Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 1 of 7
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`Exhibit L
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`Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 2 of 7
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`Caridis, Alyssa
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`From:
`Sent:
`To:
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`Cc:
`Subject:
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`Linda,
`
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`Feeman, Vickie L.
`Friday, September 20, 2019 1:48 PM
`Xu, Linda; Roberts, Clement; Caridis, Alyssa; Cheever, Frances; Brewer, Evan; Burleigh,
`Miwako
`Hannah, James; Kobialka, Lisa; Andre, Paul; Kastens, Kris; Manes, Austin
`RE: Finjan v. Check Point - Meet and Confer Summary (9/9/19)
`
`1. Mr. Heldshetein’s deposition will be in either Orrick’s SF or SV office. We will provide a location and the
`designated topics at least two weeks before the deposition.
`2. As we have repeatedly explained, including during the meet and confer, technical depositions are
`premature until the infringement contentions are set. We do not agree to make witnesses available for
`all instrumentalities listed in Finjan’s infringement contentions as we do not believe that they are all
`properly accused. We note that any delay in the technical depositions is due to Finjan’s refusal to serve
`contentions that comply with the Local Rules and the repeated orders of this Court. As we have also
`previously stated, if you would like to depose Itai Greenberg on marketing issues (such as the
`importance of features, how Check Point sells its products etc.) rather than how the products work, we
`are willing to schedule his deposition now. However, this will be your one opportunity to depose Mr.
`Greenberg.
`3. I do not understand how the instrumentalities we believe to be in the case is relevant to the written
`question procedure. In any event, the issue of which instrumentalities we believe are still in the case
`depends on the outcome of the negotiations regarding Finjan’s most recent infringement contentions
`and the result of any motion to strike. After we have worked through those issues with you, we should
`be able to identify the instrumentalities we believe should be stricken and the instrumentalities, if any,
`for which the contentions are proper.
`4. I think you misunderstand Fed. R. Civ. P. 34. The “production” required by Fed. R. Civ. P. 34 is to
`“produce and permit the requesting party or its representative to inspect, copy, test, or sample [any
`designated documents or electronically stored information or any designated tangible things] in the
`responding party’s possession, custody, or control”. 34(a)(1). The responding party has the option to
`produce copies instead of permitting inspection. 34(b)(2)(B) (“The responding party may state that it will
`produce copies of documents or of electronically stored information instead of permitting inspection.”)
`Nowhere in the rules does it state that the requesting party can demand production of documents
`instead of inspection. This option is left up to the responding party. Here, given the sensitivity and
`volume of the requested information, Check Point is willing to discuss making the raw data (which
`Finjan has never even formally requested in an RFP) available for inspection subject to us reaching
`agreement. Are you rejecting this offer?
`5. We have responded to item 5 separately.
`6. We have made progress on working through the Israeli privacy issues and are in the process of running
`the requested searches. We hope to be able to provide you hit count information sometime next week.
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`Additionally, this afternoon you will receive a production that includes (1) an IDC communication (bates number
`CPFIN00033974). We have performed a search for any communications in which Check Point provided
`financial information to IDC. We could find only this one such communication. (2) the latest company-wide
`forecast (bates number CPFIN00033972). (3) a corrected version of the bookings/expenses/profits
`spreadsheet (bates number CPFIN00033973). Note that all of this is AEO information.
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`Regards, Vickie Feeman
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`Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 3 of 7
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`From: Xu, Linda
`Sent: Tuesday, September 17, 2019 3:53 PM
`To: Feeman, Vickie L. ; Roberts, Clement ; Caridis, Alyssa ; Cheever, Frances ; Brewer, Evan
`Cc: Hannah, James ; Kobialka, Lisa ; Andre, Paul ; Kastens, Kris ; Manes, Austin
`Subject: RE: Finjan v. Check Point - Meet and Confer Summary (9/9/19)
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`Vickie,
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`1. We accept November 5th for Mr. Heldshtein. Please provide a location for his deposition and the topics he is
`designated for. We understand that Check Point will not seek to limit the scope of his deposition based on its
`understanding of the accused products.
