Case 3:19-cv-04741-WHO Document 66 Filed 07/15/20 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`PACKET INTELLIGENCE LLC,
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`Case No. 19-cv-04741-WHO
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`Plaintiff,
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`v.
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`ORDER REGARDING MOTION TO
`DISQUALIFY
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`JUNIPER NETWORKS INC,
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`Re: Dkt. No. 55
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`Defendant.
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`Defendant Juniper Networks Inc. (“Juniper”) moves to disqualify Dr. Kevin Almeroth, an
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`expert witness retained by defendant Packet Intelligence LLC (“Packet”) in this action. Juniper
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`previously retained Dr. Almeroth in connection with a patent dispute with a third party, Palo Alto
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`Networks, LLC (“PAN”), that is also a party in a case related to this one. Juniper has provided
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`evidence demonstrating that Dr. Almeroth’s prior work involved analysis of some of the accused
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`products and patents at issue in this matter. Packet opposes disqualification largely based upon
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`the content of Dr. Almeroth’s reports in the prior litigation, but does not dispute or substantively
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`challenge Juniper’s evidence. I find that Juniper has satisfied its burden of showing that Dr.
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`Almeroth received relevant privileged and confidential information from Juniper, and that it had a
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`reasonable expectation of a confidential relationship with him. Juniper’s motion is GRANTED.
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`BACKGROUND
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`I.
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`DR. ALMEROTH’S PRIOR WORK FOR JUNIPER
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`Packet first filed this patent infringement lawsuit on August 13, 2019. Dkt. No. 1. Claim
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`construction is currently set for August 14, 2020. See Dkt. No. 54. On May 29, 2020, Juniper
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`filed this motion to disqualify Dr. Almeroth, which Packet opposes. Dkt. Nos. 55 (“Mot.”), 59
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`(“Oppo.”).
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`According to Juniper, it retained Dr. Almeroth in connection with litigation between
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`EX 1103 Page 1
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`Juniper and PAN in 2013. Mot. at 4. This included two cases in district court and two Inter
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`Partes Review (“IPR”) proceedings (collectively, “PAN litigation”). Id. Dr. Almeroth signed an
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`engagement letter with Juniper’s outside counsel, Irell & Manella, on December 13, 2013. Dkt.
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`No. 55-1 (“McPhie Decl.”) ¶¶ 1-3. The retention letter states that in exchange for Dr. Almeroth’s
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`analysis and opinions as an independent consultant, he would be paid $600 per hour. Dkt. No. 55-
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`2 at 1-2. It further provides that Juniper may need to disclose to Dr. Almeroth “legal theories,”
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`“confidential work product,” and “other privileged or confidential information” necessary for him
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`“to fully carry out [his] responsibilities under this agreement.” Id. Dr. Almeroth agreed not to
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`disclose confidential or privileged Juniper information “during and after” his engagement unless
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`authorized by Juniper’s attorneys, and to keep all Juniper information “in strict confidence.” Id. at
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`2. Dr. Almeroth agreed to immediately notify Juniper’s counsel if any unauthorized entity
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`attempted to obtain this information, and to take any “legal action …as Irell deems necessary or
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`appropriate to resist or seek protection against disclosure.” Id.
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`With its motion, Juniper submitted a declaration of David McPhie, its counsel who worked
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`with Dr. Almeroth in the PAN litigation. McPhie asserts that in the course of Dr. Almeroth’s
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`employment with Juniper, Dr. Almeroth prepared and submitted two expert reports in the IPR
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`proceedings providing opinions on issues of claim construction, validity, and non-obviousness.
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`Mot. 6. These reports provided opinions on Juniper’s U.S. Patent No. 7,107,612 (the “’612
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`Patent”) and U.S. Patent No. 7,734,752 (the “’752 Patent”). McPhie Decl. ¶ 5. In addition, Dr.
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`Almeroth testified at deposition in one of the IPR proceedings and “consulted with Juniper on its
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`litigation strategies and the technologies, products, and prior art at issue in those matters.”
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`McPhie Decl. ¶ 6; Mot. 6.
