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Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 1 of 32
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`Pages 1-32
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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:
`
`YURIDIA CAIRE, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`JONATHAN S. KAGAN, ESQ.
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`(310) 203-7092
`
`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, July 3, 2019
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 2 of 32
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`2
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`SAN FRANCISCO, CALIFORNIA
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`WEDNESDAY, JULY 3, 2019 10:04 A.M.
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`(Call to order of the Court.)
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`--oOo--
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`THE CLERK:
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`Okay, everyone.
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`This is the Courtroom
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`Deputy.
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`The Judge has taken the bench.
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`I’m going to call the
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`case and then ask you to state your appearances. So we are here
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`on Civil Action 17-5659, Finjan, Inc. v. Juniper Networks, Inc.
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`Counsel, please state your appearances for the record. Let’s
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`start with the Plaintiff.
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`MS. CAIRE: This is Yuridia Caire from Kramer Levin on
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`behalf of Finjan.
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`MR. KAGAN:
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`Jon Kagan of Irell & Manella representing
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`Juniper Networks.
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`THE COURT: Good morning, Counsel. We are here on the
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`joint discovery letter brief at ECF No. 860 (sic). I just thought
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`I would tick through the various items, starting with Finjan’s
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`Interrogatory Number 4.
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`Juniper’s response is a Rule 33(d)
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`reference.
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`Mr. Kagan, can you explain how Finjan can look at the charts
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`you provided and determine the number of users per year of the
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`accused instrumentalities, including the number of users for any
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`specific component of it?
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`MR. KAGAN: Sure. Well, so there are two spreadsheets
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`We only provided an excerpt from one.
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`I can describe the other
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`one to you, Your Honor. But essentially when -- the spreadsheets
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 3 of 32
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`3
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`are divided up by what are called the free product and the premium
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`product.
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`So in the free product -- and that’s where the excerpt
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`is located -- there is -- for every free license that was granted,
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`there is -- the information that we provided of course included
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`the -- the SKU, the date.
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`Then there’s a serial number that
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`corresponds to another document that shows where the -- who the
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`end user is, the purchaser for each serial number.
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`On the other spreadsheet, which is for the pay licenses,
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`there’s actually a category on that spreadsheet that identifies
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`the customer directly, so the -- the column heading there is
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`called "End Customer - Long CAT (ph)." And so I’m looking at the
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`spreadsheet now, and so the last column for the first entry says
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`"Acme Networks, Ltd."
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`And the second entry says by date (ph)
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`Finland.
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`So on the bigger spreadsheet directly included on the smaller
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`spreadsheet, there’s a unique serial number that it uses to
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`identify the end purchaser.
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`THE COURT:
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`Oh, I see.
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`So the spreadsheet that’s not
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`excerpted provides the link from serial number to end user; is
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`that right?
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`MR. KAGAN:
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`There is a separate -- yeah, that’s a
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`separate docket.
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`The docket that I was referencing, that I was
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`just reading from, is actually -- there’s three documents total.
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`One is the premium licenses, one is the paid licenses, and then
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`there’s another document that links serial numbers to end users.
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 4 of 32
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`4
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`THE COURT: And how does it show user per year? I see
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`the ship date but then, beyond that, are you just assuming it’s
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`used continuously since the ship date?
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`MR. KAGAN:
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`That’s correct.
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`We don’t -- we don’t
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`actually have documents where we track which user is using how
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`much.
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`So the documents we did provide just show essentially the
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`date that they got the product and we’re assuming they used it
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`starting on that date.
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`THE COURT:
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`Okay.
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`Finjan, can you respond?
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`It seems
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`like -- from what they’re saying, it seems like you could figure
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`this out from the two spreadsheets.
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`MS. CAIRE:
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`Well, Your Honor, it’s actually more than
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`just two or three spreadsheets. It’s -- and if you listen to Mr.
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`Kagan’s explanation, it’s a little bit hard to follow, but
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`basically we’re trying to match up one serial number to another
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`spreadsheet -- and then what Mr. Kagan didn’t address was the SRX
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`pay -- the ones that are associated with pay Sky ATP version. And
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`the last spreadsheet, they’ve identified one spreadsheet -- which,
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`if you look at their responses, the one ending in 819 -- as being
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`the documents that identifies SRXs that were shipped with the pay
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`Sky ATP version, and then there’s another spreadsheet that you’re
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`supposed to match up serial numbers with to what’s been activated.
