Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 1 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 1 of 20
`
`
`
`
`
`EXHIBIT 1
`EXHIBIT 1
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 2 of 20
`
`1
`
` PAGES 1 - 19
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE JUDGE WILLIAM ALSUP
`
`)
`FINJAN, INC., A DELAWARE
`)
`CORPORATION,
` )
` VS. ) NO. 17-5659 WHA
` )
`THIS DOCUMENT RELATES TO ALL )
`ACTIONS. )SAN FRANCISCO,
` )CALIFORNIA
` )TUESDAY
` )APRIL 17, 2018
`______________________________) 11:30 A.M.
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR PLAINTIFF:
`
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`
`990 MARSH ROAD
`
`MENLO PARK, CALIFORNIA 94025
`
`BY: KRISTOPHER KASTENS, ESQUIRE
`
` PHUONG (STEPHANIE) NGUYEN, ATTORNEY AT LAW
`
`FOR DEFENDANTS:
`IRELL & MANELLA LLP
`1800 AVENUE OF THE STARS, SUITE 900
`
`LOS ANGELES, CALIFORNIA 90067
`
`BY: JOSHUA GLUCOFT, ESQUIRE
`
`
`
`REPORTED BY: KATHERINE WYATT, CSR 9866, RMR, RPR
` PRO TEM REPORTER - US DISTRICT COURT
` COMPUTERIZED TRANSCRIPTION BY ECLIPSE
`
`
`-
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 3 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 3 of 20
`
`2
`2
`
`
`
`P R O C E E D I N G S
`PROCEEDINGS
`
`THE CLERK: WE ARE CALLING CIVIL ACTION 17-5659,
`THE CLERK:
`WE ARE CALLING CIVIL ACTION 17-5659,
`
`FINJAN, INC. VERSUS JUNIPER NETWORKS, INC.
`FINJAN,
`INC. VERSUS JUNIPER NETWORKS,
`INC.
`
`COUNSEL, PLEASE STATE YOUR APPEARANCES.
`COUNSEL, PLEASE STATE YOUR APPEARANCES.
`
`MR. KASTENS: KRISTOPHER KASTENS ON BEHALF OF FINJAN,
`MR. KASTENS:
`KRISTOPHER KASTENS ON BRHALF OF FINJAN,
`
`INC. AND WITH ME IS PHUONG NGUYEN, WHO IS ALSO HERE ON BEHALF OF
`INC.
`AND WITH ME IS PHUONG NGUYEN, WHO IS ALSO HERE ON BEHALF OF
`
`FINJAN. AND SHE'S ONE OF OUR JUNIOR ASSOCIATES WHO WILL ACTUALLY
`FINJAN.
`AND SHE'S ONE OF OUR JUNIOR ASSOCIATES WHO WILL ACTUALLY
`
`BE ARGUING THE MOTION.
`BE ARGUING THE MOTION.
`
`THE COURT: OKAY. GREAT. LET HER COME FORWARD, THEN.
`THE COURT:
`OKAY.
`GREAT.
`LET HER COME FORWARD, THEN.
`
`MR. KASTENS: YES, YOUR HONOR.
`MR. KASTENS: YES, YOUR HONOR.
`
`THE COURT: AND ADJUST THE MIC SO IT CATCHES YOUR
`THE COURT:
`AND ADJUST THE MIC SO IT CATCHES YOUR
`
`VOICE. WHAT IS YOUR NAME AGAIN?
`VOICE. WHAT IS YOUR NAME AGAIN?
`
`MS. NGUYEN: PHUONG NGUYEN, YOUR HONOR.
`MS. NGUYEN:
`PHUONG NGUYEN, YOUR HONOR.
`
`APRIL 17, 2018 11:30 O'CLOCK A.M.
`APRIL 17, 2018
`11:30 O'CLOCK A.M.
`
`SO WITH REGARD TO THE MOTION FOR
`
`THE COURT: PHUONG?
`THE COURT:
`PHUONG?
`
`MS. NGUYEN: NGUYEN.
`MS. NGUYEN:
`NGUYEN.
`
`THE COURT: NGUYEN. OKAY. GOOD.
`THE COURT:
`NGUYEN. OKAY.
`GOOD.
`
`AND YOUR NAME?
`AND YOUR NAME;?
`
`MR. GLUCOFT: JOSHUA GLUCOFT OF IRELL & MANELLA ON
`MR. GLUCOFT:
`JOSHUA GLUCOFT OF IRELL & MANELLA ON
`
`BEHALF OF DEFENDANT JUNIPER NETWORKS, INC.
`BEHALF OF DEFENDANT JUNIPER NETWORKS,
`INC.
`
`THE COURT: GREAT.
`THE COURT:
`GREAT.
`
`SO LET'S HELP ME OUT HERE. WHAT ISSUE HAVE YOU SOLVED ON
`SO LET'S HELP ME OUT HERE. WHAT ISSUE HAVE YOU SOLVED ON
`
`YOUR OWN?
`YOUR OWN?
`
`MS. NGUYEN: SO WITH REGARD TO THE MOTION FOR
`MS. NGUYEN:
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 4 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 4 of 20
`
`3
`3
`
`COMPELLING DISCOVERY, WE WERE ABLE TO RESOLVE THE FIRST ISSUE
`COMPELLING DISCOVERY, WE WERE ABLE TO RESOLVE THE FIRST ISSUE
`
`WITH REGARD TO SKY ATP AND PRODUCTION OF THOSE DOCUMENTS.
`WITH REGARD TO SKY ATP AND PRODUCTION OF THOSE DOCUMENTS.
`
`HOWEVER --
`HOWEVER -—-
`
`THE COURT: SAY THAT AGAIN.
`THE COURT:
`SAY THAT AGAIN.
`
`MS. NGUYEN: WE'VE RESOLVED THE FIRST ISSUE IN OUR
`MS. NGUYEN: WE'VE RESOLVED THE FIRST ISSUE IN OUR
`
`MOTION TO COMPEL DISCOVERY WITH REGARD TO SKY ATP.
`MOTION TO COMPEL DISCOVERY WITH REGARD TO SKY ATP.
`
`THE COURT: SKY ATP. ALL RIGHT. SO THAT'S GONE.
`THE COURT:
`SKY ATP.
`ALL RIGHT.
`SO THAT'S GONE.
`
`MS. NGUYEN: YES, YOUR HONOR.
`MS. NGUYEN: YES, YOUR HONOR.
`
`THE COURT: RIGHT?
`COURT:
`RIGHT?
`
`I THOUGHT THAT'S A DIFFERENT PROBLEM.
