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`James R. Batchelder (CSB # 136347)
`Mark D. Rowland (CSB # 157862)
`Andrew T. Radsch (CSB # 303665)
`ROPES & GRAY LLP
`1900 University Ave., Sixth Floor
`East Palo Alto, CA 94303-2284
`Tel: (650) 617-4000
`Fax: (650) 617-4090
`james.batchelder@ropesgray.com
`mark.rowland@ropesgray.com
`andrew.radsch@ropesgray.com
`
`Attorneys for Plaintiff and Counter-Defendant
`PALO ALTO NETWORKS, INC.
`
`
`
`Brian A. E. Smith (SBN 188147)
`Alden KW Lee (SBN 257973)
`Jeffrey D. Chen (SBN 267837)
`Joseph J. Fraresso (SBN 289228)
`BARTKO ZANKEL BUNZEL & MILLER
`One Embarcadero Center, Suite 800
`San Francisco, California 94111
`Tel: (415) 956-1900
`Email: bsmith@bzbm.com
`Email: alee@bzbm.com
`Email: jchen@bzbm.com
`Email: jfraresso@bzbm.com
`
`Counsel for Defendant and
`Counterclaimant
`PACKET INTELLIGENCE LLC
`
`[Additional counsel listed on signature
`page]
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`
`PALO ALTO NETWORKS, INC.,
`
`
`Plaintiff and Counter-Defendant,
`
`
`
`v.
`
`PACKET INTELLIGENCE LLC,
`
`
`Defendant and Counterclaimant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. 3:19-cv-02471-WHO
`
`Assigned to: Hon. William H. Orrick
`
`JOINT MOTION TO AMEND THE
`SCHEDULING ORDER
`
`Pursuant to Civil L.R. 6-3, Plaintiff and Counter-Defendant Palo Alto Networks, Inc. and
`Defendant and Counterclaimant Packet Intelligence LLC (collectively, the “parties” or “Parties”),
`having met and conferred, submit this Joint Motion to Amended the Scheduling Order.1 The parties
`
`
`1 The Court recently entered a Stipulated Amended Scheduling Order in the related suit Packet
`Intelligence LLC v. Juniper Networks, Inc., No. 3:10-CV-04741-WHO (“Juniper suit”) extending
`many of the same deadlines the parties seek to extend in this case. See Juniper suit, Dkt. 48.
`-1-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 1 of 9
`
`

`

`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 2 of 9
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`agree on a proposed modified schedule through the date of the claim construction hearing, but do not
`agree on the schedule for the dates thereafter. Accordingly, the parties submit with this Joint Motion
`to Amend the Scheduling Order proposed orders reflecting the parties’ agreed upon deadlines leading
`up to the claim construction hearing, and the parties’ differing proposals, as set forth below, for the
`case schedule following the claim construction hearing.
` Reason for the requested enlargement or shortening of time
`At the January 7, 2020 Subsequent Case Management Conference, the Court set key dates in
`the case schedule, including dates for the Claim Construction Hearing, Final Pretrial Conference,
`and Trial. (Dkt. 50). On January 13, 2020, the Court entered the Stipulated Request for Order
`Changing Time submitted by the parties. (Dkt. 52). In the time since, COVID-19 has impacted the
`parties, outside counsel, and various others involved in the case, such that an adjustment of the
`schedule is warranted.
`More particularly, the governor of California declared a state of emergency as a result of
`COVID-19 on March 4. Just over two weeks later, the governor ordered that all individuals living
`in the State of California stay at home until further notice, and set the penalty of violation of that
`order as a criminal misdemeanor.2 Palo Alto Networks and some of the attorneys for both parties
`are located in Northern California, and thus have been impacted by these mandates. And states
`across the country have issued similar orders in response to the risks associated with COVID-19.
`Also, many states including California have closed schools temporarily or for the remainder
`of the school year. For example, the governor of California indicated on March 17 that few if any
`California public schools will reopen before the fall. As such, many individuals involved in this
`case, including outside counsel, are working from home as well as caring for and educating their
`children.
`Further, Chief District Judge Hamilton has issued General Order No. 72, IN RE: Coronavirus
`Disease Public Health Emergency (effective March 16, 2020), addressing concerns regarding the
`health of jurors, witnesses, parties, attorneys, the public, court staff, Probation and Pretrial Services
`staff, chambers staff, and judges due to COVID-19.
`
`
`2 Pursuant to Government Code §8665.
`
`-2-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 2 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 3 of 9
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`As such, the parties jointly propose a modification of the case schedule to address the health,
`safety, and availability of this Court and its staff, the parties, their employees, their experts, and their
`counsel. And if the Court is unable to determine a date for the claim construction hearing at this time
`given the uncertainty of the impact of COVID-19, the parties respectfully request that the Court enter
`the proposed dates leading up to the hearing.
