Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 1 of 24
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`Pages 1-24
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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:
`
`JAMES R. HANNAH, ESQ.
`LISA KOBIALKA, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`HARRY A. MITTLEMAN, 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
`Wednesday, May 29, 2019
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`Pages 1-24
`
`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:
`
`JAMES R. HANNAH, ESQ.
`LISA KOBIALKA, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`HARRY A. MITTLEMAN, 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
`Wednesday, May 29, 2019
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 2 of 24
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`2
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`SAN FRANCISCO, CALIFORNIA
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`WEDNESDAY, MAY 29, 2019 2:03 P.M.
`
`(Call to order of the Court.)
`
`--oOo--
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`THE CLERK:
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`Okay, everyone.
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`The Judge has taken the
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`bench.
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`We are here in Civil Action 17-5659, Finjan, Inc. v.
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`Juniper Networks, Inc.
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`Counsel, please state your appearances.
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`Let’s start with the Plaintiffs.
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`MR. HANNAH: Good afternoon, Your Honor. This is James
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`Hannah on behalf of Finjan.
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`And with me on the call is Lisa
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`Kobialka.
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`THE COURT: Good afternoon.
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`MS. KOBIALKA:
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`Good afternoon.
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`MR. MITTLEMAN: Good afternoon, Your Honor. My name is
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`Harry Mittleman. I’m with the Irell firm. I’m here for Juniper.
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`I’m present on the call.
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`THE COURT: Good afternoon. So what would you like to
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`discuss?
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`MR. MITTLEMAN:
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`Thank you, Your Honor.
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`This is
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`Defendant -- this is Harry Mittleman and I’m the party that
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`requested this teleconference.
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`I’m hoping it will be brief.
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`So the call concerns the setting for Mrs. Bey’s -- Ms. Bey’s
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`deposition.
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`I -- as you may remember, I argued last week on the
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`motion to compel, and the Court issued an order that counsel for
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`Bey, or they needed to produce all of her documents by Monday, May
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`27th.
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`Obviously, Monday was a holiday weekend day, but that was
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 3 of 24
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`3
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`the order.
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`And the order said that it was "to give Juniper a
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`fighting
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`chance
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`to
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`review
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`materials
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`to
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`prepare
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`for
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`the
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`deposition."
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`And what happened is that we did not get the full production
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`on Monday as delivered.
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`We got a production at 7:00 p.m. that
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`night which we thought would be well after the hours when
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`(indiscernible).
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`And then we got a second production the day
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`after the first deadline.
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`At a quarter to 5:00 p.m., another
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`production came in which was both untimely in terms of the order
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`as well as something that we could not practically begin to go
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`through and review and make copies and then sit down for a
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`deposition in Richmond.
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`Now, that deposition was scheduled in Richmond for tomorrow.
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`But we don’t have the materials and didn’t have the materials
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`necessary for that.
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`And, in addition, Your Honor, there’s one other issue, which
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`is that I spoke with one of the partners at the Kramer Levin firm
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`yesterday and explained that for the first time in I think about
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`24 years where I’ve practiced law, I have a medical condition that
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`has come up that makes it so I couldn’t get on the plane today.
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`I went to -- without getting into the details (indiscernible), I
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`spent hours at the emergency room urgent care yesterday.
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`I’m
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`going back on Friday to see a cardiologist. And he prescribed a
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`bunch of medications that are soporific in nature. And for all of
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`these reasons -- because we didn’t get the documents on the Court-
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 4 of 24
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`4
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`ordered deadline, and I’m not in a position to be in Richmond
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`tomorrow because of my medical issue, we thought could we set the
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`date for a different date.
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`We offered I believe 21 different
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`dates in June and July.
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`None of the dates apparently have been
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`acceptable to counsel for Ms. Bey, although it appears that she is
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`available on a number of those dates.
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`And as a result, they are requesting that the deposition
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`proceed without me and taking it tomorrow in Richmond. And it’s
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`for that reason, because that’s (indiscernible), given the
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`circumstances, and not consistent with the Court’s order, I
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`reluctantly sought the Court’s intervention.
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`I just wanted to take one of the 21 other dates that we’ve
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`chosen and just move on and get this done.
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`THE COURT: Okay. Thank you for that explanation. Mr.
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`Hannah, can I hear from your point of view?
