throbber
Transcript
` 1
`
` 1 ROUGH ASCII -- NOT CERTIFIED
`
` 2 N O T I C E
`
` 3 This transcript is an UNCERTIFIED ROUGH DRAFT TRANSCRIPT.
`
` 4 It contains raw output from the court reporter's
`
` 5 stenotype machine translated into English by the court
`
` 6 reporter's computer, without the benefit of proofreading.
`
` 7 It will contain untranslated steno outlines,
`
` 8 mistranslations (wrong words), and misspellings. These
`
` 9 and any other errors will be corrected in the final
`
` 10 transcript. Since this rough draft transcript has not
`
` 11 been proofread, the court reporter cannot assume
`
` 12 responsibility for any errors therein.
`
` 13 This rough draft transcript is intended to assist
`
` 14 attorneys in their case preparation and is not to be
`
` 15 construed as the final transcript. It is not to be read
`
` 16 by the witness or quoted in any pleading or for any other
`
` 17 purpose and may not be filed with any court.
`
` 18
`
` 19
`
` 20
`
` 21
`
` 22
`
`

`
` 2
`
` 1 PROCEEDINGS
`
` 2 JUDGE GREEN: GOOD AFTERNOON. THIS
`
` 3 IS JUDGE LORA GREEN. I ALSO HAVE ON THE LINE JUDGE
`
` 4 SHERIDAN SNEDDEN. I WOULD LIKE TO START WITH A ROLL
`
`Page 1
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 5 CALL. WHO DO I HAVE FOR PETITIONER?
`
` 6 MS. HOLLIS: AMANDA HOLLIS AND MITCH
`
` 7 JONES, YOUR HONOR.
`
` 8 JUDGE GREEN: THANK YOU. AND THEN
`
` 9 WHO DO I HAVE FOR PATENT OWNER?
`
` 10 MR. ALTIERI: STEVE ALTIERI AND
`
` 11 LAURA CUNNINGHAM.
`
` 12 JUDGE GREEN: AND THEN DO WE HAVE A
`
` 13 COURT REPORTER ON THE LINE?
`
` 14 THE REPORTER: YES, WE DO.
`
` 15 MS. MARTINEZ: ALANA MARTINEZ IS
`
` 16 ALSO ON THE LINE FOR COOLEY.
`
` 17 JUDGE GREEN: SO WE DO HAVE A COURT
`
` 18 REPORTER FOR PATENT OWNER?
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 THE REPORTER: MY NAME IS MICHEAL
`
` 21 JOHNSON. I'M THE COURT REPORTER.
`
` 22 JUDGE GREEN: AND THEN, PATENT
`
`

`
` 3
`
` 1 OWNER, YOU'LL SUPPLY THE TRANSCRIPT OF THE CALL AS
`
` 2 AN EXHIBIT?
`
` 3 MR. ALTIERI: YES, YOUR HONOR, WE
`
` 4 WILL DO THAT.
`
` 5 JUDGE GREEN: OKAY. THANK YOU VERY
`
` 6 MUCH. IT'S MY UNDERSTANDING THAT PATENT OWNER
`
` 7 REQUESTED THE CALL TO DISCUSS FILING A MOTION FOR
`
` 8 ADDITIONAL DISCOVERY. WOULD PATENT OWNER LIKE TO
`
` 9 BEGIN?
`
` 10 MS. CUNNINGHAM: YES, PLEASE. THANK
`
`Page 2
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 11 YOU, YOUR HONOR, THIS IS LAURA CUNNINGHAM FOR
`
` 12 COOLEY.
`
` 13 FIRST LET ME IDENTIFY THE DISCOVERY
`
` 14 THAT -- WHAT WE'VE PROPOSED TO SEEK IN THIS MOTION.
`
` 15 THESE ARE DOCUMENTS THAT RELATE TO THE BEAUDOIN
`
` 16 EXPERIMENTS CONDUCTED BY ONE OF PETITION'S
`
` 17 DECLARANTS, MR. BJØRN HAUGSGJERD. WE DEPOSED
`
` 18 MR. HAUGSGJERD LAST WEDNESDAY AND LEARNED HE
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 CREATED -- HE IDENTIFIED A FEW DIFFERENT DOCUMENTS
`
` 21 HE CREATED CONTEMPORANEOUSLY WITH HIS EXPERIMENTS
`
` 22 INCLUDING LAB NOTEBOOKS TO -- AND A PROTOCOL TO
`
`

