Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 1 of 16
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`Pages 1-16
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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:
`
`PAUL J. ANDRE, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`HARRY MITTLEMAN, ESQ.
`JOSHUA P. GLUCOFT, ESQ.
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`(310) 277-1010
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Wednesday, July 31, 2019
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`))
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`Pages 1-16
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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:
`
`PAUL J. ANDRE, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`HARRY MITTLEMAN, ESQ.
`JOSHUA P. GLUCOFT, ESQ.
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`(310) 277-1010
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Wednesday, July 31, 2019
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 2 of 16
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`2
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`SAN FRANCISCO, CALIFORNIA
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`WEDNESDAY, JULY 31, 2019 3:32 P.M.
`
`(Call to order of the Court.)
`
`--oOo--
`
`THE CLERK:
`
`Okay, Counsel.
`
`The Judge has taken the
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`bench.
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`We’re here in Civil Action 17-5659, Finjan, Inc. v.
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`Juniper Networks, Inc. Counsel, please state your appearances for
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`the record.
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`Let’s start with Plaintiff, please.
`
`MR. ANDRE: Good afternoon, Your Honor. Paul Andre for
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`Finjan.
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`MR. MITTLEMAN:
`
`Good afternoon, Your Honor.
`
`Harry
`
`Mittleman for Juniper Networks.
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`THE COURT: Good afternoon, Counsel.
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`THE CLERK:
`
`Mr. Glucoft, do you want to state your
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`appearance as well, please.
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`MR. GLUCOFT:
`
`Yes.
`
`Mr. Joshua Glucoft on behalf of
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`Defendant Juniper Networks, Inc.
`
`THE COURT:
`
`Good afternoon.
`
`I’m not sure which side
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`wanted this call but, for whoever did, why don’t you introduce the
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`issue.
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`MR. MITTLEMAN: Thank you very much, Your Honor. This
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`is Harry Mittleman for Juniper Networks.
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`We are the party
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`requesting today’s call.
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`The purpose of the call is to bring to
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`Your Honor’s attention a very serious discovery issue and it’s an
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`issue regarding Finjan withholding highly relevant ESI evidence.
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`And so what we are requesting today is that the Court issue an
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 3 of 16
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`3
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`order that Finjan produce all of the responsive ESI information by
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`close of business today, and I’d like to explain, if I may, the
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`background for why this is being -- why this is so important.
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`THE COURT: Yes. Please do so.
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`MR. MITTLEMAN:
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`So, Your Honor, back in June, the
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`parties -- Juniper provided Finjan with final ESI search terms.
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`This followed several rounds of narrowing and emailing, regarding
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`narrowing, and so we served our final search terms on June 21st.
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`We received the ESI earlier this month, on the 12th -- really the
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`morning of Saturday, July 13th.
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`We noted that no objections had been served and we asked them
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`to confirm that nothing was being withheld on relevance grounds.
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`And we also served a subpoena on the search party Cisco seeking
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`documents.
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`The following day, we learned from Finjan for the first time
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`that it is objecting to ESI production on relevance grounds. No
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`specifics were provided.
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`We asked for clarification immediately
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`that day, Sunday. We then asked again on Monday for clarification
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`as to what was being withheld as no objections had been served
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`with specificity. That was the day that fact discovery closed.
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`The very following day, we learned for the first time when
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`Finjan states that, "Documents have been withheld on the basis of
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`certain discovery objections."
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`And it’s important to note the interplay with what was going
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`on with Cisco.
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`As I mentioned to Your Honor, Juniper had
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 4 of 16
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`4
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`subpoenaed Cisco. Finjan was simultaneously threatening Cisco not
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`to produce documents, seeking sanctions and fees if they did
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`produce documents. Finjan never moved for a protective order and
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`ultimately
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`Cisco produced documents.
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`They produced those
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`documents today.
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`We began reviewing those documents today. And we immediately
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`discovered highly relevant information that clearly reads on the
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`ESI terms that we provided that should have been produced, that
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`were not produced, that are core relevant documents and that it’s
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`-- if they were withheld on intentional grounds as opposed to
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`inadvertent grounds, the only inference that comes to mind is that
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`they were withheld because they contain very -- they contain some
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`unflattering statements that Finjan made that I believe patent
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`litigation in jury cases is not decided on the merits, and that
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`may have been why we decided to withhold it if it was done
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`intentionally.