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`2. If Check Point agrees to not limit the topics that fact witnesses can discuss, then we agree that only one deposition of
`each witness will be needed. As these are fact depositions, Check Point would not be obligated to make these witnesses
`knowledgeable on any subject and they could speak exclusively from their personal knowledge. For a 30(b)(6) witnesses
`on technical topics, if Check Point agrees to make a witness available for all instrumentalities listed Finjan’s identification
`of Accused Instrumentalities in its current infringement contentions, then we agree that we will only take those
`witnesses a single time based on those instrumentalities. Confirm if Check Point agrees to this procedure and we can
`start scheduling deposition dates.
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`3. Regarding written questions, can you confirm what instrumentalities you believe are still in the case?
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`4. Contrary to your email below, Check Point has not complied with Judge Spero’s order by providing a single summary
`spreadsheet of financial information, at the very least because this is not how the information was kept in the ordinary
`course of business and strips out necessary information on when instrumentalities were sold, what other
`instrumentalities they were sold with, and what price they were sold at. We also find Check Point’s statements that it
`made this summary for Finjan’s benefits to be disingenuous, as Finjan specifically stated that it wanted the underlying
`sales information for the different SKUs sold, not a manipulated summary. See, for example, Dkt. No. 183 at 1:12-22,
`3:11-2, 4:5-18. This information was fully under the scope of the RFPs that were before Spero, as parties are not able to
`avoid production of actual documents and information by creating litigation derived summaries. Regarding the
`underlying sales information requested, confirm that Check Point will produce this information to Finjan by the end of
`the week. Check Point has no basis to only make this information available for inspection, and this type of information is
`routinely exported to spreadsheets as part of litigations. Check Point’s conduct to date has been highly prejudicial.
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`5. Additionally, we sent you an email last week requesting that you clarify a number of the complaints that you have
`about Finjan’s infringement contentions, or provide a time to meet and confer, so we can determine if these issues can
`be resolved. When will Check Point provide a response?
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`6. Regarding ESI, we have provided the custodians to you over a month ago (on August 14) and we still haven’t received
`the hit count information. Please provide us a status update.
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`
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`Linda Xu
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1728 F 650.752.1800
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
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`Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 4 of 7
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`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`From: Feeman, Vickie L. <vfeeman@orrick.com>
`Sent: Monday, September 16, 2019 12:24 PM
`To: Xu, Linda <LXu@KRAMERLEVIN.com>; Roberts, Clement <croberts@orrick.com>; Caridis, Alyssa
`<acaridis@orrick.com>; Cheever, Frances <fcheever@orrick.com>; Brewer, Evan <ebrewer@orrick.com>
`Cc: Hannah, James <JHannah@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Andre, Paul
`<PAndre@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Manes, Austin
`<AManes@KRAMERLEVIN.com>
`Subject: [EXTERNAL] RE: Finjan v. Check Point - Meet and Confer Summary (9/9/19)
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`Linda,
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`We’d like to respond to and clarify a couple of points with respect to your summary of the September 9th meet
`and confer.
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`1. Mr. Heldshtein is not available on Nov. 4th. He is available on either Nov. 5th or 6th. Please advise which
`day you prefer to take his deposition.
`2. For technical witnesses, given that these witnesses live in Israel, we have been clear that Check Point
`will not make them available twice for deposition. So if Finjan elects to proceed with a more limited
`deposition at this time, that will be your one opportunity to depose the witness.
`3. We don’t understand the comment about Judge Orrick’s written question procedure applying to all
`witnesses. Our understanding is that, if it applies, the written question procedure is akin to a 30(b)(6)
`deposition in that it is not witness specific. Our understanding of that procedure is that Finjan provides
`questions to Check Point, and if the questions are appropriate, timely and necessary the parties would
`meet and confer about how to provide the responsive information – e.g. by Check Point providing
`written responses. Then, if the parties could not agree, they would submit a five page letter brief to the
`Court with the relevant questions.
`4. With respect to Interrogatory No. 9, we did not agree at the meet and confer that any mapping is
`“missing,” but rather we stated that, as with R80, it may simply be that the code does not map to the
`accused products. We have looked into this and everything was mapped and any confusion is a result
`of Finjan’s counsels’ or experts’ misunderstanding. E80.61 is a management release and is fully
`mapped in our response; this release does not include TE and TX and thus does not map onto threat
`emulation and threat extraction. E80.71 is a later release that was added to encompass a couple of
`instrumentalities, such as Anti-Ransomware, that were not released at the time of the prior release. As
`such, everything is fully mapped; there is no “missing” mapping.