`
` 4
`
` 1 MEMORIALIZE WHAT HE DID. THIS WAS A SURPRISE TO US
`
` 2 BECAUSE WE HAD PREVIOUSLY SOUGHT THIS DISCOVERY IN
`
` 3 THE ITC PROCEEDINGS AND HAD UNDERSTOOD THAT AKER DID
`
` 4 NOT HAVE THESE DOCUMENTS. HAD NOT WE KNOWN THAT, WE
`
` 5 WOULD HAVE SOUGHT THEM EARLIER. BUT NOW WE'RE IN A
`
` 6 POSITION WHERE WE'RE GETTING TOWARDS THE END OF OUR
`
` 7 DISCOVERY PERIOD AND WE HAVE OUR RESPONSE UPCOMING.
`
` 8 SO WE WOULD LIKE TO QUICKLY FILE UNDER AN
`
` 9 ACCELERATED SCHEDULE A MOTION FOR DISCOVERY OF THESE
`
` 10 DOCUMENTS. WE THINK THESE DOCUMENTS ARE HIGHLY
`
` 11 RELEVANT. THEY GO TO THE RELIABILITY OF THE
`
` 12 PROCEEDING. HE ALSO -- MR. HAUGSGJERD ALSO
`
` 13 TESTIFIED THAT THEY MAY INCLUDE ANALYSES PERFORMED
`
` 14 THAT WERE NOT REPORTED IN HIS DECLARATION, HE
`
` 15 COULDN'T RECALL FROM MEMORY AT HIS DEPOSITION. SO
`
` 16 WE THINK THESE ARE HIGHLY RELEVANT AND IT WOULD BE
`
`Page 3
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 17 APPROPRIATE FOR US TO SUBMIT A MOTION TO THE BOARD
`
` 18 TO SEEK THAT PRODUCTION.
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 JUDGE GREEN: OKAY. SO MY
`
` 21 UNDERSTANDING, AND I AM GOING TO PRONOUNCE THIS
`
` 22 INCORRECTLY AND I APOLOGIZE FOR THAT, WAS THAT
`
`

`
` 5
`
` 1 MR. HAUGSGJERD, MR. -- WHAT WAS THE DECLARANT'S
`
` 2 NAME?
`
` 3 MS. CUNNINGHAM: YOUR HONOR, I THINK
`
` 4 I ALSO PRONOUNCED IT INCORRECTLY. THE NAME AS I CAN
`
` 5 SAY IT IS HAUGSGJERD, AND I CAN ALSO SPELL IT.
`
` 6 JUDGE GREEN: THAT WOULD BE GREAT.
`
` 7 MS. CUNNINGHAM: SURE. THE LAST
`
` 8 NAME IS H-A-U-G-S-G-J-E-R-D.
`
` 9 JUDGE GREEN: OKAY. SO THERE IS A
`
` 10 POSSIBILITY THAT I'M GOING TO PRONOUNCE THAT
`
` 11 INCORRECTLY AND I'M GOING TO APOLOGIZE FOR THAT.
`
` 12 SO THESE ARE DOCUMENTS THAT
`
` 13 MR. HAUGSGJERD DISCUSSED AT HIS DEPOSITION?
`
` 14 MS. CUNNINGHAM: CORRECT, YOUR
`
` 15 HONOR.
`
` 16 JUDGE GREEN: PETITIONER?
`
` 17 MS. HOLLIS: YES, YOUR HONOR, THIS
`
` 18 IS AMANDA HOLLIS FOR PETITIONER. WE WOULD OPPOSE
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 THE MOTION FOR DISCOVERY. WE'VE ASKED THE PATENT
`
` 21 OWNER TO IDENTIFY WHAT IT BELIEVES IS -- IS IN THESE
`
` 22 DOCUMENTS THAT SATISFIES THEIR BURDEN OF SHOWING
`
`Page 4
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
`

`
` 6
`
` 1 THAT THE DISCOVERY IS REQUIRED IN THE INTEREST OF
`
` 2 JUSTICE. THEY HAVEN'T IDENTIFIED ANYTHING. THEY
`
` 3 JUST HAVE SAID THEY'RE ENTITLED TO THEM BECAUSE THEY
`
` 4 RELATE TO THE EXPERIMENT.
`
` 5 AND THERE ARE TWO SEPARATE TYPES OF
`
` 6 DOCUMENTS. THERE ARE NOTEBOOKS AND THERE ARE
`
` 7 REPORTS. THE NOTEBOOKS, YOUR HONOR, ARE PERSONAL
`
` 8 HARD COPY LABORATORY NOTEBOOKS BELONGING TO
`
` 9 MR. HAUGSGJERD. HE'S A NORWEIGIAN CITIZEN AND THEY
`
` 10 ARE IN HIS POSSESSION IN NORWAY. HE HAS INDICATED
`
` 11 HE WOULD PREFER NOT TO RELEASE THOSE NOTEBOOKS. AT
`
` 12 LEAST ONE OF THEM CONTAINS INFORMATION THAT
`
` 13 RELATES -- DOES NOT RELATE AT ALL TO HIS WORK ON THE
`
` 14 BEAUDOIN EXTRACTION. AND WE DID NOT ASK HIM TO --
`
` 15 WE MEANING AKER, DID NOT ASK HIM TO CREATE THESE
`
` 16 NOTEBOOKS, SO THEY ARE REALLY HIS TO GIVE OUT.
`
` 17 THE REPORTS, WE HAVE A PRIVILEGE
`
` 18 CONCERN WITH THOSE. THE REPORTS ARE TWO DOCUMENTS.
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 THEY'RE COMMUNICATIONS BETWEEN MR. HAUGSGJERD AND
`
` 21 AKER'S LEGAL TEAM. MR. HAUGSGJERD WAS RETAINED IN
`
` 22 CONNECTION WITH BOTH THE '348 PATENT REEXAMINATION
`
`

