Case 3:17-cv-05659-WHA Document 510-2 Filed 06/04/19 Page 1 of 5
`Case 3:17-cv-05659-WHA Document 510-2 Filed 06/04/19 Page 1of5
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`EXHIBIT 2
`EXHIBIT 2
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`Case 3:17-cv-05659-WHA Document 510-2 Filed 06/04/19 Page 2 of 5
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`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Dan,
`
`Glucoft, Josh
`Sunday, May 26, 2019 9:53 PM
`~Williams, Daniel
`Kagan, Jonathan; Carson, Rebecca; Wang, Kevin; Holland, Eileen; ~Andre, Paul;
`~Kobialka, Lisa; ~Hannah, James; ~Kastens, Kristopher; Carson, Rebecca; Heinrich, Alan;
`Holland, Eileen; Isaac, Shawana; Kagan, Jonathan; Manzano, Jim; Mittleman, Harry;
`Petersen, Ingrid; Quarnstrom, Brian; Theilacker, Leah; Wang, Kevin; #Juniper/Finjan [Int]
`RE: Finjan v. Juniper Network - Depositions
`
`Given that Finjan has told us that it intends to take Mr. Touboul’s deposition on June 11 in Israel—even though that date
`and location does not work for Juniper—this issue is time sensitive and we must promptly seek relief from the
`Court. Indeed, lead counsel met and conferred on this issue, and Finjan made clear that it is not willing to discuss any
`compromise with respect to the timing or location of Mr. Touboul’s deposition. The parties also reached an impasse as to
`whether Finjan can even take Mr. Touboul’s deposition without seeking leave from the Court, given that Finjan has
`already taken ten days of deposition. As such, Finjan’s attempt to prevent Juniper from promptly raising the issue with
`the Court is inappropriate. Juniper will be filing its letter brief with the Court on Wednesday as previously indicated, and
`we expect Finjan to follow the procedure that the parties previously agreed to with respect to Ms. Bey’s motion to
`compel. This will avoid the needless back and forth contemplated by your vague proposal. If Finjan refuses to timely
`provide its responsive section, then we will notify the Court that Finjan’s response is missing because Finjan needlessly
`delayed notwithstanding the time sensitivity of the matter.
`
`As to Finjan’s request to take the deposition of Mr. Jas and an additional Rule 30(b)(6) witness, we have explained on
`multiple occasions Juniper’s position that Finjan has already used its ten deposition days. Moreover, even under Finjan’s
`incorrect interpretation of Judge Alsup’s Order, Finjan only has one day of deposition left, which it apparently intends to
`use for Mr. Touboul’s deposition. If Finjan believes that it has good cause to take depositions in excess of the number
`allowed by the Federal Rules, please identify the complete basis and provide Finjan’s proposed compromise, as we
`previously requested. While Juniper is open to reaching a compromise on this issue to avoid the need for Court
`intervention, Finjan’s only proposal thus far—that it need not comply with the Federal Rules and that it is entitled to take
`unlimited Rule 30(b)(6) depositions so long as they are less than 3.5 hours—is not reasonable.
`
`Regards,
`Josh
`
`From: Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Sent: Sunday, May 26, 2019 8:08 AM
`To: Glucoft, Josh <JGlucoft@irell.com>
`Cc: Kagan, Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Wang, Kevin <kwang@irell.com>;
`Holland, Eileen <EHolland@irell.com>; ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa
`<lkobialka@kramerlevin.com>; ~Hannah, James <jhannah@kramerlevin.com>; ~Kastens, Kristopher
`<kkastens@kramerlevin.com>; Carson, Rebecca <RCarson@irell.com>; Heinrich, Alan <AHeinrich@irell.com>; Holland,
`Eileen <EHolland@irell.com>; Isaac, Shawana <SIsaac@irell.com>; Kagan, Jonathan <JKagan@irell.com>; Manzano, Jim
`<JManzano@irell.com>; Mittleman, Harry <HMittleman@irell.com>; Petersen, Ingrid <ipetersen@irell.com>;
`Quarnstrom, Brian <BQuarnstrom@irell.com>; Theilacker, Leah <LTheilacker@irell.com>; Wang, Kevin
`<kwang@irell.com>; #Juniper/Finjan [Int] <Juniper-Finjan@irell.com>
`Subject: RE: Finjan v. Juniper Network - Depositions
`
`Josh,
`
`1
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`Case 3:17-cv-05659-WHA Document 510-2 Filed 06/04/19 Page 3 of 5
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` I
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` note that your sweeping dismissal of our position on the deposition issue fails to address your improper accounting of
`Gupta and Icasiano - which, even under your incorrect total puts us under 10. To reiterate, leave is unnecessary at this
`point. As such, please provide the dates and times for the Jas deposition as Juniper said it would in previous emails. Also,
`please provide the identity of the designee for the outstanding 30(b)(6) topic, as well as dates and times that the designee
`can be deposed, as Juniper said it would in previous emails.
