`
`FBI“.
`
`
`
`C0
`
`Fischer Behar Chen Well Orion & Co ’fllVJI mm 7:: m 7:): M's
`
`3 Dame! Frisch St, Tel Aviv 6473-104 israet l T121972 3691415111, Fax. 972 3.609 11 16 | 133.609.1116 .0579 £3,694.41?! .70 1 6473104 33x 7n ,3 was 7M]? '91
`
`Leah Newstead, Secretary
`Tel. 972-3-6944111
`Fax. 972-3-6091116
`
`fbc@fbclawyers.com
`
`July 13, 2017
`
`Certification of Translation
`
`1, Leah Newstead hereby declare that
`
`I am proficient
`
`in the Hebrew and English
`
`languages, and the attached translation is, to the best of my knowledge and belief, a true
`
`and accurate translation from Hebrew to English of a decision dated August 19, 2002 by
`
`the Tel-AViV Magistrate Court in file number 123/2 Medinol Ltd. V. Boston Scientific
`
`Corporation. I declare under penalty of perjury that all statements made herein of my own
`
`knowledge are true, and all statements made on information and belief are believed to be
`
`true.
`
`01w -1
`
`Leah Newstead
`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`Free Translation from Hebrew
`
`The Courts
`
`
`
`Tel Aviv - Jaffa Magistrates' Court Dispute 00123/02
`
`
`
`Before:
`
`The Honorable Judge
`
`19/08/2002
`
`Dorit Reich — Shapira
`
`The Requesting Judicial Authority: The Federal Court of the Southern District in New York Court
`
`Administration Case No. 4/02—51
`
`The Judicial Judgments File: 01 CIV. 2881 AKH
`
`The Plaintiff:
`
`MEDINOL LTD.
`
`The Defendants: BOSTON SCIENTIFIC CORPORATION
`
`Decision
`
`In the Federal Court in the Southern District of New York (hereinafter: "the New York Court"), a
`
`claim and a counterclaim concerning civil commercial disputes are pending. The parties to the
`
`reciprocal claims are the companies
`
`MEDINOL LTD. (hereinafter: "MEDINOL") and BOSTON SCIENTIFIC CORPORATION and
`
`BOSTON SCIENTIFIC LIMITED (hereinafter: "BOSTON")
`
`As part of these claims, BOSTON filed a motion with the New York Court applying that a judicial
`
`inquiry will be held in Israel, based on the provisions of the Hague Convention on The Taking of
`
`Evidence Abroad in Civil or Commercial Matters (hereinafter: "the Hague Convention") and the
`
`Legal Aid Between States Law, 5758—1998 (hereinafter: :"the Law"). The New York Court applied to
`
`the competent judicial authority in Israel to collect the testimonies of Messrs. Uriel Yarkoni and
`
`Gershon Peleg (hereinafter: "the Witnesses"). According to the argument, each of the Witnesses has
`
`important information relevant to the controversial issues between MEDINOL and BOSTON, since
`
`Yarkoni was an employee of MEDINOL, while Peleg was an employee of Tzoran Ltd., which had
`
`commercial relations with MEDINOL.
`
`The Minister of Justice, the "competent authority" under section 3 (a) of the Law, exercised his
`
`authority, and instructed this Court to hear the testimony of the witnesses.
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`After setting a date for holding the judicial inquiry and instructing the summoning of the Witnesses,
`
`the Witnesses submitted their objections to their obligation to testify in front of this Court. As part of
`
`the objections, MEDINOL and the Minister of Justice were added as Respondents. Tzoran Company
`
`joined the opposition to hearing the testimony of the Witness Peleg. I would like to say here that the
`
`inclusion of the other parties is appropriate, as they all have legitimate interests in the process. Each of
`
`the parties who joined filed it's written position.
`
`Adv. Rosovsky (on behalf of the witness, Yarkoni) and Heller (on behalf of the witness, Peleg and
`
`Tzoran) oppose the proceeding. Their detailed claims can be summed up in "a nutshell" in that there is
`
`no application to collect evidence that will serve as evidence in the trial, but rather an application to
`
`approve a preliminary gathering of evidence in the way of a Deposition. Such a procedure does not
`
`exist in the Israeli legal system, and therefore, in accordance with the provisions of section 8 (b) of the
`
`Law, this Court has no authority to uphold the judicial inquiry.