`
`AGREED TO NOT MARK TECHNICAL SPECIFICATION DOCUMENTS AS SOURCE
`AGREED TO NOT MARK TECHNICAL SPECIFICATION DOCUMENTS AS SOURCE
`
`CODE UNDER THE PROTECTIVE ORDER, ESSENTIALLY ADOPTING THEIR
`CODE UNDER THE PROTECTIVE ORDER, ESSENTIALLY ADOPTING THEIR
`
`MR. GLUCOFT: YES, YOUR HONOR. THERE'S AN ADDITIONAL
`MR. GLUCOFT: YES, YOUR HONOR.
`THERE'S AN ADDITIONAL
`
`AGREEMENT, AS WELL.
`AGREEMENT, AS WELL.
`
`THE COURT: PLEASE, GO AHEAD AND SAY IT, WHATEVER YOU
`THE COURT:
`PLEASE, GO AHEAD AND SAY IT, WHATEVER YOU
`
`WANT TO SAY SO WE GET IT ON THE RECORD. YOU DON'T HAVE TO PUT IT
`WANT TO SAY SO WE GET IT ON THR RECORD.
`YOU DON'T HAVE TO PUT IT
`
`ON THE RECORD, BUT DO YOU WANT TO SAY MORE?
`ON THE RECORD, BUT DO YOU WANT TO SAY MORE?
`
`MR. GLUCOFT: THANK YOU, YOUR HONOR. MY UNDERSTANDING
`MR. GLUCOFT:
`THANK YOU, YOUR HONOR.
`MY UNDERSTANDING
`
`IS THAT FINJAN HAS AGREED TO WITHDRAW THEIR OPPOSITION TO OUR
`IS THAT FINJAN HAS AGREED TO WITHDRAW THEIR OPPOSITION TO OUR
`
`MOTION TO DEFER CLAIM CONSTRUCTION. AND IN EXCHANGE WE HAVE
`MOTION TO DEFER CLAIM CONSTRUCTION.
`AND IN EXCHANGE WE HAVE
`
`PROPOSAL AS TO THE DEFINITION OF A HIGHLY CONFIDENTIAL SOURCE
`PROPOSAL AS TO THE DEFINITION OF A HIGHLY CONFIDENTIAL SOURCE
`
`CODE IN THE PROTECTIVE ORDER.
`CODE IN THE PROTECTIVE ORDER.
`
`AND ALSO THAT THE PARTIES WOULD BE EXCHANGING THE TERMS THAT
`AND ALSO THAT THE PARTIES WOULD BE EXCHANGING THE TERMS THAT
`
`THEY INTEND TO PROPOSE CONSTRUCTIONS FOR IN THE EARLY SUMMARY
`THEY INTEND TO PROPOSE CONSTRUCTIONS FOR IN THE EARLY SUMMARY
`
`JUDGMENT BRIEFING AS CURRENTLY SCHEDULED.
`JUDGMENT BRIEFING AS CURRENTLY SCHEDULED.
`
`THE COURT: WELL, I THOUGHT THAT'S A DIFFERENT PROBLEM.
`THE COURT: WELL,
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 5 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 5 of 20
`
`4
`4
`
`I AM -- I HAVE A PRETTY STRONG VIEW THAT YOU SHOULD CONTINUE AS
`I AM -- I HAVE A PRETTY STRONG VIEW THAT YOU SHOULD CONTINUE AS
`
`TO EVERYTHING YOU'VE ALLEGED IN THE COMPLAINT, THAT YOU SHOULD
`TO EVERYTHING YOU'VE ALLEGED IN THE COMPLAINT, THAT YOU SHOULD
`
`THE ONES THAT WE WILL REVIEW IN THE SHOWDOWN, BECAUSE SOMEDAY
`THE ONES THAT WE WILL REVIEW IN THE SHOWDOWN, BECAUSE SOMEDAY
`
`WE'RE GOING TO HAVE TO GET TO THOSE. AND IT WILL JUST KICK THE
`WE'RE GOING TO HAVE TO GET TO THOSE.
`AND IT WILL JUST KICK THE
`
`CAN DOWN THE ROAD IF WE LET YOU POSTPONE THAT.
`CAN DOWN THE ROAD IF WE LET YOU POSTPONE THAT.
`
`SO I THINK THAT IT'S FOR THE BETTER -- FOR THE BEST IF YOU
`SO I THINK THAT IT'S FOR THE BETTER -- FOR THE BEST IF YOU
`
`CONTINUE TO FOLLOW THE RULE, MY LOCAL RULE, ON EXCHANGING YOUR
`CONTINUE TO FOLLOW THE RULE, MY LOCAL RULE, ON EXCHANGING YOUR
`
`TERMS AND PROPOSED -- PROPOSED CONSTRUCTIONS.
`TERMS AND PROPOSED -- PROPOSED CONSTRUCTIONS.
`
`MR. GLUCOFT: YOUR HONOR, MAY I BE HEARD BRIEFLY ON
`MR. GLUCOFT:
`YOUR HONOR, MAY I BE HEARD BRIEFLY ON
`
`THIS ISSUE?
`THIS ISSUE?
`
`THE COURT: SURE. YES.
`THE COURT:
`SURE. YES.
`
`MR. GLUCOFT: WE FULLY APPRECIATE YOUR HONOR'S
`MR. GLUCOFT:
`WE FULLY APPRECIATE YOUR HONOR'S
`
`PREFERENCE, AND WE ARE TRYING TO REACH SOME AGREEMENT. I THINK
`PREFERENCE, AND WE ARE TRYING TO REACH SOME AGREEMENT.
`I THINK
`
`OUR CONFUSION WAS PRIMARILY SPECIFICALLY IN LIGHT OF THE EARLY
`OUR CONFUSION WAS PRIMARILY SPECIFICALLY IN LIGHT OF THE EARLY
`
`SUMMARY JUDGMENT. IT'S UNCLEAR TO US WHETHER WE WOULD EVEN HAVE
`SUMMARY JUDGMENT.
`IT'S UNCLEAR TO US WHETHER WE WOULD EVEN HAVE
`
`TO BRIEF CONSTRUCTION FOR TERMS THAT WAS ALREADY FULLY BRIEFED IN
`TO BRIEF CONSTRUCTION FOR TERMS THAT WAS ALREADY FULLY BRIEFED IN
`
`EARLY SUMMARY JUDGMENT. SO IF WE COULD AT LEAST CARVE OUT --
`BRARLY SUMMARY JUDGMENT.