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`According to Juniper, “[t]he technical subject matter of Dr. Almeroth’s work and
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`consultation with Juniper included flow/session technologies, intrusion and detection prevention,
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`Juniper’s ‘JUNOS’ operating system, and Juniper’s SRX and MX Series products,” and his reports
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`“provide opinions on issues of claim construction, invalidity, and non-obviousness, including
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`secondary considerations based on the SRX Series products.” Mot. 6. Outside counsel had
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`“multiple conversations” with Dr. Almeroth that “included litigation strategy as well as
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`EX 1103 Page 2
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`substantive arguments regarding Juniper products and the prior art.” McPhie Decl. ¶ 8. This
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`included technical consultation on flow/session technologies, Juniper’s JUNOS operating system,
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`and Juniper’s SRX and MX Series products. Id. ¶ 8. Neither Juniper nor Dr. Almeroth have
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`served any notice to terminate Dr. Almeroth’s agreement set forth in the retention letter. Id. ¶ 4.
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`Dr. Almeroth was paid $85,808.02 for his work for Juniper. Id. ¶ 9.
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`On December 17, 2019, Packet disclosed Dr. Almeroth as its claim construction expert in a
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`Joint Claim Construction Statement in the related matter against PAN that is pending before me.
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`See Packet Intelligence v. Palo Alto Networks, Case No. 19-cv-2471 (N.D. Cal.) (“Packet I”
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`litigation), Dkt. No. 46; Oppo. 12. On January 7, 2020, Juniper’s counsel in this matter attended a
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`Joint Case Management conference. Packet I, Dkt. No. 50. On March 20, 2020, Packet disclosed
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`Dr. Almeroth for purposes of extrinsic evidence in this case in its Patent Local Rule 4-2
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`disclosures to Juniper. Oppo. 12. On April 15, 2020, Packet served a draft of a Joint Claim
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`Construction Statement which disclosed Dr. Almeroth. Oppo. 12. On April 21, 2020, both parties
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`filed a Joint Claim Construction Statement that attached a declaration of Dr. Almeroth on behalf of
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`Packet. Dkt. No. 54 at 2. On April 30, 2020, Juniper notified Packet Intelligence of its objection
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`to Dr. Almeroth. Dkt. No. 55-6.
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`LEGAL STANDARD
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`Federal courts have the inherent power to disqualify expert witnesses to protect the
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`integrity of the adversarial process, protect privileges that otherwise may be breached, and
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`promote public confidence in the legal system. See Campbell Indus. v. M/V Gemini, 619 F.2d 24,
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`27 (9th Cir. 1980) (“A district court is vested with broad discretion to make discovery and
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`evidentiary rulings conducive to the conduct of a fair and orderly trial”). However,
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`disqualification is a “drastic measure that courts should impose only hesitantly, reluctantly, and
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`rarely.” Hewlett-Packard Co. v. EMC Corp., 330 F. Supp.2d 1087, 1092 (N.D. Cal. 2004). In
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`Hewlett-Packard, the court set forth a two-factor test, in which “disqualification of an expert is
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`warranted based on a prior relationship with an adversary if (1) the adversary had a confidential
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`relationship with the expert and (2) the adversary disclosed confidential information to the expert
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`that is relevant to the current litigation.” See id. at 1092–93 (internal citations omitted). I should
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`EX 1103 Page 3
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`additionally consider whether disqualification would be fair to the affected party and would
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`promote the integrity of the legal process. Id. at 1093.
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`DISCUSSION
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`II.
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`CONFIDENTIAL RELATIONSHIP
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`Juniper must show that it was “reasonable for it to believe that a confidential relationship
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`existed” with Dr. Almeroth. Id. In evaluating the reasonableness of a party’s assumption on this
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`point, courts may consider many factors, including:
`whether the relationship was one of long standing and involved
`frequent contacts instead of a single interaction with the expert,
`whether the expert is to be called as a witness in the underlying case,
`whether alleged confidential communications were from expert to
`party or vice-versa, and whether the moving party funded or directed
`the formation of the opinion to be offered at trial.
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`Id. (citation omitted). Other factors include “whether the parties entered into a formal
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`confidentiality agreement, whether the expert was retained to assist in the litigation, the number of
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`meetings between the expert and the attorneys, whether work product was discussed or documents
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`were provided to the expert, whether the expert was paid a fee, whether the expert was asked to
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`agree not to discuss the case with the opposing parties or counsel, and whether the expert derived
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`any of his specific ideas from work done under the direction of the retaining party.” Id.
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`There is no real dispute that Juniper and Dr. Almeroth were engaged in a confidential
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`relationship since at least December 2013. Dr. Almeroth entered into a formal agreement to assist
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`Juniper in its litigation against PAN and served as an expert in two prior district court proceedings
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`and two IPR proceedings. He was paid a substantial amount for his services. I find that Juniper
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`had a reasonable expectation of a confidential relationship with Dr. Almeroth.