`
`In his objection, Adv. Rosovsky emphasized the severe and disproportionate harm that
`
`the
`
`implementation of the proceeding would violate the constitutional rights of the Witness Yarkoni. He
`
`also described the differences, which are essential in his opinion, between the collection of evidence in
`
`Court and the Deposition process that exists in the legal system in the United States.
`
`In his objection, Adv. Heller argued that the laconic formulation of the application sent by the New
`
`York Court is misleading and for this reason in itself,
`
`in Adv. Heller's opinion, this application should
`
`be rejected. In addition, he emphasized the harm that would be caused by responding to the application
`
`to confidential business technology information, that is a trade secret that is subject to the immunity
`
`prescribed in the Commercial Wrongs Law. According to this contention, the confidentiality stands for
`
`the Witness and his former employer, Tzoran, and it is improper to harm these interests.
`
`Adv. Dr. Leshem, MEDINOL's attorney, did not take a stand, leaving the decision to the discretion of
`
`this Court. He only noted that Peleg was not included in the list of witnesses who were summoned to
`
`testify before the New York Court.
`
`Adv. Shlomi of the Tel Aviv District Attorney's Office, on behalf of the Minister of Justice, argued
`
`that the application is for the purpose of collecting testimony and requested that the judicial inquiry
`
`should be carried out. Alternatively, he argued that even if the application is essentially an application
`
`for a Deposition proceeding, the assistance granted by the competent authority is in accordance with
`
`the provisions of the Law. According to him, the Witnesses must be summoned and their testimonies
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`collected by virtue of the provisions of Article 1 of the Hague Convention and Article 18 (a) of the
`
`Law, without addressing the question whether the evidence is necessary for the Deposition process,
`
`and without determining whether the Deposition process is included in the term "Legal Aid."
`
`Adv. Behar, on behalf of BOSTON, requested that the aforementioned objections would be rejected,
`
`in his written responses dated June 13, 2002 and July 1, 2002. He referred to the provisions of the
`
`Hague Convention and the obligation of this Court to comply with the provisions of the competent
`
`authority.
`
`In light of the opposing positions, I held a discussion in the presence of the representatives of all the
`
`parties on July 18, 2002, in which, in fact, each party repeated its claims, as evidenced by the protocol,
`
`pp. 1—7.
`
`After having reviewed the written arguments and their appendices and heard the oral
`
`arguments of the parties' counsel, I decided as follows:
`
`1.
`
`The basic rights relied upon by Adv. Rosovsky are not unlimited. These are relative rights, and
`
`they are withdrawn before other rights. In this context, the words of the Vice-President, the
`
`honorable Justice Barak (as he was then), in the High Court of Justice 2481/93 Dayan v. Police
`
`Commander Yehuda Wilk et al, are worth quoting:
`
`"Here it is, the public interest is that the
`individual interest will be preserved, and
`the private interest
`is
`that
`the public
`interest will be preserved
`in the need to
`protect between the
`interests and the
`following values from colliding. The key lies
`in the "give and take" approach and the
`balance between conflicting values. Human
`rights are not "absolute." They are of a
`"relative" nature. The public interest
`is
`meant to ensure that "areas of life" are
`
`worthy of the relative character of the right.
`
`2.
`
`In the case before me stands the public interest on which the law protects, against the rights of the
`
`Witness Yarkoni for his dignity which includes his right to be investigated under the law and not
`
`be disturbed beyond that, and the right of witnesses Peleg and Tzoran for confidentiality of trade
`
`secrets. The Court which will hear the judicial inquiry will be required to address the clash
`
`between the interests and to decide on the proper balance between the conflicting values and
`
`when one must be withdrawn against the other.
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`The argument that the Court must carry out the judicial inquiry in accordance with the Minister's
`
`decision without having to deal with the question of his authority to do so is unacceptable to me.