`SO IF WE COULD AT LEAST CARVE OUT --
`
`THE COURT: OH, FOR THOSE I WOULD CARVE. THE ONES IN
`THE COURT:
`OH, FOR THOSE I WOULD CARVE. THE ONES IN
`
`THE EARLY SUMMARY JUDGMENT MOTIONS THAT I TOLD YOU TO BRING ON
`THE EARLY SUMMARY JUDGMENT MOTIONS THAT I TOLD YOU TO BRING ON
`
`CONTINUE TO DO YOUR CLAIM CONSTRUCTIONS, EVEN THOUGH THEY ARE NOT
`CONTINUE TO DO YOUR CLAIM CONSTRUCTIONS, EVEN THOUGH THEY ARE NOT
`
`ARE GOING TO DISCLOSE THAT IN YOUR SUMMARY JUDGMENT MOTIONS.
`
`WHAT I CALL THE "SHOWDOWN" --
`WHAT I CALL THE "SHOWDOWN" --
`
`MR. GLUCOFT: RIGHT.
`MR. GLUCOFT:
`RIGHT.
`
`THE COURT: -- YES. SO THOSE DON'T HAVE TO BE IN THE
`THE COURT:
`-- YES.
`SO THOSE DON'T HAVE TO BE IN THE
`
`CLAIM CONSTRUCTION DISCLOSURES UNDER OUR LOCAL RULE, BECAUSE YOU
`CLAIM CONSTRUCTION DISCLOSURES UNDER OUR LOCAL RULE, BECAUSE YOU
`
`ARE GOING TO DISCLOSE THAT IN YOUR SUMMARY JUDGMENT MOTIONS.
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 6 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 6 of 20
`
`5
`5
`
`OKAY. FAIR ENOUGH.
`OKAY. FAIR ENOUGH.
`
`BUT FOR EVERYTHING ELSE THAT'S IN PLAY IN THE COMPLAINT, I
`BUT FOR EVERYTHING ELSE THAT'S IN PLAY IN THR COMPLAINT,
`I
`
`THINK YOU SHOULD CONTINUE WITH THE NORMAL PROCESS.
`THINK YOU SHOULD CONTINUE WITH THE NORMAL PROCESS.
`
`MR. GLUCOFT: AND SO WE ARE. WE'LL FOLLOW THE COURT'S
`MR. GLUCOFT:
`AND SO WE ARE. WE'LL FOLLOW THE COURT'S
`
`ORDER ON THE ISSUE. I THINK OUR PRIMARY CONCERN THERE IS JUST IF
`ORDER ON THE ISSUE.
`I THINK OUR PRIMARY CONCERN THERE IS JUST IF
`
`THERE ARE OUTSTANDING ISSUES REMAINING AFTER EARLY SUMMARY
`THERE ARE OUTSTANDING ISSUES REMAINING AFTER EARLY SUMMARY
`
`JUDGMENT, WE WILL BE IN TRIAL IN THIS COURT WHILE OUR OPPOSITION
`JUDGMENT, WE WILL BE IN TRIAL IN THIS COURT WHILE OUR OPPOSITION
`
`CERTAIN THAT HAVING TO BRIEF THESE TERMS, THESE ADDITIONAL TERMS
`CERTAIN THAT HAVING TO BRIEF THESE TERMS, THESE ADDITIONAL TERMS
`
`NOT AT ISSUE IN EARLY SUMMARY JUDGMENT WOULD BE A BURDEN, I THINK
`NOT AT ISSUE IN EARLY SUMMARY JUDGMENT WOULD BE A BURDEN,
`I THINK
`
`THAT PROMOTES THAT EARLY RESOLUTION.
`THAT PROMOTES THAT EARLY RESOLUTION.
`
`THE COURT: HOW MANY TERMS ARE WE TALKING ABOUT BEYOND
`THE COURT:
`HOW MANY TERMS ARE WE TALKING ABOUT BEYOND
`
`THOSE IN THE -- EACH OF YOU JUST GET TO ATTACK OR CHALLENGE ONE
`THOSE IN THE -- BACH OF YOU JUST GET TO ATTACK OR CHALLENGE ONE
`
`CLAIM. IN OTHER WORDS, YOU'RE THE PLAINTIFF. RIGHT?
`CLAIM.
`IN OTHER WORDS, YOU'RE THE PLAINTIFF.
`RIGHT?
`
`MS. NGUYEN: YES.
`MS. NGUYEN: YES.
`
`THE COURT: YOU GET TO ASSERT ONE CLAIM AGAINST THE
`THE COURT:
`YOU GET TO ASSERT ONE CLAIM AGAINST THE
`
`ACCUSED PRODUCT. RIGHT? THEN MAYBE YOU WIN. THEN MAYBE THERE'S
`ACCUSED PRODUCT.
`RIGHT?
`THEN MAYBE YOU WIN.
`THEN MAYBE THERE'S
`
`AN INJUNCTION. THE PRODUCT COMES OFF THE SHELF PRONTO, IF THEY
`AN INJUNCTION.
`THE PRODUCT COMES OFF THE SHELF PRONTO,
`IF THEY
`
`BRIEFING AND REPLY BRIEFING IS DUE ON THOSE ISSUES. AND JUST
`BRIEFING AND REPLY BRIEFING IS DUE ON THOSE ISSUES.
`AND JUST
`
`THAT, GIVEN THAT, I THINK ONE OF THE HOPES OF EARLY SUMMARY
`THAT, GIVEN THAT,
`I THINK ONE OF THE HOPES OF EARLY SUMMARY
`
`JUDGMENT IS TO PROMOTE AN EFFICIENT RESOLUTION, WE JUST WEREN'T
`JUDGMENT IS TO PROMOTE AN EFFICIENT RESOLUTION, WE JUST WEREN'T
`
`TO WIND UP BEING -- GET TO THE END OF THIS SUMMARY JUDGMENT
`
`WIN.
`WIN.
`
`IF THEY LOSE, MAYBE THEY PAY SANCTIONS FOR BRINGING A BOGUS
`IF THEY LOSE, MAYBE THRY PAY SANCTIONS FOR BRINGING A BOGUS
`
`CLAIM. I DON'T KNOW YET. WE'LL SEE HOW THAT ALL SORTS OUT.
`CLAIM.
`I DON'T KNOW YET. WE'LL SER HOW THAT ALL SORTS OUT.
`
`BUT, MEANWHILE, WE GOT MANY OTHER CLAIMS. AND I DON'T WANT
`BUT, MEANWHILE, WE GOT MANY OTHER CLAIMS.
`AND I DON'T WANT
`
`TO WIND UP BEING -- GET TO THE END OF THIS SUMMARY JUDGMENT
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 7 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 7 of 20
`
`6
`6
`
`PROCESS, AND THEN YOU ALL SAY:
`PROCESS, AND THEN YOU ALL SAY:
`
`TOO.