`
` 7
`
` 1 AND THE LITIGATION INVOLVING THE '348 PATENT IN THE
`
` 2 DISTRICT OF DELAWARE. AND THE FACT THAT THEY ARE
`
` 3 COMMUNICATIONS BETWEEN HIM AND ATTORNEYS WORKING ON
`Page 5
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 4 THOSE LITIGATIONS RAISES PRIVILEGE CONCERNS IN OUR
`
` 5 MIND. FOR THOSE -- THOSE ARE THE REASONS WE WOULD
`
` 6 OBJECT TO THIS DISCLOSURE OR DISCOVERY.
`
` 7 JUDGE GREEN: JUST SO I MAKE SURE MY
`
` 8 UNDERSTANDING IS CORRECT, THE REPORTS WERE PREPARED
`
` 9 FOR THE LITIGATION?
`
` 10 MS. HOLLIS: YES, YOUR HONOR. THE
`
` 11 REEXAMINATION AND THE LITIGATION.
`
` 12 JUDGE GREEN: WERE ANY OF THEM
`
` 13 COMMITTED DURING THE REEXAMINATION?
`
` 14 MS. HOLLIS: NO.
`
` 15 JUDGE GREEN: AND THEY WERE ONLY
`
` 16 BETWEEN MR. HAUGSGJERD AND THE LITIGATION TEAM AND
`
` 17 THE ATTORNEYS?
`
` 18 MS. HOLLIS: THE ATTORNEYS WORKING
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 ON THE LITIGATION. THAT WOULD BE AKER'S IN-HOUSE
`
` 21 COUNSEL, EDVARD BRAEKKE, AND THERE WERE ALSO SOME
`
` 22 TECHNICAL PEOPLE WORKING FOR AKER WHO WERE CC'D, I
`
`

`
` 8
`
` 1 BELIEVE, ON THE COMMUNICATION OF THE TRANSMISSION.
`
` 2 THEY WERE ALSO INVOLVED IN THE LITIGATION.
`
` 3 JUDGE GREEN: OKAY. NOW, WITH
`
` 4 REGARD TO THE NOTEBOOKS, I DO UNDERSTAND THAT THEY
`
` 5 ARE MR. HAUGSGJERD, BUT THIS SOUNDS LIKE THEY HAVE
`
` 6 THE DATA. IT SEEMS TO ME THAT HIS CONCLUSIONS
`
` 7 WOULDN'T BE ENTITLED TO MUCH WEIGHT WITHOUT HAVING
`
` 8 THE DATA THAT UNDERLINES HIS CONCLUSIONS.
`
` 9 MS. HOLLIS: WELL, THERE -- IF YOU
`Page 6
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 10 RECALL, THE DECLARATION FROM MR. HAUGSGJERD THAT'S
`
` 11 BEEN SUBMITTED IN THIS CASE REPORTS HIS -- THE STEPS
`
` 12 HE TOOK TO CONDUCT THE EXPERIMENTS FOR THE
`
` 13 EXTRACTIONS, BUT HE DOESN'T HIMSELF ANALYZE THE
`
` 14 EXTRACTS, SO IT DOESN'T HAVE UNDERLYING DATA IN THAT
`
` 15 SENSE.
`
` 16 MS. CUNNINGHAM: YOUR HONOR, THIS IS
`
` 17 LAURA CUNNINGHAM. MAY I RESPOND ON THAT POINT?
`
` 18 JUDGE GREEN: SURE.
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 MS. CUNNINGHAM: THANK YOU. I'D
`
` 21 LIKE TO NOTE, AGAIN, THAT MR. HAUGSGJERD WHEN ASKED
`
` 22 WHETHER HE PERFORMED ANY ANALYSIS ON THE STARTING
`
`

`
` 9
`
` 1 MATERIAL, THE KRILL USED FOR THE EXTRACTIONS, HE
`
` 2 REPORTED THAT HE COULDN'T RECALL WITH CERTAINTY BUT
`
` 3 THAT HAD HE DONE ANY SUCH ANALYSIS, FOR EXAMPLE, THE
`
` 4 TESTS FOR WATER CONTENT IT WOULD BE IN EITHER HIS
`
` 5 LAB NOTEBOOKS FOR REPORTS. AND WE, PATENT OWNER,
`
` 6 YOU KNOW, BELIEVE WE DON'T HAVE SUFFICIENT
`
` 7 DISCLOSURE OF THE PROCEDURE FROM THE SHORT
`
` 8 DECLARATIONS THAT WERE PROVIDED AND THAT THESE
`
` 9 ADDITIONAL DETAILS WOULD BE RELEVANT.
`
` 10 JUDGE GREEN: OKAY. WITH REGARD TO
`
` 11 THE LAB NOTEBOOKS, IF THEY CONTAIN ADDITIONAL
`
` 12 INFORMATION AND THEY ARE IN NORWAY, WOULD IT --
`
` 13 WOULD YOU BE SATISFIED WITH COPIES SO THAT HE
`
` 14 WOULDN'T HAVE TO PUSH -- YOU KNOW, PROVIDE HIS
`
` 15 PERSONAL NOTEBOOKS AND LOSE CONTROL OVER THEM?
`Page 7
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 16 MS. CUNNINGHAM: YES, YOUR HONOR WE
`
` 17 WOULD BE SATISFIED WITH COPIES. AND WE'D ALSO --
`
` 18 WOULDN'T HAVE ANY OBJECTION TO MR. HAUGSGJERD
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 OMITTING IF THERE ARE UNRELATED CASE FILES FOR OTHER
`
` 21 CLIENTS BESIDES PETITIONER. WE DON'T NEED THOSE AS
`
` 22 PART OF THE NOTEBOOK.
`
`

