Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 1 of 8
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`Pages 1-8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware
`Corporation,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC., a
`Delaware Corporation,
`
`)
`
`))
`
`)
`Defendant.
`_____________________________)
`
`TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE THOMAS S. HIXSON
`UNITED STATES MAGISTRATE JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
`Transcription Service:
`
`KRISTOPHER B. KASTENS, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`JOSHUA P. GLUCOFT, ESQ.
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`(310) 277-1010
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Thursday, April 25, 2019
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`Pages 1-8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware
`Corporation,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC., a
`Delaware Corporation,
`
`)
`
`))
`
`)
`Defendant.
`_____________________________)
`
`TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE THOMAS S. HIXSON
`UNITED STATES MAGISTRATE JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
`Transcription Service:
`
`KRISTOPHER B. KASTENS, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`JOSHUA P. GLUCOFT, ESQ.
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`(310) 277-1010
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Thursday, April 25, 2019
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 2 of 8
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`2
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`SAN FRANCISCO, CALIFORNIA
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`THURSDAY, APRIL 25, 2019 2:59 P.M.
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`(Call to order of the Court.)
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`--oOo--
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`THE CLERK:
`
`Okay, everyone.
`
`This is the Courtroom
`
`Deputy again. The Judge has taken the bench, the Honorable Thomas
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`S. Hixson, presiding.
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`We are here in Civil Action 17-5659, Finjan, Inc. v. Juniper
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`Networks, Inc.
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`Counsel, please restate your appearances for the
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`record.
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`Let’s start with the Plaintiff’s counsel.
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`MR. KASTENS: Kristopher Kastens for Plaintiff Finjan,
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`Inc. from the law firm of Kramer Levin Naftalis & Frankel.
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`MR. GLUCOFT:
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`For Defendant Juniper Networks, this is
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`Josh Glucoft from Irell & Manella.
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`THE COURT:
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`Good afternoon, Counsel.
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`We’re here on
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`Finjan’s motion to compel the production of what looks like eight
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`documents.
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`Do you -- I think, Finjan, can you speak to the
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`argument that comes in Juniper’s brief that the subject line of
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`the emails is the implied agreement to keep them confidential?
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`And they cited a couple of cases. I’m interested in hearing your
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`response.
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`MR. KASTENS:
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`Yeah.
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`I mean, I -- I don’t believe any
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`of the cases they’ve cited actually, you know, say that you can
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`just put it in a subject line and that would be sufficient to do
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`an implied agreement.
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`I would also like to say that the deposition transcript of
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 3 of 8
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`3
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`their own person who has actually contributed and was a part of
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`these discussions has principally stated that their was no actual
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`-- they were not part of the joint defense group and they did not
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`participate in the joint defense group and that there was no real
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`agreement to it.
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`And I think if you actually even look at the exhibit that was
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`attached to Juniper’s letter -- I apologize that Judge Alsup has
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`-- he’s limited response to the number of pages we can attach to
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`a discovery dispute so we were only able to attach one page -- but
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`you can see that Mr. Coonan did not believe the discussions were
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`privileged and he talked about his discussions with Palo Alto
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`Networks counsel and what was discussed in respects to that.
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`So, I mean, I think clearly from his own opinion -- he would
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`be the one to know because he was the one involved in the
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`discussions -- he did not consider it to be -- for Juniper to be
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`part of any joint defense group or have an agreement with the
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`other parties with respect to -- for the materials.
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`THE COURT: On the subject line of the emails, where it
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`says "JDG/Subject to Common Interest," my normal interpretation of
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`JDG would be "joint defense group." Do you dispute that it likely
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`stands for that?
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`MR. KASTENS:
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`No.
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`I don’t think we dispute that it
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`stands for "joint defense group." I think what we would dispute
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`is there has to be some sort of an agreement. I don’t know who --
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`it’s impossible for me to tell from what was put in the privilege
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 4 of 8
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`4
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`log who put that in, so -- but I believe you can’t just have one
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`party put it in a joint -- a JDG and say that there is an implied
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`agreement between the two parties.
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`I mean, like I said, Mr. Coonan had principally stated during
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`his deposition that there was no -- there was no -- they were not
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`part of the group and there was no agreement.
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`THE COURT:
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`Okay.
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`Let me hear from the Defense then.
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`How do you respond to that?
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`Is the subject line of the email
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`enough to get an implied agreement?
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`MR. GLUCOFT:
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`Your Honor, I don’t think we’re relying
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`on the subject line unto itself.
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`The subject line is evidence
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`that the parties did in fact have an understanding to have an
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`agreement.
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`Now, what we need to do is we need to sort of mix up
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`some of what’s been muddied.
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`And so Finjan’s argument is that there was no agreement to
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`be part of a formal joint defense group.
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`And that is what Mr.
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`Coonan testified to in the sense that we didn’t agree to do things
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`like
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`share
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`prior
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`art or
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`coordinate on claim construction
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`strategies, all the very involved things that members of a patent
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`joint defense group might do.
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`Now, that’s a separate -- entirely separate consideration
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`than whether or not there was an agreement to keep these
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`communications confidential and to coordinate for the purposes of
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`these specific discussions.
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`And there, I think the best evidence is the contemporaneous
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 5 of 8
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`5
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`standings by both sides. Both Mr. Coonan and the other members of
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`the JDG were sending these emails back and forth, that this was in
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`fact subject to a common interest.