`
`MR. GLUCOFT: AND, YOUR HONOR, WE ARE ABSOLUTELY
`MR. GLUCOFT:
`AND, YOUR HONOR, WE ARE ABSOLUTELY
`
`PREPARED TO DO SO. AGAIN, IT WAS OUR UNDERSTANDING THAT THIS
`PREPARED TO DO SO. AGAIN,
`IT WAS OUR UNDERSTANDING THAT THIS
`
`EARLY RESOLUTION IS MEANT TO SORT OF FOCUS THE ISSUES, AND
`EBARLY RESOLUTION IS MEANT TO SORT OF FOCUS THE ISSUES, AND
`
`ULTIMATELY, WE WILL, I GUESS SUBMIT ON THE PAPERS TO THE
`ULTIMATELY, WE WILL,
`I GUESS SUBMIT ON THE PAPERS TO THE
`
`COURT --
`COURT --
`
` "OH, JUDGE, IT'S GOING TO -- WE HAVEN'T BEEN DOING
`"OH,
`JUDGE,
`IT'S GOING TO -- WE HAVEN'T BEEN DOING
`
`ANYTHING ELSE ON THE REST OF THE CASE."
`ANYTHING ELSE ON THE REST OF THE CASE."
`
`SO I THINK WE GOT TO KEEP THE REST OF THE CASE MOVING ALONG,
`SO I THINK WE GOT TO KEEP THE REST OF THE CASE MOVING ALONG,
`
`THE AGREEMENT WAS THAT THEY WOULD
`
`THE COURT: I WANT YOU TO CONTINUE WITH THE LOCAL RULE
`THE COURT:
`I WANT YOU TO CONTINUE WITH THE LOCAL RULE
`
`DISCLOSURES ON ALL CLAIMS IN THE CASE, ALL OF THE THINGS THAT
`DISCLOSURES ON ALL CLAIMS IN THE CASE, ALL OF THE THINGS THAT
`
`DEAL WITH CLAIM CONSTRUCTION, EXCEPT YOU CAN CARVE OUT THE ONES
`DEAL WITH CLAIM CONSTRUCTION, EXCEPT YOU CAN CARVE OUT THE ONES
`
`THAT ARE GOING TO BE IN YOUR EARLY SUMMARY JUDGMENT MOTIONS.
`THAT ARE GOING TO BE IN YOUR EARLY SUMMARY JUDGMENT MOTIONS.
`
`MR. GLUCOFT: THANK YOU, YOUR HONOR.
`MR. GLUCOFT:
`THANK YOU, YOUR HONOR.
`
`THE COURT: OKAY. ALL RIGHT. NOW, WITH THAT HAVING BEEN
`THE COURT:
`OKAY. ALL RIGHT. NOW, WITH THAT HAVING BEEN
`
`SAID, DO YOU STILL HAVE AN AGREEMENT ON SOMETHING?
`SAID, DO YOU STILL HAVE AN AGREEMENT ON SOMETHING?
`
`MS. NGUYEN: I BELIEVE WE HAVE TO -- THAT'S UP TO YOU.
`MS. NGUYEN:
`I BELIEVE WE HAVE TO -- THAT'S UP TO YOU.
`
`I DON'T KNOW IF YOU WANT TO TALK ABOUT --
`I DON'T KNOW IF YOU WANT TO TALK ABOUT --
`
`MR. GLUCOFT: MY UNDERSTANDING -- AND WE CAN FOLLOW-UP
`MR. GLUCOFT:
`MY UNDERSTANDING -- AND WE CAN FOLLOW-UP
`
`AFTER -- BUT MY UNDERSTANDING IS THAT THAT WOULD BE ESSENTIALLY
`AFTER -- BUT MY UNDERSTANDING IS THAT THAT WOULD BE ESSENTIALLY
`
`OUR AGREEMENT.
`OUR AGREEMENT.
`
`THE COURT: YOU MEAN THAT I HAVE SCREWED UP YOUR
`THE COURT:
`YOU MEAN THAT I HAVE SCREWED UP YOUR
`
`AGREEMENT OR THAT YOU STILL HAVE AN AGREEMENT?
`AGREEMENT OR THAT YOU STILL HAVE AN AGREEMENT?
`
`MR. GLUCOFT: THE AGREEMENT WAS THAT THEY WOULD
`MR. GLUCOFT:
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 8 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 8 of 20
`
`7
`7
`
`WITHDRAW THEIR OPPOSITION TO OUR DEFERRED MOTION, SO I DON'T
`WITHDRAW THEIR OPPOSITION TO OUR DEFERRED MOTION, SO I DON'T
`
`THINK THAT THAT HAS DERAILED OUR AGREEMENT.
`THINK THAT THAT HAS DERATLED OUR AGREEMENT.
`
`THE COURT: WELL, ALL RIGHT. SO WE STILL HAVE AN
`THE COURT: WELL, ALL RIGHT.
`SO WE STILL HAVE AN
`
`AGREEMENT?
`AGREEMENT ?
`
`MR. GLUCOFT: YES, YOUR HONOR.
`MR. GLUCOFT: YES, YOUR HONOR.
`
`THE COURT: OKAY. ALL RIGHT. SO IS THERE ANYTHING
`THE COURT:
`OKAY.
`ALL RIGHT. SO IS THERE ANYTHING
`
`MORE, THEN, THAT I NEED TO DO? WELL, LET'S GO TO SOMETHING NEW
`MORE, THEN, THAT I NEED TO DO? WELL, LET'S GO TO SOMETHING NEW
`
`THAT I CAN RULE ON THAT'S STILL IN DISPUTE.
`THAT I CAN RULE ON THAT'S STILL IN DISPUTE.
`
`WHAT WOULD THAT BE, MS. NGUYEN?
`WHAT WOULD THAT BE, MS. NGUYEN?
`
`MS. NGUYEN: SO IN OUR MOTION TO COMPEL DISCOVERY WE
`MS. NGUYEN:
`SO IN OUR MOTION TO COMPEL DISCOVERY WE
`
`DO WITH SKY ATP AND DEFENDANT INDICATED THEY WOULD PRODUCE THESE
`DO WITH SKY ATP AND DEFENDANT INDICATED THEY WOULD PRODUCE THESE
`
`DOCUMENTS BY APRIL 30TH.
`DOCUMENTS BY APRIL 30TH.
`
`NOW, THE OUTSTANDING ISSUE IS WHETHER DEFENDANT SHOULD BE
`NOW, THE OUTSTANDING ISSUE IS WHETHER DEFENDANT SHOULD BE
`
`REQUIRED TO PRODUCE DOCUMENTS FOR THE ATP APPLIANCE.
`REQUIRED TO PRODUCE DOCUMENTS FOR THE ATP APPLIANCE.