`The Parties jointly propose the modifications to the schedule set forth below up through the
`date of the claim construction hearing. Those modifications ensure continued alignment of the claim
`construction hearing in this case with the related Juniper suit, in which the Court recently entered an
`amended scheduling order, pursuant to stipulation of the parties, moving the date of that hearing.
`See Juniper suit, Dkt. 48.3 The modifications set forth below would align the claim construction
`process with the related Juniper suit, and accords with the typical schedule contemplated by the
`Local Civil and Patent Rules.
`The parties have set forth separate proposals in section 2 below regarding the deadlines that
`occur subsequent to the claim construction hearing.
`
`
`
`1
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`2
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`3
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`EVENT
`
`PREVIOUS DATE
`
`AGREED PROPOSED
`DATE
`
`Completion of Claim
`Construction Discovery
`pursuant to Patent L.R. 4-
`4, including the
`deposition of any expert
`that submitted an expert
`declaration concerning
`claim construction, if any
`Packet Intelligence’s
`Opening Claim
`Construction Brief
`pursuant to Patent L.R. 4-
`5(a)
`Palo Alto Networks’
`Responsive Claim
`Construction Brief
`
`April 24, 2020
`
`May 21, 2020
`
`(Per Court Order, Dkt. 50)
`
`May 8, 2020
`
`June 4, 2020
`
`(Per Court Order, Dkt. 50)
`
`May 22, 2020
`
`July 2, 2020
`
`(Per Court Order, Dkt. 50)
`
`
`3 On August 14, 2019, Packet Intelligence filed a motion urging the Court to relate this suit to the
`Juniper suit. See Dkt. 28.
`
`-3-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
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`Packet Intelligence Ex. 2051 Page 3 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 4 of 9
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`pursuant to Patent L.R. 4-
`5(b)
`Packet Intelligence’s
`Reply Claim
`Construction Brief
`pursuant to Patent L.R. 4-
`5(c)
`Technology Tutorial4
`
`Claim Construction
`Hearing pursuant to
`Patent L.R. 4.6
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`June 1, 2020
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`July 21, 2020
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`(Per Court Order, Dkt. 50)
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`June 15, 2020
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`(Per Court Order, Dkt. 50)
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`August 11, 2020, or as the
`Court determines
`
`June 19, 2020 at 10:00 a.m.
`
`(Per Court Order, Dkt. 50)
`
`August 14, 2020, or as the
`Court determines
`
`1. Separate Proposals for Deadlines After Claim Construction Hearing
`While the parties jointly propose the modifications above for the deadlines leading up to the
`claim construction hearing, the parties propose different schedules following the claim construction
`hearing.
`
`a. Palo Alto Networks’ Position
`Palo Alto Networks’ proposal enhances judicial and party economy by aligning the post-
`claim construction deadlines in this case with the corresponding deadlines in the related Juniper suit,
`up to the Pretrial Conference. This suit and the Juniper suit are closely related, with overlapping
`asserted claims and similar accused products (firewalls). Alignment of deadlines is economical
`because, among other things, (1) there are likely to be summary judgment issues that overlap between
`this suit and the Juniper suit, and aligning the dispositive motion schedules will ensure the Court
`need deal with those issues once, not twice; (2) there likely will be overlapping Daubert issues that
`the Court would need to address once, not twice, with the schedules aligned; (3) aligning the fact
`discovery deadlines will ensure that the parties in this case will not need to seek leave to supplement
`
`
`4 The Parties previously proposed, and the schedule presently in place includes, a date for a live
`technology tutorial to be presented to the Court by counsel for the Parties. See Dkt. 52. In the
`Juniper case, instead of proposing a live technology tutorial, the parties there agreed to submit a
`technology tutorial to the Court. See Juniper suit, Dkt. 48. The Parties in the present suit would be
`pleased to proceed with either a live technology tutorial or a submission to the Court, whichever
`approach would best assist the Court in understanding the technology at issue in this case.
`-4-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 4 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 5 of 9
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`expert reports to take into consideration relevant fact discovery that may be uncovered in the related
`Juniper suit during any additional fact discovery period in that suit; and (4) aligning fact and expert
`discovery dates across the two suits increases the likelihood that the parties would present to the
`Court any overlapping discovery issues once, not twice. Accordingly, Palo Alto Networks’ proposed
`dates in rows 10 through 17 of the table below are the same as the dates for those same events in the
`related Juniper suit.
