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` 1 ROUGH ASCII -- NOT CERTIFIED
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` 2 N O T I C E
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` 3 This transcript is an UNCERTIFIED ROUGH DRAFT TRANSCRIPT.
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` 4 It contains raw output from the court reporter's
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` 5 stenotype machine translated into English by the court
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` 6 reporter's computer, without the benefit of proofreading.
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` 7 It will contain untranslated steno outlines,
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` 8 mistranslations (wrong words), and misspellings. These
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` 9 and any other errors will be corrected in the final
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` 10 transcript. Since this rough draft transcript has not
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` 11 been proofread, the court reporter cannot assume
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` 12 responsibility for any errors therein.
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` 13 This rough draft transcript is intended to assist
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` 14 attorneys in their case preparation and is not to be
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` 15 construed as the final transcript. It is not to be read
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` 16 by the witness or quoted in any pleading or for any other
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` 17 purpose and may not be filed with any court.
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` 2
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` 1 PROCEEDINGS
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` 2 JUDGE GREEN: GOOD AFTERNOON. THIS
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` 3 IS JUDGE LORA GREEN. I ALSO HAVE ON THE LINE JUDGE
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` 4 SHERIDAN SNEDDEN. I WOULD LIKE TO START WITH A ROLL
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` 5 CALL. WHO DO I HAVE FOR PETITIONER?
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` 6 MS. HOLLIS: AMANDA HOLLIS AND MITCH
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` 7 JONES, YOUR HONOR.
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` 8 JUDGE GREEN: THANK YOU. AND THEN
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` 9 WHO DO I HAVE FOR PATENT OWNER?
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` 10 MR. ALTIERI: STEVE ALTIERI AND
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` 11 LAURA CUNNINGHAM.
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` 12 JUDGE GREEN: AND THEN DO WE HAVE A
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` 13 COURT REPORTER ON THE LINE?
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` 14 THE REPORTER: YES, WE DO.
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` 15 MS. MARTINEZ: ALANA MARTINEZ IS
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` 16 ALSO ON THE LINE FOR COOLEY.
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` 17 JUDGE GREEN: SO WE DO HAVE A COURT
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` 18 REPORTER FOR PATENT OWNER?
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 THE REPORTER: MY NAME IS MICHEAL
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` 21 JOHNSON. I'M THE COURT REPORTER.
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` 22 JUDGE GREEN: AND THEN, PATENT
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` 3
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` 1 OWNER, YOU'LL SUPPLY THE TRANSCRIPT OF THE CALL AS
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` 2 AN EXHIBIT?
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` 3 MR. ALTIERI: YES, YOUR HONOR, WE
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` 4 WILL DO THAT.
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` 5 JUDGE GREEN: OKAY. THANK YOU VERY
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` 6 MUCH. IT'S MY UNDERSTANDING THAT PATENT OWNER
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` 7 REQUESTED THE CALL TO DISCUSS FILING A MOTION FOR
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` 8 ADDITIONAL DISCOVERY. WOULD PATENT OWNER LIKE TO
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` 9 BEGIN?
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` 10 MS. CUNNINGHAM: YES, PLEASE. THANK
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` 11 YOU, YOUR HONOR, THIS IS LAURA CUNNINGHAM FOR
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` 12 COOLEY.
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` 13 FIRST LET ME IDENTIFY THE DISCOVERY
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` 14 THAT -- WHAT WE'VE PROPOSED TO SEEK IN THIS MOTION.