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`MR. HANNAH:
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`Your Honor, frankly, I’d like us to move
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`on and go forward. So what we said was do the deposition by video
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`conference or telephone.
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`So we were not notified for this change in the deposition due
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`to this medical emergency until we were already on the plane. I’m
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`sitting here in Richmond, Virginia right now.
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`And what happened was he called a partner -- he did call my
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`partner and he said that he had, you know, this medical issue and
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`that he didn’t want to have to travel because he wanted to move up
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`a doctor’s appointment.
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`My partner asked him, "Is it life-
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 5 of 24
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`5
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`threatening?
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`Is there anything you’d like ..."
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`From what I understand, he said to my partner, he said, "No,
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`it’s not life-threatening."
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`He said, "You know what?
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`I can
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`probably just tough it out."
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`So we get to -- we thought that issue was resolved.
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`So we
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`get to Richmond and then we get a lengthy email from one of the
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`associates that, given to this medical condition and there’s some
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`-- at some point, there’s something about three entries of the
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`privileged log had cut-off words, which we promptly told them was
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`the words "with client" in those three entries, so I’m not sure we
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`talked about any documents produced late.
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`There was nothing that was produced late.
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`There was
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`something that -- I had a reformatting error that just had to work
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`with -- with clients on there, and then there were four email
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`chains that were not on the privileged log, and all of those were
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`given to them today.
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`And so we’re sitting here in Virginia and we said, Okay,
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`we’ll let’s just move -- let’s just move on with the deposition
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`and do it by video conference or phone, and he just never
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`responded to that.
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`That’s his typical practice.
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`They can -- you know, they can email the documents to a court
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`reporting service here.
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`The court reporter takes the exhibits.
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`They hand them to the witness as the deposition -- as I’m sure
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`Your Honor has done depositions this way before -- and we move on
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`with the deposition.
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 6 of 24
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`6
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`I mean, the fact of the matter is Juniper has shown no
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`leniency at all with regards to the deposition.
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`We asked them
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`several times to make it combinations.
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`First, we asked just to
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`have the deposition in early. We said, Can we please have it in
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`early ’cause we’re gonna -- everyone agrees we’re going to have to
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`go forward with the deposition because we couldn’t work out dates
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`on the 30th and it was to end by 4:00 p.m.
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`They came back and said, No, due to jetlag, there’s no way
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`we can start before 9:00 a.m.
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`That’s what their associate told
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`us.
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`We said, Okay.
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`Well, if they can’t end by 4:00 p.m. in
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`Virginia -- in Richmond -- can you please move the deposition to
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`Alexandria, you know, and then we can go as long as you want. We
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`can start at 9:00 a.m., go as long as you want, which is not too
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`cumbersome -- too cumbersome to move the deposition.
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`And so the witness, myself has to take all of our friends,
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`had to make sacrifices -- I have some family issues going on right
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`now as well that -- I had to make it to come to the deposition
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`today.
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`The witness owns her own -- owns her own law firm. She’s a
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`solo practitioner.
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`She has someone that helps her out, but she
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`runs the practice.
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`She runs a charity.
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`She’s on vacation in
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`June.
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`And we -- she cut out these two days.
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`And we’ve prepped
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`her today.
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`She’s ready to go tomorrow.
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`And so we just don’t
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`understand why -- why we can’t do the deposition via video
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`conference or by phone, as -- which is -- when these circumstances
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 7 of 24
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`7
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`come up, that is the natural thing -- the natural thing to do.
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`So that’s where we’re left at because we don’t believe that
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`this deposition, which has been ordered for tomorrow, should be
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`unilaterally changed by Juniper.
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`And with a note, Judge Alsup’s
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`standing order, paragraph 26, specifically deals with this. And
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`they -- his order specifically says that, "If counsel is -- that
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`some counsel may be unavailable shall not, however, be grounds for
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`(indiscernible) of the deposition if another attorney from the
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`same firm who represents a party with similar interests is able to
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`attend."
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`Irell is a big firm. They have other people that can attend
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`this deposition by phone or video conference.
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`They could have
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`flown somebody out here yesterday and -- with the exhibits and
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`handled the exhibits that they wanted to.
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`And so, you know, the deposition is scheduled for tomorrow.
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`It should go forward tomorrow.