`
` 10
`
` 1 JUDGE GREEN: OKAY. AND THEN WITH
`
` 2 REGARD TO THE REPORTS, I UNDERSTAND WITH THE
`
` 3 PRIVILEGE CONCERNS, WHAT IS YOUR RESPONSE TO THAT?
`
` 4 MS. CUNNINGHAM: MR. HAUGSGJERD
`
` 5 TESTIFIED THAT HE PROVIDED THESE REPORTS TO A
`
` 6 SCIENTIST AT AKER NAMED NILS HOEM. WE'RE FAMILIAR
`
` 7 WITH THE MR. HOEM FROM THE ITC PROCEEDING. I
`
` 8 BELIEVE HE'S A CHIEF SCIENTIST AT AKER. HE ALSO
`
` 9 TESTIFIED THAT HE DID NOT PROVIDE THESE UPON REQUEST
`
` 10 TO -- FROM MR. HOEM. HE SAID HE SENT THEM TO HIM
`
` 11 BECAUSE THIS IS SOMETHING THAT HE TYPICALLY DOES IN
`
` 12 DOING EXPERIMENTS SUCH AS THESE FOR CLIENTS. SO I'M
`
` 13 NOT -- I'M NOT -- I CAN'T BE SURE THE EXTENT TO
`
` 14 WHICH THESE DOCUMENTS NOW HAVE BEEN CIRCULATED TO
`
` 15 COUNSEL, BUT HE DID TESTIFY THAT DRAFTS AND REPORTS
`
` 16 WERE SENT TO A SCIENTIST AT AKER AND WE DON'T SEE
`
` 17 ANY BASIS FOR PRIVILEGE AS TO THOSE DOCUMENTS. AND
`
` 18 AKER OBVIOUSLY HAS CUSTODY OF THOSE DOCUMENTS. SO
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 WE'RE NOT -- WE DON'T SEE A BASIS AS TO A PRIVILEGE
`
` 21 ASSERTION.
`
`Page 8
`
`Neptune Ex. 2026
`
`

`
` 22 JUDGE GREEN: OKAY. I THINK I
`
`Transcript
`
`

`
` 11
`
` 1 UNDERSTAND THE CASE. PATENT OWNER, IS THERE
`
` 2 ANYTHING ELSE THAT YOU WOULD LIKE TO SAY? I MEAN
`
` 3 PETITIONER.
`
` 4 MS. HOLLIS: YOUR HONOR, LIKE I
`
` 5 MENTIONED, ALTHOUGH NILS, THE TECHNICAL PERSON, WAS
`
` 6 COPIED, THESE ARE COMMUNICATIONS BETWEEN THE EXPERT
`
` 7 AND THE LAWYERS. AND I --
`
` 8 JUDGE GREEN: THIS SOUNDS LIKE HE
`
` 9 TESTIFIED THAT THEY WERE -- THEY WEREN'T REQUESTED
`
` 10 TO BE PREPARED BY THE ATTORNEYS, THEY WERE JUST
`
` 11 SOMETHING THAT HE DID IN HIS NORMAL COURSE OF
`
` 12 BUSINESS.
`
` 13 MS. HOLLIS: I WILL HAVE TO LOOK AT
`
` 14 THE TRANSCRIPT TO FIND THAT TESTIMONY. I'LL TAKE
`
` 15 MS. CUNNINGHAM'S REPRESENTATION ON THAT. I JUST
`
` 16 DON'T RECALL WHETHER HE ACTUALLY SAID THAT. I'M
`
` 17 JUST NOT AWARE OF THAT MAKING -- BEING THE
`
` 18 DISPOSITIVE POINT --
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 JUDGE GREEN: NO, I UNDERSTAND. I'M
`
` 21 JUST TRYING TO UNDERSTAND A LITTLE BIT AND I HAVEN'T
`
` 22 LOOKED AT THE TRANSCRIPT EITHER AND I DON'T KNOW IF
`
`

`
` 12
`
` 1 IT'S BEEN FILED AS AN EXHIBIT YET. HAS IT?
`
`Page 9
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 2 MR. ALTIERI: IT'S STILL IN ITS
`
` 3 ROUGH FORM, YOUR HONOR.
`
` 4 JUDGE GREEN: OKAY. BUT, YOU KNOW,
`
` 5 IF HE BRINGS THESE UP AS SUPPORTING SOME OF HIS
`
` 6 ANALYSIS IN HIS DECLARATION, I DO THINK THAT THERE
`
` 7 MAY BE SOMETHING HERE THAT PATENT OWNER MAY IN FACT
`
` 8 BE ENTITLED TO. SO IT DOESN'T SOUND LIKE THIS IS
`
` 9 SOMETHING PATENT OWNER IS FISHING FOR, THIS IS
`
` 10 SOMETHING THAT CAME UP IN HIS DEPOSITION AND SAID,
`
` 11 OH, BY THE WAY, I HAVE THESE DOCUMENTS, I HAVE THESE
`
` 12 LABORATORY NOTEBOOKS, AND THAT'S WHERE THAT
`
` 13 INFORMATION THAT YOU'RE ASKING FOR WOULD BE. SO IT
`
` 14 DOES SEEM TO BE A NARROWLY TAILORED REQUEST AND
`
` 15 SOMETHING THAT CAME UP DURING THE NORMAL COURSE OF A
`
` 16 DEPOSITION. SO MY INCLINATION AT THIS POINT IS TO
`
` 17 GO AHEAD AND AUTHORIZE THE MOTION FOR ADDITIONAL
`
` 18 DISCOVERY SO THAT I CAN LOOK MORE CLEARLY INTO THE
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 FACTS. I WOULD LIKE TO SEE THE TRANSCRIPT WHERE
`
` 21 HE -- I WOULD LIKE TO SEE THE WHOLE TRANSCRIPT AS
`
` 22 BEST YOU CAN GET IT, BUT PARTICULARLY POINTING OUT
`
`