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` 15 THESE ARE DOCUMENTS THAT RELATE TO THE BEAUDOIN
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` 16 EXPERIMENTS CONDUCTED BY ONE OF PETITION'S
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` 17 DECLARANTS, MR. BJØRN HAUGSGJERD. WE DEPOSED
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` 18 MR. HAUGSGJERD LAST WEDNESDAY AND LEARNED HE
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 CREATED -- HE IDENTIFIED A FEW DIFFERENT DOCUMENTS
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` 21 HE CREATED CONTEMPORANEOUSLY WITH HIS EXPERIMENTS
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` 22 INCLUDING LAB NOTEBOOKS TO -- AND A PROTOCOL TO
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` 4
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` 1 MEMORIALIZE WHAT HE DID. THIS WAS A SURPRISE TO US
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` 2 BECAUSE WE HAD PREVIOUSLY SOUGHT THIS DISCOVERY IN
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` 3 THE ITC PROCEEDINGS AND HAD UNDERSTOOD THAT AKER DID
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` 4 NOT HAVE THESE DOCUMENTS. HAD NOT WE KNOWN THAT, WE
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` 5 WOULD HAVE SOUGHT THEM EARLIER. BUT NOW WE'RE IN A
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` 6 POSITION WHERE WE'RE GETTING TOWARDS THE END OF OUR
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` 7 DISCOVERY PERIOD AND WE HAVE OUR RESPONSE UPCOMING.
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` 8 SO WE WOULD LIKE TO QUICKLY FILE UNDER AN
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` 9 ACCELERATED SCHEDULE A MOTION FOR DISCOVERY OF THESE
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` 10 DOCUMENTS. WE THINK THESE DOCUMENTS ARE HIGHLY
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` 11 RELEVANT. THEY GO TO THE RELIABILITY OF THE
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` 12 PROCEEDING. HE ALSO -- MR. HAUGSGJERD ALSO
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` 13 TESTIFIED THAT THEY MAY INCLUDE ANALYSES PERFORMED
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` 14 THAT WERE NOT REPORTED IN HIS DECLARATION, HE
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` 15 COULDN'T RECALL FROM MEMORY AT HIS DEPOSITION. SO
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` 16 WE THINK THESE ARE HIGHLY RELEVANT AND IT WOULD BE
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` 17 APPROPRIATE FOR US TO SUBMIT A MOTION TO THE BOARD
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` 18 TO SEEK THAT PRODUCTION.
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 JUDGE GREEN: OKAY. SO MY
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` 21 UNDERSTANDING, AND I AM GOING TO PRONOUNCE THIS
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` 22 INCORRECTLY AND I APOLOGIZE FOR THAT, WAS THAT
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` 5
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` 1 MR. HAUGSGJERD, MR. -- WHAT WAS THE DECLARANT'S
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` 2 NAME?
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` 3 MS. CUNNINGHAM: YOUR HONOR, I THINK
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` 4 I ALSO PRONOUNCED IT INCORRECTLY. THE NAME AS I CAN
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` 5 SAY IT IS HAUGSGJERD, AND I CAN ALSO SPELL IT.
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` 6 JUDGE GREEN: THAT WOULD BE GREAT.
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` 7 MS. CUNNINGHAM: SURE. THE LAST
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` 8 NAME IS H-A-U-G-S-G-J-E-R-D.
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` 9 JUDGE GREEN: OKAY. SO THERE IS A
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` 10 POSSIBILITY THAT I'M GOING TO PRONOUNCE THAT
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` 11 INCORRECTLY AND I'M GOING TO APOLOGIZE FOR THAT.
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` 12 SO THESE ARE DOCUMENTS THAT
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` 13 MR. HAUGSGJERD DISCUSSED AT HIS DEPOSITION?
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` 14 MS. CUNNINGHAM: CORRECT, YOUR
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` 15 HONOR.
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` 16 JUDGE GREEN: PETITIONER?
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` 17 MS. HOLLIS: YES, YOUR HONOR, THIS
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` 18 IS AMANDA HOLLIS FOR PETITIONER. WE WOULD OPPOSE
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 THE MOTION FOR DISCOVERY. WE'VE ASKED THE PATENT
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` 21 OWNER TO IDENTIFY WHAT IT BELIEVES IS -- IS IN THESE
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` 22 DOCUMENTS THAT SATISFIES THEIR BURDEN OF SHOWING
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` 6
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` 1 THAT THE DISCOVERY IS REQUIRED IN THE INTEREST OF
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` 2 JUSTICE. THEY HAVEN'T IDENTIFIED ANYTHING. THEY
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` 3 JUST HAVE SAID THEY'RE ENTITLED TO THEM BECAUSE THEY
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` 4 RELATE TO THE EXPERIMENT.