`
`HAD TO ISSUES, AND THE FIRST ONE WHICH I MENTIONED EARLIER HAD TO
`HAD TO ISSUES, AND THE FIRST ONE WHICH I MENTIONED EARLIER HAD TO
`
`HAD PUT IT IN THE COMPLAINT AS AN ACCUSED PRODUCT AND EXPLAINED
`
`THE COURT: ON THE WHAT?
`THE COURT:
`ON THE WHAT?
`
`MS. NGUYEN: ATP APPLIANCE.
`MS. NGUYEN:
`ATP APPLIANCE.
`
`THE COURT: APPLIANCE?
`THE COURT: APPLIANCE?
`
`MS. NGUYEN: YES, YOUR HONOR.
`MS. NGUYEN: YES, YOUR HONOR.
`
`THE COURT: SO WHAT? I MEAN, WHAT'S THE ISSUE THERE?
`THE COURT:
`SO WHAT?
`I MEAN, WHAT'S THE ISSUE THERE?
`
`MS. NGUYEN: DEFENDANT CLAIMED THAT WE DIDN'T
`MS. NGUYEN:
`DEFENDANT CLAIMED THAT WE DIDN'T
`
`SUFFICIENTLY PLEAD IT IN OUR COMPLAINT. AND IT'S OUR POSITION
`SUFFICIENTLY PLEAD IT IN OUR COMPLAINT. AND IT'S OUR POSITION
`
`THAT WE DID GIVE THEM SUFFICIENT --
`THAT WE DID GIVE THEM SUFFICIENT --
`
`THE COURT: WELL, HERE'S THE RULING. IF YOU ACTUALLY
`THE COURT: WELL, HERE'S THE RULING.
`IF YOU ACTUALLY
`
`HAD PUT IT IN THE COMPLAINT AS AN ACCUSED PRODUCT AND EXPLAINED
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 9 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 9 of 20
`
`8
`8
`
`WHICH CLAIMS THE PRODUCT INFRINGES, THEN IT IS IN THE COMPLAINT.
`WHICH CLAIMS THE PRODUCT INFRINGES, THEN IT IS IN THE COMPLAINT.
`
`BUT IF IT'S JUST A BACKGROUND FACT, THAT'S NOT GOOD ENOUGH. SO
`BUT IF IT'S JUST A BACKGROUND FACT, THAT'S NOT GOOD ENOUGH.
`SO
`
`WHICH IS IT?
`WHICH IS IT?
`
`MS. NGUYEN: WE WEREN'T ABLE TO SPECIFICALLY NAME THE
`MS. NGUYEN:
`WE WEREN'T ABLE TO SPECIFICALLY NAME THE
`
`ITS COMPLAINT.
`ITS COMPLAINT.
`
`THE COURT: LOOK, THAT'S YOUR PROBLEM. I MEAN, I CAN'T
`THE COURT:
`LOOK, THAT'S YOUR PROBLEM.
`I MEAN,
`I CAN'T
`
`SOLVE THAT FOR YOU. YOU GOT TO GO BACK AND REPLEAD. IF YOU --
`SOLVE THAT FOR YOU.
`YOU GOT TO GO BACK AND REPLEAD.
`IF YOU --
`
`IF YOU REALLY FEEL YOU HAVE A GOOD FAITH BASIS. BUT I'M NOT JUST
`IF YOU REALLY FEEL YOU HAVE A GOOD FAITH BASIS.
`BUT I'M NOT JUST
`
`GOING TO HAND OVER THE DOCUMENTS TO YOU UNTIL YOU DO THAT. YOU
`GOING TO HAND OVER THE DOCUMENTS TO YOU UNTIL YOU DO THAT.
`YOU
`
`GOT TO PLEAD IT.
`GOT TO PLEAD IT.
`
`IF YOU SURVIVE -- PLEAD IT. SURVIVE THE MOTION TO DISMISS.
`IF YOU SURVIVE -- PLEAD IT.
`SURVIVE THE MOTION TO DISMISS.
`
`THEN YOU GET -- ASSUMING THEY MAKE ONE. I HOPE THEY DON'T MAKE
`THEN YOU GET -- ASSUMING THEY MAKE ONE.
`I HOPE THEY DON'T MAKE
`
`ONE. BUT IF THEY MAKE ONE, THEN YOU GET THE DOCUMENTS.
`ONE.
`BUT IF THRY MAKE ONE, THEN YOU GET THE DOCUMENTS.
`
`MS. NGUYEN: YES, YOUR HONOR.
`MS. NGUYEN: YES, YOUR HONOR.
`
`THE COURT: ALL RIGHT. SO THAT'S MY RULING ON THAT
`THE COURT:
`ALL RIGHT.
`SO THAT'S MY RULING ON THAT
`
`ONE.
`
`OKAY. WHAT'S NEXT?
`OKAY. WHAT'S NEXT?
`
`ATP APPLIANCE BECAUSE IT WASN'T RELEASED UNTIL AFTER FINJAN FILED
`ATP APPLIANCE BECAUSE IT WASN'T RELEASED UNTIL AFTER FINJAN FILED
`
`NEVERTHELESS, DIDN'T
`
`MS. NGUYEN: THE OTHER MOTION WE HAVE PENDING IS
`MS. NGUYEN:
`THE OTHER MOTION WE HAVE PENDING IS
`
`OVERRULING DEFENDANT'S OBJECTION TO DR. COLE WHO IS FINJAN'S
`OVERRULING DEFENDANT'S OBJECTION TO DR. COLE WHO IS FINJAN'S
`
`EXPERT AND --
`EXPERT AND --
`
`THE COURT: YES, BUT ISN'T HE A FORMER COMPETITOR,
`THE COURT:
`YES, BUT ISN'T HE A FORMER COMPETITOR,
`
`IN-HOUSE LAWYER OR IS HE A LAWYER?
`IN-HOUSE LAWYER OR IS HE A LAWYER?
`
`MR. GLUCOFT: NO, YOUR HONOR. HE'S A TECHNICAL EXPERT.
`MR. GLUCOFT:
`NO, YOUR HONOR. HE'S A TECHNICAL EXPERT.
`
`THE COURT: TECHNICAL GUY. OKAY. NEVERTHELESS, DIDN'T
`THE COURT:
`TECHNICAL GUY.
`OKAY.
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 10 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 10 of 20
`
`9
`9
`
`HE USED TO WORK FOR A COMPETITOR?
`HE USED TO WORK FOR A COMPETITOR?
`
`MS. NGUYEN: HE USED TO WORK FOR MCAFEE EIGHT YEARS
`MS. NGUYEN:
`HE USED TO WORK FOR MCAFEE BIGHT YEARS
`
`AGO. AND SINCE THEN, HE HAS NOT, YOUR HONOR.