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`III.
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`CONFIDENTIAL INFORMATION
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`The heart of the parties’ dispute concerns whether Juniper disclosed confidential
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`information to Dr. Almeroth that is related to the current litigation. Confidential information is
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`information “of either particular significance or [that] which can be readily identified as either
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`attorney work product or within the scope of the attorney-client privilege.” Id. at 1094 (citation
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`omitted). “It could include discussion of the party’s ‘strategy in the litigation, the kinds of experts
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`[the party] expected to retain, [the party’s] view of the strengths and weaknesses of each side, the
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`EX 1103 Page 4
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`role of each of the [party’s] experts to be hired and anticipated defenses.” Id. (citation omitted).
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`Packet first argues that the work that Dr. Almeroth performed for Juniper did not require
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`Juniper’s confidential information and was based upon public information. Oppo. 3-4, 9-10. It
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`asserts that “[t]he information about Dr. Almeroth’s activities on behalf of Juniper and the
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`information disclosed to him by Juniper pertained only to two IPR proceedings over the validity of
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`Juniper patents, redacted excerpts of a declaration that Dr. Almeroth executed in connection with
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`one of the IPRs, and the declaration of Juniper’s outside counsel, David McPhie.” Id. at 3. The
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`IPR proceedings related to nonobviousness and were based on publicly available information. Id.
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`at 4. Packet also claims that Juniper has not described any infringement analysis conducted by Dr.
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`Almeroth or provided any indication that the patents at issue in the prior litigation with PAN
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`involved the patents at issue here. Id. at 3.
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`Packet’s arguments are contradicted by the evidence presented by Juniper. Juniper
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`provided sworn testimony that Dr. Almeroth provided opinions related to Juniper’s products (a
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`point that Packet acknowledges) and discussed litigation strategy. Packet’s assertions to the
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`contrary are unsupported by any evidence. The fact that Dr. Almeroth’s earlier declarations
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`discuss validity and could have been prepared without access to confidential information is not
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`irreconcilable with Juniper’s assertions that Dr. Almeroth received confidential information
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`regarding its products and had privileged communications with counsel regarding litigation
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`strategy.
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`Second, Packet argues that Juniper’s description of Dr. Almeroth’s work is vague and
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`conclusory. Id. at 4-5, 7-8. Juniper’s outside counsel, David McPhie, asserted that he had
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`“multiple conversations . . . in person and over the phone in which we discussed privileged and
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`confidential information belonging to Juniper.” McPhie Decl. ¶ 8. He further stated that the
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`discussions “included litigation strategy as well as substantive arguments regarding Juniper’s
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`products and the prior art, including the issues addressed in his expert reports.” Id. Although
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`Packet contends that these statements are insufficiently specific to support disqualification, it does
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`not contend that these statements are incorrect or provide evidence to contradict them.
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`Juniper provides more than conclusory statements that confidential information was
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`disclosed. McPhie’s declaration describes the specific patents and products that Dr. Almeroth
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`opined on. Juniper also asserts that Dr. Almeroth analyzed a patent to which all the other patents-
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`in-suit are related. Mot. 16. It provided Dr. Almeroth’s retention agreement and the total amount
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`he was paid for his work, which is consistent with McPhie’s declaration of the amount of work
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`that Dr. Almeroth performed for Juniper. This evidence is sufficiently specific.
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`None of the cases cited by Packet Intelligence are analogous to this case. See Finisar
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`Corp. v. Nistica, Inc., No. 13-cv-03345-BLF (JSC), 2015 U.S. Dist. LEXIS 94975, *18-19 (N.D.
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`Cal. July 21, 2015) (expert did not sign confidentiality agreement, had only introductory phone
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`call with counsel, and expert stated that “Finisar did not provide [her with] any confidential
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`information or legal strategy”); Hewlett-Packard, 330 F. Supp. 2d at 1096 (expert provided
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`competing declaration stating that he did not receive confidential information); In re JDS
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`Uniphase Corp. Sec. Litig., No. C-02-1486 CW (EDL), 2006 WL 2845212, at *3 (N.D. Cal. Sept.