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` 5 AND THERE ARE TWO SEPARATE TYPES OF
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` 6 DOCUMENTS. THERE ARE NOTEBOOKS AND THERE ARE
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` 7 REPORTS. THE NOTEBOOKS, YOUR HONOR, ARE PERSONAL
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` 8 HARD COPY LABORATORY NOTEBOOKS BELONGING TO
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` 9 MR. HAUGSGJERD. HE'S A NORWEIGIAN CITIZEN AND THEY
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` 10 ARE IN HIS POSSESSION IN NORWAY. HE HAS INDICATED
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` 11 HE WOULD PREFER NOT TO RELEASE THOSE NOTEBOOKS. AT
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` 12 LEAST ONE OF THEM CONTAINS INFORMATION THAT
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` 13 RELATES -- DOES NOT RELATE AT ALL TO HIS WORK ON THE
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` 14 BEAUDOIN EXTRACTION. AND WE DID NOT ASK HIM TO --
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` 15 WE MEANING AKER, DID NOT ASK HIM TO CREATE THESE
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` 16 NOTEBOOKS, SO THEY ARE REALLY HIS TO GIVE OUT.
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` 17 THE REPORTS, WE HAVE A PRIVILEGE
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` 18 CONCERN WITH THOSE. THE REPORTS ARE TWO DOCUMENTS.
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 THEY'RE COMMUNICATIONS BETWEEN MR. HAUGSGJERD AND
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` 21 AKER'S LEGAL TEAM. MR. HAUGSGJERD WAS RETAINED IN
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` 22 CONNECTION WITH BOTH THE '348 PATENT REEXAMINATION
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` 1 AND THE LITIGATION INVOLVING THE '348 PATENT IN THE
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` 2 DISTRICT OF DELAWARE. AND THE FACT THAT THEY ARE
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` 3 COMMUNICATIONS BETWEEN HIM AND ATTORNEYS WORKING ON
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` 4 THOSE LITIGATIONS RAISES PRIVILEGE CONCERNS IN OUR
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` 5 MIND. FOR THOSE -- THOSE ARE THE REASONS WE WOULD
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` 6 OBJECT TO THIS DISCLOSURE OR DISCOVERY.
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` 7 JUDGE GREEN: JUST SO I MAKE SURE MY
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` 8 UNDERSTANDING IS CORRECT, THE REPORTS WERE PREPARED
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` 9 FOR THE LITIGATION?
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` 10 MS. HOLLIS: YES, YOUR HONOR. THE
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` 11 REEXAMINATION AND THE LITIGATION.
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` 12 JUDGE GREEN: WERE ANY OF THEM
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` 13 COMMITTED DURING THE REEXAMINATION?
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` 14 MS. HOLLIS: NO.
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` 15 JUDGE GREEN: AND THEY WERE ONLY
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` 16 BETWEEN MR. HAUGSGJERD AND THE LITIGATION TEAM AND
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` 17 THE ATTORNEYS?
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` 18 MS. HOLLIS: THE ATTORNEYS WORKING
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 ON THE LITIGATION. THAT WOULD BE AKER'S IN-HOUSE
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` 21 COUNSEL, EDVARD BRAEKKE, AND THERE WERE ALSO SOME
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` 22 TECHNICAL PEOPLE WORKING FOR AKER WHO WERE CC'D, I
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` 8
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` 1 BELIEVE, ON THE COMMUNICATION OF THE TRANSMISSION.
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` 2 THEY WERE ALSO INVOLVED IN THE LITIGATION.
