throbber
SCOTT LEWANDOWSKI - 12/4/2015
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
`
`SYMANTEC CORPORATION; ) Case No.
` Petitioner, ) IPR2015-00375
` vs. ) IPR2015-00377
`THE TRUSTEES OF COLUMBIA )
`UNIVERSITY IN THE CITY OF )
`NEW YORK; )
` Patent Owner. )
` - - - - - - - - - )
`
`VIDEOTAPED DEPOSITION OF:
` SCOTT LEWANDOWSKI
` FRIDAY, DECEMBER 4, 2015
` 8:55 A.M.
`
`Reported by:
` TERI J. NELSON
` CSR NO. 7682
`
`Page 1
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` Videotaped deposition of SCOTT LEWANDOWSKI,
`the witness, taken on behalf of the Petitioner, on
`Friday, December 4, 2015, 8:55 A.M., at
`1800 Avenue of the Stars, Suite 900, Los Angeles,
`California, before Teri J. Nelson, CSR No. 7682,
`pursuant to Notice.
`
`APPEARANCES OF COUNSEL:
`
`FOR PETITIONER:
` FENWICK & WEST, LLP
` BY: MICHAEL J. SACKSTEDER, ESQ.
` 555 California Street
` 12th Floor
` San Francisco, California 94104
` 415-875-2300
`
`FOR PATENT OWNER:
` IRELL & MANELLA, LLP
` BY: H. ANNITA ZHONG, ESQ.
` GAVIN SNYDER, ESQ.
` 1800 Avenue of the Stars
` Suite 900
` Los Angeles, California 90067-4276
` 310-277-1010
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`APPEARANCES (Continued):
`
`ALSO PRESENT:
` Fritz Sperberg, Videographer, DTI
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` I N D E X
`
`WITNESS EXAMINATION PAGE
`SCOTT LEWANDOWSKI
` By Mr. Sacksteder: 7,
` 154
` By Ms. Zhong: 146
`
`INSTRUCTIONS NOT TO ANSWER
`PAGE LINE
` 22 24
` 26 4
`
` E X H I B I T S
`NO. DESCRIPTION PAGE
`Exhibit 1013 Seven-page document entitled 143
` "Detection of Injected,
` Dynamically Generated, and
` Obfuscated Malicious Code"
`Exhibit 1014 Five-page document, the 153
` first page of which is
` entitled "Declaration and
` Power of Attorney for Patent
` Application"
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` PREMARKED EXHIBITS
` FIRST
` REFERRED
`NO. DESCRIPTION TO
`Exhibit 2031 36-page document entitled 13
` "Declaration of Scott M.
` Lewandowski"
`Exhibit 1010 30-page document consisting 45
` of United States Patent
` Application Publication
` Number US 2005/0108562 A1
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`LOS ANGELES, CALIFORNIA, FRIDAY, DECEMBER 4, 2015
` 8:55 A.M.
`
` THE VIDEOGRAPHER: Good morning.
` My name is Fritz Sperberg. I am a
`videographer with DTI. The court reporter is Teri
`Nelson, also of DTI, at 20750 Ventura Boulevard,
`Suite 205 in Woodland Hills, California.
` Today's date is December 4th, 2015. The
`time is now 8:55 a.m.
` And our location is 1800 Avenue of the
`Stars in Los Angeles, California.
` Counsel, please identify yourselves, and
`state whom you represent.
` MR. SACKSTEDER: Michael Sacksteder,
`Fenwick & West, on behalf of Symantec.
` MS. ZHONG: Annita Zhong on behalf of
`Columbia.
` And with me is Gavin Snyder.
` THE VIDEOGRAPHER: The witness today is
`Scott Lewandowski.
` Would reporter please swear in the witness.
`//
`//
`//
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` SCOTT LEWANDOWSKI,
` having been first duly sworn, was
` examined and testified as follows:
`
` THE VIDEOGRAPHER: You may begin.
`
` EXAMINATION
`
`BY MR. SACKSTEDER:
` Q. Good morning, Mr. Lewandowski.
` A. Good morning.
` Q. Can you tell me where you live?
` A. I live in San Antonio, Texas.
` Q. What's your address?
` A. It's 24815 Shinnecock Trail.