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`And there’s about 3,500 rows in the one that’s activated and
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`then there’s about 2500 rows in the one that was SRXs that were
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`just shipped but that were associated from the paid version.
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 5 of 32
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`5
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`And so there’s a disconnect there. And having to go through
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`and sort through all of these rows and match up the serial
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`numbers, it’s very confusing, Your Honor, and we think that since
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`it’s their information, they obviously have the ability to talk to
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`their clients and decipher this information and provide an actual
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`response.
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`THE COURT:
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`If there is --
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`MS. CAIRE: And I would just like to say one more thing
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`about this is there’s also, at least from what I reviewed, there
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`is advertisements which would be in our footnote in our letter
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`where they provide a pretrial version -- or, you know, like a 30-
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`day or 60-day version of Sky ATP -- and we didn’t seek those --
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`you know, the users that were associated with those versions
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`anywhere in any of these, you know, four -- four by spreadsheets.
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`THE COURT:
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`Can you address that, Mr. Kagan?
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`MR. KAGAN:
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`Yeah.
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`So there’s really just two
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`spreadsheets and I’m not sure where the numbers are coming from.
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`We are talking about end users.
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`So any of the -- any of the free licenses and the premium
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`licenses are going to be included in the spreadsheet we excerpted.
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`And there a total of 373 of those for the relevant time period.
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`That’s all.
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`And the other spreadsheet, which shows -- so that’s anything
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`from which it’s a free license, including a trial license.
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`For
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`the other spreadsheet, there are a total -- there are more
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 6 of 32
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`6
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`entries.
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`And I’m scrolling through it right now to get to the
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`bottom.
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`There are a total of 1792 entries, but in that spreadsheet,
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`the end users are actually identified by a column. So the total
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`number of times that Finjan would have to look up a serial number
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`is just for those free licenses, and that’s on that 373.
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`THE COURT:
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`Okay.
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`So the other one lists the devices
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`and then has the users on it; is that right?
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`MR. KAGAN:
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`Yes.
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`Yeah.
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`So in Column L of the other
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`spreadsheet, it actually has the user name when matched -- for the
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`free licenses which is on the excerpted one where we don’t
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`directly track that and have to reference it by serial number.
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`THE COURT:
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`And what are the last three Bates numbers
`
`on the one that -- the pay -- the premium, what you are talking
`
`about?
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`MR. KAGAN: So I believe the 079 -- yes, 079.
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`THE COURT: Okay. So then let me ask for Finjan, what’s
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`wrong with Document 079?
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`MS. CAIRE: Well, Your Honor, I’m looking at the fourth
`
`supplemental response to Rog. 4 and this is what I was referencing
`
`with respect to the 3,000 and maybe to 2500. But, you know, Mr.
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`Kagan just said that there were 1700 entries in the 079 document,
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`and I’m sorry.
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`I didn’t follow how that went with the 372 from
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`his other spreadsheet that he was referencing.
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`Which -- could we also get the Bates number for that to make
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 7 of 32
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`7
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`sure we’re on the same page?
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`THE COURT:
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`I think they’re different things.
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`373 in
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`the spreadsheet that’s excerpted in the letter is the free Sky ATP
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`license. Whereas the 079 document is the premium Sky ATP license.
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`MS. CAIRE: Okay.
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`MR. KAGAN: That’s correct.
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`MS. CAIRE: Got it, Your Honor. Yes. And so that’s not
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`addressing what I’m raising, which is with respect to the SRX
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`devices that go with the pay part of Sky ATP which is in their
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`fourth supplemental and it’s on pages 12 and 13 on their fourth
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`supplement.
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`THE COURT:
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`Which -- which exhibit are you -- which
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`exhibit are you talking about now?
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`MS. CAIRE: That would be included as 1, I believe.
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`THE COURT:
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`Fourth supplemental response.
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`And which
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`Bates number are you talking about?
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`MS. CAIRE: It’s page 12.
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`THE COURT: Uh-huh.
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`MS. CAIRE:
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`It goes from the end of page 12 and onto
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`page 13.
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`The corrected fourth supplemental response.
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`THE COURT: So you’re talking about 819 or 817?