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`There should not be any further
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`delay, especially given all of the expense and the sacrifice
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`everyone’s had to make to make sure this goes because, you know,
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`(indiscernible) accommodation.
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`So that’s our position, Your Honor, is to have the deposition
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`go forward and then everybody can go back home.
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`MR. MITTLEMAN:
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`Your Honor, may I briefly respond to
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`that, please?
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`THE COURT:
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`You can, but first I have questions.
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`Mr.
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`Hannah, what is the volume of materials that were produced on May
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 8 of 24
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`8
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`28th?
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`MR. HANNAH: It was a privilege log -- oh, on May 28th?
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`Oh, May 28th was a -- it was -- no documents were produced.
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`No
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`documents were produced at all on May 28th. There was one invoice
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`that had three entries cut off and it was -- so I have the full
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`entry and then it says "communications" and then it went off to
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`the next line, and the words cut off were "with client." There’s
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`three entries on that invoice that had that. So we reproduced --
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`so we reformatted it. We had to look at -- we reproduced that to
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`them saying, Okay, here it is.
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`It says "with client" because it
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`was a formatting error.
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`Absolutely no documents were produced
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`late that they had to review.
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`We gave them an updated privilege log that had four emails
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`in them. And so -- but there -- that’s what was given to them on
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`the 28th.
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`There wasn’t any additional production at all.
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`THE COURT: So let me see if I understand. On the 28th,
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`you gave them an invoice that had "with client." Three times that
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`entry’s added and then an updated privilege log that had four
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`additional emails; is that right?
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`MR. HANNAH:
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`Your Honor, just to be clear -- I think
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`we’re on the same page -- but it was on the 27th, we produced the
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`invoice. So they had the invoice in their -- in their possession.
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`They let us -- they told us the morning of or the next morning or
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`afternoon -- I don’t know when -- but they told us the next day,
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`"There’s some cutoffs. These sentences are cut off here." And so
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 9 of 24
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`9
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`then we reproduced that in the -- a proper format.
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`THE COURT: All right.
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`MR. HANNAH: That was all that was produced on the 28th.
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`And then with regard to the privilege log, there’s -- yes, there’s
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`four email chains. There’s no email chain that were -- that were
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`logged on the privilege log.
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`I mean, there’s no -- there’s no
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`huge production or anything that was made late.
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`And, frankly, if you look at the communications, this is --
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`this is a sub-issue.
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`The issue -- the issue was that -- some
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`medical issue that at first was not a big deal and then I’m just
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`not -- I’m not sure -- maybe it’s not a big deal anymore because
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`he (indiscernible) with it.
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`So -- but -- yeah, but actual
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`production, no.
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`THE COURT: When did you -- when were you first informed
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`by Juniper that the -- that Mr. Mittleman’s medical situation was
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`such that he was unable to proceed with the deposition tomorrow?
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`MR. HANNAH: So yesterday when I was on -- I was on the
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`plane yesterday and I think that my partner got the call around --
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`around noon or something like that Pacific Time, and that’s when
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`he talked to him and he said that it wasn’t life-threatening and
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`that the deposition could just be continued. We can talk it out.
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`And then that night when I landed, so it was 10:00 p.m. or
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`10:30 p.m. Eastern, 7 o’clock -- maybe it was earlier, but we got
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`an email from -- from one of his associates stating that they’re
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`withdrawing -- they’re withdrawing the subpoena and that the
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 10 of 24
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`10
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`deposition’s cancelled. And we said, Well, why can’t you just do
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`it on video conference, and there was no answer to that.
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`MR. MITTLEMAN:
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`Your Honor, may I briefly --
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`THE COURT: Hold on.
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`MR. MITTLEMAN:
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`I’m sorry.
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`THE COURT:
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`Did they say they were withdrawing it or
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`just they were unilaterally going to move it?
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`MR. HANNAH:
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`No, no.
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`They said they withdrew the
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`subpoena.
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`That’s what they said in the email -- We are
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`withdrawing the subpoena. And so then we said, Okay. Then we’re
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`going to -- then it’s done. The subpoena’s withdrawn. We’re not
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`going to offer -- we’re not offering any other dates.
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`But as a
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`consolation, if you still want to move forward with this
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`deposition, we’re fine to do it on the phone or with video
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`conferencing.