` Q. What do you do in San Antonio, Texas for
`work?
` A. I have a computer consulting company. I
`provide IT services to commercial and government
`customers.
` Q. What kind of IT services?
` A. They range quite a bit, but focus primarily
`on computer security.
` Q. So can you give me -- me an example of sort
`of a -- a -- a service you would provide to -- you
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`don't have to identify the client, but you know,
`sort of give me an example of what kind of service
`you provide?
` A. Sure.
` One example might be a customer who has a
`particular risk that their enterprise, be it
`government or business, faces, and they're looking
`to address that particular risk and may be
`considering a -- a particular system to do so, so
`I'll help them evaluate the ability of that system
`to address that risk for them.
` Q. And this is through your company The
`Wynstone Group?
` A. That is correct.
` Q. How many employees does The Wynstone Group
`have?
` A. At present, one.
` Q. And -- and that's you?
` A. Correct.
` Q. All right. Have you had employees
`previously?
` A. I have, yes.
` Q. How do you typically charge for your
`services?
` A. It varies between hourly-based billing and
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`our firm fixed-price billing.
` Q. When you bill by the hour, do you have a
`fixed rate?
` A. It's a variable rate depending on the
`nature of the work and the particular customer
`involved.
` Q. What is the range of variation in your
`rate?
` A. For commercial, or for government
`customers?
` Q. Is there a difference?
` A. There can be due to government contracting
`regulations, yes.
` Q. Let's start with government customers.
` A. Government customers typically will be in
`the 4- to $600 an hour range.
` Q. And for commercial customers?
` A. That could vary.
` Those customers typically use firm fixed
`pricing, but on an hourly rate, it would be between
`800 and $1,200 an hour.
` Q. How do you calculate that as an hour --
`hourly rate if you do it as a firm fixed pricing?
` A. I -- you're asking how I work backwards
`from a --
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` Q. Yeah.
` A. -- from fixed price to that number?
` I look at the expected number of hours that
`would be expended on a particular matter, you know,
`accounting for any expenses that may in- -- be
`involved, so cracking those off first and then
`dividing.
` Q. Do you have counsel representing you today?
` A. I do.
` Q. Who is your counsel?
` A. Irell.
` Q. All right. Is Irell billing you for its
`services?
` A. They are not, no.
` Q. All right. Who's paying for Irell's
`services to defend you in your deposition?
` A. To the best of my knowledge, Columbia
`University.
` Q. And you're not paying anything for legal
`representation; correct?
` A. That is correct.
` Q. How many hours have you spent working with
`Irell on this matter?
` MS. ZHONG: Objection. Form.
` THE WITNESS: I -- I couldn't answer that
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`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`just -- just sitting here right now.
` I'd need to consult records that I don't
`have available with me.
`BY MR. SACKSTEDER:
` Q. What's your best estimate?
` A. Probably on the order of 80 hours, perhaps.
` Q. And what work have you done during those
`approximately 80 hours?
` A. I provide a variety of technical consulting
`services to them.
` Q. In --
` MS. ZHONG: Hold on a minute.
` When you say "this matter," are you just
`talking about the IPR, or the District Court as
`well?
` MR. SACKSTEDER: I'm referring to the IPR
`first.
` THE WITNESS: Okay.
`BY MR. SACKSTEDER:
` Q. Does that -- does that change your answer
`about the number of hours?
` A. It would, yes.
` Q. All right. And what -- and what change
`would that make?
` A. Again, I couldn't provide a precise number,
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`but that would be more on the order of 40 hours.
` Q. About 40 hours for the IPR?
` A. Approximately.
` Q. And you said "technical consulting
`services."
` What technical consulting services have you
`provided?
` A. I've reviewed documents, and I've answered
`a number of questions and participated in
`discussions.
` Q. What documents have you reviewed?
` A. I provided a list of documents that I
`reviewed in preparing my declaration.
` If you have a copy of it I could refer to,
`that would make it most convenient to provide you an
`accurate list.
` Q. Sure.
` This --
` A. Thank you.
` So the relevant materials in Exhibit 2 --
` Q. Let -- let me, for the record, just tell
`the -- tell -- tell the record what I put in front
`of you.
` I just put in front of you your declaration
`from the 375 IPR; correct?