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`29, 2006) (“There has been no showing that Deloitte and OTT exchanged information about legal
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`strategies under any of the contracts, or that this litigation or any related litigation was pending
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`while Deloitte worked on any aspect of Lead Plaintiff’s computer system”). Packet also cites
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`Dolby Labs to support its contention that parties seeking disqualification must describe the
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`specific confidential information disclosed. Oppo. 8-9. However, in that case the court found that
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`“legal strategies that were developed in connection with the ’598 application” was too general a
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`description to support disqualification. Dolby Labs. v. Lucent Techs., Inc., 2003 U.S. Dist. LEXIS
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`27620 at *4-5 (N.D. Cal. March 17, 2003.) (“Lucent would have the Court infer from a general
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`description of the communications at issue over 12 years ago that confidential, relevant
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`information must have been revealed.”); see also Syngenta Seeds, Inc. v. Monsanto Co., 2004 U.S.
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`Dist. LEXIS 19817, at *9-11 (D. Del. Sept. 27, 2004) (no confidential relationship with expert,
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`and no specific facts regarding contents of communications). By contrast, here Juniper provided a
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`specific description of the confidential information that was discussed with counsel.
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`Finally, Packet contends that Juniper has pointed to no confidential information that Dr.
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`Almeroth received that would impact his analysis for Packet in this case. Oppo. 6. Packet
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`concedes that “Dr. Almeroth presumably had access to some confidential information that was
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`used in his Juniper IPR Declaration to support the validity of Juniper’s patents,” yet asserts that
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`this information does not bear on his infringement analysis in this case. Id. at 7. It also
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`acknowledges that Dr. Almeroth analyzed some prior art references at issue in this case and the
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`patent related to the patents Packet is asserting. Id. at 9-10.
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`Again, Packet’s arguments fail because they are contradicted by Juniper’s unrebutted
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`evidence. McPhie asserts that Dr. Almeroth provided opinions on issues related to Juniper’s SRX
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`Series products, which are accused in this case. McPhie Decl. ¶ 5. The technical information to
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`which Dr. Almeroth had access related to Juniper’s JUNOS operating system and the SRX and
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`MX Series of products, all of which are at issue here. Id. ¶ 8. McPhie also states that he had
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`discussions with Dr. Almeroth in which he discussed “litigation strategy as well as substantive
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`arguments regarding Juniper products and the prior art.” Further, Juniper asserts that Dr.
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`Almeroth analyzed a patent that is related to the patents in suit, as well as some of the prior art
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`references at issue here. Mot. 6, 13-14.
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`Packet counters that “[n]othing in the attached Almeroth Declaration suggests that Dr.
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`Almeroth relied on information specific to [the SRX and MX Series of Juniper products] other
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`than information related to the JUNOS operating system.” Oppo. 4. It argues that the record,
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`including the declarations that Dr. Almeroth prepared for Juniper, demonstrates that Dr. Almeroth
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`did not receive any confidential information from Juniper in the course of his work. Id. at 5. But
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`once again, the fact that Dr. Almeroth’s declarations do not discuss these products does not
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`contradict McPhie’s sworn testimony that he discussed the products and litigation strategies with
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`Dr. Almeroth.
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`I find that Juniper has met its burden of establishing that Dr. Almeroth received relevant
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`and confidential information.
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`IV.
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`PREJUDICE
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`In considering whether disqualification would be fair to Packet, I must also evaluate
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`whether Packet would be unduly burdened by having to retain another expert and whether either
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`party would be prejudiced. See Hewlett-Packard, 330 F. Supp. 2d at 1094–95. Packet asserts that
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`Dr. Almeroth has provided “a significant amount of work in the past for Packet Intelligence
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`related to the patents asserted in litigation spanning several years.” Oppo. 11. This includes
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`analysis of prior art references, almost all of which are cited by Juniper in its invalidity
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`contentions. Id. Dr. Almeroth has served as an expert witness in two trials, provided declarations
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`in IPR proceedings, and has provided claim construction declarations. Id. at 2-3. Dr. Almeroth
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`intends to provide claim construction declarations in this this case and the Packet I case, to which
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`Juniper does not object. Id. Packet further states that “[i]f Dr. Almeroth were excluded from
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`testifying, Packet Intelligence would incur extensive additional cost given the amount of time and
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`expense it will take to get another technical expert up to speed.” Id. at 11.
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`Juniper responds that expert reports are not due until January 26, 2021. Mot. 15. It does
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`not object to Packet’s use of Dr. Almeroth at claim construction “[s]o long as Dr. Almeroth is
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`prohibited from further discussing this case with Packet Intelligence and further participating.” Id.
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`I agree with Juniper that Packet would not be unduly burdened by disqualification of Dr.
