Case 3:18-cv-02621-WHO Document 261 Filed 02/14/20 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`CHECK POINT SOFTWARE
`TECHNOLOGIES, INC., et al.,
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`Defendants.
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`Case No. 18-cv-02621-WHO
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`ORDER APPOINTING SPECIAL
`MASTER
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`Pursuant to Federal Rule of Civil Procedure 53, Honorable Elizabeth D. Laporte, United
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`States District Court Magistrate Judge (Retired), is hereby appointed as Special Master to assist in
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`this litigation (hereinafter “Judge Laporte” or “Special Master”).
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`I.
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`BASIS FOR APPOINTMENT UNDER RULE 53(A) AND RULE 53(B)(1)
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`1.
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`Basis for Appointment. The Special Master is hereby appointed pursuant to Rule
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`53(a)(1)(C) to address matters that I cannot timely addresses. Given the scope of this
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`litigation and the way it is being litigated, as the Order Granting In Part Motion to
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`Strike Second Amended Infringement Contentions (“SAIC Order”) makes plain, I have
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`determined that it is fair to impose the likely expenses on the parties. See Dkt. No.
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`247.
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`2.
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`No Grounds for Disqualification. Pursuant to Rule 53(a)(2) and 53(b)(3), the Special
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`Master has filed an affidavit in this case that states that she has no relationship to the
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`parties, counsel, action, or court that would require disqualification of a judge under 28
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`U.S.C. § 455. See Dkt. No. 260. During the course of these proceedings, the Special
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`Master and the parties shall notify the court immediately if they become aware of any
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`potential grounds that would require disqualification.
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`Case 3:18-cv-02621-WHO Document 261 Filed 02/14/20 Page 2 of 5
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`3.
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`Fairness Considerations. Pursuant to Rule 53(a)(3), I have determined that it is fair to
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`impose the likely expenses on the parties. The appointment and use of the Special
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`Master will promote the speediest adjudication of this matter.
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`4.
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`Proper Notice Given to All Parties. Pursuant to Rule 53(b)(1), I gave the plaintiff
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`Finjan, Inc. (“Finjan”) and defendants Check Point Software Technologies, Inc. and
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`Check Point Software Technologies Ltd. (collectively “Check Point”) notice of my
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`intent to appoint a special master and an opportunity to be heard with respect to such
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`appointment before issuing this Order. See Dkt. No. 248. No party has objected.
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`II.
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`SPECIAL MASTER’S DUTIES, AUTHORITY, AND COMPENSATION
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`5.
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`Diligence. Pursuant to Rule 53(b)(2), the Special Master is directed to proceed with all
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`reasonable diligence to complete the tasks assigned by this Order.
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`6.
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`Scope of Special Master’s Duties. Pursuant to Rule 53(b)(2)(A), the Special Master
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`shall assist in the following ways and issue findings and recommendations accordingly.
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`The Special Master shall determine if Finjan’s infringement contentions follow the
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`provisions of this District’s Patent Local Rules and my previous orders. Specifically,
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`the Special Master shall determine:
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`a.
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`If the other 69 combination charts identified by Check Point should be struck
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`for failure to adequately identify and explain combinations, as argued in
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`Check Point’s Appendix C [Dkt. No. 213-3] and Finjan’s Rebuttal Appendix
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`C [Dkt. No. 223-9]. See SAIC Order at 22-26 (discussing Issue 3).
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`b.
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`If the entirety of the SAICs should be struck (a) due to inadequate source
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`code explanations and/or (b) because the same source code is cited for
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`different limitations, different patents, and different products without
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`explaining why the same source code applies in these different cases, as
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`argued in Check Point’s Appendix A [Dkt. No. 212-5], Finjan’s Rebuttal
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`Appendix A [Dkt. No. 223-9], and Check Point’s Reply Appendix [Dkt. No.
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`234-5]. See SAIC Order at 29-37 (discussing Issue 6).
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`c.
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`Any other open issues related to the infringement contentions raised before
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`Case 3:18-cv-02621-WHO Document 261 Filed 02/14/20 Page 3 of 5
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`the Special Master.
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`7.