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` A. That's correct.
` Q. All right. And you are referring to one of
`the exhibits from that declaration?
` A. Correct.
` Exhibit Number 2.
` Q. All right. And -- and just again, for the
`record, the -- the exhibit in the IPR, the exhibit
`number at the bottom of the first page is Columbia
`Exhibit 2031-1; correct?
` A. That's not correct.
` It's 2031-18.
` Q. Ah.
` It must be cut off on my copy.
` Are you -- look at the --
` Oh, I see.
` Look at the first page.
` Okay. So it says --
` A. Yes.
` Q. -- "dash 1" on page 1, so I guess those are
`the page numbers; correct?
` A. Oh, yes.
` I'm sorry. My apologies.
` Q. All right. So it's -- it's Exhibit 2031;
`correct?
` A. Correct. Correct.
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` Q. All right. And then you're looking at
`pat- -- page 8.
` A. Yes.
` Q. All right. And --
` A. Oh, 18 and -- sorry, at page 18.
` Q. Okay. Page 18.
` What are you -- what do you see there to
`help you answer my question previously?
` A. Materials considered, including U.S. --
`included the U.S. Patent Application Publication
`U.S. 2005/0108562, U.S. Patent Number 8,074,115,
`U.S. Patent Number 8,108,929, the Petition for
`Inter Partes Review of U.S. Patent Numbers 8,074,115
`under 35 USC 311-319 and 37 CFR 42.1-.80,
`42.100-.123 and IPR 2015-00375, Columbia's Patent
`Owner Preliminary Response under 37 CFR
`Section 42.107 in IPR2015-00375 and the Institution
`of Inter Partes Review in IPR2015-00375.
` Q. Did you consider any other materials in
`connection with the work you've done on the IPR?
` A. Can you define what you mean by "consider"?
` Q. Did you look at any?
` A. Yes.
` Q. What other materials did you look at?
` A. I also referenced a paper that I cited in
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`my declaration which was authored and is related to
`the Khazan patent in question.
` Q. Any others?
` A. Nothing material -- that materially
`contributed to this, no.
` Q. Did you, in the process of working on your
`declaration, look at any other documents at all?
` A. None that come to mind.
` Q. Okay. You referred to a paper that you had
`co-authored that you reviewed in connection with
`your declaration; correct?
` A. That is correct.
` Q. Why didn't you list it in page 18 of
`Exhibit 2 -- 2031?
` A. If I recall correctly, I didn't actually
`review that paper prior to authoring a declaration.
` Q. Did you review it after you --
` A. I -- I did, yes.
` Q. All right. And -- and when did you review
`it?
` A. I -- I don't recall the exact date.
` Within the last several weeks.
` Q. Did you recall it in order to prepare for
`this deposition?
` A. I thought it would be useful to review.
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` Q. For this purpose?
` A. Yes. In support of this purpose, yes.
` Q. Did you review it for any other reasons?
` A. No, I did not.
` Q. Was it your idea to review it, or did you
`get that idea from counsel?
` MS. ZHONG: Objection.
` I instruct you not to reveal any
`confidential attorney-client privileged
`communications.
`BY MR. SACKSTEDER:
` Q. Okay. Let me ask you a foundational
`question.
` Did you review the paper in order to
`refresh your recollection?
` A. I wouldn't say that was my motivation, no.
` Q. When you reviewed the paper, did it, in
`fact, refresh your rec- -- recollection about
`anything?
` A. It did. The events were, you know, quite a
`while ago, so yes.
` Q. All right. So it did re- -- refresh your
`recollection.
` A. Yeah, generally speaking, yes, the review
`of that as well as the original Khazan patent, you
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`know, refreshed my memory of what had occurred, you
`know, 10, 15 years ago now.
` Q. Did you review it on your own initiative,
`or did you do it at the instigation of counsel?
` A. I reviewed it --
` MR. SACKSTEDER: He can answer that one
`now. It refreshed his recollection. I'm allowed to
`ask about it.
` THE WITNESS: I reviewed it at my own
`initiative.
`BY MR. SACKSTEDER:
` Q. All right. What did review of your paper
`refresh your recollection about?
` A. Just the general circumstances surrounding
`the implementation of the system.