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`Almeroth.1 Packet may rely upon Dr. Almeroth for claim construction purposes. Packet does not
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`dispute that it has adequate time to retain a new expert. Its only argument regarding the added
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`cost of retaining a new expert is not a sufficient reason to otherwise deny a motion for
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`disqualification. Any disqualification will result in costs to the party that must retain a new
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`expert, and Packet provides no legal support for its position.
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`I also find that disqualification would promote the integrity of the judicial system by
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`removing the appearance of impropriety, and that Juniper would be prejudiced if Dr. Almeroth
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`were permitted to serve as an expert on validity and infringement issues. Mot. 15. Here, Juniper
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`has provided evidence that it had a significant and longstanding relationship with Dr. Almeroth.
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`Dr. Almeroth provided opinions related to the products and patents at issue in this case, in
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`litigation involving a party to a related case. Permitting Dr. Almeroth to serve as an expert for
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`Packet on infringement and validity issues would not simply pose a risk to Juniper, but would also
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`create an appearance of impropriety. Accordingly, I find that any prejudice to Packet does not
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`1 I do not find that it would be reasonable to prohibit Dr. Almeroth from further discussing claim
`construction issues with Packet. Packet may rely upon Dr. Almeroth for claim construction, but
`may not further discuss issues related to validity or infringement.
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`weigh against disqualification.2
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`V.
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`WAIVER
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`Packet contends that Juniper waived any objection to Dr. Almeroth’s use as an expert by
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`not seeking disqualification earlier. Oppo. 13. It asserts that it disclosed Dr. Almeroth as its
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`expert in the Packet I litigation and as a claim construction expert in the joint Claim Construction
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`Statement filed in that case in December 2019, and that Juniper cited Dr. Almeroth’s testimony on
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`behalf of Packet in earlier IPR proceedings in February 2020. Oppo. 12. Packet states that it
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`disclosed Dr. Almeroth as an expert for purposes of extrinsic evidence in its Patent Local Rule 4-2
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`disclosures on March 20, 2020, and confirmed its reliance on Dr. Almeroth for claim construction
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`on April 15. Id. In reply, Juniper states that it first objected to Dr. Almeroth on April 30, 2020,
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`seven business days after Packet first confirmed that it would rely on Dr. Almeroth’s opinions in
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`this case. Dkt. No. 60 at 9.
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`I find that Juniper has not waived its objection. Even assuming that Juniper was aware of
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`Dr. Almeroth’s engagement in the Packet I litigation (to which it is not a party) or his use for
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`claim construction in this case, it was not unreasonable to object only after Packet disclosed
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`Almeroth as an expert in this case and for other purposes. Juniper does not object to Dr.
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`Almeroth’s use for claim construction, so it would have no reason to object to his engagement for
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`those purposes earlier. In addition, Packet’s citation of Dr. Almeroth’s testimony in earlier IPR
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`proceedings did not put Juniper on notice that Packet would use the expert for purposes other than
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`claim construction in this case. See Oppo. 12. Juniper was aware of Dr. Almeroth’s use for
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`invalidity and infringement purposes in this case at the earliest on March 20, 2020. Id. It
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`provided notice to Packet of its objection on April 30, 2020. Juniper was reasonably prompt in
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`bringing its objections and did not waive them.3
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`2 The parties dispute the “implied accusations” by Juniper regarding breach of Dr. Almeroth’s
`engagement agreement. See Oppo. 10. Whether Dr. Almeroth in fact breached this agreement is
`not before me, and I need not consider that issue in resolving this motion.
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`3 The cases that Packet relies upon are distinguishable. In Travelers Ins. Co. v. Liljeberg
`Enterprises, Inc., the parties waited nearly a year before moving to disqualify a judge. 38 F.3d
`1404, 1410–11 (5th Cir. 1994). In Cent. Milk Producers Co-op. v. Sentry Food Stores, Inc., the
`party seeking disqualification waited over two years to move to disqualify a law firm. 573 F.2d
`9
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`Northern District of California
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`United States District Court
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`EX 1103 Page 9
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`

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`Case 3:19-cv-04741-WHO Document 66 Filed 07/15/20 Page 10 of 10
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`CONCLUSION
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`For the above reasons, Juniper’s motion is GRANTED. Dr. Almeroth is disqualified as an
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`expert for Packet in this case, except with respect to claim construction.
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`IT IS SO ORDERED.
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`Dated: July 15, 2020
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`William H. Orrick
`United States District Judge
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`988, 992 (8th Cir. 1978).
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`Northern District of California
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`United States District Court
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`EX 1103 Page 10
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