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` 3 JUDGE GREEN: OKAY. NOW, WITH
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` 4 REGARD TO THE NOTEBOOKS, I DO UNDERSTAND THAT THEY
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` 5 ARE MR. HAUGSGJERD, BUT THIS SOUNDS LIKE THEY HAVE
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` 6 THE DATA. IT SEEMS TO ME THAT HIS CONCLUSIONS
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` 7 WOULDN'T BE ENTITLED TO MUCH WEIGHT WITHOUT HAVING
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` 8 THE DATA THAT UNDERLINES HIS CONCLUSIONS.
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` 9 MS. HOLLIS: WELL, THERE -- IF YOU
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` 10 RECALL, THE DECLARATION FROM MR. HAUGSGJERD THAT'S
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` 11 BEEN SUBMITTED IN THIS CASE REPORTS HIS -- THE STEPS
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` 12 HE TOOK TO CONDUCT THE EXPERIMENTS FOR THE
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` 13 EXTRACTIONS, BUT HE DOESN'T HIMSELF ANALYZE THE
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` 14 EXTRACTS, SO IT DOESN'T HAVE UNDERLYING DATA IN THAT
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` 15 SENSE.
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` 16 MS. CUNNINGHAM: YOUR HONOR, THIS IS
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` 17 LAURA CUNNINGHAM. MAY I RESPOND ON THAT POINT?
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` 18 JUDGE GREEN: SURE.
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 MS. CUNNINGHAM: THANK YOU. I'D
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` 21 LIKE TO NOTE, AGAIN, THAT MR. HAUGSGJERD WHEN ASKED
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` 22 WHETHER HE PERFORMED ANY ANALYSIS ON THE STARTING
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` 9
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` 1 MATERIAL, THE KRILL USED FOR THE EXTRACTIONS, HE
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` 2 REPORTED THAT HE COULDN'T RECALL WITH CERTAINTY BUT
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` 3 THAT HAD HE DONE ANY SUCH ANALYSIS, FOR EXAMPLE, THE
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` 4 TESTS FOR WATER CONTENT IT WOULD BE IN EITHER HIS
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` 5 LAB NOTEBOOKS FOR REPORTS. AND WE, PATENT OWNER,
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` 6 YOU KNOW, BELIEVE WE DON'T HAVE SUFFICIENT
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` 7 DISCLOSURE OF THE PROCEDURE FROM THE SHORT
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` 8 DECLARATIONS THAT WERE PROVIDED AND THAT THESE
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` 9 ADDITIONAL DETAILS WOULD BE RELEVANT.
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` 10 JUDGE GREEN: OKAY. WITH REGARD TO
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` 11 THE LAB NOTEBOOKS, IF THEY CONTAIN ADDITIONAL
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` 12 INFORMATION AND THEY ARE IN NORWAY, WOULD IT --
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` 13 WOULD YOU BE SATISFIED WITH COPIES SO THAT HE
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` 14 WOULDN'T HAVE TO PUSH -- YOU KNOW, PROVIDE HIS
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` 15 PERSONAL NOTEBOOKS AND LOSE CONTROL OVER THEM?
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` 16 MS. CUNNINGHAM: YES, YOUR HONOR WE
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` 17 WOULD BE SATISFIED WITH COPIES. AND WE'D ALSO --
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` 18 WOULDN'T HAVE ANY OBJECTION TO MR. HAUGSGJERD
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 OMITTING IF THERE ARE UNRELATED CASE FILES FOR OTHER
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` 21 CLIENTS BESIDES PETITIONER. WE DON'T NEED THOSE AS
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` 22 PART OF THE NOTEBOOK.
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` 10
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` 1 JUDGE GREEN: OKAY. AND THEN WITH
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` 2 REGARD TO THE REPORTS, I UNDERSTAND WITH THE
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` 3 PRIVILEGE CONCERNS, WHAT IS YOUR RESPONSE TO THAT?