`
` 13
`
` 1 THOSE PORTIONS OF THE TRANSCRIPT WHERE HE TALKS
`
` 2 ABOUT THESE TO SEE THE CONTEXT IN WHICH THEY WERE
`
` 3 RAISED DURING THE DEPOSITION AND EXACTLY HOW HE
`
` 4 RELIED UPON THEM. AND THEN -- AND THEN I'LL ALSO
`
` 5 ALLOW AN OPPOSITION AND YOU CAN RAISE THE PRIVILEGE
`
` 6 CONCERNS AS TO THE REPORTS AND EXPLAIN TO ME WHY THE
`
` 7 NOTEBOOKS, IF PATENT OWNER IS WILLING TO TAKE COPIES
`
`Page 10
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 8 SO THAT THE NOTEBOOKS DON'T HAVE TO LEAVE HIS
`
` 9 POSSESSION, AND ALSO THEY DON'T -- HE DOES NOT HAVE
`
` 10 TO PROVIDE COPIES OF THE PORTIONS OF THE NOTEBOOKS
`
` 11 THAT DON'T PERTAIN TO THIS IPR WHY THAT WOULD BE
`
` 12 UNREASONABLE FOR PATENT OWNER TO OBTAIN AT THIS
`
` 13 POINT.
`
` 14 I UNDERSTAND THAT PATENT OWNER HAS
`
` 15 TO SHOW THAT IN THE INTEREST OF JUSTICE THIS WAS
`
` 16 SOMETHING THAT WAS BROUGHT UP DURING THE DEPOSITION.
`
` 17 SO, PATENT OWNER, ANY CONCERNS WITH
`
` 18 THAT?
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 MS. CUNNINGHAM: NO, YOUR HONOR, BUT
`
` 21 JUST TO -- I WOULD LIKE TO CLARIFY THAT IN ADDITION
`
` 22 TO THE LAB NOTEBOOKS AND THE REPORTS, WE WOULD BE
`
`

`
` 14
`
` 1 SEEKING DRAFT PROTOCOLS OF THE EXPERIMENTS THAT
`
` 2 MR. HAUGSGJERD USED. I'M NOT SURE THE EXTENT TO
`
` 3 WHICH THOSE MAY EXIST AS PART OF -- LIKE THE LAB
`
` 4 NOTEBOOKS OR SEPARATELY, BUT HE ALSO TESTIFIED THAT
`
` 5 HE RECEIVED PROTOCOLS AND REVISED THEM AND THAT
`
` 6 THOSE -- AND THERE WERE A LOT OF THOSE IN
`
` 7 EXPERIMENTS AND THEN PUT A REVISED FORM OF THE
`
` 8 PROTOCOL IN HIS DECLARATION, SO I DON'T --
`
` 9 JUDGE GREEN: YOU CAN PUT THOSE IN
`
` 10 YOUR -- IN YOUR MOTION. I WILL TELL YOU THAT THE
`
` 11 MORE THINGS THAT YOU ASK FOR, THE MORE BURDENSOME IT
`
` 12 COMES; AND THE BROADER THAT IT BECOMES, THE HARDER
`
` 13 IT IS TO SHOW THAT IT MEETS -- THAT THOSE DURING
`
`Page 11
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 14 DISCOVERY THAT WE'VE BEEN USING FOR THESE IPR
`
` 15 PROCEEDINGS WHICH WE'RE TRYING TO KEEP THEM LOW COST
`
` 16 AND KEEP THEM ON TRACK IN THE TIME THAT WE HAVE
`
` 17 ALLOTTED TO US. SO I UNDERSTAND THAT THERE MAY BE
`
` 18 ADDITIONAL THINGS, BUT I WOULD FOCUS THE PARTIES'
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 ATTENTION TO THE GARMIN DECISION AND SOME OTHER
`
` 21 DECISIONS AS TO DISCOVERY TO SHOW THAT, YOU KNOW,
`
` 22 THIS IS A VERY LIMITED -- WE DON'T FILL OUT TOO MUCH
`
`