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`But whether it was done intentionally or whether it was the
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`result of inadvertence, the fact remains that the production we
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`received in response to the ESI is clearly and demonstrably
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`incomplete.
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`And we can provide the Court with at least one
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`example that we found already demonstrating that to be the case.
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`We have no confidence in Finjan’s representation that it has
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`properly withheld documents on relevance grounds. It’s Juniper’s
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`position, Your Honor, that that objection is too late and, to the
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`extent it’s not too late, it is an objection that is insupportable
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 5 of 16
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`5
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`in view of the fact that we now have concrete evidence that
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`relevant ESI -- core relevant ESI has been withheld under the
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`circumstances and this is an urgent matter.
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`And this is why we ask that all of the ESI materials be
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`produced by close of business today. We know it’s been collected.
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`We know that Finjan has reviewed it. And so we believe it can be
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`produced
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`and
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`ought
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`to
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`be
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`produced
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`today
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`without
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`further
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`withholding on the basis of purported relevance.
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`THE COURT: Thank you. Mr. Andre.
`
`MR. ANDRE:
`
`Thank you, Your Honor.
`
`First off, Your
`
`Honor, I do want to just address one thing.
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`This is the second
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`time that Juniper has foregone the briefing scheduling, provided
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`any type of authority for what they’re talking about, and actually
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`giving Finjan a head’s up what they’re actually specifically
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`referring to; for example, a "docket" that patent cases are not
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`decided on the merits.
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`Now, why that is urgent and why that is
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`relevant to anything is beyond me.
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`But the fact that we’re skipping briefing schedules and to
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`kind of meet the first schedule that we’ve set forward is
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`problematic and I think it’s telling of the fact that they don’t
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`have the authority to be asking what they’re asking for.
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`Let me get into the meat of this motion now. The ESI request
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`that is at issue here was -- they served the ESI discovery on the
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`last day they could serve discovery in the case.
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`ESI for the
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`witnesses that they focused on were for witnesses that were
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 6 of 16
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`6
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`deposed nearly a year ago.
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`So it was not before their
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`depositions, after their depositions.
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`As Your Honor is probably aware, under the ESI rules, there
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`-- documents can be withheld on privilege and on relevance.
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`So
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`that’s set out neatly within ESI.
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`Also, under Rule 34, we have 30 days to file our objections,
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`which we did file objections within that time period.
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`The fact
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`that they’re saying that you can’t withhold documents on relevance
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`without objection is belied by the fact that Juniper and Finjan
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`have had multiple meet-and-confers regarding Juniper withholding
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`documents on relevance under ESI.
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`Now, in this particular instance, their ESI was extremely
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`broad and captured way too much information.
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`For example, they
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`used words like, you know, ESI -- search term for "mark."
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`Now,
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`I’m sure that was looking for marking of patents.
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`There’s also
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`the name "Mark." They also have the search term "patent." Finjan
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`has several patent litigations, and you can imagine the scope of
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`documents that that covered. And, in fact, it did cover personal
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`email, junk email, spam email, and thousands and thousands of not
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`relevant documents that were withheld.
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`I will just give you one example of a document that has the
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`word Juniper in it. And this is a document that was withheld for
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`relevance.
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`And this was from Finjan’s Chief Legal Officer. And
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`I’ll quote the email:
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`"I have a doctor’s appointment tomorrow followed by license
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 7 of 16
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`7
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`negotiation with Juniper, so I won’t be in the office. I remain
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`accessible by phone or email."
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`Now, if you look at the search word "Juniper," that logically
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`comes from ESI.
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`It was not produced because I don’t think it’s
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`relevant for us to know a doctor’s appointment. In fact, it’s not
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`relevant to anything.
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`So the documents we withheld we don’t think are relevant.
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`They were properly withheld on relevance grounds.
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`The document
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`he’s talking about now that shows what he called ESI evidence of
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`core relevance, I don’t know what document he’s talking about.
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`But if he’d send that over, we’d be glad to look at it and make
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`that judgment call.