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`MS. CAIRE: Both, Your Honor, because this is where --
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`819 has about 2500 rows. 817 has about 3400 rows. And from their
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`response here, it says that you’re supposed to look at 819 to see
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`any SRX that was (indiscernible) with a pay Sky ATP and then look
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 8 of 32
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`8
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`at 817 and match up serial numbers to figure out which ones were
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`activated.
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`And the numbers don’t match up, so it would just be
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`easier for Juniper to say there were this many SRX devices that
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`correlated to a paid or a free version.
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`THE COURT: Mr. Kagan, is the discrepancy that not all
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`of them that were paid for were activated?
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`MR. KAGAN: Yes. We know -- I’m not sure if that’s 100
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`percent of the discrepancy.
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`We also have things like returns,
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`defective products, so there’s a number of reasons why the numbers
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`may not correlate but one of them is certainly that it requires a
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`user activation and we know for a fact that not every user that is
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`eligible to activate actually activates.
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`THE COURT: So but you say the 817 document is the ones
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`that you know were used?
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`MR. KAGAN:
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`We can’t say for certain that they were
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`used, but they were sold.
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`Those were certainly sold.
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`So if we
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`look at make, use, or sell, the terms in patent liability, those
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`would all be a subject of a (indiscernible).
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`THE COURT: I’m just looking back at Rog. 4.
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`MR. KAGAN:
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`We would presume they use, but we don’t
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`actually track that data.
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`THE COURT:
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`Okay.
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`So the log as to the accused
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`instrumentalities sold and then the number of users each year, are
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`you saying that the number of users each year is -- that’s
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`imperfectly captioned in your data because you don’t really track
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 9 of 32
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`9
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`that?
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`MR. KAGAN: Yes.
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`THE COURT: Okay.
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`MR. KAGAN: There are a number of problems as to why we
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`don’t track the number of users, but we simply don’t track that
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`data.
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`THE COURT:
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`Okay.
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`Well, Finjan, given what -- do you
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`have any indication that they track it or that they’re saying they
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`don’t track?
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`MS. CAIRE: Well, they definitely have information about
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`who has signed up and who has paid for something. And so, at the
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`very least, they could identify that.
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`Just going back to these spreadsheets, Your Honor, the
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`discrepancy is that there appear to be, at least just looking at
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`the number of rows, more activation than SRXs that were shipped.
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`And so that’s kind of where the disconnect is occurring. And so
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`that’s why we’re asking them to provide a complete response rather
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`than having to match things up on different spreadsheets.
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`THE COURT: I thought you were saying that 819 has more
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`rows than 817.
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`MS. CAIRE:
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`No.
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`I’m sorry if I misspoke, Your Honor.
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`819 has 2500 rows and that’s supposed to be the one that
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`identifies the ones that were shipped.
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`And then the document
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`ending in 817 had about 3500 rows.
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`THE COURT:
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`Oh, I see.
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`Mr. Kagan, why would 817 have
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`more rows than 819?
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`MR. KAGAN: Well, one of the things in terms of number
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`of rows -- and I’m not a hundred percent certain -- but in 817,
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`where we have multiple activations, we put them on the same row.
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`So, for example, I’m looking at Row 200. There were 88 products
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`that are captured on that one row.
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`So the customer there is
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`Yahoo. And they purchased or they -- they did 88 activations. So
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`that’s a single row, and it could be that when -- when we’re
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`tracking by individual device, we will track -- we may track it
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`separately because it’s a per device unit.
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`This is -- this is
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`sort of amalgamating by customer.
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`THE COURT: So -- wait.
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`So look at the rows --
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`MS. CAIRE: I’m sorry, but --
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`THE COURT:
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`Can I -- in 817, did the rows represent
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`customers, or what did the rows represent?
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`MR. KAGAN:
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`So there the rows represent -- it has a
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`customer -- they’re essentially amalgamated by customer but also
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`by ship, so there could be -- there could be an instance where the
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`same customer gets two different shipments and those might be on
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`separate rows.
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`I’m not certain about that.
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`But where we have multiple instances of a customer purchase,
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`we generally
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`amalgamate then into a single line on that
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`spreadsheet.
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`THE COURT:
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`And so then what did the rows in 819
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`represent?
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`MR. KAGAN: I don’t have 819 in front of me. I believe
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`819 is by device. But I’m not a hundred percent certain of that,
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`Your Honor.