`
` 15
`
` 1 EXTRA DISCOVERY IN AN IPR. THE REASON THAT I'M
`
` 2 ALLOWING THE MOTION IS BECAUSE IT DOES SOUND LIKE
`
` 3 MR. HAUGSGJERD DID DISCUSS THEM IN A DEPOSITION AND
`
` 4 DEPOSITION TESTIMONY. I WILL ALLOW YOU TO FILE THE
`
` 5 DEPOSITION AS AN EXHIBIT BECAUSE I KNOW THAT'S GOING
`
` 6 TO BE LONG SO I CAN SEE THE CONTEXT, BUT YOU'RE
`
` 7 GOING TO HAVE TO ARGUE -- MAKE SOME ARGUMENT THAT,
`
` 8 YOU KNOW, THIS IS WHY WE NEED THIS BASED ON HIS
`
` 9 TESTIMONY. OKAY? PETITIONER.
`
` 10 MS. HOLLIS: THANK YOU, YOUR HONOR.
`
` 11 I THANK YOU FOR THE GUIDANCE.
`
` 12 JUDGE GREEN: IS THERE ANYTHING
`
` 13 THAT -- ANYTHING FURTHER THAT YOU'D LIKE TO SAY AT
`
` 14 THIS POINT?
`
` 15 MS. CUNNINGHAM: NOT ON THAT ISSUE,
`
` 16 YOUR HONOR.
`
` 17 JUDGE GREEN: OKAY. I THINK AT THIS
`
` 18 POINT I AM WILLING TO AUTHORIZE TEN PAGES FOR THE
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
`Page 12
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 20 DISCOVERY REQUEST, THE MOTION, AND TEN PAGES FOR THE
`
` 21 OPPOSITION. I KNOW THAT YOU WANT TO GET THIS DONE
`
` 22 QUICKLY. PATENT OWNER, HOW QUICKLY CAN YOU GET THIS
`
`

`
` 16
`
` 1 IN?
`
` 2 MS. CUNNINGHAM: YOUR HONOR, WE ARE
`
` 3 PREPARED TO SUBMIT THIS BY NOON ON FRIDAY AND ALSO
`
` 4 POTENTIALLY TOMORROW. WE'RE HOPING FOR TOMORROW,
`
` 5 BUT ABSENT THAT, CERTAINLY BY NOON ON FRIDAY.
`
` 6 JUDGE GREEN: SO APRIL 30TH -- NOT
`
` 7 APRIL. I'M SORRY. I'M LOOKING AT THE WRONG MONTH.
`
` 8 MAY 30TH?
`
` 9 MS. CUNNINGHAM: YES, MAY 30TH OR
`
` 10 BEFORE.
`
` 11 JUDGE GREEN: AND THEN, PETITIONER,
`
` 12 HOW LONG WILL IT TAKE YOU TO DO AN OPPOSITION?
`
` 13 MS. HOLLIS: I CAN PROBABLY PUT THAT
`
` 14 TOGETHER IN TWO OR THREE DAYS AS WELL, YOUR HONOR.
`
` 15 JUDGE GREEN: SO THE FOLLOWING
`
` 16 WEDNESDAY?
`
` 17 MS. HOLLIS: YES, YOUR HONOR.
`
` 18 JUDGE GREEN: THAT WOULD BE
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 JUNE 4TH. AND THEN WHAT DATE ARE WE LOOKING AT THAT
`
` 21 YOU NEED -- WHAT YOU WOULD WANT A DECISION BY? I
`
` 22 JUST HAVE A LOT ON MY PLATE AS WELL, SO I NEED TO
`
`

`
` 17
`
`Page 13
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 1 KIND OF HAVE AN IDEA OF WHEN YOU'RE HOPING TO HAVE A
`
` 2 DECISION FROM US.
`
` 3 MS. HOLLIS: CERTAINLY, YOUR HONOR.
`
` 4 WE -- AN OPPOSITION IS FILED ON JUNE 4TH, WE WOULD
`
` 5 PROPOSE A DEADLINE OF JUNE 6TH FOR A REPLY IF ONE IS
`
` 6 TO BE PERMITTED. IT SEEMS IT MAY --
`
` 7 JUDGE GREEN: NO, I'M NOT GOING TO
`
` 8 AUTHORIZE A REPLY AT THIS POINT. SO I STILL NEED
`
` 9 IT -- WHEN DO YOU NEED MY DECISION?
`
` 10 MS. CUNNINGHAM: WELL, OUR -- WE
`
` 11 COULD ASK THAT IF ANY -- THE MOTIONS TO BE GRANTED
`
` 12 AT ALL, IT WOULD BE ORDERING PRODUCTION TO
`
` 13 OCCURRENCE SAY, WITHIN TWO BUSINESS DAYS BEFORE OUR
`
` 14 RESPONSE IS DUE, WHICH WOULD BE FRIDAY, JUNE 13.
`
` 15 JUDGE GREEN: WHICH DUE DATE IS
`
` 16 THAT? I JUST CAN'T REMEMBER OFF THE TOP OF MY HEAD
`
` 17 AND I APOLOGIZE FOR THAT.
`
` 18 MS. CUNNINGHAM: SURE. IT WOULD BE
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 THE DEADLINE FOR PATENT OWNER'S RESPONSE, WHICH IS
`
` 21 JUNE 17.
`
` 22 JUDGE GREEN: WE CAN ALSO STIPULATE
`
`