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`I don’t know, but if it’s a document that
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`says "patent cases are not judged on the merits," someone saying
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`that, I don’t know how that is relevant to anything.
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`THE COURT: I see. Okay. Let me ask --
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`MR. MITTLEMAN: Your Honor, this is -- I’m sorry, Your
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`Honor.
`
`THE COURT: Hold on one second. Juniper, can you speak
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`to the -- why you need me to decide this today and why we can’t do
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`this in a few more steps? I’m having trouble understanding that.
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`MR. MITTLEMAN:
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`Your Honor, there are issues that are
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`coming up with respect to discovery that make this request
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`particularly urgent.
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`I’m going to ask, if I may, to have my
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`colleague, Mr. Glucoft, speak to this since he’s been the person
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`who’s most directly handled scheduling.
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`But you will see that
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 8 of 16
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`8
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`there are numerous upcoming matters that require this issue to be
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`resolved immediately.
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`MR. GLUCOFT:
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`Your Honor, this is Joshua Glucoft from
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`Irell on behalf of Juniper. So as Your Honor is aware, we are in
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`the midst of expert depositions. For example, Dr. Kevin Butler is
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`going to be deposed next Wednesday, August 7th on the invalidity
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`of three of Finjan’s patents. One of the invalidity grounds that
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`he is asserting is a so-called on-sale bar, which means Finjan
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`sold its product, a product called Surfengate (ph), more than one
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`year before any of the patent applications were on file.
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`One of the search terms that we requested from Mr. Hartstein
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`was "Surfengate." And so if there are documents that use the term
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`"Surfengate" that talk about either (a) when Surfengate was first
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`offered for sale or (b) whether Surfengate actually embodied the
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`patent, those are -- those are emails that Mr. Butler should
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`absolutely consider certainly before his report and he would have
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`been able to had these been timely produced and certainly before
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`his deposition as well.
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`Continuing on, we have another expert deposition coming up
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`the following week, Mr. Bob Sole (ph), the former Commissioner of
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`the Patent Office, who is testifying regarding Juniper’s unclean
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`hands and inequitable conduct defense.
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`And as Your Honor is also aware from prior motions to compel
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`in this case, Mr. Touboul, the product Surfengate, and this notion
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`of claiming priority, all of which are, again, search terms that
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 9 of 16
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`9
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`we requested from Mr. Hartstein, Mr. Sole is going to be opining
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`on the issues that directly hit on these search terms.
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`I think
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`the concern is not suggesting that a hundred percent of the emails
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`that Finjan may have withheld are -- that Finjan may have withheld
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`aren’t all relevant; in fact, we know with certainty that at least
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`some of what they withheld for relevance is in fact relevant, and
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`it’s because -- and, again, this is just the example we were
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`talking about earlier -- it specifically talks about royalty rate
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`for the Juniper Networks-Palo Alto Networks litigation, and so
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`that’s something that the -- that Finjan itself had previously
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`moved to obtain.
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`Finjan previously did obtain those after a
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`successful motion to compel. And now we have a document where Mr.
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`Hartstein is saying, Here’s what the appropriate royalty rate is,
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`what I estimate the appropriate royalty rate is for -- for NextGen
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`firewalls in the Juniper-Palo Alto Networks case.
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`And so, again, to clarify what Mr. Mittleman said earlier,
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`that it’s not that we believe this relevant because it’s
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`unflattering to Finjan; we believe that it was withheld because it
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`was -- immediately withheld because it was unflattering to Finjan
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`and it happens to be directly relevant to damages.
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`With that, I would turn it back to Mr. Mittleman.
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`MR. MITTLEMAN: So, Your Honor, those are -- those are
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`the considerations regarding scheduling that have come up today.
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`And I would just simply conclude by noting that the reason why
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`we’re asking for the production to be made without continued
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 10 of 16
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`10
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`withholding on relevance grounds is that we -- we have -- we now
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`have
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`very
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`strong
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`reason
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`to
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`believe
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`that
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`the
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`relevance
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`determinations that were just made are, at minimum, insupportable
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`and unreliable, and we are more than happy to accept irrelevant
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`documents in order to get the relevant documents and we think that
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`what should be done right now is to respond to documents that hit
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`on the ESI should be produced to us because whatever criteria has
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`been used to withhold documents under relevance, they are way off
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`the mark by withholding damages documents of the very sort that
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`Finjan themselves only two months ago sought and moved for and was
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`made.