`AGO.
`AND SINCE THEN, HE HAS NOT, YOUR HONOR.
`
`THE COURT: WELL, ARE THESE -- WHAT TIME PERIOD ARE
`THE COURT: WELL, ARE THESE -- WHAT TIME PERIOD ARE
`
`THESE PATENTS INVOLVED WITH EIGHT YEARS AGO?
`THESE PATENTS INVOLVED WITH EIGHT YEARS AGO?
`
`MS. NGUYEN: THERE'S A RANGE OF DATES. I DON'T KNOW
`MS. NGUYEN:
`THERE'S A RANGE OF DATES.
`I DON'T KNOW
`
`THEM OFF THE TOP OF MY HEAD, YOUR HONOR.
`THEM OFF THE TOP OF MY HEAD, YOUR HONOR.
`
`THE COURT: HERE'S THE THING. THE RULE DOES SAY "PAST
`THE COURT: HERE'S THE THING. THE RULE DOES SAY "PAST
`
`OR PRESENT." RIGHT?
`OR PRESENT."
`RIGHT?
`
`MS. NGUYEN: YES, YOUR HONOR.
`MS. NGUYEN: YES, YOUR HONOR.
`
`THE COURT: SO I GOT TO THINKING ABOUT IT, YOU KNOW,
`THE COURT:
`SO I GOT TO THINKING ABOUT IT, YOU KNOW,
`
`WHY IS IT PAST OR PRESENT? I CAN SEE WHY PRESENT, BUT WHY WOULD
`WHY IS IT PAST OR PRESENT?
`I CAN SEE WHY PRESENT, BUT WHY WOULD
`
`A PAST COMPETITOR MATTER? WHY WOULD A PAST COMPETITOR MATTER?
`A PAST COMPETITOR MATTER? WHY WOULD A PAST COMPETITOR MATTER?
`
`MR. GLUCOFT: YOUR HONOR, THAT IS A POLICY DECISION
`MR. GLUCOFT:
`YOUR HONOR, THAT IS A POLICY DECISION
`
`MCAFEE OR TO ANOTHER COMPETITOR.
`
`THAT I BELIEVE THIS DISTRICT RIGHTFULLY ADOPTED, AND THAT'S
`THAT I BELIEVE THIS DISTRICT RIGHTFULLY ADOPTED, AND THAT'S
`
`BECAUSE WHEN THERE IS A SIGNIFICANT FINANCIAL RELATIONSHIP, EVEN
`BECAUSE WHEN THERE IS A SIGNIFICANT FINANCIAL RELATIONSHIP, EVEN
`
`IN THE PAST, BETWEEN A PURPORTED EXPERT AND A SPECIFIC COMPANY
`IN THE PAST, BETWEEN A PURPORTED EXPERT AND A SPECIFIC COMPANY
`
`THERE IS A GOOD REASON TO BELIEVE THAT THERE'S A CONCERN THAT
`THERE IS A GOOD REASON TO BELIEVE THAT THERE'S A CONCERN THAT
`
`THAT EXPERT MAY ULTIMATELY RETURN TO THAT COMPETITOR AND THEIR
`THAT EXPERT MAY ULTIMATELY RETURN TO THAT COMPETITOR AND THEIR
`
`FORMER EMPLOYER.
`FORMER EMPLOYER.
`
`AND, IN FACT, WE OFFERED TO WITHDRAW OUR OBJECTION TO DR.
`AND,
`IN FACT, WE OFFERED TO WITHDRAW OUR OBJECTION TO DR.
`
`COLE IF HE WOULD CONFIRM NOT TO WORK FOR COMPETITORS FOR A
`COLE IF HE WOULD CONFIRM NOT TO WORK FOR COMPETITORS FOR A
`
`LIMITED DURATION. AND HE WOULDN'T DO THAT. AND SO FROM OUR
`LIMITED DURATION.
`AND HE WOULDN'T DO THAT.
`AND SO FROM OUR
`
`PERSPECTIVE THERE IS A SERIOUS CONCERN THAT HE MAY RETURN TO
`PERSPECTIVE THRRE IS A SERIOUS CONCERN THAT HE MAY RETURN TO
`
`MCAFEE OR TO ANOTHER COMPETITOR.
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 11 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 11 of 20
`
`10
`10
`
`AND JUST TO PUT THINGS IN CONTEXT, FIRST FINJAN ALREADY HAS
`AND JUST TO PUT THINGS IN CONTEXT, FIRST FINJAN ALREADY HAS
`
`DISCLOSED THREE OTHER EXPERTS TO WHICH WE HAVE NOT OBJECTED, ONE
`DISCLOSED THREE OTHER EXPERTS TO WHICH WE HAVE NOT OBJECTED, ONE
`
`OF WHICH HAS EVEN REVIEWED OUR SOURCE CODE ALREADY; ONE OF WHICH
`OF WHICH HAS EVEN REVIEWED OUR SOURCE CODE ALREADY; ONE OF WHICH
`
`HAS FILED MULTIPLE DECLARATIONS RELATED SPECIFICALLY TO THE '494
`HAS FILED MULTIPLE DECLARATIONS RELATED SPECIFICALLY TO THE '494
`
`PATENT. THERE'S NO ISSUE THAT THEY HAVE PLENTY OF EXPERTS TO
`PATENT.
`THERE'S NO ISSUER THAT THEY HAVE PLENTY OF EXPERTS TO
`
`FILL THEIR BENCH. WE JUST HAVE AN ISSUE WITH THIS ONE SPECIFIC
`FILL THEIR BENCH.
`WE JUST HAVE AN ISSUE WITH THIS ONE SPECIFIC
`
`EXPERT AS CLEARLY NOT MEETING THE EXPRESS DEFINITION OF "EXPERT"
`BXPERT AS CLEARLY NOT MEETING THE EXPRESS DEFINITION OF "EXPERT"
`
`IN THE DISTRICT'S MODEL ORDER.
`IN THE DISTRICT'S MODEL ORDER.
`
`AND I WILL SAY HE CAN STILL ACT AS THEIR EXPERT. WE JUST
`AND I WILL SAY HE CAN STILL ACT AS THEIR EXPERT.
`WE JUST
`
`THE COURT: ALL RIGHT. WHAT DO YOU SAY TO THAT,
`THE COURT:
`ALL RIGHT. WHAT DO YOU SAY TO THAT,
`
`MS. NGUYEN?
`MS. NGUYEN?
`
`MS. NGUYEN: YOUR HONOR, HERE THE DEFENDANTS HAVE THE
`MS. NGUYEN:
`YOUR HONOR, HERE THE DEFENDANTS HAVE THE
`
`BURDEN OF ESTABLISHING THAT -- THEY HAVE TO PROVE HARM OF DR.