`
` 18
`
` 1 TO CHANGES IN DUE DATES ONCE WE DECIDE IF WE NEED
`
` 2 TO. DO WE HAVE A MOTION TO AMEND IN THIS CASE? ARE
`
` 3 WE GOING TO HAVE A MOTION TO AMEND?
`
` 4 MR. JONES: WE ARE NOT, YOUR HONOR.
`
` 5 JUDGE GREEN: NO MOTION TO AMEND?
`
` 6 MR. JONES: THAT'S CORRECT.
`Page 14
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 7 JUDGE GREEN: SO WE DO HAVE A LITTLE
`
` 8 BIT OF LEEWAY IF NEEDED.
`
` 9 I CAN SAY THAT MY SCHEDULE IS VERY
`
` 10 BUSY, SO I WILL DO MY BEST.
`
` 11 MR. JONES: YOUR HONOR, JUST SO
`
` 12 WE'RE ON THE SAME PAGE, I JUST WANT TO NOTE THAT
`
` 13 THERE WAS A REVISED -- OR A SCHEDULING ORDER FILED
`
` 14 BY THE PARTIES RECENTLY.
`
` 15 JUDGE GREEN: YES, I THINK I
`
` 16 REMEMBER SEEING THAT. WELL, SO TEN PAGES,
`
` 17 OPPOSITION -- I MEAN THE MOTION IS DUE MAY 30TH.
`
` 18 THE OPPOSITION IS DUE JUNE 4TH. AND HOPEFULLY WITH
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 SOME KIND OF RESPONSE BEFORE FRIDAY, JUNE 13TH.
`
` 21 PETITIONER, IS THERE ANY OTHER ADDITIONAL ISSUES
`
` 22 YOU'D LIKE TOE DISCUSS DURING THIS CALL?
`
`

`
` 19
`
` 1 MS. HOLLIS: YOUR HONOR, WE
`
` 2 RAISED -- OR WE TRIED TO GET ON THE AGENDA A REQUEST
`
` 3 FOR GUIDANCE FOR A MOTION FOR SANCTIONS RELATING TO
`
` 4 IMPROPER CONDUCT AT MR. HAUGSGJERD'S DEPOSITION BY
`
` 5 PATENT OWNER, PARTICULARLY HIS BEING QUESTIONED
`
` 6 OUTSIDE THE SCOPE OF HIS DECLARATIONS OR DIRECT
`
` 7 TESTIMONY.
`
` 8 JUDGE GREEN: OKAY. AS TO
`
` 9 SANCTIONS, THAT WOULD BE SOMETHING THAT I WOULD
`
` 10 REFER TO THE OFFICE OF ENROLLMENT AND DISCIPLINE. I
`
` 11 THINK THE BEST THING TO DO IS -- I THINK THE
`
` 12 SANCTION THAT WE WOULD USE THE MOST IS IF IT WAS
`Page 15
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 13 OUTSIDE THE SCOPE OF HIS DIRECT, YOU WOULD POINT
`
` 14 THAT OUT TO US AND, WHICH WE JUST WOULDN'T GIVE IT
`
` 15 VERY MUCH WEIGHT. I MEAN, I WOULD -- I MEAN, WAS
`
` 16 THE WITNESS BEING BADGERED OR ANYTHING ELSE?
`
` 17 MS. HOLLIS: WELL, YOUR HONOR, HIS
`
` 18 DIRECT TESTIMONY WAS FIVE PARAGRAPHS AND TWO
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 DECLARATIONS, ALMOST -- FIVE PARAGRAPHS IN EACH OF
`
` 21 THOSE DECLARATIONS WERE ALMOST IDENTICAL TO EACH
`
` 22 OTHER. NEVERTHELESS, PATENT OWNER QUESTIONED HIM
`
`

`
` 20
`
` 1 FOR A FULL SEVEN HOURS. THE VAST, VAST MAJORITY OF
`
` 2 THE QUESTIONING HAD NOTHING TO DO WITH HIS
`
` 3 DECLARATION, IT WAS ABOUT HIS THESIS WORK, IT WAS
`
` 4 ABOUT WORK HE HAD PERFORMED ON FREEZE DRIED HERRING
`
` 5 EGGS, 2012 PUBLICATION THAT HE COAUTHORED. NONE OF
`
` 6 THAT AT ALL RELATED TO HIS DECLARATIONS. SO OUR
`
` 7 PRINCIPAL CONCERN IS GOING FORWARD WE WOULD ASK THAT
`
` 8 NEPTUNE BE ORDERED TO STAY WITHIN THE SCOPE OF THE
`
` 9 DIRECT TESTIMONY AND THEN WE WOULD ALSO SEEK RELIEF
`
` 10 IN THE FORM OF AN ORDER THAT NEPTUNE NOT BE
`
` 11 PERMITTED TO RELY ON THIS DEPOSITION SINCE THEY
`
` 12 VIOLATED THE RULES IN EXCEEDING THE SCOPE.
`
` 13 JUDGE GREEN: I MEAN, WHETHER OR NOT
`
` 14 HE SEES AS THE SCOPE IS SOMETHING THAT WE CAN
`
` 15 DETERMINE IN LOOKING AT THE DECLARATION. THE RULE
`
` 16 THAT WE USE WHETHER OR NOT IT'S RELATED TO THE
`
` 17 DIRECT TESTIMONY IS WHETHER IT'S REASONABLY RELATED
`
` 18 OR NOT. SO I AM HESITANT TO SAY WE'LL ISSUE AN
`Page 16
`
`Neptune Ex. 2026
`
`

`
`Transcript
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 ORDER THAT WE'RE NOT GOING TO RELY ON THAT
`
` 21 DEPOSITION TESTIMONY, BUT I DO THINK IT IS SOMETHING
`
` 22 THAT WE WILL TAKE INTO ACCOUNT. AND WHEN WE COME TO
`
`