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`THE COURT:
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`Well, if you’re not quite sure what these
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`rows represent, what is Finjan supposed to do with this?
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`MR. KAGAN:
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`Well, what we did was 817 was the last
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`document we produced where we said, Look, this is for this
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`particular type of information you’re looking for, which is you
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`want to know the number of customers. So that’s what we said to
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`them. This is the spreadsheet that you could look at to get that
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`data.
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`We reference other data on other spreadsheets.
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`And so
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`because of the formatting of that, it may be different. But what
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`they asked for, they said, Tell us the customers.
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`So we’ve
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`produced this spreadsheet that shows exactly by customer what they
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`purchased, when they purchased it, number of licenses, how much
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`they paid.
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`So that spreadsheet answers that question.
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`There are other questions that they’ve asked about the data
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`where we’ve produced different spreadsheets. It’s all coming from
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`the same data pool.
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`In other words, there’s one database that
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`we’re pulling all the information from.
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`It’s just represented
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`differently.
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`THE COURT:
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`Oh, I see.
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`MR. KAGAN:
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`So --
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`THE COURT:
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`So Rog. 4 asks about the number of units
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`that were sold, and that I guess would be 819, and then it asks
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 12 of 32
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`about the number of the users, and that would be 817?
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`MR. KAGAN: Yeah. 817 is actually the number of users.
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`And I’m not exactly sure the particular request that they asked
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`for which we generated 819. It’s going to show the information in
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`a different format.
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`THE COURT: Okay.
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`Finjan, can you respond to that?
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`MS. CAIRE:
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`Sure, Your Honor.
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`So I wasn’t sure which
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`spreadsheet Mr. Kagan was referring to with respect to Yahoo, but
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`I was looking at the 819 and I understand that Your Honor doesn’t
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`have it in front of him, so -- but I’m looking at the columns and
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`there’s not a quantity listed there.
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`It’s just SKU, ship date,
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`and customer type, net price, cost, and country.
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`And then this is supposed to be the number of SRX devices
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`that were shipped with -- you know, with some sort of paid Sky ATP
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`license attached to it.
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`And then we’re supposed to, from their
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`discovery request is what they tell us, is to go to the other
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`spreadsheet and determine whether or not the customer actually
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`activated to find out I’m assuming the number of users.
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`And so
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`why there would be one device -- you know, a certain number of
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`devices but then a certain number of activations still doesn’t
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`make sense to me.
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`You know, still having to match up serial
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`numbers to another spreadsheet is very tedious.
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`And we want to
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`make sure we’ve got the right information.
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`THE COURT:
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`Well, I get the tediousness point.
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`But
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`doesn’t 819 tell you how many users and -- sorry -- how many units
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 13 of 32
`
`13
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`were sold in 817 and how many users?
`
`MS. CAIRE:
`
`817 is supposed to tell us the number of
`
`users -- or not the number of users, Your Honor -- the dates that
`
`the SRX actually activated these license to Sky ATP. That’s what
`
`they said in their response is what the purpose of 817 is.
`
`THE COURT:
`
`Oh, I see.
`
`Can you speak to that, Mr.
`
`Kagan? It’s a little hard with me not having this in front of me.
`
`MR. KAGAN:
`
`I understand.
`
`And if Your Honor wants us
`
`to provide these, we can. But I think by describing the problems,
`
`we may be able to get around it.
`
`817 shows everything amalgamated by customer and by shipment.
`
`So that’s why we have -- because what they were asking for there,
`
`we understood, was what’s the number of users -- who are the users
`
`of this product?
`
`So that’s what we gave them in 817.
`
`We gave them the spreadsheet with the (indiscernible) and the
`
`paid licenses.
`
`We gave them the other spreadsheet with the 373
`
`users earlier, and that’s why that only has serial numbers which
`
`are making them match up.
`
`So as far as -- we’re trying to make it as easy as possible
`
`for them to, you know, pull this data. And I think it -- I don’t
`
`think it’s that difficult -- and I appreciate that Your Honor
`
`doesn’t have 819 in front of him.
`
`But I’m telling you the last
`
`column -- and Finjan can probably confirm this -- it has the
`
`identity of the customers.
`
`THE COURT: So --
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 14 of 32
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`14
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`MR. KAGAN:
`
`So there are --
`
`THE COURT: So -- sorry. This 817 -- does 817 both have
`
`date and user?