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`THE COURT: Okay. Thank you. Let me -- it seems like
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`the basic issue here, if I’m understanding you correctly, is that
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`Cisco produced to you documents.
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`You saw them and, due to the
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`other people, for example, copied on emails, you think Finjan
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`should also have produced them to you so that gave you a tipoff,
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`Hey, wait a second. Some relevant stuff is missing. Is that the
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`gist of what happened?
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`MR. MITTLEMAN:
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`That is -- that is what we discovered
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`this morning, Your Honor.
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`THE COURT:
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`How many Cisco documents are we talking
`
`about that fell into that category?
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`MR. MITTLEMAN: We’re still in the process of reviewing
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`the production, Your Honor.
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`We just got it today.
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`But we were
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`able to identify this morning in time to request this hearing a
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 11 of 16
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`11
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`document that on its face relates to damages and is of the very
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`sort of document that Finjan itself asked for in a motion in June.
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`And so we don’t know how many others there are, but we know that
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`core
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`damages
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`documents
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`that
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`Finjan has, because Finjan I
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`understand produced this very document to Cisco only six months
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`ago, and why it was not produced and if it was produced on the
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`grounds that it’s purportedly irrelevant, that just tells me that
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`the criteria being used for relevance simply cannot be accepted
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`and we should just get all their documents.
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`THE COURT: I have to say just because they might have
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`made the wrong call on one document does not persuade me that all
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`of their relevance determinations are just garbage and I should
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`order that objection waived.
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`That seems like an extreme outcome
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`from one call.
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`When will you have completed your review of Cisco production
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`so you’ll be able to tell me that maybe there are some additional
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`documents?
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`MR. MITTLEMAN:
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`Your Honor, I have to confer with
`
`colleagues, but we may be able to finish that by the end of
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`business tomorrow. I would have to figure it out because I am not
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`the only person who will be looking at these.
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`THE COURT: Okay. Well, what I think you should do is
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`go through the Cisco documents, identify any ones that you believe
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`Finjan should have produced to you.
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`And the first step is you
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`should email those to Finjan and say, "Please explain this."
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 12 of 16
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`12
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`Because I do want Finjan to have an opportunity to, before
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`there’s a hearing with me, to look through the documents that
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`you’ve found and they can go back through their document
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`production and decide maybe they did make a mistake; if so, what
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`it was, or maybe they didn’t and they stand their ground and they
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`don’t think those documents are relevant.
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`I would like to have
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`that kind of exchange.
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`And then if there’s still a dispute, to
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`have the parties send a letter brief my way.
`
`Right now, we’re skipping that in-between part where you go
`
`to Finjan and give them a chance to explain, and just the relief
`
`you’re asking for when you found one document so far that you
`
`think is in error is a little much.
`
`So if you think by the end of the day tomorrow, which is
`
`August 1, you can have gone through the Cisco documents, so what
`
`I’m inclined to do is to order you to notify Finjan by end of the
`
`day tomorrow of the documents from Cisco’s production that you
`
`believe indicate Finjan should have produced to you.
`
`Is that a deadline that you can follow?
`
`MR. MITTLEMAN: Your Honor, we’ll make every effort to
`
`do it.
`
`And if it’s not possible to do it by the end of the day
`
`tomorrow, I will certainly advise both counsel for Finjan and the
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`Court of when we believe it will be possible, but we’ll certainly
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`endeavor in every respect to do it by then.
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`Your Honor, just -- the one issue I just want to clarify is
`
`our concern is not simply that there are documents in Cisco’s
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 13 of 16
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`13
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`production that should have been produced; the concern is that
`
`there may be relevant documents that visit on all sorts of search
`
`terms that we had finally agreed upon that themselves were also
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`not produced, and that will not be determined fully by looking at
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`the Cisco production.
`
`So our issue regarding the withholding of relevant documents
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`is highlighted by the Cisco production, but it is not limited by
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`it.