`
`As for the Touboul deposition, we understand that you only object to the scheduling of the deposition, not that we can
`take it. If you prefer to continue your letter writing campaign in lieu of cooperating with us to resolve the issue without
`the Court’s intervention, then so be it. We object to your insistence on using the same exchange procedure used for the
`Bey subpoena. You can provide your half next week and we will respond within a few days of that. Both sides will have
`an opportunity to respond to any new arguments added.
`
`Regards,
`Dan
`
`
`
`
`
`Daniel Williams
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1735 F 650.752.1800
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Glucoft, Josh <JGlucoft@irell.com>
`Sent: Friday, May 24, 2019 9:05 PM
`To: Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Cc: Kagan, Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Wang, Kevin <kwang@irell.com>;
`Holland, Eileen <EHolland@irell.com>; Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa
`<LKobialka@KRAMERLEVIN.com>; Hannah, James <JHannah@KRAMERLEVIN.com>; Kastens, Kris
`<KKastens@KRAMERLEVIN.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh <JGlucoft@irell.com>; Heinrich,
`Alan <AHeinrich@irell.com>; Holland, Eileen <EHolland@irell.com>; Isaac, Shawana <SIsaac@irell.com>; Kagan,
`Jonathan <JKagan@irell.com>; Manzano, Jim <JManzano@irell.com>; Mittleman, Harry <HMittleman@irell.com>;
`Petersen, Ingrid <ipetersen@irell.com>; Quarnstrom, Brian <BQuarnstrom@irell.com>; Theilacker, Leah
`<LTheilacker@irell.com>; Wang, Kevin <kwang@irell.com>; #Juniper/Finjan [Int] <Juniper-Finjan@irell.com>
`Subject: [EXTERNAL] RE: Finjan v. Juniper Network - Depositions
`
`Daniel,
`
`
`Your understanding of Judge Alsup’s Order is plainly incorrect, as you seem to believe that it permits an unlimited
`number of Rule 30(b)(6) depositions as long as each individual deposition is less than 3.5 hours. In any event, Finjan
`spent more than 3.5 hours on the record with Mr. Islah, so it counts as a deposition even under Finjan’s improper reading
`of Judge Alsup’s Order. If Finjan believes it has good cause to take additional depositions, please let us know the
`complete basis for that belief so that we can meaningfully meet and confer. Additionally, please let us know if Finjan has
`a reasonable proposal for resolving this issue.
`
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`Case 3:17-cv-05659-WHA Document 510-2 Filed 06/04/19 Page 4 of 5
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`As I mentioned in my previous email, Juniper intends to move the Court by this Wednesday (May 29) to quash the
`deposition notice to Mr. Touboul. Please confirm that the parties will exchange their sections on Tuesday, May 28 at 10
`am Pacific, in following with the procedure the parties adopted for Ms. Bey’s motion to compel. If Finjan refuses to
`follow the prior procedure, then please provide Finjan’s final section by 11 am Pacific on Wednesday, May 29, so that we
`may incorporate it into our filing. If Finjan refuses to timely provide its section, we will notify the Court that Finjan failed
`to comply.
`
`
`Regards,
`Josh
`
`
`
`From: Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Sent: Friday, May 24, 2019 5:59 PM
`To: Glucoft, Josh <JGlucoft@irell.com>
`Cc: Kagan, Jonathan <JKagan@irell.com>; ccurran@irell.com; ssong@irell.com; Carson, Rebecca <RCarson@irell.com>;
`Wang, Kevin <kwang@irell.com>; Holland, Eileen <EHolland@irell.com>; ~Andre, Paul <pandre@kramerlevin.com>;
`~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah, James <jhannah@kramerlevin.com>; ~Kastens, Kristopher
`<kkastens@kramerlevin.com>
`Subject: Finjan v. Juniper Network - Depositions
`
`
`Josh,
`
`
`Your accounting of Finjan depositions from your last email is not correct. Finjan has not reached the 10
`deposition day threshold for fact witnesses, and is entitled to take the depositions of Frank Jas, Shlomo
`Touboul, and the remaining 30(b)(6) topic designee, without leave of Court.