`
`Is it meant to show both of those?
`
`MR. KAGAN:
`
`There is --
`
`MS. CAIRE:
`
`Your Honor, I can address that we did say
`
`that there would be end user on both of those spreadsheets.
`
`At
`
`least from their discovery response, what they say the purpose of
`
`it -- and these are all in response to Rog. 4 -- which was that
`
`what are the number of units and the number of users for the
`
`accused products.
`
`And so they said, Look, if you want to find out the number
`
`of SRX devices that were shipped with a pay license, look at 819.
`
`THE COURT:
`
`Right.
`
`MS. CAIRE: If you want to look at when the activation
`
`of the license occurred, look at 817.
`
`So as far as identifying
`
`customers, neither of those in fact is what the purpose is, at
`
`least from what they -- from what Juniper has said in their
`
`discovery response.
`
`THE COURT:
`
`Right, 817 has the user in it; right?
`
`MS. CAIRE:
`
`Right.
`
`And so does 819, Your Honor.
`
`The
`
`difference was supposed to be that somebody activated the license.
`
`But -- which doesn’t make sense.
`
`Why would there be more
`
`activations than devices shipped?
`
`THE COURT: Oh, I see. Mr. Kagan, can you explain that?
`
`MR. KAGAN: Well, I can explain some of it, but I don’t
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 15 of 32
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`15
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`-- but this is sort of a different issue.
`
`But a lot of the
`
`activations are actually internal Juniper activations. So within
`
`Juniper, then when there is an activation, that has to be tracked
`
`as well. So we can do a product -- there’s no end user. There’s
`
`no customer. It’s an internal Juniper product. And that’s being
`
`activated
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`And that’s certainly -- we know that there are a number of
`
`activations that have not -- kind of forced on customer shipping.
`
`THE COURT: Oh, I see.
`
`MS. CAIRE: Sorry, Your Honor. Can I just address that?
`
`THE COURT: Yes. Sure.
`
`MS. CAIRE:
`
`These are supposed to be paid for Sky ATP
`
`purchase, and I didn’t see Juniper listed as a customer in any o
`
`these.
`
`So I’m not sure --
`
`THE COURT: Well, they’re not a customer.
`
`MS. CAIRE: Right.
`
`THE COURT: He’s saying that they --
`
`MS. CAIRE: And then they -- they don’t show up in the
`
`row either. And I don’t understand why they would be in the case
`
`spreadsheets.
`
`THE COURT: I thought he was just saying there was some
`
`kind of internal activation within Juniper.
`
`MS. CAIRE: For the paid version? We would like to know
`
`what the -- what customer name that would be under because I think
`
`we continue representing Juniper in this particular way.
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 16 of 32
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`16
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`THE COURT:
`
`Right.
`
`Is it -- Mr. --
`
`MR. KAGAN:
`
`I think Juniper units are generally
`
`represented in the -- I think most of the Juniper users would be
`
`represented on the 373 that were in the -- on the smaller
`
`spreadsheet.
`
`THE COURT:
`
`So let me see if I can -- let me just ask
`
`Finjan:
`
`Is the -- is the issue here that there are more
`
`activations in 817 than in 819 and you want that discrepancy
`
`explained?
`
`MS. CAIRE: Yes, Your Honor. That’s part of it. That
`
`was one of the things -- we’re trying to figure out how many SRX
`
`devices went with the paid part.
`
`You know, we realize that they
`
`claim that there were records to activate the ships and that were
`
`actually tied to an activation. And so we’re trying to understand
`
`that discrepancy.
`
`And giving us time to understand the spreadsheet, it just
`
`seems like if they would just provide the actual numbers
`
`themselves, it would be a lot easier than us having to go through
`
`it and decipher these things.
`
`THE COURT: What are the other -- so one issue is that
`
`you don’t understand why there are more activations in 817 than
`
`819.
`
`What are the other issues you don’t understand?
`
`MS. CAIRE: Just trying to -- their response says that
`
`we should match up serial numbers.
`
`And so we weren’t sure why
`
`they were referencing having to match up serial numbers.
`
`And
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 17 of 32
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`17
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`so --
`
`THE COURT:
`
`I thought -- I thought the serial numbers
`
`were for the 373 that were free.
`
`MS. CAIRE:
`
`It was also with respect to these, Your
`
`Honor. The response at the end of page 12, it says that we should
`
`match up serial numbers to find out when the particular license
`
`was activated for the date.
`
`THE COURT: Oh, that’s on page 13 it looks like.
`
`MS. CAIRE: The last sentence.
`
`THE COURT:
`
`Oh, the date that it was located -- well,
`
`yeah.
`
`That’s 817.
`
`MS. CAIRE: Right. We’re supposed to match that serial
`
`number with the serial numbers that were in 819 which were the
`
`dates that these things were shipped.
`
`THE COURT: Okay.
`
`And what’s the confusion there?
`
`MS. CAIRE:
`
`Not necessarily a confusion, Your Honor.
`
`More that the rows don’t match and we don’t know if when we’re
`
`going through that task, whether that’s actually going to be
`
`something we can do.
`
`And so that’s why with all of these
`
`different spreadsheets that were identified, we wanted them to
`
`just provide the actual numbers.
`
`If they’re able to provide the discrepancy and how we’re
`
`supposed to do it, then that would be fine, too.
`
`THE COURT:
`
`So far, the only discrepancy you’ve
`
`identified is why there were more activations in the 817 than the
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 18 of 32
`
`18
`
`819, and the rest you’re just saying takes a lot of work.
`
`Are there other discrepancies you need explained?
`
`MS. CAIRE:
`
`Well, also to figure out which of the --
`
`none of these spreadsheets tie in the virtual version, the SRX,
`
`with the free trials that are given.
`
`And so we’d like to know
`
`where those users for the people that signed up for free trials or
`
`that were given free trials is located.
`
`THE COURT: Do you mean like the free trial as part of
`
`a bundle?
`
`MS. CAIRE:
`
`No, not as a bundle, Your Honor.
`
`They
`
`advertise that when you buy the virtual version of SRX, you
`
`automatically get 30 -- I don’t remember if it’s 30 days or 60
`
`days free of Sky ATP.
`
`After that, I think you have to pay to
`
`continue using that.
`
`And so we haven’t seen the activation with
`
`respect to that.
`
`THE COURT: Mr. Kagan, can you speak to that?
`
`MR. KAGAN: The best thing I would say, Your Honor, is
`
`these are things that did not come up during the meet-and-confer.
`
`The best thing I can say -- you know, we’re happy to try to answer
`
`those questions.
`
`I can go back and get information from the
`
`engineers and from the financial people on exactly where these
`
`things show up.
`
`I honestly cannot do it on this -- on this call
`
`because I would not want to give a less-than-complete answer.
`
`THE COURT: Okay. Just to make sure I’ve got the right
`
`terminology, is it if they buy a virtual version of Sky ATP and
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 19 of 32
`
`19
`
`your question, Finjan, is where does the free trial show up?
`
`MS. CAIRE: No, Your Honor. The virtual SRX, the SRX.
`
`THE COURT: And --
`
`MS. CAIRE:
`
`And the other thing -- I’m sorry -- but I
`
`don’t have --
`
`THE COURT: And then what did -- sorry. Then they get
`
`a free trial to Sky ATP; is that the idea?
`
`MS. CAIRE: Yes.
`
`THE COURT:
`
`Okay.
`
`And then what else do you -- is
`
`unclear to you?
`
`MS. CAIRE:
`
`One more thing, Your Honor.
`
`In their
`
`position of their brief, they said that they included instances
`
`where it was sold as a bundle.
`
`And so they have these bundles
`
`that -- I stated and I put it in the footnote of the letter
`
`briefing -- you know, we wanted to make sure that they had
`
`provided all instances where it was included in the bundle.
`
`THE COURT: And, Mr. Kagan, I thought you said you did.
`
`MR. KAGAN: I -- I believe, based on the -- encompassed
`
`in one or the other on the spreadsheet; in other words, every
`
`activation or use would be captured somewhere.
`
`So it -- I don’t believe there’s any -- any -- for this
`
`bundling, instances are excluded from the data we provided.
`
`I
`
`mean, if there’s some reason to -- if there’s some reason to
`
`believe there is, I’m happy to investigate.
`
`I’ll be taking all of these questions, Your Honor -- this is
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 20 of 32
`
`20
`
`really not something that has been keyed up in terms of putting
`
`this information in front of you.