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` 4 MS. CUNNINGHAM: MR. HAUGSGJERD
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` 5 TESTIFIED THAT HE PROVIDED THESE REPORTS TO A
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` 6 SCIENTIST AT AKER NAMED NILS HOEM. WE'RE FAMILIAR
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` 7 WITH THE MR. HOEM FROM THE ITC PROCEEDING. I
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` 8 BELIEVE HE'S A CHIEF SCIENTIST AT AKER. HE ALSO
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` 9 TESTIFIED THAT HE DID NOT PROVIDE THESE UPON REQUEST
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` 10 TO -- FROM MR. HOEM. HE SAID HE SENT THEM TO HIM
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` 11 BECAUSE THIS IS SOMETHING THAT HE TYPICALLY DOES IN
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` 12 DOING EXPERIMENTS SUCH AS THESE FOR CLIENTS. SO I'M
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` 13 NOT -- I'M NOT -- I CAN'T BE SURE THE EXTENT TO
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` 14 WHICH THESE DOCUMENTS NOW HAVE BEEN CIRCULATED TO
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` 15 COUNSEL, BUT HE DID TESTIFY THAT DRAFTS AND REPORTS
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` 16 WERE SENT TO A SCIENTIST AT AKER AND WE DON'T SEE
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` 17 ANY BASIS FOR PRIVILEGE AS TO THOSE DOCUMENTS. AND
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` 18 AKER OBVIOUSLY HAS CUSTODY OF THOSE DOCUMENTS. SO
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 WE'RE NOT -- WE DON'T SEE A BASIS AS TO A PRIVILEGE
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` 21 ASSERTION.
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` 22 JUDGE GREEN: OKAY. I THINK I
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`Transcript
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` 11
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` 1 UNDERSTAND THE CASE. PATENT OWNER, IS THERE
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` 2 ANYTHING ELSE THAT YOU WOULD LIKE TO SAY? I MEAN
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` 3 PETITIONER.
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` 4 MS. HOLLIS: YOUR HONOR, LIKE I
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` 5 MENTIONED, ALTHOUGH NILS, THE TECHNICAL PERSON, WAS
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` 6 COPIED, THESE ARE COMMUNICATIONS BETWEEN THE EXPERT
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` 7 AND THE LAWYERS. AND I --
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` 8 JUDGE GREEN: THIS SOUNDS LIKE HE
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` 9 TESTIFIED THAT THEY WERE -- THEY WEREN'T REQUESTED
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` 10 TO BE PREPARED BY THE ATTORNEYS, THEY WERE JUST
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` 11 SOMETHING THAT HE DID IN HIS NORMAL COURSE OF
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` 12 BUSINESS.
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` 13 MS. HOLLIS: I WILL HAVE TO LOOK AT
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` 14 THE TRANSCRIPT TO FIND THAT TESTIMONY. I'LL TAKE
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` 15 MS. CUNNINGHAM'S REPRESENTATION ON THAT. I JUST
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` 16 DON'T RECALL WHETHER HE ACTUALLY SAID THAT. I'M
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` 17 JUST NOT AWARE OF THAT MAKING -- BEING THE
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` 18 DISPOSITIVE POINT --
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 JUDGE GREEN: NO, I UNDERSTAND. I'M
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` 21 JUST TRYING TO UNDERSTAND A LITTLE BIT AND I HAVEN'T
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` 22 LOOKED AT THE TRANSCRIPT EITHER AND I DON'T KNOW IF
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` 12
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` 1 IT'S BEEN FILED AS AN EXHIBIT YET. HAS IT?
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` 2 MR. ALTIERI: IT'S STILL IN ITS
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` 3 ROUGH FORM, YOUR HONOR.