`
`The normative framework is the basis for the validity of the decisions of the Court, in its absence,
`
`the decisions held by it are void. Therefore, the Court is attentive to the claim of lack of authority
`
`raised before it,
`
`it shall address it and adjudicated therein as shall be found to be true and in
`
`accordance with the law.
`
`It appears that the application is for a procedure of Deposition. The conclusion implied from the
`
`aforesaid in Appendix C to the response of Adv. Heller on behalf of the witness Peleg, dated June
`
`10, 2002. Appendix C is a letter written by Adv. Dunham on behalf of BOSTON to Peleg's
`
`attorney with an explicit question whether Mr. Peleg intends to agree to a Deposition proceeding
`
`or whether BOSTON will have to force him to do so by means of the provisions of the Hague
`
`Convention.
`
`Reinforcement to my conclusion, I find in the clarification filed by Adv. Behar, the Israeli legal
`
`representative of BOSTON, with the Court files. Adv. Behar stated that these are testimonies (p.
`
`4, line 6 and p. 5, line 13) but the clarification of August 9, 2002 which is not from the American
`
`legal representative of BOSTON, states that the material collected in Israel will serve as evidence
`
`in the trial held in New York. The clarification is from the Honorable Judge Halerstein explaining
`
`the nature of the procedure according to the law in the United States, according to which the
`
`material collected may be used wholly or partially as evidence in the trial, as well as the
`
`importance of having a Deposition in this case.
`
`In addition, Adv. Leshem’s claim that Peleg was not included in the list of witnesses summoned
`
`to trial before the New York Court was neither contradicted nor denied, and that is also consistent
`
`with the conclusion that it is a case of a Deposition.
`
`Therefore, I must address the fundamental question of whether a Deposition process is a "legal
`
`assistance", and may be taken as part of the judicial inquiry in Israel, although the testimonies of
`
`the witnesses may not serve as evidence in the trial being conducted in the applying country.
`
`In order to resolve the question,
`
`the provisions of the Hague Convention and the relevant
`
`provisions of the Law must be examined.
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, Ex. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`7.
`
`The State of Israel signed the Hague Convention without any reservations. Article 1 of Chapter 1
`
`of the Convention states:
`
`"In civil or commercial matters a judicial
`authority of a Contracting State may,
`in
`accordance with the provisions of the law of
`that State, request the competent authority
`of another Contracting State, by means of a
`Letter of Request, to obtain evidence, or to
`perform some other judicial act. A Letter
`shall not be used to obtain evidence which is
`
`not intended for use in judicial proceedings,
`commenced or contemplated."
`
`The application before me meets the requirements of this section. As stated, this is a civil
`
`commercial matter. The application was filed in accordance with the provisions of the law of the
`
`State of New York and is referring to collecting evidence. In general, the testimonies should
`
`serve as evidence in proceedings initiated in New York Court, even if the stage is a preliminary
`
`stage of Deposition. This is consistent with the wording of the Convention explicitly referring to
`
`future legal proceedings.
`
`In Section
`
`[sic] in the explanatory clause to the Law of3.2.97 (Bill 2577) it is stated:
`
`"It is proposed to establish explicitly the
`legal rule according to which any action
`taken in Israel at the request of another
`state shall be carried out in accordance with
`
`the law applicable in Israel for any act of its
`kind. However, and to the extent permitted
`by law in Israel, the act shall be carried out
`in the manner prescribed by the other State
`
`In accordance with the principle of legality,
`the laws of Israel apply to any action taken
`in Israel, and it does not matter whether it
`is done at the request of a domestic official
`or of another state. However, and to the
`
`is
`it
`law,
`extent permitted by Israeli
`desirable to fulfill the request of the law of
`the other country in a manner that would
`allow it
`to use the material obtained in
`
`Israel as required in the Laws of the other
`State. Even if the specific action was carried
`out
`in a different manner of procedure
`being conducted in Israel, permission to do
`so in the manner requested by the other
`State, should be granted provided that
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, Ex. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`the law in Israel does not prohibit its
`execution by this manner (emphasis
`added).
`
`9.