`5. With respect to financial information, we did not agree to provide underlying data. Instead, we agreed to
`check if there was any written documentation as to the methodology used and to provide the cost
`information on a category by category basis. We conferred with our client and the answer is that the
`methodology does not exist in a pre-existing document. As we explained during the meet and confer,
`the spreadsheet was based on analyzing a huge amount of data spread across multiple databases and
`it took Check Point thousands of hours to go through that data and create the spreadsheet we
`produced. We do not agree that this is unorthodox, but rather that it was the only way to provide the
`information that Finjan specifically requested for the accused instrumentalities – i.e., documents
`sufficient to show the revenues, costs and profits of the accused instrumentalities. We further note that
`Finjan did not request underlying data. Rather Finjan requested documents, communications or things
`sufficient to show the requested information (i.e., revenue, costs, profits). The information provided
`was sufficient to show the requested information and thus fully complied with Finjan’s requests. And
`Check Point undertook great burden and expense to provide the specific information you requested.
`Apparently Finjan is now questioning the veracity of the information produced. As we explained, the
`best way for you to understand and test the veracity of Mr. Heldshtein’s methodology is to depose him.
`We note that had Check Point simply dumped a huge amount of irrelevant and unallocated financial
`data on Finjan, you likely would have argued that the information provided was not sufficient to show
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`Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 5 of 7
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`the revenue, costs and profits of each of the Accused Instrumentalities and as such did not
`comply with your requests, and demanded that Check Point provide the allocation. Finally, we note that
`the burden and expense of producing the extensive and highly sensitive information you appear to be
`asking for is not proportional to Finjan’s need for that discovery as we do not believe this information
`will be useful. Nonetheless, in the spirit of compromise, and even though Finjan never formally
`requested this information in an RFP, Check Point is willing to discuss making the raw data available
`for inspection subject to us reaching agreement. Let us know when you are available to discuss.
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`Regards, Vickie
`
`
`From: Xu, Linda <LXu@KRAMERLEVIN.com>
`Sent: Wednesday, September 11, 2019 5:52 PM
`To: Roberts, Clement <croberts@orrick.com>; Caridis, Alyssa <acaridis@orrick.com>; Cheever, Frances
`<fcheever@orrick.com>; Feeman, Vickie L. <vfeeman@orrick.com>; Brewer, Evan <ebrewer@orrick.com>
`Cc: Hannah, James <JHannah@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Andre, Paul
`<PAndre@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Manes, Austin
`<AManes@KRAMERLEVIN.com>
`Subject: Finjan v. Check Point - Meet and Confer Summary (9/9/19)
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`Counsel,
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`Below summarizes our conversation for Monday’s meet and confer in our Menlo Park office and Finjan’s positions. As a
`general matter, you represented that there are not objections to continuing discovery, other than your objections to
`technical depositions and to the extent the parties dispute whether an accused instrumentality is in the case. You
`agreed to give us a list of what Check Point’s position is with respect to the accused instrumentalities in the case in the
`coming days.
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`Depositions
` We understand that Check Point is offering certain non-technical witnesses for deposition. For example, Roy
`Heldshtein who prepared the spreadsheets of financial information will be available in California the first week
`of November. You were going to get back to us on Cindy Wilson’s availability, who is located in the US, and is
`related to marketing and non-technical product related issues. We have reattached the 30(B)(6) topics and
`note that we have added a few more. We will take Mr. Heldshtein’s deposition on November 4, in California.
`Let us know what topics he and Ms. Wilson will be designated. Additionally, Check Point was going to get back
`to us the designee on licensing issues, who may be John Salvitt.
` For technical witnesses, such as Mr. Tamir Zegman or Itai Greenberg, Check Point will not make them available
`for broader technical related depositions prior to Court resolution of Finjan’s infringement contentions and
`would limit any deposition to the areas that Check Point does not dispute are in the case, if any exist and which
`Check Point represented it would identify as soon as it could.
` Check Point also stated that it does not know if Judge Orrick’s written question procedure applies anymore, but
`that this written question procedure would not count as a deposition. Check Point also stated that if this
`procedure still applies, it is not specific to a particular witness but would apply to all technical witnesses. We
`will get back to you on this issue once we understand your position on what accused instrumentalities are in
`the case.
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`Interrogatories
`
`Interrogatory Nos. 4 and 11: Check Point agreed to supplement its responses to these interrogatories.