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` 4 JUDGE GREEN: OKAY. BUT, YOU KNOW,
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` 5 IF HE BRINGS THESE UP AS SUPPORTING SOME OF HIS
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` 6 ANALYSIS IN HIS DECLARATION, I DO THINK THAT THERE
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` 7 MAY BE SOMETHING HERE THAT PATENT OWNER MAY IN FACT
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` 8 BE ENTITLED TO. SO IT DOESN'T SOUND LIKE THIS IS
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` 9 SOMETHING PATENT OWNER IS FISHING FOR, THIS IS
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` 10 SOMETHING THAT CAME UP IN HIS DEPOSITION AND SAID,
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` 11 OH, BY THE WAY, I HAVE THESE DOCUMENTS, I HAVE THESE
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` 12 LABORATORY NOTEBOOKS, AND THAT'S WHERE THAT
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` 13 INFORMATION THAT YOU'RE ASKING FOR WOULD BE. SO IT
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` 14 DOES SEEM TO BE A NARROWLY TAILORED REQUEST AND
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` 15 SOMETHING THAT CAME UP DURING THE NORMAL COURSE OF A
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` 16 DEPOSITION. SO MY INCLINATION AT THIS POINT IS TO
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` 17 GO AHEAD AND AUTHORIZE THE MOTION FOR ADDITIONAL
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` 18 DISCOVERY SO THAT I CAN LOOK MORE CLEARLY INTO THE
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 FACTS. I WOULD LIKE TO SEE THE TRANSCRIPT WHERE
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` 21 HE -- I WOULD LIKE TO SEE THE WHOLE TRANSCRIPT AS
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` 22 BEST YOU CAN GET IT, BUT PARTICULARLY POINTING OUT
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` 13
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` 1 THOSE PORTIONS OF THE TRANSCRIPT WHERE HE TALKS
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` 2 ABOUT THESE TO SEE THE CONTEXT IN WHICH THEY WERE
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` 3 RAISED DURING THE DEPOSITION AND EXACTLY HOW HE
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` 4 RELIED UPON THEM. AND THEN -- AND THEN I'LL ALSO
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` 5 ALLOW AN OPPOSITION AND YOU CAN RAISE THE PRIVILEGE
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` 6 CONCERNS AS TO THE REPORTS AND EXPLAIN TO ME WHY THE
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` 7 NOTEBOOKS, IF PATENT OWNER IS WILLING TO TAKE COPIES
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` 8 SO THAT THE NOTEBOOKS DON'T HAVE TO LEAVE HIS
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` 9 POSSESSION, AND ALSO THEY DON'T -- HE DOES NOT HAVE
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` 10 TO PROVIDE COPIES OF THE PORTIONS OF THE NOTEBOOKS
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` 11 THAT DON'T PERTAIN TO THIS IPR WHY THAT WOULD BE
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` 12 UNREASONABLE FOR PATENT OWNER TO OBTAIN AT THIS
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` 13 POINT.
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` 14 I UNDERSTAND THAT PATENT OWNER HAS
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` 15 TO SHOW THAT IN THE INTEREST OF JUSTICE THIS WAS
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` 16 SOMETHING THAT WAS BROUGHT UP DURING THE DEPOSITION.
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` 17 SO, PATENT OWNER, ANY CONCERNS WITH
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` 18 THAT?
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 MS. CUNNINGHAM: NO, YOUR HONOR, BUT
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` 21 JUST TO -- I WOULD LIKE TO CLARIFY THAT IN ADDITION
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` 22 TO THE LAB NOTEBOOKS AND THE REPORTS, WE WOULD BE
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` 14
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` 1 SEEKING DRAFT PROTOCOLS OF THE EXPERIMENTS THAT
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` 2 MR. HAUGSGJERD USED. I'M NOT SURE THE EXTENT TO
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` 3 WHICH THOSE MAY EXIST AS PART OF -- LIKE THE LAB
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` 4 NOTEBOOKS OR SEPARATELY, BUT HE ALSO TESTIFIED THAT
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` 5 HE RECEIVED PROTOCOLS AND REVISED THEM AND THAT
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` 6 THOSE -- AND THERE WERE A LOT OF THOSE IN
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` 7 EXPERIMENTS AND THEN PUT A REVISED FORM OF THE
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` 8 PROTOCOL IN HIS DECLARATION, SO I DON'T --
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` 9 JUDGE GREEN: YOU CAN PUT THOSE IN
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` 10 YOUR -- IN YOUR MOTION. I WILL TELL YOU THAT THE
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` 11 MORE THINGS THAT YOU ASK FOR, THE MORE BURDENSOME IT
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` 12 COMES; AND THE BROADER THAT IT BECOMES, THE HARDER
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` 13 IT IS TO SHOW THAT IT MEETS -- THAT THOSE DURING
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` 14 DISCOVERY THAT WE'VE BEEN USING FOR THESE IPR
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` 15 PROCEEDINGS WHICH WE'RE TRYING TO KEEP THEM LOW COST
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` 16 AND KEEP THEM ON TRACK IN THE TIME THAT WE HAVE
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` 17 ALLOTTED TO US. SO I UNDERSTAND THAT THERE MAY BE
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` 18 ADDITIONAL THINGS, BUT I WOULD FOCUS THE PARTIES'
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 ATTENTION TO THE GARMIN DECISION AND SOME OTHER
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` 21 DECISIONS AS TO DISCOVERY TO SHOW THAT, YOU KNOW,
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` 22 THIS IS A VERY LIMITED -- WE DON'T FILL OUT TOO MUCH
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` 15
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` 1 EXTRA DISCOVERY IN AN IPR. THE REASON THAT I'M
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` 2 ALLOWING THE MOTION IS BECAUSE IT DOES SOUND LIKE
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` 3 MR. HAUGSGJERD DID DISCUSS THEM IN A DEPOSITION AND
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` 4 DEPOSITION TESTIMONY. I WILL ALLOW YOU TO FILE THE
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` 5 DEPOSITION AS AN EXHIBIT BECAUSE I KNOW THAT'S GOING
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` 6 TO BE LONG SO I CAN SEE THE CONTEXT, BUT YOU'RE
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` 7 GOING TO HAVE TO ARGUE -- MAKE SOME ARGUMENT THAT,
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` 8 YOU KNOW, THIS IS WHY WE NEED THIS BASED ON HIS
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` 9 TESTIMONY. OKAY? PETITIONER.
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` 10 MS. HOLLIS: THANK YOU, YOUR HONOR.
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` 11 I THANK YOU FOR THE GUIDANCE.
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` 12 JUDGE GREEN: IS THERE ANYTHING
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` 13 THAT -- ANYTHING FURTHER THAT YOU'D LIKE TO SAY AT
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` 14 THIS POINT?
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` 15 MS. CUNNINGHAM: NOT ON THAT ISSUE,
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` 16 YOUR HONOR.
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` 17 JUDGE GREEN: OKAY. I THINK AT THIS
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` 18 POINT I AM WILLING TO AUTHORIZE TEN PAGES FOR THE
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 DISCOVERY REQUEST, THE MOTION, AND TEN PAGES FOR THE
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` 21 OPPOSITION. I KNOW THAT YOU WANT TO GET THIS DONE
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` 22 QUICKLY. PATENT OWNER, HOW QUICKLY CAN YOU GET THIS
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` 16
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` 1 IN?
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` 2 MS. CUNNINGHAM: YOUR HONOR, WE ARE
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` 3 PREPARED TO SUBMIT THIS BY NOON ON FRIDAY AND ALSO
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` 4 POTENTIALLY TOMORROW. WE'RE HOPING FOR TOMORROW,
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` 5 BUT ABSENT THAT, CERTAINLY BY NOON ON FRIDAY.
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` 6 JUDGE GREEN: SO APRIL 30TH -- NOT
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` 7 APRIL. I'M SORRY. I'M LOOKING AT THE WRONG MONTH.
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` 8 MAY 30TH?
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` 9 MS. CUNNINGHAM: YES, MAY 30TH OR
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` 10 BEFORE.