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`There is a contemporaneous
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`documentation saying, We understand these communications are
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`intended to be kept confidential.
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`We understand that these
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`communications are for purposes of coordinating legal tests (ph).
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`Just because Juniper didn’t subsequently sign on, a much more
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`significant obligation that would have been required to -- would
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`have been required of the joint defense group like, for example,
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`sharing
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`prior
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`art
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`or
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`coordinating
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`on
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`claim
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`construction
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`strategies, that doesn’t mean that there wasn’t an implied
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`agreement and these agreements can in fact be implied from common
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`interest situations, and that -- that implied agreement was at
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`least manifested or evidenced by the subject line of the email.
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`THE COURT:
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`I think I understand.
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`I was looking at
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`Coonan’s testimony and it’s not quite as you summarized it in the
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`letter brief. He says he doesn’t recall having any emails with I
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`guess it’s with Ritter, but it sounds like he thought it was oral
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`conversations. Was his memory just mistaken about that? Because,
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`I mean, I think that these emails look like a thing he didn’t
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`recall doing.
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`MR. GLUCOFT:
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`Correct.
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`I think his memory was
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`unfortunately mistaken at that time. But actually if you look at
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`Exhibit 2, which is Finjan’s -- Finjan’s brief, which are excerpts
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`of the Coonan testimony, the exchange starting -- this is on the
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 6 of 8
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`6
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`first substantive page, page 193, line 25. He’s asked, "Did you
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`ever receive any communications from members of the anti defense
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`group?"
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`Mr. Coonan says, "I have not."
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`The follow-up question
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`is, "To be clear, you did have communications with Mr. Ritter;
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`correct?" And, answer, "Yes, one or two phone calls -- excuse me
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`-- one or two phone calls." "Question: And he is a member of the
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`anti defense group; correct?" "Answer: Yes."
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`So Mr. Coonan I think was temporarily confused. His memory
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`had not been refreshed by these particular documents. He didn’t
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`recall them, but obviously he recognized that he did in fact have
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`communications with Mr. Ritter."
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`THE COURT: Okay.
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`MR. GLUCOFT:
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`I also, just for context, Mr. Coonan’s
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`deposition was in November 2018.
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`These emails are from November
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`2015 and February 2016, so it’s not entirely surprising that he
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`can’t remember emails from three years before.
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`THE COURT: Yeah. Okay. And these were emails; is that
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`right? -- the communications we’re talking about?
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`MR. GLUCOFT:
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`Correct.
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`And that’s where we get the
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`subject line of the -- the privilege log -- the subject line of
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`the emails as well.
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`THE COURT: Okay. Finjan, I’ll give you the last word
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`since it’s your motion.
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`MR. KASTENS:
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`Yeah, and I will just say that to the
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`extent that Mr. Coonan remembers communications with Mr. Ritter
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 7 of 8
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`7
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`and people about the joint defense group, I think if the
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`communications were just about preliminary discussions -- he goes
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`through everything he remembers about his discussions with Mr.
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`Ritter on these two phone calls. Never once was it indicated that
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`this was covered under any sort of joint defense group privilege
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`of any sort.
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`THE COURT: Okay.
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`Thank you. I now have a --
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`MR. KASTENS: That’s on, you know, I think starting on
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`page 175 of his deposition transcript through 176 and then again
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`on 212 of his deposition transcript starting on 4 through 12. He
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`is discussing what was discussed with Mr. Ritter who is also on
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`the emails that were privileged.
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`THE COURT:
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`Okay.
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`Got it.
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`I will take it under
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`submission.
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`I have a question. Finjan filed a motion to seal a
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`few things because apparently Juniper had designated them as
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`confidential. Under Local Rule 79-5, Juniper was required to file
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`a declaration within four days establishing the confidential
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`nature of it. Not only did you not file one, but Juniper then put
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`in an even longer excerpt from Coonan’s deposition and you filed
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`that in the public record.
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`It sounds to me like Juniper doesn’t think this stuff is
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`confidential and I’d be okay denying the motion to seal; is that
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`right?
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`MR. GLUCOFT: That’s correct, Your Honor. We no longer
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`take the position that those portions of the Coonan -- all the
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`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 8 of 8
`Case 3:17-cv-05659-WHA Document 615 Filed 09/30/19 Page 8 of 8
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`filed portions of the Coonan deposition are confidential,
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`THE COURT: Okay.
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`Thank you.
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`Is there anything else
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`elther side would like to address on this call, starting with
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`Plaintiff?
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`MR. KASTENS: No, Your Honor.
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`THE COURT: And for Defense?
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`MR. GLUCOFT: No, Your Honor.
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`Northern District of California
`
`Pegoy Schuerger
`Typed or Printed Name
`Ad Hoc Reporting
`Approved Transcription Provider
`Tor the U.S. District Court,
`
`THE COURT: Okay.
`
`Thank you, both, Counsel.
`
`ALL:
`
`Thank you, Your Honor.
`
`THE CLERK:
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`Thank you, Counsel.
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`I'm qoing
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`to
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`disconnect.
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`{Proceedings adjourned at 3:09 p.m.}
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`I, Peggy Schuerger, certify that
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`the foregoing is a
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`eorrect transeript from the official electronic sound recording
`
`provided to me of the proceedings in the above-entitled matter.
`
`Signature of Approved Transcriber
`
`September 24, 2019
`Date
`
`
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