`
`Interrogatory No. 9: Check Point will get back to us regarding the missing mapping of source code for E80.61
`(with respect to threat emulation and threat extraction) and E80.71 (for all endpoint enterprise
`instrumentalities). Check Point will add page numbers to the appendix to this interrogatory. Check Point
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`Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 6 of 7
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`
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`represented that there was no mapping for R80 because it is a release for security management products and
`this release did not include source code for the other blades.
`Interrogatory Nos. 10, 12-15: Check Point agreed to supplement for instrumentalities that it does not seek to
`strike in its upcoming motion to strike.
`o For No. 13, Check Point is going back to check with whether any surveys have been performed.
`o For No. 14, Check Point agreed to answer this interrogatory if Finjan agrees to rephrase the language of
`the interrogatory. Finjan is agreeable to rewording the interrogatory to seek identification of the
`smallest saleable unit accused of infringement (in lieu of the smallest salable patent practicing unit).
`Confirm when you will provide a response.
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`Damages Related Production and Marketing
` You represented that Check Point does not maintain any revenue or cost information on a product by product
`basis. Rather such information is done on an enterprise/ company wide basis and to the extent there are
`revenues and costs, they are done for reporting to the SEC and are disclosed in Check Point’s SEC filings. You
`represented that Check Point only tracks bookings and those bookings are tracked by the associated SKUs which
`have changed over time. Check Point does have categories of its costs that it maintains on a company wide
`basis.
` Check Point confirmed that the single financial document spreadsheet produced (CPFIN00028837) was in
`response to Judge Spero’s order and was created for purposes of the litigation. It was amalgamated from
`multiple sources by Mr. Heldshtein, who will be able to testify about the document, as he created it. Your
`understanding is that he allocated based on some information/formula what the booking associated with each
`accused “instrumentality,” e.g., each blade. For example, if a bundle of blades were sold, he reduced the total
`amount of the booking using some formula to only provide the portioned of the bookings of the bundle for just
`the accused instrumentalities. He did not provide, for example, the entire bookings associated with the
`transaction for the SKU. This information was pulled from a “live” database. Further, he imputed costs because
`you represented that Check Point does not maintain costs on a product by product basis. Thus, Mr. Heldshtein
`took cost categories and generated imputed cost figures for products that are reflected on the spreadsheet. You
`represented that you would be willing to work with us, including providing the underlying information.
`Consistent with that representation and given this unorthodox approach, we request the formula and
`underlying information he used for calculating the bookings and costs reported in the spreadsheet. Also, confirm
`that Check Point will provide the data underlying these spread sheets from 2012 until the present (with at least
`the SKU sold and date and cost of each SKU sold) and also including what the values were assigned to any
`particular accused instrumentality by Check Point when generating CPFIN00028837. For example, what value
`was assigned to the accused threat emulation blade versus other blades sold (such as DLP) in this SKU and what
`cost was allocated by the accused instrumentalities.
` Check Point agreed to provide explanations for the excel sheets produced related to the scans and use of the
`accused instrumentalities, as most do not identify what information they are describing.
` Check Point agreed to produce company-wide sales information and forecasts, as well as company-wide costs
`and percentages attributable to each cost category (e.g., R&Ds, etc.).
` Check Point represented that, since it does not maintain revenue information on a product-by-product basis, it
`stated that the gross profits were bookings and the net profits were the imputed cost against the bookings,
`which is set forth in CPFIN00028837.
` Check Point agreed to provide a price sheet for each year from 2012 to the present.
` Check Point stated that it does not have market share information on a product-by-product basis (for the
`products as set forth in the list identified by Judge Spero’s order (Dkt. No. 128)) and it does not have any
`valuations.
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`3rd Party Subpoenas
` Check Point confirmed that it has and will continue to produce to Finjan all documents received from the 3rd
`parties responsive to Check Point’s subpoenas.
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`Source Code Printouts
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`Case 3:18-cv-02621-WHO Document 264-13 Filed 03/27/20 Page 7 of 7
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` Check Point produced the requested source code printouts at yesterday’s meet and confer.
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`ESI Hit Counts
` Check Point agreed to give us the hit counts for the terms and the custodians identified and agreed to keep us
`notified of its progress, as certain witnesses need to provide approval for such a search. To the extent any
`witnesses do not require approval, we request that you provide us those hit counts, so we can begin working
`toward completing this portion of discovery.
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`
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`Linda Xu
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1728 F 650.752.1800
`lxu@kramerlevin.com
`
`Bio
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
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