`BURDEN OF ESTABLISHING THAT -- THEY HAVE TO PROVE HARM OF DR.
`
`COLE REVIEWING THEIR SOURCE CODE SUBSTANTIALLY OUTWEIGHS THE
`COLE REVIEWING THEIR SOURCE CODE SUBSTANTIALLY OUTWEIGHS THE
`
`PREJUDICE TO FINJAN. AND HERE THEY HAVEN'T DONE THAT. AND
`PREJUDICE TO FINJAN.
`AND HERE THRY HAVEN'T DONE THAT.
`AND
`
`DISQUALIFICATION IS A DRASTIC MEASURE FOR THE COURT THAT IS NOT
`DISQUALIFICATION IS A DRASTIC MEASURE FOR THE COURT THAT IS NOT
`
`JUST READILY APPLIED JUST BECAUSE HE IS A FORMER EMPLOYEE OF A
`JUST READILY APPLIED JUST BECAUSE HE IS A FORMER EMPLOYEE OF A
`
`DON'T WANT HIM VIEWING JUNIPER'S HIGHLY CONFIDENTIAL SOURCE CODE.
`DON'T WANT HIM VIEWING JUNIPER'S HIGHLY CONFIDENTIAL SOURCE CODE.
`
`INDICATES THAT HE'S COMPLIED WITH THE ETHICAL RULES, WHICH IS ONE
`
`COMPETITOR.
`COMPETITOR.
`
`THE COURT: WELL, BUT YOU WON'T AGREE TO THAT CONDITION
`THE COURT: WELL, BUT YOU WON'T AGREE TO THAT CONDITION
`
`THAT HE WON'T GO BACK TO MCAFEE. IT'S MCAFEE. RIGHT?
`THAT HE WON'T GO BACK TO MCAFEE.
`IT'S MCAFEE.
`RIGHT?
`
`MR. GLUCOFT: CORRECT, YOUR HONOR.
`MR. GLUCOFT:
`CORRECT, YOUR HONOR.
`
`MS. NGUYEN: YES, YOUR HONOR. WE'VE OFFERED DURING THE
`MS. NGUYEN: YES, YOUR HONOR. WE'VE OFFERED DURING THE
`
`MEET AND CONFER THAT DR. COLE WOULD SUBMIT A DECLARATION THAT
`MEET AND CONFER THAT DR. COLE WOULD SUBMIT A DECLARATION THAT
`
`INDICATES THAT HE'S COMPLIED WITH THE ETHICAL RULES, WHICH IS ONE
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 12 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 12 of 20
`
`11
`11
`
`OF THE POINTS THAT DEFENDANT HAS RAISED THAT IS PREJUDICIAL TO
`OF THE POINTS THAT DEFENDANT HAS RAISED THAT IS PREJUDICIAL TO
`
`THEM; AND THAT HE HAS NO CONTACT AT MCAFEE AND HAS NO INTENT TO
`THEM; AND THAT HE HAS NO CONTACT AT MCAFEE AND HAS NO INTENT TO
`
`WORK AS AN EMPLOYEE OF JUNIPER'S COMPETITORS, WHICH IS CONSISTENT
`WORK AS AN EMPLOYEE OF JUNIPER'S COMPETITORS, WHICH IS CONSISTENT
`
`WITH THE LANGUAGE IN 2.7 OF THE MODEL --
`WITH THE LANGUAGE IN 2.7 OF THE MODEL --
`
`THE COURT: WELL, HOW DO YOU GET AROUND THE THING
`THE COURT: WELL, HOW DO YOU GET AROUND THE THING
`
`THAT -- THE RULE THAT SAYS "PAST OR PRESENT"?
`THAT -- THE RULE THAT SAYS "PAST OR PRESENT"?
`
`MS. NGUYEN: YOUR HONOR, SO IN THE CASES THAT WE CITED
`MS. NGUYEN:
`YOUR HONOR, SO IN THE CASES THAT WE CITED
`
`IN OUR MOTION, THIS CONCERNED PRIOR -- PRIOR EXPERTS WHO WERE
`IN OUR MOTION, THIS CONCERNED PRIOR -- PRIOR EXPERTS WHO WERE
`
`ENGAGED FOR THE PARTY THAT WAS BEING CHALLENGED. AND, IN FACT,
`ENGAGED FOR THE PARTY THAT WAS BEING CHALLENGED.
`AND,
`IN FACT,
`
`THE CASES THAT DEFENDANTS CITE ALL DEAL WITH EXPERTS WHO ARE
`THE CASES THAT DEFENDANTS CITE ALL DEAL WITH EXPERTS WHO ARE
`
`CURRENTLY EMPLOYED BY THE PLAINTIFF OR THE COMPETITOR.
`CURRENTLY EMPLOYED BY THE PLAINTIFF OR THE COMPETITOR.
`
`THE COURT: BUT DO THOSE CASES DEAL WITH OUR RULE, THIS
`THE COURT:
`BUT DO THOSE CASES DEAL WITH OUR RULE, THIS
`
`LANGUAGE IN THE RULE?
`LANGUAGE IN THE RULE?
`
`MS. NGUYEN: THE BASIS FOR THE CHALLENGE IS SLIGHTLY
`MS. NGUYEN:
`THE BASIS FOR THE CHALLENGE IS SLIGHTLY
`
`DIFFERENT IN THAT THE CASES THAT WE CITE, FINJAN CITES HAVE TO DO
`DIFFERENT IN THAT THE CASES THAT WE CITE, FINJAN CITES HAVE TO DO
`
`WITH WHETHER DISQUALIFICATION IS APPROPRIATE. SO THE -- THERE'S
`WITH WHETHER DISQUALIFICATION IS APPROPRIATE.
`SO THE -- THERE'S
`
`A BIT OF A DIFFERENCE IN HOW WE ARE PERCEIVING THIS.
`A BIT OF A DIFFERENCE IN HOW WE ARE PERCEIVING THIS.
`
`SO WE'RE PERCEIVING THIS AS NOT MODIFYING THE PROTECTIVE
`SO WE'RE PERCKRIVING THIS AS NOT MODIFYING THE PROTECTIVE
`
`ORDER, BUT IT'S ACTUALLY JUST THAT DEFENDANT IS TRYING TO
`ORDER, BUT IT'S ACTUALLY JUST THAT DEFENDANT IS TRYING TO
`
`DISQUALIFY OUR EXPERT FROM TESTIFYING. AND THAT WOULD BE HIGHLY
`DISQUALIFY OUR EXPERT FROM TESTIFYING.
