counted.
`
`Juniper is also incorrect that Ms. Gupta’s second deposition counts against Finjan’s total, as it was
`specifically ordered by Judge Alsup after Juniper belatedly produced a 17,000 page document on the eve
`of trial containing damages information that Juniper had previously withheld without cause from
`discovery. See Pretrial Hearing Tr. 76:1-7 (“But if you want to take another deposition on the 17,000
`between now and the day of trial, I will let you do that. At their expense. They will would have to pay for
`it. And -- but I’m not going to decide this just yet, because it does trouble me that this was produced so
`late.”); see also Standing Orders, ¶ 27 (further depositions will be required if documents are produced
`
`
`
`
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`Case 3:17-cv-05659-WHA Document 510 Filed 06/04/19 Page 6 of 6
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`late). As shown, Judge Alsup specifically placed the burden of the deposition on Juniper—not Finjan.
`Now Juniper seeks to tally against Finjan the very deposition that Juniper forced upon itself by engaging
`in misconduct. If anything, Ms. Gupta’s second deposition should be counted against Juniper.
`
`C. Mr. Touboul’s Testimony is Necessary and Properly Noticed in Israel.
`
`Mr. Touboul founded Finjan in 1996, and is a named inventor on several of Finjan’s patents. The
`necessity of Mr. Touboul’s testimony is not in dispute, as both parties have acknowledged the importance
`of his testimony via their initial disclosures. Accordingly, Finjan properly noticed Mr. Touboul’s
`deposition nearly a month before the deposition date. The only issue with respect to Mr. Touboul’s
`deposition is where it should take place. For several reasons, the answer is Tel Aviv.
`
`First, Mr. Touboul is a consultant to Finjan (and many other companies), and is not a Finjan
`employee.5 Accordingly, the parties’ agreement regarding the deposition location of party employees is
`not applicable here. Indeed, Mr. Touboul has been deposed numerous times in Israel regarding Finjan’s
`patents, and in fact has three such depositions scheduled for this summer. The first time he was deposed
`in a Finjan matter, the requesting party had to go through the Hague Convention in Israel to secure his
`deposition. Now, however, Mr. Touboul has agreed to participate willingly with these types of deposition
`under the condition that they take place in Israel.
`
`Second, the reason Mr. Touboul insists on his deposition in Israel is that he has a medical condition
`that recommends against long airplane rides. When he travels to California, it usually takes three days of
`travel in each direction because he breaks the flights up in 4 to 5 hour legs. Aside from being inhuman, it
`makes no sense to require Mr. Touboul to travel to Northern California to give that testimony by videotape
`that can be recorded in any location. Why Juniper would want to put a witness’s health at risk for no
`legitimate reason is unexplainable, and it does not even address this issue in its portion of this letter brief.
`
`Third, there is no prejudice to Juniper for Mr. Touboul’s deposition to take place in Israel. Juniper
`has at least seven attorneys which have appeared in this case that are available to take the deposition in
`person or by electronic means. Indeed, Juniper does not allege its attorneys are not available for this
`deposition, but merely prefers it to take place elsewhere. Finjan also provided Juniper with a month’s
`notice before the intended deposition date, and Juniper was “expected to agree” and cannot now claim
`that nobody is available. See Standing Orders, at ¶ 26.
`
`Fourth, Finjan has offered reasonable compromises to account for any perceived inconvenience
`to Juniper. For example, Finjan has offered that one of Juniper’s various attorneys can attend Mr.
`Touboul’s deposition telephonically or by videoconference. Juniper refused these accommodations
`without any explanation. Again, Juniper has never identified any prejudice to Juniper from taking Mr.
`Touboul’s deposition in Israel, although it seeks to cause Mr. Touboul to incur an immense burden.
`Juniper has proposed no compromise position, short of making Mr. Touboul travel to the U.S., despite
`being unable to articulate any rationale or prejudice in taking the deposition where Mr. Touboul resides.
`
`
`5 California law dictates a specific “ABC test” to determine employment status, which Mr.
`Touboul’s contract does not meet because (A) he is free from control of Finjan, (B) he performs work
`outside Finjan’s business, and (C) he customarily engages in the same type of independent work similar
`to Finjan for others. Dynamex Operations W. v. Superior Court, 4 Cal.5th 903, 964 (2018).
`
`
`
`
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`