`
`There are not many rulings regarding the law which came into effect on July 28, 1998. In an
`
`application for civil appeal (Jerusalem) 2168/99, the honorable Justice Shidlovsky-Or determined
`
`that the purpose of the law is to provide legal assistance by the State of Israel to foreign countries
`
`and to regulate a procedure which existed in the past but was not regulated by legislation. The
`
`law is composed of four chapters which determine, among other things, the principles of the
`
`ways and actions of providing legal assistance to another state. Judge Shidlovsky-Or has found it
`
`appropriate to address the explanatory notes to the law, and I, too, hold the opinion that it should
`
`be interpreted in light of the explanatory notes which reflect the legislature's intention.
`
`10. Section 2 (a) of the Law defines the nature of a legal action and states:
`
`(a) "Legal assistance between the State of
`
`Israel and another state (in this Law: legal
`
`assistance)
`
`is every one of the following:
`
`service of documents, taking evidence, search
`
`and
`
`seizure
`
`operations,
`
`transmittal
`
`of
`
`evidence
`
`and,
`
`other
`
`documents
`
`investigative acts, transmittal of information,
`
`forfeiture of property,
`
`or the performance
`
`of any other legal act, all in connection with a
`
`civil matter or a criminal matter."
`
`By these broad definitions, which do not constitute a comprehensive list, the legislator expressed
`
`his intention to provide legal assistance as wide as possible to the countries which are signatories
`
`to the Hague Convention together with Israel. By adding terms such as "investigative activity"
`
`and "transfer of information", the legislator expressed his opinion that the interpretation of the
`
`Law should not be restrictive, and therefore,
`
`in my opinion,
`
`it should include Deposition
`
`proceedings as part of the legal proceedings held in Israel in accordance to the legal aid to the
`
`applying state.
`
`This conclusion is reinforced by the fact that in section 2 (b) of the law, which lists actions that
`
`are not "legal aid", the Deposition proceeding was not included.
`
`11. Section 8 of the Law provides:
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, Ex. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`(a) Any act in Israel in accordance with a
`request for legal assistance by a foreign
`state shall be performed in the manner in
`which an act of that kind is performed in
`Israel, and the provisions of enactments
`that apply in Israel to an act of that kind
`shall apply to it, except
`if a different
`provision is made in this Law or under it .
`
`(b) Any act on a foreign state's request for
`legal assistance shall be performed in Israel
`only if the act is permissible under Israel
`Law .
`
`(c) The requested act shall be carried out in
`a manner that complies with the requesting
`state's
`request,
`as
`long as
`the act
`is
`permitted under Israel Law. "
`
`12. As stated in the explanatory notes to the Law and in accordance with the provisions of Section 8
`
`(b) of the Law, despite the willingness of the Israeli legislature to provide legal assistance as wide
`
`as possible to other countries, proceedings that the Israeli law does not permit, will not be
`
`executed as part of Judicial Inquiry . This is a result and as a derivative of the binding force of
`
`the principle of legality. On the other hand, there is no barrier or impediment to carry out actions
`
`that are consistent with the law that apply in the requester country when the law in Israel has not
`
`prohibited them.
`
`13. The law in Israel regarding pre—trial proceedings does not include a Deposition. On the other
`
`hand, the Deposition process is not prohibited or illegal. The fact that the legislator saw fit to
`
`permit in section 16 (b) of the Law that the evidence will be collected before an attorney, as is
`
`customary in the United States, and contrary to the accepted practice in Israel, is consistent with
`
`the conclusion that not only did the legislature not prohibit the existence of a Deposition as part
`
`of the judicial inquiry, but rather allowed it in a non—explicit manner, which implements the
`
`intention to provide assistance to the applying State as full as possible.
`
`14.
`
`In the case before me, the New York Court held that without the testimony of the Witnesses:
`
`"Justice cannot be done between the parties"
`
`There is no dispute that if the witnesses were present in the United States, they would have to
`
`appear and be inquired by Deposition. The fact that they are in Israel does not justify allowing
`
`them to avoid giving answers to questions that need to be addressed in the United States in order
`
`for justice to be executed. The Law is intended to prevent such evasion. The argument that the
`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, Ex. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`15.
`
`16.
`
`17.
`
`18.
`
`Court is not authorized to conduct a judicial inquiry as applied, empties the legislator's intention
`
`of its content and should be rejected.