`
`THE COURT: I understand that, but that’s a little hard
`
`for me to know what universe is there and, frankly, hard for you
`
`to know what universe is there. Normally when a party says, We’ve
`
`reviewed the documents and here are the relevant ones, what
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`they’ve withheld is kind of a black box which raises its own
`
`concerns.
`
`But I’m not sure what to do with that.
`
`I mean, if you just have a couple that come out of Cisco’s
`
`production, how does that tell me that it invalidates the entirety
`
`of what Finjan has done?
`
`MR. MITTLEMAN:
`
`Well, again, Your Honor, to take this
`
`particular example, the one we were able to find just this
`
`morning, is I believe so egregious that it really raises a
`
`question as to inadvertence. It raises a question as to what kind
`
`of criterion -- (indiscernible) and criterion that may have been
`
`used for relevance in this case because it’s a for damages
`
`document and it’s very troubling.
`
`THE COURT: Okay. Okay. Well, here’s what I’m thinking
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 14 of 16
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`14
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`of doing and both sides can tell me if they don’t like this plan
`
`I’m going to order Juniper to use best efforts to identify to
`
`Finjan documents produced by Cisco that you believe indicate
`
`there’s a problem with Finjan’s relevance determinations, order
`
`you to use best efforts by the end of the day tomorrow. The "best
`
`efforts" language gives you some wiggle room if it’s not quite
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`able to be done by tomorrow.
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`And then I want the parties by the end of the day Friday,
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`August 2nd to submit a joint letter brief -- feel free to attach
`
`and file under seal the Cisco documents if you want -- in which
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`you should brief any inadequacies that Juniper finds in Finjan’s
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`relevant determinations. That can include discussion of the Cisco
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`documents and go beyond that to address your larger concerns about
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`how Finjan may have been determining relevance.
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`But this will
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`also give Finjan an opportunity to look at those documents and
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`then to explain why it may believe that there’s no problem with
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`the relevance determination. And I’m inclined to set a telephonic
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`hearing for Monday, August 5th.
`
`Finjan, what’s your reaction to that?
`
`MR. ANDRE: Your Honor, we’re fine with that. I -- this
`
`is Paul Andre.
`
`I’m not sure I will make it -- I’ll try to make
`
`it.
`
`I will be in Israel doing depositions but I’ll try and call
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`in from overseas if it’s possible.
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`If not, I’ll have one of my
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`colleagues on the call.
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`THE COURT: All right. And Juniper?
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 15 of 16
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`15
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`MR. MITTLEMAN: Your Honor, yes. There’s just one issue
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`that I want to ask clarification on.
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`There are limits on the
`
`pages that can be submitted in connection with these discovery
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`motions.
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`And we believe that there are email strings of many
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`pages in length that would demonstrate the relevance of this.
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`With the Court’s permission, we would ask that in this case we be
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`allowed to attach more than -- you know, exhibits that would
`
`exceed the ordinary page limits as exemplars.
`
`THE COURT:
`
`Yes. That’s fine.
`
`MR. MITTLEMAN:
`
`Thank you, Your Honor.
`
`THE COURT:
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`Would Monday at -- let me see.
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`I want to
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`give myself a fighting chance to read something if you file it at
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`midnight on Friday.
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`How is Monday at 2:00 p.m.?
`
`MR. ANDRE: That’s fine with Finjan, Your Honor. Thank
`
`you.
`
`MR. MITTLEMAN:
`
`Your Honor, we’re just checking right
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`now.
`
`Yes.
`
`That would work, Your Honor.
`
`THE COURT: Okay. Then I will write up a minute order
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`and we will set up a telephonic hearing for Monday at 2:00 p.m.
`
`MR. ANDRE:
`
`Thank you, Your Honor.
`
`MR. MITTLEMAN:
`
`Thank you, Your Honor.
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`THE COURT:
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`Thank you, Counsel.
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`THE CLERK: Thank you, Counsel. We’re off the record.
`
`//
`
`//
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`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 16 of 16
`Case 3:17-cv-05659-WHA Document 624 Filed 09/30/19 Page 16 of 16
`
`(Proceedings adjourned at 3:54 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.
`
`uw)
`\
`Signature of;/Approved Transcriber
`
`September 29, 2019
`Date
`
`Peaqgy 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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