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` 11 JUDGE GREEN: AND THEN, PETITIONER,
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` 12 HOW LONG WILL IT TAKE YOU TO DO AN OPPOSITION?
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` 13 MS. HOLLIS: I CAN PROBABLY PUT THAT
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` 14 TOGETHER IN TWO OR THREE DAYS AS WELL, YOUR HONOR.
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` 15 JUDGE GREEN: SO THE FOLLOWING
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` 16 WEDNESDAY?
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` 17 MS. HOLLIS: YES, YOUR HONOR.
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` 18 JUDGE GREEN: THAT WOULD BE
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 20 JUNE 4TH. AND THEN WHAT DATE ARE WE LOOKING AT THAT
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` 21 YOU NEED -- WHAT YOU WOULD WANT A DECISION BY? I
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` 22 JUST HAVE A LOT ON MY PLATE AS WELL, SO I NEED TO
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` 17
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` 1 KIND OF HAVE AN IDEA OF WHEN YOU'RE HOPING TO HAVE A
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` 2 DECISION FROM US.
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` 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 --
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` 7 JUDGE GREEN: NO, I'M NOT GOING TO
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` 8 AUTHORIZE A REPLY AT THIS POINT. SO I STILL NEED
`
` 9 IT -- WHEN DO YOU NEED MY DECISION?
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` 10 MS. CUNNINGHAM: WELL, OUR -- WE
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` 11 COULD ASK THAT IF ANY -- THE MOTIONS TO BE GRANTED
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` 12 AT ALL, IT WOULD BE ORDERING PRODUCTION TO
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` 13 OCCURRENCE SAY, WITHIN TWO BUSINESS DAYS BEFORE OUR
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` 14 RESPONSE IS DUE, WHICH WOULD BE FRIDAY, JUNE 13.
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` 15 JUDGE GREEN: WHICH DUE DATE IS
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` 16 THAT? I JUST CAN'T REMEMBER OFF THE TOP OF MY HEAD
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` 17 AND I APOLOGIZE FOR THAT.
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` 18 MS. CUNNINGHAM: SURE. IT WOULD BE
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 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?
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` 4 MR. JONES: WE ARE NOT, YOUR HONOR.
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` 5 JUDGE GREEN: NO MOTION TO AMEND?
`
` 6 MR. JONES: THAT'S CORRECT.
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` 7 JUDGE GREEN: SO WE DO HAVE A LITTLE
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` 8 BIT OF LEEWAY IF NEEDED.
`
` 9 I CAN SAY THAT MY SCHEDULE IS VERY
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` 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,
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` 17 OPPOSITION -- I MEAN THE MOTION IS DUE MAY 30TH.
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` 18 THE OPPOSITION IS DUE JUNE 4TH. AND HOPEFULLY WITH
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 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
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` 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
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` 11 THINK THE BEST THING TO DO IS -- I THINK THE
`
` 12 SANCTION THAT WE WOULD USE THE MOST IS IF IT WAS
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` 13 OUTSIDE THE SCOPE OF HIS DIRECT, YOU WOULD POINT
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` 14 THAT OUT TO US AND, WHICH WE JUST WOULDN'T GIVE IT
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` 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 |||
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` 20 DECLARATIONS, ALMOST -- FIVE PARAGRAPHS IN EACH OF
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` 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
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` 5 EGGS, 2012 PUBLICATION THAT HE COAUTHORED. NONE OF
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` 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
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` 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
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` 19 ||| UNCERTIFIED ROUGH DRAFT |||
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` 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 |||
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` 20 SHOULD BE ENTITLED ANY WEIGHT BECAUSE IT WENT SO
`
` 21 FAR -- IT WENT BEYOND THE SCOPE OF THE DIRECT AND
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` 22 THINGS LIKE THAT AND THAT'S SOMETHING THAT WE CAN
`
`
`
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` 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
`
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` 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