Case 3:17-cv-05659-WHA Document 518 Filed 06/06/19 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
`Plaintiff,
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`v.
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`JUNIPER NETWORK, INC., et al.,
`Defendants.
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`Case No. 17-cv-05659-WHA (TSH)
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`ORDER REGARDING SHLOMO
`TOUBOUL’S DEPOSITION
`Re: Dkt. No. 510
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`The parties have filed a joint discovery letter brief concerning whether Finjan may depose
`its founder, Schlomo Touboul at all, and if so, whether it may do so in Israel. ECF No. 510.
`Juniper argues that Finjan is supposedly flouting a ruling by Judge Alsup in December
`2018, but the Court is unable to understand that argument. During the first trial, Finjan tried to
`introduce videotaped deposition testimony Touboul provided in another lawsuit, and Judge Alsup
`said no. Trial Tr. at 204:21-23 (“The Court: No way we’re going to let that. You’ve got to bring
`him yourself. You can’t get away with a deposition from some other case.”) & Tr. 205:14-17
`(“The Court: That’s what it is, and you’re not going to get away with an in-the-can – the key guy,
`an in-the-can presentation from some guy who deposed him in the year 2015 in a different case.
`That’s beyond the pale.”). Whether a deposition in a different lawsuit can be admitted at trial has
`nothing to do with whether or where Touboul should be deposed in this case.
`Next, Juniper contends that this deposition would put Finjan above its 10-deposition limit
`in Federal Rule of Civil Procedure 30. Both sides agree Finjan has deposed eight individual
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`Northern District of California
`United States District Court
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`Case 3:17-cv-05659-WHA Document 518 Filed 06/06/19 Page 2 of 3
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`witnesses. Both sides also agree that Finjan has also deposed two Rule 30(b)(6) witnesses
`(Icasiano and Gupta) in depositions where Finjan’s questioning was less than three and a half
`hours. Under Judge Alsup Standing Order, those do not count toward the deposition limit.
`Standing Order ¶ 32(b) (“Each 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 under
`FRCP 26 or under any case management order setting a limit on the number of depositions. . . . If
`two designees, to take another example, are interrogated, each for one half-day or more, then they
`count as two depositions”) (emphasis added). Juniper’s concern that this could allow for large
`numbers of short 30(b)(6) depositions is not correct because the preceding paragraph of the
`Standing Order limits a party to ten subjects for the entire case. Standing Order ¶ 32(a).
`The parties disagree on whether Finjan has deposed another Rule 30(b)(6) witness (Islah)
`for a half-day or more. The Court has reviewed the time-stamped transcript (ECF No. 514) and
`concludes that Finjan’s examination fell just short of three and a half hours. Therefore, Finjan has
`taken a total of eight depositions.
`Accordingly, Finjan can depose Touboul without going over the 10-deposition limit. The
`next question is where. Judge Alsup’s Standing Order requires the parties “to schedule
`depositions at mutually-convenient times and places.” Standing Order ¶ 26. Israel might be
`convenient for Finjan and Touboul, but it is not mutually convenient because it is inconvenient
`and expensive for Juniper. In addition, the parties early on stipulated “that depositions of party
`employees will occur in a mutually agreeable location within the Northern District of California,
`unless otherwise agreed.” Joint Case Management Statement, ECF No. 31 at 7 (emphasis added).
`Finjan’s argument that Touboul, who is the founder of the company, is not an “employee” within
`the meaning of that agreement because he is a “consultant and advisor” to Finjan, being paid more
`than [REDACTED], is overly technical hairsplitting. Finjan is wrong that it lacks control over
`Touboul. His consulting agreement with the company states that he “[REDACTED],” ECF No.
`509-8 ¶ 2.3 (emphasis added).
`Accordingly, the Court ORDERS that (1) Finjan may depose Touboul, and (2) the
`deposition must take place in the Northern District of California unless Juniper agrees to a
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`Northern District of California
`United States District Court
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`Case 3:17-cv-05659-WHA Document 518 Filed 06/06/19 Page 3 of 3
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`different location.
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`IT IS SO ORDERED.
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`Dated: June 6, 2019
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`THOMAS S. HIXSON
`United States Magistrate Judge
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`Northern District of California
`United States District Court
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