`
`I did not find that in the context of the proceedings before me a need to examine the differences
`
`between testimonies to a Deposition on which Adv. Rozovsky elaborated. Naturally, the legal
`
`system in the United States differs from that practiced in Israel. The very difference does not
`
`justify blocking the way to discover the truth in the usual manner of Deposition which is
`
`customary there, when it is not prohibited by Israeli law. The legislator was aware that the
`
`differences between the various legal systems could serve as grounds for raising arguments such
`
`as those before me, and therefore ordered that actions in Israel be conducted in a manner
`
`consistent with the application of the applying state (section 8 (c) of the Law).
`
`I have not forgotten the quote from the ruling of the English Court in the matter of Viking
`
`Insurance Co. V. Rossdale, which Adv. Rosovsky quoted in his arguments. With all due respect,
`
`this Court did not examine the English legal system, and it does not have all the information
`
`which was before the Court in England that led him to his conclusion. Furthermore, in that case
`
`there was an arbitration proceeding at the base of the hearing and not a legal proceeding in Court
`
`as it is in the case before me.
`
`In view of the above, I decide that the need to investigate the truth and to make a fair trial in the
`
`proceedings in the New York Court overrides the individual's right not to be harassed. On the
`
`other hand, the disclosure of a trade secret is protected by law in Israel and does not require
`
`disclosure. Accordingly, I reject the objections and order that the witnesses Uriel Yarkoni and
`
`Gershon Peleg should report to the Court. for their inquiry.
`
`In order to achieve the purpose of the
`
`inquiry efficiently, to enable its existence as soon as
`
`possible, and pursuant to the provisions of section 16 (b) of the Law, I determine that the inquiry
`
`will be made before Adv. Behar and Leshem the Israeli attorney of BOSTON and MEDINOL
`
`in Adv. Reuven Behar's office on 19.9.2002 Starting at 15:00 onwards.
`
`The Court's secretariat will summon the witnesses
`
`A. Uriel Yarkoni, 7 Begin Boulevard, Yehud 56478 (Telephone 03 - 5367386)
`
`B. Gershon Peleg, Kibbutz Ma'agan Michael.
`
`To the address of Adv. Behar, 3 Daniel Frisch Street, Tel Aviv 64731.
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, Ex. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`19.
`
`20.
`
`If there is a dispute as to the validity of a question or questions to be presented to any of the
`
`witnesses, they shall be brought before me in order to decide whether or not to obligate him to
`answer it.
`
`At the end of the inquiry of each of the witnesses, his testimony will be read to him and he will
`
`sign the confirmation of the recorded statements.
`
`The Court's secretariat will send a copy of this decision to the legal representatives of the
`
`parties, Attorneys Rosovsky, Heller, Leshem and Shlomi.
`
`Given today,
`
`In the absence of the parties,
`
`Dorit Reich Shapira, Judge
`
`Microsoft v. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

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`
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`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

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`
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`
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`
`C:\Users\shamou\AppData\LocaHMicrosoft\Windows\Temporary Internet Files\ContenL0u1]ook\QQIBKGAI—I\502000I23-265.doc
`Microsoft, EX. 1043
`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

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`C:‘1Users'13hamou\AppData\L0caI\MicrosoffiWindowsKTemporzu'y Internet Files‘IConlenl.Out]ook'1QQIBKOAH\502000l23-265.doc
`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

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`C:\Users\shamou‘.AppDaIa\Local\Microsof‘t\Windows\Temporary Internet Fi]es\Content.Outlook\QQlBKOA]-I\502000 l 23-265.doc
`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

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`C:\Users\sham0u\AppData\Loca]\Microsofl\Windows\Temporary Internal Files\Content,Outlook\QQIBKOA}I\502000] 231-265.ch
`
`Microsoft V. Bradium, IPR2016-01897
`
`Microsoft, EX. 1043
`
`Microsoft, Ex. 1043
`Microsoft v. Bradium, IPR2016-01897
`
`

`

`I SCIENTIFIC CORPORATION o ow to: mer mm W vbm‘rvsn oownn nu mmme J'IWJ'ITI 123/02 (win) 1n
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