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`Scope of Special Master’s Authority. The Special Master shall have the authority
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`provided in Rule 53(c) and 53(d). The Special Master shall have the sole discretion to
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`determine the appropriate procedures for resolution of all assigned matters and shall
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`have the authority to take all appropriate measures to perform the assigned duties. The
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`parties must cooperate with the Special Master. The Special Master may by order
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`impose upon a party any sanction other than contempt and may recommend a contempt
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`sanction against a party and contempt or any other sanction against a non-party.
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`8.
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`Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the Special Master may
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`communicate ex parte with the court at any time. Generally, the Special Master shall
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`not communicate ex parte with any party without first providing notice to, and
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`receiving consent from, the other party. However, without providing notice or
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`obtaining consent, the Special Master may communicate ex parte with a party for the
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`limited purposes of administrative matters such as scheduling hearings, telephone calls
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`or briefing.
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`9.
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`Preservation of Materials and Preparation of Record. Pursuant to Rule 53(b)(2)(C), the
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`Special Master shall maintain orderly files consisting of all documents submitted to her
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`by the parties and any of her written findings and/or recommendations. Pursuant to
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`Rule 53(e), the Special Master shall file any written findings, and/or recommendations
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`with the court via the court’s Electronic Case Filing (“ECF”). Such filing shall fulfil
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`the Special Master’s duty to serve her order on the parties. Any records of the Special
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`Master’s activities other than her written findings, and/or recommendations shall be
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`filed in accordance with paragraph 13 herein.
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`10.
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`Compensation. Pursuant to Rule 53(b)(2)(E) and Rule 53(g), the Special Master shall
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`be paid $700 per hour for work done pursuant to this Order, and shall be reimbursed
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`for all reasonable expenses incurred. To further protect against unreasonable expense
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`or delay, the Special Master shall have the discretion to use the services of a law clerk,
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`billed at $300 per hour. The fees associated with accessing the case through the Public
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`Case 3:18-cv-02621-WHO Document 261 Filed 02/14/20 Page 4 of 5
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`Access to Court Electronic Records (“PACER”) shall be waived for the Special
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`Master. Finjan shall pay the Special Master’s fees and costs. The Special Master shall
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`have the power to recommend reallocating some or all of the fees to Check Point, and
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`also to award attorneys’ fees to the prevailing party for the proceedings before her as a
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`discovery sanction.
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`III. ACTION ON SPECIAL MASTER’S ORDERS, REPORTS, OR
`RECOMMENDATIONS
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`11.
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`Scope of Section. Pursuant to Rule 53(b)(2)(D) and 53(g), the procedures described
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`below shall govern any action of the Special Master’s orders, reports, and/or
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`recommendations.
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`12.
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`Time Limits for Review. Any party wishing to file objections to or a motion to adopt
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`or modify the Special Master’s reports and/or recommendations must file such
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`objections or motion with the court within fourteen (14) days from the day the Special
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`Master filed the report and/or recommendation via ECF. Failure to timely object shall
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`be deemed as a waiver of any objection, such that they are deemed approved, accepted,
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`and ordered by the court.
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`13.
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`Filing the Record for Review. The party filing the objection or motion shall submit
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`with such objection or motion any record necessary for me to review the Special
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`Master’s order, report, and/or recommendation, including any transcripts of
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`proceedings before the Special Master and any documents submitted by the parties in
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`connection with the Special Master’s order, report, and/or recommendation. Failure to
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`provide the record shall constitute grounds for me to overrule the objection or deny the
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`motion.
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`14.
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`Standard for Court’s Review. I shall review findings of fact made or recommended by
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`the Special Master for clear error. I shall review de novo any conclusions of law made
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`or recommended by the Special Master. I will set aside the Special Master’s ruling on
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`a procedural matter only for an abuse of discretion.
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`15.
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`Court’s Actions on Master’s Orders. Pursuant to Rule 53(g)(1), in acting on an order,
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`Case 3:18-cv-02621-WHO Document 261 Filed 02/14/20 Page 5 of 5
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`report, or recommendation of the Special Master, I shall afford each party an
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`opportunity to be heard and, in my discretion, may review evidence, and may adopt or
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`affirm; modify; wholly or partly reject or reverse; resubmit to the Special Master with
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`instructions; or make any further orders I deem appropriate.
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`IT IS SO ORDERED.
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`Dated: February 14, 2020
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`William H. Orrick
`United States District Judge
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