` Q. You said in addition to reviewing
`documents, you answered questions in connection with
`your work on the IPR; correct?
` A. That's correct.
` Q. What kind of questions?
` A. I -- I mean a variety of technical
`questions relating to the subject matter.
` Q. When did -- strike that.
` From whom did the questions come?
` MS. ZHONG: Objection. Relevance.
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` Are you asking the District Court -- what
`he did for the District Court case now?
` MR. SACKSTEDER: I -- I just said for the
`IPR.
` MS. ZHONG: Okay.
` THE WITNESS: I -- I apologize.
` What was the question again?
` MR. SACKSTEDER: I don't remember.
` THE WITNESS: Oh, I'm -- I guess I can read
`it here.
` They came from attorneys at Irell.
`BY MR. SACKSTEDER:
` Q. Which attorneys?
` A. Primarily Mr. Snyder, also Ms. Zhong.
` Q. What kind of questions did they ask you?
` MS. ZHONG: Objection.
` I instruct you not to reveal any
`confident- -- any attorney-client privileged
`communications.
` MR. SACKSTEDER: All right. He is
`appearing here as a fact witness; correct?
` MS. ZHONG: He is.
` MR. SACKSTEDER: And he is not an expert
`witness at all, according to his declaration;
`correct?
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` MS. ZHONG: He is not providing expert
`testimony.
`BY MR. SACKSTEDER:
` Q. All right. Let me -- let me make it clear
`that I'm not asking you about any communications
`that you had about preparing for your dec- --
`deposition.
` I assume that is the -- the subject matter
`of the representation of you by Irell; is that
`correct?
` A. That is a portion of it, yes.
` Q. What other -- what is the rest of your
`representation by Irell?
` A. It -- a -- a variety of matters that, you
`know, are pertinent to the, you know, patent set in
`question.
` Q. Tell me what they are.
` A. Well --
` MS. ZHONG: I instruct you not to answer
`the questions that will reveal --
` MR. SACKSTEDER: I need to know the scope
`of the representation if I'm -- if I'm going to
`avoid asking him privileged questions.
` MS. ZHONG: You can give a general
`description of what you were asked to do, but please
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`do not reveal anything specific.
` THE WITNESS: Okay.
` MR. SACKSTEDER: Okay. That's an improper
`instruction.
` Q. I'm going to ask you some questions, and
`we'll see if you can answer them or not.
` Okay?
` A. Okay.
` Q. You testified that you were retained to
`provide consulting services; correct?
` A. I believe that's what I said, yes.
` Q. And -- and you testified that you reviewed
`documents in the course of doing that; correct?
` A. That's correct.
` Q. And you identified those documents;
`correct?
` A. That's also correct.
` Q. And -- and then you said you answered
`questions from counsel, specifically Ms. Zhong
`and -- and Mr. Snyder; correct?
` A. That's correct.
` Q. And that was part of your providing
`consulting services; correct?
` A. That's correct.
` Q. Was it part -- it -- it was not part of
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`their representation of you to prepare for this
`deposition; correct?
` A. I'm not sure I could make a -- a strong
`distinction between the matters.
` They were very commingled.
` Q. What do you mean by "commingled"?
` A. I -- first, I'm obviously not a lawyer, so
`I don't have a -- a strong foundation to draw
`distinctions between, you know, very specific
`elements of discussion.
` When we would have discussions, I would
`consider most of them as -- as being -- in fact,
`probably all of them as being a combination of
`consulting and representation.
` Q. And -- and there are -- but there two
`different relationships here, would you agree?
` There is your consulting representation of
`Columbia via Irell, and then there is Irell's
`representation of you.
` A. Based on what I've -- yes, that -- that's
`my understanding.
` Q. Does Irell's representation of you extend
`beyond preparation for this deposition?
` A. I would have to say it does, yes.
` Q. Irell has given you other legal advice
`
`09:09:46
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`besides legal advice connected to preparing for this
`deposition.
` A. Yes, that's my belief.
` Q. Did any of that other legal advice relate
`to the IPR?
` A. Yes, some of it did.
` Q. All right. What was the general subject
`matter of that advice?
` MS. ZHONG: I think he has already said the
`advice relates to the IPR, and I think you should
`stop asking for attorney-client privileged
`information.