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`We’ll make the accommodations to make that happen
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`for you.
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`THE COURT: Did they propose any alternative dates? Mr.
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`Mittleman says that he offered 21 other dates.
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`MR. HANNAH: So they proposed the same days that we had
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`issues with and we have -- we have -- they proposed -- they
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`proposed some dates that we have that --
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`MR. MITTLEMAN:
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`(Indiscernible.)
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`MR. HANNAH: I’m sorry?
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`THE COURT: Okay. Mr. Mittleman, at this point you can
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`respond.
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 11 of 24
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`MR. MITTLEMAN: I’m sorry, Your Honor. I shouldn’t have
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`interrupted. I apologize for that. Are you asking me to respond
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`or --
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`THE COURT:
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`Yeah.
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`MR. MITTLEMAN:
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`-- I understand that the latter would
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`make sense as well.
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`THE COURT:
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`Please go ahead.
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`MR. MITTLEMAN: Okay. Thank you, Your Honor. There’s
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`a lot to respond to.
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`As the Court’s order indicates, this is a
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`very important witness. The proposal that she be deposed remotely
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`with me sitting here on muscle relaxants and painkillers, while
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`someone else is trying to manipulate and project the deposition
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`exhibits, is not amenable.
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`This is a very important witness.
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`There are a lot of exhibits.
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`I studied Ms. Bey’s prior
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`deposition, and I know from that deposition what type of witness
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`she is.
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`It’s not going to -- it’s going to require a very, very
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`exacting exchange of documents and it’s not something that I can
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`do remotely.
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`It’s certainly something I would have done if I
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`could have done it, but it’s something I can’t.
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`I have -- after we received Your Honor’s order last week,
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`we tried over and over and over again to find an alternative date.
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`We proposed so many.
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`And as I’ve said, we’ve now proposed 21
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`different days and I will say from my part, in offering those
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`dates I have cut short one of my daughter’s -- her college
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`vacation -- her college (indiscernible). I’ve cut short various
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 12 of 24
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`appearances at my own children’s school holidays at the end of the
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`year. I am bending over backwards to try to find a time that will
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`work for Finjan and her counsel and I’m making many personal
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`sacrifices.
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`And I’m doing that because it’s important to me to
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`depose this witness in person.
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`It’s important for me to sit
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`across the table with her. I am very sorry that these issues have
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`come up.
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`With respect to the documents, it is not the minor issue that
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`Counsel makes it out to be, with respect.
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`It’s a much more
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`significant issue.
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`The document he described as merely adding
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`three more, that’s not accurate. It’s a longer document than the
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`one that was produced earlier.
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`It doesn’t line up with the same
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`entries that were in the prior invoice and requires us to make
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`heads or -- to figure out what exactly it is. It’s not simply the
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`same document with a few words that were unredacted. It’s a new
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`billing I’m looking -- a summary that we’re looking at and trying
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`to make sense of.
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`As far as the privilege log goes, Your Honor, at a quarter
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`to 5:00 last night, we got 14 new entries that deal specifically
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`with priority, specifically with delayed petitions by Ms. Bey for
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`which no documentation was ever previously produced and they show
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`that she -- they’re showing priority communications that we’ve
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`never been made aware of.
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`It shows communications with Finjan
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`about the ’743 patent as a delayed priority petition which is the
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`first time we’ve ever seen any evidence that she discussed that
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 13 of 24
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`patent.
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`So what each of these new privilege log entries require is
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`that we go through what Your Honor noted and create a timeline and
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`look at these entries against the master timeline of when these
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`petitions were filed so that I can have a coherent and succinct
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`line of inquiry.
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`This is something that I think is extremely important to
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`Juniper.
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`It’s extremely important to me as someone who’s been
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`preparing for this deposition.
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`And it’s awkward for me because,
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`as I said, I’ve never once thought of asking for a medical-related
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`accommodation.
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`And I guess it’s my age.
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`I’m turning 50 in a
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`month.
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`But that’s what I’m doing and I’m very disappointed that
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`with 21 other days that I’ve offered, we can’t seem to make
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`headway.
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`And when I offered these days, I’m not told, Ms. Bey
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`can’t do it and we can’t do it. Or Ms. Bey can but we can’t. I’m
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`just told, No.
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`I’m just told no to those 21 days.
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`And I’ve
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`offered to do it on weekends, Your Honor.
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`I mean, I’m really
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`willing to go through hoops, but I have a medical condition right
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`now and I could not get on the plane and I’m seeing a cardiologist
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`on Friday about this, and I’m just flabbergasted that there’s --
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`that my opposing counsel is being so obdurate.
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`I had no intention of inconveniencing anyone.
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`It was the
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`last thing I wanted to do.
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`And I would just conclude by saying
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`that this is a very important witness.
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`The new information is
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`material.
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`It is not a trifling matter. It’s something that I’m
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 14 of 24
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`studying and trying to figure out how it fits into the whole
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`forest.
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`It’s material.
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`It’s not something that we could have
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`even shipped out to Virginia if I’d been in a position to do that
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`and we would have been up all night trying to pour through this
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`and redo the outline.
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`And I’m not in a medical condition to do
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`that. And I don’t know if it’s embarrassing, but it’s regretful.
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`It’s best to say that, but that -- that’s the reality I find
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`myself in.
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`And I really believe that it’s important and
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`appropriate for me to be able to sit across the table with this
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`witness and be able to hand her exhibits and ask her questions.
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`And the proposal that they’ve made is just one that doesn’t work
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`and it’s -- and I believe it’s unreasonable, particularly in light
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`of the fact that the only reason we’re here is because we’ve had
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`to successfully move for a motion to compel four of these
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`documents for this very deposition because it wasn’t -- the
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`information that should have been produced wasn’t produced. And
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`we incurred expenses when we jiggered the schedule to accommodate
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`Finjan.
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`And now that the shoe is on the other foot, I’m deeply
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`chagrined to hear that they’re being so inflexible. I think it’s
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`inappropriate.
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`THE COURT:
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`Okay.
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`Thank you, Counsel.
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`I’m going to
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`order the deposition rescheduled in light of Mr. Mittleman’s
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`medical condition that has arisen.
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`I do think that’s -- it’s
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`unfortunate when things like this happen, but such is life that
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 15 of 24
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`15
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`sometimes on the eve of a deposition something like this happens,
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`and I do think it’s appropriate to reschedule.
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`Mr. Hannah, I’m sorry that you learned about their need to
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`reschedule after you had already arrived in Virginia. But I think
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`this is where we are.
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`We do need to reschedule but, Mr. Hannah, what was wrong with
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`all the other dates?
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`The other side is telling me that they
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`proposed 21 dates I guess in June and you said no to all of them.
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`That doesn’t seem feasible to me.
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`MR. HANNAH: So, Your Honor, so the dates were -- I can
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`just tell you -- the week of July -- of June 10th.
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`There’s
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`international depositions that have to be taken care of, so that
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`week’s out.
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`June 13th, that week is -- Ms. Bey is on vacation until the
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`following week.
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`And then he proposed up to the 25th.
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`And then so if I had
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`to give you alternative dates, it would be the 27th or June or it
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`would be the week of July 8th.
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`Those are the dates that Ms. Bey
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`and -- and the team could be able to do it.
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`MR. MITTLEMAN:
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`Your Honor, if I could just briefly
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`address. I had also offered June 4th and 5th. I’ve also offered
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`July 1st and 2nd.
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`I don’t know if Counsel indicated that I
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`offered the 26th in June as well.
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`But from what I can gather, it sounds like the entire week
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`of the 10th, which we’ve repeatedly proposed, presents nothing of
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 16 of 24
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`a problem for Ms. Bey but simply that no witness from the Kramer
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`Levin firm is willing to attend her deposition that entire week.
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`That to me sounds like what Judge Alsup order is attempting to
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`interdict, not a situation such as mine that arose as a result of
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`a medical emergency.
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`If the week of June 10 is one where Ms. Bey is in fact
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`available and they’re saying -- and that was the week they had
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`proposed to us on Thursday of last week and so we accepted it.
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`And then they took it away.
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`And it appears to be that they’re
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`taking it away not because of anything having to do with Ms. Bey
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`but because they want to take a bunch of international depositions
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`that week.
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`And I think that’s exactly what the standing order
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`from Judge Alsup is designed to interdict.
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`THE COURT: Well, hold on.
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`MR. HANNAH: Your Honor, may I be --
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`THE COURT: Wait, wait, wait.