`AND THAT WOULD BE HIGHLY
`
`AND DR. LITOVITCH (PHONETIC), WHICH IS ATTACHED AS EXHIBIT
`
`
`AND WITH REGARD TO THEIR COMMENTS THAT WE HAVE OTHER EXPERTS
`AND WITH REGARD TO THEIR COMMENTS THAT WE HAVE OTHER EXPERTS
`
`PREJUDICIAL TO US.
`PREJUDICIAL TO US.
`
`WHO WERE DISCLOSED, MR. TIEN (PHONETIC) IS NOT A TESTIFYING
`WHO WERE DISCLOSED, MR. TIEN (PHONETIC)
`IS NOT A TESTIFYING
`
`EXPERT. HE'S THERE TO HELP REVIEW SOURCE CODE.
`BXPERT. HE'S THERE TO HELP REVIEW SOURCE CODE.
`
`AND DR. LITOVITCH (PHONETIC), WHICH IS ATTACHED AS EXHIBIT
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 13 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 13 of 20
`
`12
`12
`
`3, HAS PROVIDED TESTIMONY REGARDING THE VALIDITY OF THE '494
`3, HAS PROVIDED TESTIMONY REGARDING THE VALIDITY OF THE '494
`
`PATENT AND NOT THE INFRINGEMENT ASPECT.
`PATENT AND NOT THE INFRINGEMENT ASPECT.
`
`THE COURT: WELL, WHY CAN'T YOU GET SOMEBODY ELSE TO DO
`THE COURT: WELL, WHY CAN'T YOU GET SOMEBODY ELSE TO DO
`
`THE SOURCE CODE REVIEW?
`THE SOURCE CODE REVIEW?
`
`OTHER FINJAN CASES WITHOUT ISSUE. AND HE HAS ALREADY READ THE
`OTHER FINJAN CASES WITHOUT ISSUE.
`AND HE HAS ALREADY READ THE
`
`MODEL PROTECTIVE ORDER AND HAS STARTED WORK IN THIS CASE.
`MODEL PROTECTIVE ORDER AND HAS STARTED WORK IN THIS CASE.
`
`THE COURT: WHERE IS HE LOCATED NOW?
`THE COURT: WHERE IS HE LOCATED NOW?
`
`MS. NGUYEN: I BELIEVE HE'S LOCATED IN VIRGINIA, YOUR
`MS. NGUYEN:
`JI BELIEVE HE'S LOCATED IN VIRGINIA, YOUR
`
`HONOR.
`
`THE COURT: I MEAN, WHO DOES HE WORK FOR?
`THE COURT:
`I MEAN, WHO DOES HE WORK FOR?
`
`MS. NGUYEN: OH, HE'S AN EXPERT WITNESS AND HE'S A
`MS. NGUYEN:
`OH, HE'S AN EXPERT WITNESS AND HE'S A
`
`MS. NGUYEN: BECAUSE DR. COLE IS VERY FAMILIAR WITH THE
`MS. NGUYEN:
`BECAUSE DR. COLE IS VERY FAMILIAR WITH THE
`
`INFRINGEMENT READ OF THE '494 PATENT AS WE'VE USED HIM IN MANY
`INFRINGEMENT READ OF THE '494 PATENT AS WE'VE USED HIM IN MANY
`
`ARE BEING SOLD RIGHT NOW OR ARE THEY EARLIER OUT-OF-DATE
`
`CONSULTANT FOR THE GOVERNMENT.
`CONSULTANT FOR THE GOVERNMENT.
`
`THE COURT: FOR THE WHO?
`THE COURT:
`FOR THE WHO?
`
`MS. NGUYEN: THE GOVERNMENT.
`MS. NGUYEN:
`THE GOVERNMENT.
`
`THE COURT: GOVERNMENT?
`THE COURT:
`GOVERNMENT?
`
`MS. NGUYEN: YES, YOUR HONOR.
`MS. NGUYEN: YES, YOUR HONOR.
`
`THE COURT: SO HE WORKS FOR THE U.S. GOVERNMENT?
`THE COURT:
`SO HE WORKS FOR THE U.S. GOVERNMENT?
`
`MS. NGUYEN: YES. I'M NOT SURE IF HE'S STILL CURRENTLY
`MS. NGUYEN: YES.
`I'M NOT SURE IF HE'S STILL CURRENTLY
`
`EMPLOYED BY THE U.S. GOVERNMENT, BUT HE WAS PREVIOUSLY WORKING
`EMPLOYED BY THE U.S. GOVERNMENT, BUT HE WAS PREVIOUSLY WORKING
`
`FOR PRESIDENT OBAMA FOR HIS SECURITY PURPOSES.
`FOR PRESIDENT OBAMA FOR HIS SECURITY PURPOSES.
`
`THE COURT: ARE THESE CURRENT PRODUCTS OR PAST
`THE COURT:
`ARE THESE CURRENT PRODUCTS OR PAST
`
`PRODUCTS? THE SOURCE CODE, ARE THESE JUNIPER'S PRODUCTS THAT
`PRODUCTS?
`THER SOURCE CODE, ARE THESE JUNIPER'S PRODUCTS THAT
`
`ARE BEING SOLD RIGHT NOW OR ARE THEY EARLIER OUT-OF-DATE
`
`-
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`

`

`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 14 of 20
`Case 3:17-cv-05659-WHA Document 78-1 Filed 05/04/18 Page 14 of 20
`
`13
`13
`
`PRODUCTS?
`PRODUCTS?
`
`MR. GLUCOFT: YOUR HONOR, THESE PRODUCTS ARE CURRENTLY
`MR. GLUCOFT:
`YOUR HONOR, THESE PRODUCTS ARE CURRENTLY
`
`BEING SOLD. AND, IN ADDITION, I'D LIKE TO JUST CLARIFY TWO
`BEING SOLD.
`AND,
`IN ADDITION,
`I'D LIKE TO JUST CLARIFY TWO
`
`OKAY. MS. NGUYEN, WHAT DO YOU SAY?
`
`THIS NOTION THAT HE'S ALREADY FAMILIAR WITH THE '494
`THIS NOTION THAT HE'S ALREADY FAMILIAR WITH THE '494
`
`INFRINGEMENT READ DOESN'T MAKE SENSE BECAUSE HE HASN'T SEEN ANY
`INFRINGEMENT READ DOESN'T MAKE SENSE BECAUSE HE HASN'T SEEN ANY
`
`POINTS.
`POINTS.
`
`FIRST, THE REAL ISSUE HERE IS THAT DR. COLE DOES NOT MEET
`FIRST, THE REAL ISSUE HERE IS THAT DR. COLE DOES NOT MEET
`
`THE EXPRESS DEFINITION OF "EXPERT" IN THE PROTECTIVE ORDER. AND
`THR EXPRESS DEFINITION O