`
` 21
`
` 1 A FINAL DECISION, I WILL REMIND BOTH PARTIES THEY
`
` 2 SHOULD STAY WITHIN -- AT LEAST RELATED TO THE DIRECT
`
` 3 TESTIMONY. BUT THEIR OBJECTIONS DURING THE
`
` 4 DEPOSITION AND YOUR OBJECTING TO A QUESTION IS
`
` 5 BEYOND THE SCOPE OR ANYTHING ELSE, YOU CAN ALSO CALL
`
` 6 THE BOARD DURING A DEPOSITION DURING WHAT IS A GOOD
`
` 7 BREAKING POINT OR BREAK TO CALL THE BOARD AND THERE
`
` 8 IS ALWAYS SOMEBODY HERE TO RULE ON AN OBJECTION.
`
` 9 MS. CUNNINGHAM: YOUR HONOR --
`
` 10 JUDGE GREEN: IT'S KIND OF HARD FOR
`
` 11 ME TO SAY ANYTHING AFTER THE FACT. I DO UNDERSTAND
`
` 12 YOUR FRUSTRATION. AND, YOU KNOW, IF YOU REALLY
`
` 13 THINK THAT THE BEHAVIOR WAS EGREGIOUS, WE CAN
`
` 14 CONSIDER WHETHER OR NOT, YOU KNOW, SOMETHING NEEDS
`
` 15 TO BE DONE WITH THE OFFICE OF ENROLLMENT AND
`
` 16 DISCIPLINE, BUT I'M NOT GOING TO DEAL WITH
`
` 17 DISCIPLINARY ISSUES PER SE DURING THE COURSE OF THIS
`
` 18 IPR. I WILL DEAL WITH WHETHER OR NOT THAT TESTIMONY
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 SHOULD BE ENTITLED ANY WEIGHT BECAUSE IT WENT SO
`
` 21 FAR -- IT WENT BEYOND THE SCOPE OF THE DIRECT AND
`
` 22 THINGS LIKE THAT AND THAT'S SOMETHING THAT WE CAN
`
`

`
`Page 17
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 22
`
` 1 TAKE INTO ACCOUNT DURING THE COURSE OF THE TRIAL.
`
` 2 MS. HOLLIS: UNDERSTOOD, YOUR HONOR.
`
` 3 JUDGE GREEN: WE ARE BOTH LEGALLY
`
` 4 AND SCIENTIFICALLY TRAINED. I THINK WE CAN
`
` 5 DETERMINE WHETHER OR NOT THAT TESTIMONY WENT BEYOND
`
` 6 THE SCOPE OF THE DIRECT TESTIMONY. AND I'M NOT
`
` 7 TRYING TO PUT YOU OFF AND I APOLOGIZE IF YOU THINK
`
` 8 THAT'S WHAT IT IS, BUT IT'S VERY HARD FOR ME TO
`
` 9 DETERMINE WITHOUT SEEING IT AND ALSO WITHOUT HEARING
`
` 10 THE QUESTIONS. AND IN THE FUTURE I THINK THE BEST
`
` 11 THING TO DO IF THIS COMES UP AGAIN, CALL US DURING
`
` 12 THE DEPOSITION AND, YOU KNOW, LET US KNOW THE KIND
`
` 13 OF QUESTIONS THAT ARE BEING ASKED AND WE CAN LOOK AT
`
` 14 THE RECORD AND SAY, NO, THAT IS REASONABLY RELATED
`
` 15 TO THE DIRECT TESTIMONY OR WE'LL ALLOW IT OR THAT'S
`
` 16 NOT REASONABLY RELATED, WE WON'T ALLOW IT. BUT AT
`
` 17 THIS POINT WE'RE KIND OF AFTER THE FACT.
`
` 18 MS. HOLLIS: RIGHT, YOUR HONOR. I
`
` 19 ||| UNCERTIFIED ROUGH DRAFT |||
`
` 20 MEAN, WE WEREN'T EXPECTING THIS. ANOTHER CONCERN WE
`
` 21 HAVE IS NOW WE DON'T HAVE ANY IDEA WHAT NEPTUNE WILL
`
` 22 BE PERMITTED OR WILL ASK IN THE DEPOSITION AND WE
`
`

`
` 23
`
` 1 NEED TO, I SUPPOSE, SET OUT, YOU KNOW, MUCH MORE
`
` 2 TIME WITH OUR WITNESSES AT THE DEPOSITION ITSELF
`
` 3 THAN NECESSARY. THAT IS COSTLY AND I UNDERSTOOD
`
` 4 THAT WAS CONTRARY TO THE DISCOVERY POLICIES OR THESE
`
`Page 18
`
`Neptune Ex. 2026
`
`

`
`Transcript
` 5 PROCEEDINGS. I'M NOT SURE IF THERE'S ANYTHING THAT
`
` 6 CAN BE DONE ABOUT THAT OTHER THAN WHAT YOU HAVE
`
` 7 SUGGESTED AND WE'LL GO FORWARD WITH THAT SUGGESTION.
`
` 8 WE WILL CALL THE BOARD IF THIS ARISES AGAIN AND
`
` 9 RAISE IT WITH THE OFFICE OF ENROLLMENT AND
`
` 10 DISCIPLINE IF NECESSARY.
`
` 11 JUDGE GREEN: I THINK THAT'S ABOUT
`
` 12 THE ONLY THING WE CAN DO AT THIS POINT. WITHOUT
`
` 13 HAVING LISTENED TO THE QUESTION AND EVERYTHING ELSE
`
` 14 AND I HAVEN'T

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket