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Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 1 of 21
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`Pages 1-21
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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:
`
`PAUL J. ANDRE, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`JOSHUA P. GLUCOFT, ESQ.
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`(310) 277-1010
`
`REBECCA L. CARSON, ESQ.
`Irell & Manella, LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660
`(949) 760-5200
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Friday, July 26, 2019
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 2 of 21
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`APPEARANCES:
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`(Cont’d.)
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`Transcription Service:
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`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 3 of 21
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`SAN FRANCISCO, CALIFORNIA FRIDAY, JULY 26, 2019 2:05 P.M.
`
`(Call to order of the Court.)
`
`--oOo--
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`THE CLERK: The Judge has taken the bench. We’re here
`
`in Civil Action 17-5659, Finjan, Inc. v. Juniper Networks, Inc.
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`Counsel, please state your appearances for the record.
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`We’ll
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`start with the Plaintiff.
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`MR. ANDRE: Paul Andre for Plaintiff Finjan.
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`MR. GLUCOFT:
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`Josh Glucoft of Irell & Manella for
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`Juniper Networks.
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`MS. CARSON: And Rebecca Carson of Irell & Manella also
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`representing Juniper Networks.
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`THE COURT: Good afternoon, Counsel. I understand that
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`Juniper requested this hearing so, Mr. Glucoft or Ms. Carson, can
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`you please key up the issue for me?
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`MR. GLUCOFT:
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`Yes, Your Honor.
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`Thank you.
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`So it’s a
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`pretty simple scheduling issue that we have specifically related
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`to expert depositions.
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`And there’s going to be two batches of
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`experts I’d like to address.
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`Just for context, the Court had set the schedule pretty tight
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`and there are summary judgment filings coming up on August 8th.
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`Finjan, we simply need their expert reports, including from two
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`experts -- one, Dr. Medvidovic; another, Dr. Mitzenmacher. Finjan
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`has only made those two experts available well after summary
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`judgment
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`is
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`due;
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`specifically,
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`they’re
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`only
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`offering
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`Dr.
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 4 of 21
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`Medvidovic on August 16th. They’re only offering Dr. Mitzenmacher
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`on August 23rd.
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`So the first sort of batch of experts that we
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`would request the Court’s help with is to make those experts
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`available for our summary judgment motion on the (indiscernible)
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`is due.
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`THE COURT: Can you back up. For the two experts, can
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`you spell their last names for me.
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`MR. GLUCOFT:
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`Yes.
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`Medvidovic is M as in "Mary" -e-d
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`as in "dog" -v as in "victor" i-d as in "dog" -o-v-i-c,
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`Medvidovic.
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`THE COURT: And he’s the one available on August 23rd;
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`is that right?
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`MR. GLUCOFT:
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`Medvidovic is available on August 16th.
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`THE COURT: Okay.
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`I’m sorry. Okay.
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`MR. GLUCOFT: And the other expert is Dr. Mitzenmacher.
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`Again, M as in "Mary" i-t as in "Tom" -e-n as in "Nancy" -m as in
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`"Mary" -a-c as in "cat" -h-e-r, Mitzenmacher.
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`THE COURT:
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`I’m sorry.
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`You completely lost me there.
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`Can you do that again.
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`MR.
`
`GLUCOFT:
`
`Sure
`
`--
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`M-i-t-z-e-n-m-a-c-h-e-r,
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`Mitzenmacher.
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`THE COURT: Got it.
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`Okay.
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`MR. GLUCOFT: He’s the expert that’s being offered only
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`on August 23rd, which is not only after opening summary judgment
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`deadlines which is due on August 8th.
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`August 23rd is actually
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 5 of 21
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`after summary judgment replies are due on August 22nd.
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`So the
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`first batch of experts that we’re asking for relief on are Dr.
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`Medvidovic and Dr. Mitzenmacher where we would like to depose them
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`before our summary judgment motion is due, and we believe we have
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`a right to use them.
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`THE COURT: And what’s the deadline for expert discovery
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`to close?
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`MR. GLUCOFT:
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`Expert discovery closes on August 23rd.
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`So they’re offering Dr. Medvidovic on the last day.
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`THE COURT:
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`Okay.
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`And what’s the other request you
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`have?
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`MR. GLUCOFT:
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`So opposition expert reports are due on
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`August 16th.
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`And as it currently stands, Finjan has offered,
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`other than -- so in their opening report, they have five experts
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`that -- excuse me -- six experts. And five of them, all of them
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`except for Dr. Medvidovic -- which they’re offering on August 16th
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`-- five of them are being offered in that final week, specifically
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`the week of August 19th through the close of expert discovery on
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`August 23rd.
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`And so -- including four of them which they’re
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`suggesting are double-tracked, two on August 20th, two on August
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`22nd.
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`So they’re trying to force us to take all five of those
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`expert depositions in that same week, which doesn’t even account
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`for the fact that both sides have opposition experts. We will at
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`least have two opposition expert reports coming out on August 16th
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`and presumably Finjan will have additional experts, although we’re
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 6 of 21
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`not certain who.
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`And so right now, we’re already looking at a
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`minimum of seven expert depositions that final week of expert
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`discovery as they’re not offering any flexibility in a single day
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`for each expert, with no -- with no ability to schedule and not
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`even double-track.
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`So for the experts that are not submitting opposition reports
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`on August 16th, we are requesting that they be made available
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`before that final week so that we don’t end up having seven,
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`eight, nine expert depositions all in that final week as there are
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`three experts --
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`THE COURT: I see. But you acknowledge that if Finjan
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`is expecting one of its opening experts to also be an opposing
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`expert and they only want to make the person available for a
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`single deposition, you’re not asking for those experts to be made
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`available earlier.
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`It’s just the ones where it’s an open expert
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`but not an opposing expert; is that right?
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`MR. GLUCOFT: That’s exactly correct. And so they use
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`three experts for damages-related issues; specifically, Dr.
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`Goodrich, Flaherty (ph), and Pellegrino, and we would assume,
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`because they don’t have any damages reports for fraud, that their
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`damages -- that those damages experts are not also submitting
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`opposition reports. So those are the experts that we would think
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`are best targeted for rescheduling before opposition expert
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`reports are due.
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`But anyone else, certainly if they submitted
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`both opposition -- an opening and an opposition report, we’re only
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 7 of 21
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`-- we are okay with deferring and doing it all that last week.
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`We’re just trying to clear some wiggle room that last week.
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`Otherwise,
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`it’s
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`not
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`--
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`it’s
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`not
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`manageable,
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`including
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`logistically.
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`So, for example, they’ve offered two experts on August 22nd
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`in
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`Menlo
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`Park,
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`California
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`and
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`then
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`another
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`expert,
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`Dr.
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`Mitzenmacher, in Boston on August 23rd.
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`And just as a sheer
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`practical issue, the logistics don’t work for us.
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`But we
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`understand that there are different considerations with respect to
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`Drs. Medvidovic and Mitzenmacher which we think need to be
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`expedited to occur before summary judgment is due, whereas the
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`other ones could easily occur the week of August 12th.
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`THE COURT: With respect to the first batch, Medvidovic
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`and Mitzenmacher, can you just hum a few bars about why you need
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`to depose them before you file an MSJ?
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`MR. GLUCOFT: Sure. So they’ve each filed -- or, excuse
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`me -- they’ve each served reports for an incident related -- each
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`one of them with respect to a different patent. And we’re filing
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`for summary judgment of non-infringement on the patents that those
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`two experts have opined on. And so obviously we need to be able
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`to -- we need to be able to rebut their case, which depends on
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`undermining their experts’ theory, getting them, you know, to
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`admit that they don’t infringe, actually.
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`So certainly we need to be able to oppose it in the first
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`instance and especially in the case of Dr. Mitzenmacher, we
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 8 of 21
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`wouldn’t even have the ability to discuss his -- or include his
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`deposition testimony anywhere in our summary judgment briefing
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`because they’re not willing to make him available until August
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`23rd, whereas our summary judgment reply is due August 22nd.
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`Now, just to be clear, the -- there’s a number of reasons why
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`we think that they should both be deposed before opening.
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`But
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`replies are obviously very limited. There’s a tight page limit.
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`And also we need to be able to explore and cross-examine their
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`theories in more detail because these reports are basically
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`incomprehensible.
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`So we think it’s essentially required that
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`we’re able to depose them in advance of our summary judgment and
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`not just have it all occur before, for example, the first summary
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`judgment reply which is only currently even an option for
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`Medvidovic being offered on August 16th.
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`THE COURT:
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`Right.
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`As a practical matter, due to the
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`turnaround to getting final depo transcripts, if your motion is
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`due on August 8th, what you’re asking for is these two witnesses
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`to be available next week; is that right?
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`MR. GLUCOFT:
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`I think next week is likely ideal.
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`Obviously, we understand, you know -- I think we’d be willing to
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`set probably as late as August 5th or maybe even August 6th so
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`that at least we have two business days.
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`Certainly the sooner,
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`the better, but obviously if we’re getting to one or zero business
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`days before summary judgment, that’s not doable.
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`THE COURT:
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`Okay.
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`All right.
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`Thank you.
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`All right.
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 9 of 21
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`Mr. -- are you -- Mr. Glucoft, have you described what you want?
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`Can I now turn to Finjan?
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`MR. GLUCOFT:
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`Excuse me, Your Honor?
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`THE COURT: Are you done with presenting what you want
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`so I can ask the other side to speak?
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`MR. GLUCOFT:
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`Yes, I am.
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`THE COURT: Okay.
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`Mr. Andre.
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`MR. ANDRE:
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`Thank you, Your Honor.
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`Your Honor, this
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`scheduling order came out on June 19th, five weeks ago, and there
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`was no attempt by Defendant to try to change the scheduling order
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`to make it such that they could have all their expert depositions
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`before summary judgment deadline. They could have moved for them
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`to be rescheduled; they didn’t do so.
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`We now have a situation where here at the 11th hour, they
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`decide that they want to take Dr. Mitzenmacher, Dr. Medvidovic
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`essentially next week.
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`And both of these individuals are in a
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`foreign country -- Mitzenmacher in Japan and Medvidovic is in
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`Europe.
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`We gave them the first date they were available within the
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`expert discovery window. I think here -- I’ve never seen any case
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`where summary judgments would hinge upon depositions of experts,
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`nor do I think it’s necessary and, to be quite candid, it’s unfair
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`that the -- a defendant in the case would then take the
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`depositions of all of the expert reports and put it in their
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`rebuttal reports.
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`The reports stand on their own.
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`And what’s
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 10 of 21
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`supposed to be rebutted are the reports. You’re not supposed to
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`have the added advantage of testing those individuals on cross-
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`examination and then going out and tailoring your reports based
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`upon their cross-examination.
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`They can use the expert reports as they see fit with respect
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`to their motion for summary judgment.
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`(Indiscernible) summary
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`judgment (indiscernible) they’re free to do so. And now trying to
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`say that we have the burden in less than a week’s notice to try to
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`get our experts back from Japan and back from Montenegro is highly
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`prejudicial to us and, to be quite candid, I don’t know if it’s
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`possible.
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`Dr. Mitzenmacher has work assignments over there.
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`So they come at this last minute and ask the Court for relief
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`on this issue and we -- our hands are tied.
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`We told them in no
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`uncertain terms, We’re not trying to delay any depositions. It’s
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`based on when the witnesses are available and it’s within the
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`discovery window.
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`So I think we’re going to the letter of the
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`order here.
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`THE COURT: But --
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`MR. GLUCOFT:
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`Your Honor, may I be heard?
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`THE COURT:
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`Wait.
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`I want to just -- before we go any
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`further, if August 23rd is the deadline for expert discovery, you
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`don’t get to say, There’s one day when my expert can be available
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`and you have to depose him then. That’s not okay. It’s ordinary
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`that people have to negotiate.
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`They have to move things around.
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`You have had since June a case management order that specified a
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 11 of 21
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`time period when your experts need to be available.
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`It’s not
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`acceptable for you to say it’s August 23rd or bust.
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`So your opening offer out of the gate doesn’t work, Finjan.
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`What can you do that’s better than that?
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`MR. ANDRE: Well, (indiscernible) given alternate dates,
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`but we gave them the first available date. Dr. Mitzenmacher -- we
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`can go back to him and see if he can come back from Japan early.
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`That’s what we offered to do.
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`We know he can make the depo the
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`23rd.
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`We can try to get him back in the country earlier.
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`And
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`we’re willing to do so. But having him come back next week is the
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`more -- the bigger issue.
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`THE COURT: Do you know if they can come back next week?
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`MR. ANDRE: I think Dr. Mitzenmacher actually has a work
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`assignment -- he’d have to fly back and fly back again. That’s my
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`understanding.
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`THE COURT:
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`But, I mean, is there anything -- are thy
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`planning to do opposing reports?
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`MR. ANDRE:
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`No.
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`I think we have a single opposing
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`report.
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`THE COURT: Oh, only one that’s coming up?
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`MR. ANDRE: I believe that’s correct.
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`THE COURT: Okay.
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`MR. ANDRE:
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`So it is a situation where because we are
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`the Plaintiff and the majority of the burden falls upon us, we
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`have a lot more opening reports.
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`So they want to take the
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 12 of 21
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`deposition of all of our experts prior to their experts providing
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`their rebuttal reports.
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`We’ve offered, as I said multiple days for all the other
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`experts.
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`The only one we have is Dr. Mitzenmacher would be the
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`first day he’s available. We’re willing to push back that day, if
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`necessary, or we’ll try and get him back earlier. But when they
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`came to us and said, We need him next week, that -- this is where
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`the problem lies. We can try to get him back -- we tried to get
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`him back earlier in August, offered alternative dates. The dates
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`we gave them was like -- that’s the first day we can lock in and
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`guarantee, within the window. And they said, Not acceptable. It
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`has to be next week or nothing at all.
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`And that’s where we got to an impasse.
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`That’s offering
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`alternative dates -- the 22nd, 21st.
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`THE COURT: What about the other -- where they say your
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`other -- you have six opening experts and I guess you’re offering
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`five in that final week, the August 19th to 23rd, and they want
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`some of them sooner.
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`What’s your response to that?
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`MR. ANDRE:
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`Well, I know Dr. Vilardi (ph) has other
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`commitments. We can try to work with alternative dates. We gave
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`them dates to guarantee lock in and just as a coincidence -- I
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`don’t know whether they’ve got summer vacations or what it is --
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`these are dates that are available. It’s not really conducive to
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`us either to have to defend -- prepare and defend, you know, these
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 13 of 21
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`depositions in the same time frame.
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`So we can go back and ask our experts. When we offered that,
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`the other side said, No, we want these dates or nothing at all.
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`It was kind of -- the issue on that being, We need them by August
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`5th or earlier or don’t bother. So we didn’t bother. We couldn’t
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`get them August -- in that time frame.
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`We can get alternative
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`dates within the August 23rd period. Dr. Mitzenmacher may be the
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`only exception but, even that, we can try to get him back earlier
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`so he can end his work assignment in Japan and then have to go
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`back to Japan.
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`So we agree with Your Honor that it’s not -- we
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`weren’t going to say, Take it or leave it.
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`Here’s the one day.
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`We offered the day. They then came back and said, It’s not going
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`to be good enough to get through next week. And that’s where we
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`hit the impasse.
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`THE COURT: All right. So Mitzenmacher, he might have
`
`a work assignment in Japan -- or he might have to fly out and then
`
`go back for that?
`
`MR. ANDRE:
`
`That’s my understanding.
`
`I -- he’s very
`
`difficult to get a hold of right now. This came up last night for
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`this hearing and we tried to get a hold of him today and we
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`couldn’t get a hold of him to find other dates when he could end
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`his assignment over there. But we are trying to get with him and
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`find out if he can come back here.
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`But that is the day he
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`suggested he would be back in Boston.
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`He’s back in Boston
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`probably the -- I’m sure he’s not going to come back on the 23rd.
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 14 of 21
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`14
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`I’m sure he’s going to come back on the 21st or 22nd and jetlag
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`and all that from Japan to Boston.
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`Those are the days that we
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`know we could guarantee.
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`We can work with him and try to get a hold of him and find
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`out what his scheduling conflict looks like.
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`To be honest with
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`you, I’m not sure. He might be in transit as we speak now ’cause
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`I know he’s traveling around on family vacation, Japan, in Japan,
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`and then the work assignment. I just don’t know how that works.
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`And like I say, we just didn’t have the luxury of having the time
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`to do it as it just came up last night.
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`THE COURT:
`
`Well, I don’t mean to sound cavalier, but
`
`for any date before August 23rd, isn’t Mitzenmacher going to have
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`to rearrange his schedule and fly out here? Like why is next week
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`worse than, you know, two weeks from now?
`
`MR. ANDRE:
`
`It may actually be worse if he has to fly
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`back from Japan and then in turn fly back again to Japan -- go
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`back to Japan.
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`Depends where he’s over there -- he has family
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`over there.
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`He’s on family vacation.
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`THE COURT:
`
`Well, but, I mean, won’t that be true for
`
`every single day before August 23rd? Won’t those all present the
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`same problem?
`
`MR. ANDRE: That’s what I don’t know, Your Honor. I --
`
`if we could talk to him -- I know he’s coming back before the
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`23rd. The 23rd is the date. He’s likely coming back on the 21st
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`or the 22nd.
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`I don’t know exactly when. But we can talk to him
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 15 of 21
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`and we can -- we need to give three days -- you know, the 20th,
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`21st, 22nd, 23rd -- give us four days.
`
`He might as well be --
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`while he’s in Japan, earlier and come back.
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`That’s what we’re
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`talking about.
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`THE COURT: All right.
`
`MR. ANDRE: And I just -- we tried to get a hold of him
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`today after we left word late last night.
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`And we were just not
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`successful to find out (indiscernible). I’m sorry.
`
`THE COURT:
`
`What about Medvidovic?
`
`Do you know his
`
`availability?
`
`MR. ANDRE: He’s in -- he’s a native of Montenegro. He
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`has a house over there. And he’s coming back to the United States
`
`in mid-August and to be offered August 16th.
`
`THE COURT: All right. Is there a reason why he can’t
`
`do it next week?
`
`MR. ANDRE:
`
`Other than the fact he’s in a foreign
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`country with family.
`
`THE COURT: I mean --
`
`MR. ANDRE: I mean, Your Honor, I guess what I’m saying
`
`we’re offering him August 16th.
`
`There’s absolutely no conflict
`
`with any of those depositions.
`
`It’s just they wanted the
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`convenience to have it for their summary judgment and defer the
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`burden on us when they should have gone to the Court and said,
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`We’d like to have summary judgment moved till after the close of
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`expert discovery.
`
`They saw the schedule five weeks ago.
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`Now
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 16 of 21
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`16
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`suddenly it’s our fault and we’re offering our expert, you know --
`
`expert discovery two weeks ago, the expert discovery, and now they
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`come --
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`THE COURT: Well, but they’re not saying -- they’re not
`
`asking for -- they’re not asking for all of the expert depos to be
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`done before summary judgment. They acknowledge that most of them
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`don’t have to be before summary judgment. So I think they weren’t
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`obligated to ask Judge Alsup to sequence things in that way. All
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`they’re really saying is that of the six of your expert reports,
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`they wanted to depose two of them before summary judgment.
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`Now, there is a window for when expert depositions can
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`happen.
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`They’re not asking for anything outside of that window.
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`It’s still within the window. It’s just for these two.
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`I’m sympathetic to that argument unless there’s some kind of
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`substantive reason why they shouldn’t be able to take those depos.
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`MR. ANDRE:
`
`Other than the availability of witnesses,
`
`Your Honor, I don’t know what else to tell you.
`
`THE COURT:
`
`Okay.
`
`All right.
`
`Mr. Glucoft, can I get
`
`your response?
`
`MR. GLUCOFT: Yes, Your Honor. So with respect to Drs.
`
`Medvidovic and Mitzenmacher, if for whatever reason it turns out
`
`that they just continue to refuse to make them available in
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`advance of the summary judgment deadline, then at least one
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`potential resolution would just be to make sure that they don’t
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`intend to rely on Dr. Medvidovic or Mitzenmacher or their experts
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 17 of 21
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`17
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`in opposition.
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`I don’t know if that’s a potential. But if they
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`-- if they don’t make them available in advance, then we would
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`request them not to be able to rely on their -- on a declaration
`
`or on their reports in their opposition for I think exactly the
`
`reasons that Your Honor was leaning towards.
`
`And then on the second batch of experts where everything is
`
`sort of double-tracked, just a quick housekeeping item.
`
`To my
`
`knowledge, we were never offered alternate dates for any expert
`
`and we were told that there was no alternative for any of these
`
`experts.
`
`And so when we were given these dates, we immediately
`
`told them -- I believe this was last week when they said, This is
`
`the schedule and that’s it -- we said, We need to reschedule Dr.
`
`Medvidovic and can we work on others? And then, again, through a
`
`confer yesterday, we were again told that that was the only thing
`
`that’s happening.
`
`So we’re being sort of forced to swallow double-tracking at
`
`first and then to power up for depositions in that last week.
`
`It’s just not tenable. When Finjan selected its experts, it knew
`
`what our -- you know, what the -- what the expert discovery window
`
`would be. So we’re just asking for some amount of accommodations
`
`that we can load down in addition to the two experts related to
`
`the summary judgment in the (indiscernible) that we’re moving on.
`
`THE COURT:
`
`Right.
`
`Okay.
`
`Okay.
`
`On the second part,
`
`about not backloading five of the six expert depos for the week of
`
`August 19th through 23rd, that -- I agree with Juniper about that.
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 18 of 21
`
`18
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`And I’m actually not hearing much strong resistance by Finjan. So
`
`I think what I’m going to do is order Finjan to make more of its
`
`expert witnesses available before that last week.
`
`I don’t feel
`
`like I need to be more specific than that at this point. Finjan,
`
`what I’m telling you is your current offer just isn’t good enough.
`
`But I would like you to meet and confer with Juniper about having
`
`some of these depositions take place earlier.
`
`And then if that
`
`doesn’t happen, if you guys can’t agree on something pretty soon,
`
`like within a couple of days, then I think we can do a follow-up
`
`telephone conference, but, Juniper, let me put it to you.
`
`If I
`
`just issue the order that way, saying that this offer from Finjan
`
`isn’t good enough, they need to offer more of these experts
`
`earlier, do you need anything more specific from me at this point?
`
`I mean, on the second -- I’ll deal with the other experts later,
`
`but just on the second part, on the backloading issue?
`
`MR. GLUCOFT:
`
`No, Your Honor.
`
`I think on the
`
`backloading issue, I think as long as Your Honor made it clear
`
`that alternate dates needed to be offered that were before that
`
`final week that the parties could reach some resolution, I think
`
`that’s sufficient. We’re happy to work with Finjan to finalize a
`
`date.
`
`Obviously, we do think more specificity would be required
`
`for the summary judgment-related experts, Dr. Medvidovic and Dr.