`
`The information -- the problem with this request, I thought,
`
`and the reason that we were coming in front of you, was Finjan was
`
`saying, We need to figure out who the users are. Now what they’re
`
`essentially doing is raising a number of other issues, which I
`
`think it would actually be a benefit for us to meet and confer
`
`where they can ask us, Why is there a discrepancy, and we can
`
`investigate it. We’re -- I’m essentially being asked now on this
`
`call for the first time these questions from Finjan which really
`
`are unrelated to the question of who -- what is the number of
`
`customers.
`
`Now they’re just asking questions where they have
`
`issues that I think are unrelated to the actual number of
`
`customers.
`
`THE COURT: Okay.
`
`MS. CAIRE: Your Honor, could I respond to that, please?
`
`THE COURT: Sure.
`
`Go ahead.
`
`MS. CAIRE: Yes. So, Your Honor, we actually did meet
`
`and confer on these issues and we’ve actually put it in our -- in
`
`our letter briefing what the issue was, and they responded and
`
`provided what they said includes instances where Sky ATP was sold
`
`as part of a bundle.
`
`But that didn’t address our concern about
`
`the virtual.
`
`It completely ignored that.
`
`And it also -- the
`
`language that was used was -- included inferences, so that doesn’t
`
`actually say whether or not they produced everything.
`
`And so I
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 21 of 32
`
`21
`
`don’t believe that Mr. Kagan’s statement about not meeting and
`
`conferring about these is accurate because it’s clearly in our
`
`letter briefing.
`
`It’s not something we just said with Juniper
`
`previous to today.
`
`THE COURT:
`
`Okay.
`
`Fair enough.
`
`I do think, though,
`
`that we’re having a good discussion about discrepancies where
`
`Finjan isn’t able to understand the 33(d) reference.
`
`And, Mr.
`
`Kagan, there are some things that maybe you’re trying your best
`
`where you don’t have the answers ready at hand. This does sound
`
`to me like the parties need to meet and confer some more and, Mr.
`
`Kagan, you may be able to answer Finjan’s questions. So I think
`
`I’m going to -- I’m likely to direct the parties to do that.
`
`MR. KAGAN: Very well, Your Honor.
`
`THE COURT: Let’s move on. The RFPs 119, 121, this is
`
`a question for Finjan.
`
`They say they gave you raw data and they
`
`don’t have anything more in terms of documents they could give you
`
`to identify the total number of files submitted to or processed by
`
`Sky ATP.
`
`Focusing on the RFPs, you know, they’re not obligated to
`
`create new documents. Do you have any reason to think they have
`
`more in terms of documents? I’ll get to the Rog. in a second but,
`
`in terms of documents, is there anything else they could give you?
`
`MS. CAIRE: Well, with respect to the information that
`
`they produced, Your Honor, they produced it on a source code
`
`computer.
`
`And so we do believe that they could actually provide
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`Case 3:17-cv-05659-WHA Document 621 Filed 09/30/19 Page 22 of 32
`
`22
`
`that to us rather than having to go through the source code
`
`computer.
`
`So that would be one thing.
`
`And the fact that they had created documents previously where
`
`they said that they were able to identify 40 percent of the
`
`samples being analyzed for dynamic analysis, and so we assume
`
`there would be a document associated with that. If there isn’t,
`
`then they need to represent that. But that was where we’re coming
`
`with respect to documents, Your Honor.
`
`THE COURT: I see. And, Mr. Kagan, it sounds like with
`
`the prior analysis, I mean, you could create a document and maybe
`
`you will later on but you haven’t yet and you don’t think you’re
`
`obligated to.
`
`Is that right?
`
`MR. KAGAN:
`
`Yes, although a slight caveat.
`
`We did
`
`actually do some more analysis for Finjan in response to the
`
`interrogatories.
`
`So we did ask -- we did have an intern that we
`
`put on the project to determine the number of files that were
`
`processed by each adaptor. This was a new discovery interrogatory
`
`last month.
`
`Now, we responded July 1st.
`
`So we actually did some
`
`additional
`
`analysis
`
`which
`
`we
`
`provided
`
`in
`
`response
`
`to
`
`an
`
`interrogatory about the number of files that are analyzed by each
`
`adapter.
`
`THE COURT: Okay. I didn’t see a reference to that in
`
`the letter brief, though.
`
`MR. KAGAN: There was not. We -- it was a more recent
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