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`MR. HANNAH: -- heard? In fact, that is --
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`THE COURT: Stop.
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`MR. HANNAH: -- unfair.
`
`THE COURT:
`
`Okay.
`
`So the week of June 3rd -- I guess
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`they have offered the 4th and the 5th.
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`Can that be -- is that
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`workable on your end?
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`MR. HANNAH: No. Ms. Bey -- from what I understand, Ms.
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`Bey moved her commitments because they would not offer -- they
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`wouldn’t let her cut the deposition short tomorrow, so she had to
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 17 of 24
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`17
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`move the commitments to next week.
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`THE COURT: I see.
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`MR. HANNAH: So I’m -- so that was off the table. The
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`June 10th, that’s totally disingenuous for them to come in and
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`say, Okay, for me I get an exception under the rule but for the
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`other side, we don’t.
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`I mean, that’s just -- and there’s no --
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`and that is crazy.
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`So I said June -- she’s on vacation through the 26th. We can
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`do it on the 27th. But there’s no cutoff here. We can easily do
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`it in July.
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`We could do it the week of July 8th. I don’t -- so
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`I don’t see why that week was -- I mean, if we’re going to -- if
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`we’re going to postpone it, let’s postpone it to a week that Ms.
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`Bey is comfortable with and that we’re comfortable with.
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`THE COURT: Hold on.
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`MR. MITTLEMAN:
`
`(Indiscernible.)
`
`THE COURT: Hold on.
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`MR. MITTLEMAN:
`
`I’m sorry, Your Honor.
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`THE COURT: If she’s on vacation until June 26th, could
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`she actually do a depo on June 27th, or would you need to prep her
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`again on the 27th?
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`MR. HANNAH:
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`Well, I would like to -- I mean, what I
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`would probably do is fly out on the 25th, meet her in the evening
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`on the 26th and then do it on the 27th.
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`That’s what I would --
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`that’s a plan that I kind of came up with her ’cause I did -- you
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`know, we did talk about dates. But the preference would be to do
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 18 of 24
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`18
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`it -- I think it would be -- I mean, the 27th would be fine, Your
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`Honor.
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`We could make that work.
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`Or the week of July 8th.
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`THE COURT: Could you do it the 28th of June?
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`MR. HANNAH: I would have to double-check, but probably.
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`THE COURT:
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`And then the week of July 8th is workable
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`for you and the witness?
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`MR. HANNAH: That’s correct.
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`THE COURT:
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`Okay.
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`You did anticipate one of my
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`questions --
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`MR. MITTLEMAN:
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`Your Honor, --
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`THE COURT:
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`-- which is I don’t see a fact discovery
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`cutoff here.
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`Does either side think there is one?
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`MR. MITTLEMAN: Your Honor, I’m advised by my colleague
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`that anything after the first week of July definitely works, given
`
`-- given expert reports that we need to do and some version --
`
`some type of fact discovery. That’s my understanding. And I was
`
`told that beyond the first week of July doesn’t work which is why
`
`I’ve offered to do it July the 1st or the 2nd.
`
`I can’t -- you
`
`know, I’m told by my team that it cannot be the week of the 8th.
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`The 21 days I’ve offered are in June and July 1st or 2nd. If they
`
`can do 1st or 2nd, I will be there. They’ve offered the 27th and
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`that’s -- that’s the one remaining date I’m supposed to be taking
`
`my daughter to look at colleges.
`
`I will cancel that if that is
`
`literally the only day that Finjan’s counsel is willing to do it,
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`although it’s heartbreaking, but I would ask is it really the case
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 19 of 24
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`19
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`that the 4th or 5th or 10th through the 26th and July 1st or 2nd
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`don’t work, that’s what I have to do that for my daughter, I will
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`do it if I have to.
`
`THE COURT: What about June 28th?
`
`MR. MITTLEMAN:
`
`We were going to be in Chicago, Your
`
`Honor.
`
`We were going to be in Chicago from the 25th on, and I
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`would shorten it --
`
`THE COURT: I see.
`
`MR. MITTLEMAN: -- so that I could take the deposition
`
`on the 25th and then fly and meet her in Chicago. But if we push
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`it back in, then I would need to probably cancel that whole thing
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`altogether.