` MR. SACKSTEDER: I just have no idea what
`kind of representation is going on here, and I need
`to know that in order to know what I can ask him and
`what I can't.
` MS. ZHONG: I just don't think you should
`ask any attorney-client privileged in- --
`communications.
` MR. SACKSTEDER: I have asked the question.
` You can instruct him not to answer if you'd
`like, but you do it at your own peril.
` MS. ZHONG: Okay.
` I'll instruct you not to reveal any
`attorney-client privileged information.
`
`09:10:55
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`BY MR. SACKSTEDER:
` Q. Can you answer the question?
` A. I -- I don't believe that it's possible
`based on the direction I was just given.
` Q. Okay. So there was some other legal advice
`you were given by Irell that relates to the IPR,
`correct, in addition to preparation for your
`deposition.
` A. I believe that was already established,
`yes.
` Q. Has Irell given you legal advice regarding
`other matters besides the IPR?
` A. I would have to say yes.
` Q. Does that include matters relating to the
`District Court litigation?
` A. I -- I -- yes, that would be correct.
` Q. Has Irell given you legal advice regarding
`any other matters besides the District Court
`litigation and the IPRs?
` A. In -- in my understanding as a layperson,
`there's nothing that I could identify.
` Q. Okay. So -- so the answer is likely no,
`then; is that correct?
` A. That -- it's likely accurate.
` Q. All right. And then there's the separate
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
`relationship where you are providing consulting
`services; correct?
` A. That is correct.
` Q. All right. And -- and you said you
`answered questions from counsel.
` A. That is correct.
` Q. And it's your testimony that the questions
`regarding your consulting are so intermingled with
`the legal advice you received that you can't
`distinguish them, so you can't tell me what
`questions you answered that were related to your
`consulting; is that correct?
` A. That is correct.
` Q. All right. You also said you had
`discussions, I believe, in addition to reviewing
`documents and answering questions.
` Are the discussions the general context in
`which you answered the questions that you referred
`to?
` A. Although I realize I did say questions and
`discussions earlier, I'm not sure I could draw a --
`a strong distinction between the two and most
`conversations guided by some series of questions.
` Q. And the legal advice that you have received
`from Irell you have not paid anything for; correct?
`
`09:12:55
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` A. There's been no direct compensation by me
`to them, no.
` Q. And do you have any expectation that you
`will end up paying them anything for legal advice?
` A. I would have difficulty speculating about
`how matters may unfold.
` Q. As of now, do you expect to pay anything
`for receiving legal advice from Irell?
` A. As of right now, no, I wouldn't.
` Q. Do you have any way of estimating how many
`hours of legal work Irell has performed for you?
` A. I'd be very poorly equipped to -- to try to
`speculate at that.
` Q. Do you have -- how much time have you spent
`talking to them in conversations that included them
`providing you legal advice?
` A. Related to the -- this IPR matter?
` Q. Let's start there.
` MS. ZHONG: I think you are touching into
`the -- like, you know, the privileged conversation.
` MR. SACKSTEDER: No.
` I'm just asking for how much time he's
`spent.
` MS. ZHONG: I think that's privileged too.
`BY MR. SACKSTEDER:
`
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`SYMC 1013
`Symantec v. Columbia
`IPR2015-00375
`
`

`
`SCOTT LEWANDOWSKI - 12/4/2015
`
` Q. Go ahead.
` I -- I don't know if there's an instruction
`for you not to answer or not.
` MS. ZHONG: And I instruct you not to
`reveal any attorney-client privileged confidential
`information.
`BY MR. SACKSTEDER:
` Q. Can you answer the question?
` A. Based on the instruction I've just
`received, no.
` Q. All right. But -- but regardless, you
`haven't paid anything for this legal advice you've
`received for Irell -- from Irell; correct?
` A. I've answered that several times.
` No.
` Q. And the answer is "Yes"; correct?
` A. The answer is that no, I have not directly
`paid.
` Q. All right. What do you understand to be
`the general subject matter of the consulting
`services you are providing?
` A. The general subject matter is related to a
`number of patents in question, specifically the
`Khazan patent.
` Q. You said "A number of patents."
`
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`26

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