`
`
`NICOLA A. PISANO, CA Bar No. 151282
` NicolaPisano@eversheds-sutherland.com
`JOSE L. PATIÑO, CA Bar No. 149568
`
`JosePatino@eversheds-sutherland.com
`JUSTIN E. GRAY, CA Bar No. 282452
`
`JustinGray@eversheds-sutherland.com
`SCOTT A. PENNER, CA Bar No. 253716
` ScottPenner@eversheds-sutherland.com
`EVERSHEDS SUTHERLAND (US) LLP
`12255 EL CAMINO REAL, SUITE 100
`SAN DIEGO, CALIFORNIA 92130
`TELEPHONE:
`858.252.6502
`FACSIMILE:
`858.252.6503
`
`Attorneys for Defendants and Counter-Plaintiffs
`ESET, LLC and ESET, SPOL. S.R.O.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
` Case No. 3:17-cv-0183-CAB-BGS
`SECOND DECLARATION OF SCOTT
`A. PENNER IN SUPPORT OF
`UPDATED JOINT DISCOVERY PLAN
`
`Judge: Hon. Cathy Ann Bencivengo
`
`
`FINJAN, INC.,
`
`Plaintiff,
`
`v.
`ESET, LLC, et al.,
`Defendants.
`
`AND RELATED COUNTERCLAIMS.
`
` PER CHAMBERS RULES, NO ORAL
`ARGUMENT UNLESS SEPARATELY
`ORDERED BY THE COURT
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`Case 3:17-cv-00183-CAB-BGS Document 822 Filed 10/16/20 PageID.39904 Page 2 of 3
`
`
`I, Scott A. Penner, declare and state as follows:
`1.
`I am an attorney at law duly licensed in the State of California and before
`this Court. I am a partner at the law firm of Eversheds Sutherland (US) LLP, counsel of
`record for Defendants and Counter-Plaintiffs ESET, LLC and ESET, spol. s.r.o.
`(“ESET”). I make this declaration based upon my personal knowledge and am willing
`to testify to the truth of the matter asserted herein if called to do so.
`2.
`I provide this update pursuant to the Updated Joint Discovery Plan filed
`Friday, October 9, 2020 (D.I. 820).
`3.
`ESET personnel in Slovakia have confirmed that they can access ESET’s
`historical source code to collect source code related to the accused functionality of the
`Accused Instrumentalities identified by Finjan as relevant to the ’305 patent, and such
`collection efforts have begun. Due to the large amount of source code being collected,
`approximately 35GB of data, ESET anticipates that the collection will take several
`weeks. ESET is cognizant that the Court has ordered production of all source code by
`November 9, 2020 (D.I. 819) and is working to complete collection and transmission of
`that data to undersigned counsel prior to that deadline.
`4.
`In light of the amount of the source code being collected by ESET, and
`based on counsel’s prior experience with loading and indexing such source code, it is
`expected that loading the source code to the source code computer will take between 3
`and 10 days, depending on the number of files to be decrypted. Once the code is
`received, decrypted, verified, and copied to the source code computer, ESET’s counsel
`will notify Finjan that the code is available for review.
`5.
`Counsel respectfully notes that indexing the newly produced code likely
`will not be completed prior to the first week of December 2020, if previous indexing
`speeds remain a reliable indicator of how quickly the new code can be indexed. Based
`on counsel’s experience indexing ESET’s previously produced code, counsel anticipates
`that indexing the newly collected code once it is loaded onto the source code computer
`
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`Case 3:17-cv-00183-CAB-BGS Document 822 Filed 10/16/20 PageID.39905 Page 3 of 3
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`may take approximately 2-3 weeks.
`I declare under penalty of perjury under the laws of the United States of America
`that the foregoing is true and correct.
`Dated: October 16, 2020
`
`Respectfully submitted,
`
`
`
`
`
`EVERSHEDS SUTHERLAND (US) LLP
`
`/s/ Scott A. Penner
`Scott A. Penner
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