`
`THE COURT: What about --
`
`MR. MITTLEMAN:
`
`And I was really trying to avoid that
`
`and was -- I’m surprised that the 4th and the 5th both don’t work,
`
`the 1st and the 2nd of July don’t work.
`
`THE COURT:
`
`Yeah.
`
`I get it.
`
`Mr. Hannah, can you do
`
`July 1st or 2nd?
`
`MR. HANNAH:
`
`That’s the week that I’m out with my
`
`family. That’s the week that I’m out with my family, Your Honor.
`
`So can I just address the scheduling?
`
`THE COURT: Yes.
`
`MR. HANNAH:
`
`I’m not sure where he’s coming up saying
`
`that there’s some expert reports or anything of that nature that
`
`would be impacted by this.
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`If that’s the issue, we can work
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 20 of 24
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`20
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`together to push back the opening expert report deadline if we
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`need to by three days or four days. So if they’re willing to do
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`it that week, we can do it early the week of July 8th, do it on
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`the -- you know, fly on the 8th, do it on the -- or prep on the
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`8th, do it on the 9th, don’t do it on the 10th. That would just
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`be three days and then we can push back Defense expert opening
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`reports have to be made.
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`So, I mean, we can work that schedule.
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`It sounds like July 8th would be a possible week for everyone and,
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`frankly, the prepping for the witness at this point.
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`She would
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`rather not do it right after her vacation.
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`MR. MITTLEMAN: And, Your Honor, I’m hamstrung because
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`I am available on the 12th and 19th (ph), but I’ve been told that
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`that’s not workable and I certainly don’t want to be an ogre
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`objector.
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`I really want us to work toward getting a deposition,
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`but I’ve been told that after the first week of July doesn’t work.
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`You know, I certainly would go back to them and discuss it with
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`them, but I’m really curious is -- what is the -- the 4th and the
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`5th, both days don’t work, and it may be water under the bridge,
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`but I do note that the only day that they offered, which was
`
`tomorrow, is the one where they say that she has a hard cutoff at
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`4:00 and we wouldn’t even get the full seven hours anyway.
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`So I’m -- it just seems like we’re bending over backwards
`
`trying to accommodate any --
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`THE COURT: Stop.
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`Stop.
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`Stop.
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`MR. MITTLEMAN:
`
`-- day they pick and --
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 21 of 24
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`THE COURT:
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`Stop.
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`Mr. Hannah, is the entire week of
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`June 4th out?
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`MR. HANNAH:
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`Of June 4th?
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`THE COURT: Yeah. You said the 4th and the 5th. What
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`about the 3rd, the 6th, the 7th?
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`MR. HANNAH: I mean, I would have to -- I would have to
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`double-check with the witness.
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`From what my understanding was
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`that she -- she’s had to move things because -- to accommodate for
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`the 30th because we couldn’t -- we couldn’t agree on the time for
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`the cutoff, so she had to move things to next week.
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`So I don’t
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`know -- I don’t know, Your Honor.
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`When I went through the
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`calendar with her out here, she told me that the -- I’m just
`
`giving you the dates that worked for both the calendars. For our
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`calendar, it was the 27th or the week of July 8th. And I believe
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`if we went to her with the 28th -- and I don’t want to upset --
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`frankly, I don’t want to upset Counsel’s vacation with his
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`daughter either.
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`So, I mean, that’s why I’m not sure why we
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`couldn’t work out -- if we got an order from the Court that it had
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`to be during the week of July 8th or it had to be on July 10th, I
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`guarantee that the parties will work out a schedule for the
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`opening expert reports for whatever issues that they have.
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`I mean, frankly, that solves the problem, in my view.
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`THE COURT:
`
`Okay.
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`MR. MITTLEMAN: Unfortunately, because I just don’t have
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`a --
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`Case 3:17-cv-05659-WHA Document 617 Filed 09/30/19 Page 22 of 24
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`THE COURT: Wait. Wait. Okay. I’m going to rule. I’m
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`not going to schedule it for the week of July 8th because I don’t
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`believe you can work anything out.
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`And also this would require
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`Judge Alsup to approve any adjustments you make to expert reports,
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`and I don’t know his appetite for doing that.
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`So I’m going to accommodate the witness’s vacation which I
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`believe is June 17th through June 26 because I don’t think her
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`vacation should be
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