`
`Mitzenmacher, but it sounds like Your Honor (indiscernible) a
`
`little bit more concrete dates.
`
`THE COURT:
`
`Yeah.
`
`Okay.
`
`Thank you.
`
`For the other
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 19 of 21
`
`19
`
`ones, the MSJ-related experts, I -- I am sympathetic to Juniper’s
`
`argument that they need these people before the MSJ. But I also
`
`-- Mr. Andre, I’m a little concerned about you haven’t necessarily
`
`had enough time to talk with these people about what exactly
`
`they’re going to be doing and whether they can get back here next
`
`week.
`
`So what I would like -- what I’m inclined to do is to set a
`
`further telephonic hearing on Monday, July 29th, and order you to
`
`reach out and talk with those experts between now and then, which
`
`should be doable, given the time changes and -- if they’re in
`
`other countries -- and that I’m strongly inclined to have them
`
`come to the U.S. for a deposition by Monday, August 5th. And then
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`I want a report back from you on July 29th about their
`
`availability.
`
`So I’m just going to say I’m ordering you to talk with them
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`and to tell them that I’m strongly inclined to do this and then I
`
`want a further status report from you on Monday. Is that workable
`
`from your point of view?
`
`MR. ANDRE: It is, Your Honor.
`
`THE COURT:
`
`Okay.
`
`Okay.
`
`Then -- so let’s set a time
`
`for the status report. Finjan, since you’re the one who has to go
`
`out and talk to people before Monday, the 29th, what time of day
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`would you like to do that? -- early or kind of later?
`
`MR. ANDRE:
`
`Probably at the same time -- later in the
`
`afternoon, whatever’s convenient for Your Honor.
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 20 of 21
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`THE COURT:
`
`Let’s say two o’clock.
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`Mr. Glucoft, does
`
`that work for you?
`
`MR. GLUCOFT:
`
`Yes, it does, Your Honor.
`
`THE COURT:
`
`Okay. So --
`
`MR. ANDRE: Your Honor, I assume it can be the same --
`
`the parties are treated equally here with respect to summary
`
`judgment. And I assume that their experts will be made available
`
`for that same time period?
`
`THE COURT: They’ve made a request and I’ve ruled on it
`
`-- or I’m about to.
`
`But you haven’t asked for anything.
`
`MR. ANDRE: Okay. So we’ll talk with them and maybe we
`
`can work it out without some discord.
`
`THE COURT:
`
`Okay.
`
`Obviously, you know which way I’m
`
`leaning and it wouldn’t be any different if it’s your desire to
`
`move for summary judgment.
`
`So that will incentivize Juniper to
`
`get its experts available as well.
`
`MR. ANDRE:
`
`Thank you, Your Honor.
`
`THE COURT:
`
`Okay.
`
`And so we can talk more about that
`
`on Monday at 2:00 p.m. and I think the two sides should talk about
`
`this issue.
`
`MR. ANDRE:
`
`Thank you.
`
`Thank you, Your Honor.
`
`THE COURT:
`
`All right.
`
`Thank you, both.
`
`MR. GLUCOFT:
`
`Thank you, Your Honor.
`
`THE CLERK:
`
`Thank you, Counsel.
`
`I’m going to hang up
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`now and we are off the record.
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`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 21 of 21
`Case 3:17-cv-05659-WHA Document 623 Filed 09/30/19 Page 21 of 21
`
`(Proceedings adjourned at 2:33 p.m.)
`
`I, Peggy Schuerger, certify that
`
`the foregoing is a:
`
`correct transcript from the official electronic sound recording
`
`provided to me of the proceedings in the above-entitled matter.
`
`Signature of Approved Transcriber
`
`September 28, 2019
`Date
`
`Peqay Schuerger
`Typed or Printed Name
`Ad Hoc Reporting
`Approved Transcription Provider
`for the U.S. District Court,
`
`Northern District of California
`
`

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