`Palo Alto Networks’ proposed schedule also provides needed time for the parties to conduct
`and complete fact discovery while having the benefit of the Court’s anticipated claim construction
`rulings, and accords with the scheduling framework discussed and adopted at the January 7, 2020
`Subsequent Case Management Conference (“January 7th CMC”). See Dkt. 55, Transcript of
`Proceedings held on 01/07/2020. At the January 7th CMC, the parties agreed to a close of fact
`discovery approximately four months after the claim construction hearing. Id. at 5:17-6:10.5
`Accordingly, Palo Alto Networks’ proposed date of December 22, 2020 for the close of fact
`discovery is approximately four months after the August 14, 2020 claim construction hearing. In
`contrast, Packet Intelligence’s proposal provides significantly less time to complete fact discovery
`after the Court’s anticipated claim construction rulings, and provides less time for post-claim
`construction discovery than is typical in patent cases in this District. Accordingly, Palo Alto
`Networks respectfully submits that its proposed schedule should be adopted.
`Packet Intelligence contends below that the schedules should be staggered “to avoid the
`burden” to Packet Intelligence of concurrent deadlines, but that argument ignores the judicial
`economies flowing from concurrent schedules based on overlapping issues and avoidance of
`conflicting results, points that Packet Intelligence itself argued in its motion to relate cases.6 Further,
`
`
`5 The parties agreed to the end of fact discovery “three months after” a claim construction ruling,
`which the Court assumed would issue approximately one month after the claim construction hearing.
`Id. (“THE COURT: So then if you assume that it will take me about a month to do the ruling, that
`gets us to towards the end of July. … Okay. So three months after that? MR. VOWELL: I think that
`would be fine, Your Honor. THE COURT: So that’s August, September -- the end of October. From
`Palo Alto’s perspective? MR. BATCHELDER: That should be fine.”).
`6 Packet Intelligence argued “the cases involve the same patent owner, the same Patents-in-Suit, and
`infringement of the same claims of the Patents-in-Suit” and the “issues that arise out of the litigation
`
`-5-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 5 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 6 of 9
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`contrary to Packet Intelligence’s assertion below, the Court did not “agree[]” at the January 7th CMC
`that the schedules should be staggered to avoid some alleged burden to Packet Intelligence. See Dkt.
`55, Transcript of Proceedings held on 01/07/2020. Packet Intelligence did not even raise “burden”
`as a reason to stagger case schedules; it merely expressed an interest in staggering them at that time
`based on the schedules then in place. See Dkt. 55 at 4:15-25. Finally, Packet Intelligence should not
`be heard to complain about the “burden” of having two of its cases aligned, when it chose to file the
`second Juniper case and then sought to have the two cases related based on overlapping issues and
`avoidance of conflicting results. See Dkt. 28.
`b. Packet Intelligence’s Position
`Packet Intelligence’s initial proposal to Palo Alto Networks extending the dates leading up
`to the Markman hearing did not include a request to extend any of the post-claim construction
`deadlines. Palo Alto Networks then proposed that the parties extend all the deadlines in this case to
`coincide with the deadlines in the Juniper case up through the pre-trial conference date. While some
`additional time may be helpful to the parties to meet certain deadlines once receiving the claim
`construction ruling, there is no need to push the dates as far out as suggested by Palo Alto Networks.
`Packet Intelligence believes that, in addition to the trial dates for the two cases, the dates for fact
`discovery, expert reports, and dispositive motions, should be staggered between this case and the
`Juniper case to avoid the burden of having concurrent dates for these deadlines. Packet Intelligence
`raised this concern at the Case Management Conference on January 7, 2020. The Court agreed and
`set the trial in the Juniper case for a few months after the trial date in this case.
`As a compromise and to accommodate Palo Alto Networks’ concerns, Packet Intelligence
`proposes the schedule set forth below to provide the parties with additional time for fact discovery,
`expert reports, and dispositive motions after receiving the Court’s claim construction.
`____________________
`
`
`will contain, at a minimum, sufficient overlap to create duplication of effort, for example, in
`construing the asserted claims,” and “[r]elating these cases would meaningfully mitigate the risk of
`conflicting results.” See Dkt. 28.
`
`-6-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
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`Packet Intelligence Ex. 2051 Page 6 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 7 of 9
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`The chart below sets forth the parties’ respective proposed dates for the post-claim
`construction deadlines.