`
`
`First, for the Touboul deposition, the Court’s May 23, 2019 Order clarified that Finjan can provide video
`testimony for its witnesses. See Dkt. 487 (“To repeat, Finjan’s witness(es) with a trial conflict may appear by
`video.”). Therefore, Finjan is entitled to depose Mr. Touboul so that his testimony can be used at trial. Finjan
`provided Juniper with ample notice of its intent to depose Mr. Touboul and has offered alternatives where
`Juniper could attend through video or by phone if necessary. Mr. Touboul has limited availability for
`deposition. Since the parties have already met and conferred, and Juniper has not provided any meaningful
`contributions for resolving this issue, the Touboul deposition will proceed as noticed.
`
`
`Second, any 30(b)(6) depositions less than 3 ½ hours on record do not count against the fact deposition
`limitations in this case. See Supplemental Order To Order Setting Initial Case Management Conference In Civil
`Cases Before Judge William Alsup, at ¶ 32(b). Accordingly, Finjan is entitled to take additional 30(b)(6)
`depositions so long as they are under half a day on record.
`
`
`Furthermore, because 30(b)(6) depositions less than 3 1/2 hours on record do not count against Finjan’s totals in
`this case, Juniper is improperly including the 30(b)(6) deposition of Mr. Icasiano and the 30(b)(6) deposition of
`Mr. Islah in its calculation. With respect to Mr. Icasiano’s deposition, Juniper cannot tack on the second
`deposition of Ms. Gupta (a different 30(b)(6) designee who was designated on a separate 30(b)(6)
`topic). Moreover, the second Gupta deposition (on December 7, 2018) was ordered by the Court as relief for
`Juniper’s discovery misconduct, and therefore, it cannot count against Finjan’s deposition allotment in any
`context. At the pretrial hearing on December 4, 2018, when discussing Finjan’s motion in limine No. 1, the
`Court ordered Juniper to permit Finjan to take another deposition, at Juniper’s expense, on the 17,000 page
`document that had been untimely disclosed. 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.”). This is consistent with Judge Alsup’s Standing Order which states that deponents will
`be called back for more testimony on late produced documents, at the late-producer’s expense, in order to
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`Case 3:17-cv-05659-WHA Document 510-2 Filed 06/04/19 Page 5 of 5
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`discourage “hide-the-ball” tactics. See Supplemental Order To Order Setting Initial Case Management
`Conference In Civil Cases Before Judge William Alsup, at ¶ 27 (“The late-producer will ordinarily bear all
`expense of resuming the deposition. This practice encourages full and proper productions and discourages
`‘hide-the-ball’ tactics.”). Since this additional deposition was specifically permitted as relief for Juniper’s
`discovery misconduct, it cannot count against Finjan’s deposition totals under any circumstances. Under
`Finjan’s calculations, Finjan has only used 8 days of fact depositions and is entitled to 2 additional fact
`depositions that may be one half day or more without seeking leave of court. Also, as mentioned above, Finjan
`is entitled to take additional 30(b)(6) depositions without leave of court so long as they are less than ½ a day.
`
`
`Third, Juniper’s initial disclosures list 12 Juniper employees as having relevant information about
`Juniper. Finjan should have an opportunity to depose each of these individuals, which includes Frank Jas.
`
`
`Please immediately provide the dates and times that Frank Jas is available for a deposition. Additionally, please
`immediately provide the identity of the individual designated for the outstanding 30(b)(6) topic, and the time
`and place the designee is available for deposition.
`
`
`Regards,
`Dan
`
`
`
`Daniel Williams
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1735 F 650.752.1800
`ddwilliams@kramerlevin.com
`
`
`Bio
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`
`PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside
`information. Any distribution or use of this communication by anyone other than the intended recipient(s) is
`strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by
`replying to this message and then delete it from your system. Thank you.
`
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