`
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`EVENT
`Claim Construction
`Hearing pursuant to
`Patent L.R. 4.6
`
`
`Claim Construction
`Ruling
`Disclosure of Advice of
`Counsel and
`accompanying document
`production pursuant to
`Pat. L.R. 3-7
`
`Deadline to Complete
`Mediation
`
`Close of fact discovery
`
`Initial expert reports
`Rebuttal expert reports
`
`Close of expert
`discovery
`Last Day to File
`Dispositive Motions
`(including Daubert
`Motions)
`Dispositive Motions
`heard by
`Pretrial disclosures
`
`Objections to pretrial
`disclosures
`Final pretrial conference
`
`AGREED PROPOSED DATE
`
`August 14, 2020, or as the Court determines
`
`PACKET INTELLIGENCE
`PROPOSED DATE
`
`PALO ALTO NETWORKS
`PROPOSED DATE
`
`To Be Determined By Court
`
`To Be Determined By Court
`
`30 days after service of
`Court’s Claim Construction
`Ruling
`
`30 days after service of
`Court’s Claim Construction
`Ruling
`
`60 days after service of
`Court’s Claim Construction
`Ruling
`
`60 days after service of
`Court’s Claim Construction
`Ruling
`
`November 6, 2020
`
`December 22, 2020
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`December 4, 2020
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`January 26, 2021
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`January 11, 2021
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`February 5, 2021
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`February 25, 2021
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`March 23, 2021
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`February 23, 2021
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`May 5, 2021
`
`(Per Civil L.R. 7-2(a))
`
`Per Civil L.R. 7-2(a))
`
`March 31, 2021
`
`April 12, 2021
`
`May 3, 2021
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`May 24, 2021
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`June 9, 2021
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`June 29, 2021
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`July 20, 2021
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`August 9, 2021
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`-7-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 7 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 8 of 9
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`Trial
`
`19
`
`June 14, 2021, or as
`determined by the Court
`
`August 30, 2021, or as
`determined by the Court
`
`Dated: April 23, 2020
`
`By: /s/ Andrew T. Radsch
`
`
`James R. Batchelder (CSB # 136347)
`Mark D. Rowland (CSB # 157862)
`Andrew T. Radsch (CSB # 303665)
`ROPES & GRAY LLP
`1900 University Ave. Sixth Floor
`East Palo Alto, CA 94303-2284
`Tel: (650) 617-4000
`Fax: (650) 617-4090
`james.batchelder@ropesgray.com
`mark.rowland@ropesgray.com
`andrew.radsch@ropesgray.com
`
`Attorneys for Plaintiff and Counter-Defendant
`PALO ALTO NETWORKS, INC.
`
`
`
`Dated: April 23, 2020
`
`By: /s/ Corby R. Vowell
`
`Brian A. E. Smith (SBN 188147)
`Alden KW Lee (SBN 257973)
`Jeffrey D. Chen (SBN 267837)
`Joseph J. Fraresso (SBN 289228)
`BARTKO ZANKEL BUNZEL & MILLER
`One Embarcadero Center, Suite 800
`San Francisco, California 94111
`T: 415-956-1900
`Email: bsmith@bzbm.com
`Email: alee@bzbm.com
`Email: jchen@bzbm.com
`Email: jfraresso@bzbm.com
`
`Jonathan T. Suder (Pro Hac Vice)
`Corby R. Vowell (Pro Hac Vice)
`Dave R. Gunter (Pro Hac Vice)
`FRIEDMAN, SUDER & COOKE
`604 East 4th Street, Suite 200
`Fort Worth, TX 76102
`T: 817-334-0400
`F: 817-334-0401
`jts@fsclaw.com
`vowell@fsclaw.com
`gunter@fsclaw.com
`
`Michael F. Heim (Pro Hac Vice)
`Robert Allan Bullwinkel (Pro Hac Vice)
`Christopher M. First (Pro Hac Vice)
`HEIM, PAYNE & CHORUSH, LLP
`1111 Bagby Street, Suite 2100
`Houston, Texas 77002
`T: 713-221-2000
`F: 713-221-2021
`mheim@hpcllp.com
`abullwinkel@hpcllp.com
`cfirst@hpcllp.com
`
`Counsel for Defendant and
`Counterclaimant
`PACKET INTELLIGENCE LLC
`
`
`
`
`
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`-8-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 8 of 9
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`

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`Case 3:19-cv-02471-WHO Document 60 Filed 04/23/20 Page 9 of 9
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`ATTESTATION
`I, Andrew T. Radsch, am the ECF user whose identification and password are being used to
`file this JOINT MOTION TO AMEND THE SCHEDULING ORDER. In compliance with Civil
`L.R. 5-1(i)(3), I hereby attest that all signatories to this document have concurred in this filing.
`
`DATED: April 23, 2020
`
`
`
`
`
`
`
`
`/s/ Andrew T. Radsch
`Andrew T. Radsch (CSB # 303665)
`
`
`
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`-9-
`JOINT MOTION TO AMEND THE SCHEDULING ORDER
`
`CASE NO. 3:19-CV-02471-WHO
`
`Packet Intelligence Ex. 2051 Page 9 of 9
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