Case 3:19-cv-02471-WHO Document 55 Filed 02/18/20 Page 1 of 12
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`1-12
`
`) Case No. 19-cv-02471-WHO
`)
`)
`)
`)
`)
`
`San Francisco, California
`Courtroom 2, 17th Floor
`Tuesday, January 7, 2020
`
`))
`
`PALO ALTO NETWORKS, INC.,
`
`Plaintiff,
`
`v.
`
`PACKET INTELLIGENCE LLC,
`
`)
`Defendant.
`_______________________________)
`)
`) Case No. 19-cv-04741-WHO
`)
`
`PACKET INTELLIGENCE LLC,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC.,
`
`))
`
`))
`
`))
`
`)
`Defendant.
`_______________________________)
`
`TRANSCRIPT OF CASE MANAGEMENT CONFERENCE
`BEFORE THE HONORABLE WILLIAM H. ORRICK
`UNITED STATES DISTRICT COURT JUDGE
`
`APPEARANCES:
`
`For Plaintiff Palo
`Alto Networks, Inc.:
`
`JAMES R. BATCHELDER, ESQ.
`ANDREW T. RADSCH, ESQ.
`Ropes & Gray LLP
`1900 University Avenue, Sixth Floor
`East Palo Alto, California 94303-2284
`(650) 617-4763
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
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`Packet Intelligence Ex. 2005 Page 1 of 12
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`1-12
`
`) Case No. 19-cv-02471-WHO
`)
`)
`)
`)
`)
`
`San Francisco, California
`Courtroom 2, 17th Floor
`Tuesday, January 7, 2020
`
`))
`
`PALO ALTO NETWORKS, INC.,
`
`Plaintiff,
`
`v.
`
`PACKET INTELLIGENCE LLC,
`
`)
`Defendant.
`_______________________________)
`)
`) Case No. 19-cv-04741-WHO
`)
`
`PACKET INTELLIGENCE LLC,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC.,
`
`))
`
`))
`
`))
`
`)
`Defendant.
`_______________________________)
`
`TRANSCRIPT OF CASE MANAGEMENT CONFERENCE
`BEFORE THE HONORABLE WILLIAM H. ORRICK
`UNITED STATES DISTRICT COURT JUDGE
`
`APPEARANCES:
`
`For Plaintiff Palo
`Alto Networks, Inc.:
`
`JAMES R. BATCHELDER, ESQ.
`ANDREW T. RADSCH, ESQ.
`Ropes & Gray LLP
`1900 University Avenue, Sixth Floor
`East Palo Alto, California 94303-2284
`(650) 617-4763
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
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`Packet Intelligence Ex. 2005 Page 1 of 12
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`Case 3:19-cv-02471-WHO Document 55 Filed 02/18/20 Page 2 of 12
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`APPEARANCES:
`
`(Cont’d.)
`
`For Defendant and
`Counterclaimant Packet
`Intelligence, LLC:
`
`For Defendant Juniper
`Networks, Inc.:
`
`Transcription Service:
`
`2
`
`CORBY R. VOWELL, ESQ.
`Friedman, Suder & Cooke
`604 East 4th Street, Suite 200
`Fort Worth, Texas 76102
`(817) 334-0400
`
`BRIAN A. E. SMITH, ESQ.
`Bartko Zankel Bunzel & Miller
`One Embarcadero Center, 8th Floor
`San Francisco, California 94111
`(415) 956-1900
`
`ADAM A. ALLGOOD, ESQ.
`ALAN M. FISCH, ESQ.
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW, Fourth Floor
`Washington, D.C. 20015
`(202) 362-3500
`
`KEN K. FUNG, ESQ.
`Fisch Sigler LLP
`400 Concar Drive
`San Mateo, California 94402
`(650) 362-8207
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
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`Case 3:19-cv-02471-WHO Document 55 Filed 02/18/20 Page 3 of 12
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`3
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`SAN FRANCISCO, CALIFORNIA TUESDAY, JANUARY 7, 2020 2:17 P.M.
`
`--oOo--
`
`THE CLERK:
`
`Calling Civil Matter 19-2471, Palo Alto
`
`Networks, Inc. v. Packet Intelligence LLC and Case Number 19-4741,
`
`Packet Intelligence LLC v. Juniper Networks, Inc.
`
`MR. BATCHELDER:
`
`Good afternoon, Your Honor.
`
`James
`
`Batchelder and Andrew Radsch, Ropes & Gray, on behalf of Palo Alto
`
`Networks.
`
`We also have with us Associate General Counsel George
`
`Simion.
`
`THE COURT:
`
`Great.
`
`Welcome.
`
`MR. ALLGOOD: Good afternoon, Your Honor. Adam Allgood,
`
`Alan Fisch, and Ken Fung, Fisch Sigler, on behalf of Juniper
`
`Networks.
`
`THE COURT:
`
`Great.
`
`MR. VOWELL:
`
`Good afternoon, Your Honor. Corby Vowell
`
`on behalf of the Plaintiff Packet Intelligence LLC, and with me is
`
`-- I’ll let him introduce himself.
`
`MR. SMITH:
`
`Brian Smith.
`
`MR. VOWELL:
`
`And we also have a client rep with us
`
`today, Ron Moore.
`
`THE COURT:
`
`Hello.
`
`Welcome.
`
`All right.
`
`So I called
`
`both of these cases together because the scheduling is going to be
`
`pretty closely together.
`
`And let me start talking about the --
`
`the Palo Alto/Packet matter.
`
`So Palo Alto is instituting IPR. What’s the -- when will we
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`know whether it’s actually instituted by --
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`MR. BATCHELDER:
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`We intend to file this month, Your
`
`Honor.
`
`So we’ll know within six months of filing.
`
`THE COURT:
`
`Okay. All right. So as step two, it does
`
`seem to make sense to do the claim construction hearing together
`
`and -- which I think then is going to require the claim
`
`construction hearing be pushed back from what we had originally
`
`anticipated.
`
`And so my -- what I’m thinking is that we would do
`
`the -- the hearing on June 19th and the tutorial on June 15th.
`
`Okay.
`
`So then the next thing is the -- are the trial
`
`calendars for each of these cases.
`
`And from the Plaintiff’s
`
`perspective, should we -- how closely should we schedule these
`
`cases?
`
`I guess they can’t be or shouldn’t be done by the same
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`jury, or maybe they should. Tell me what you’re thinking.
`
`MR. VOWELL:
`
`So, Your Honor, we certainly believe that
`
`there should be separate juries and that these should be separate
`
`trials and it’s our preference that they not be back-to-back
`
`trials. I think it makes sense for there to be at least a couple
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`months in between I think for both of the parties to see what
`
`happens in the first trial ’cause it may impact what would happen
`
`in the second trial for both the Plaintiff and Defendant.
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`So as the schedule was currently set, there’s about I think
`
`four and a half months in between the two different trial dates.
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`Certainly they could be closer than that, but we do believe there
`
`should still be at least a little bit of separation.
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`THE COURT: A little separation. Okay. All right. So
`
`scheduling is very complicated, and you can see I’m very new tech
`
`in the way that I look at these things.
`
`So if the -- given the claim construction hearing date that
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`I’ve set, the -- I am now looking at the CMC on -- in the Juniper
`
`case on page 14.
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`And I think the dates would be adjusted as
`
`follows.
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`But, again, if you’re -- if you decide together that
`
`there are better dates than the ones that I’m giving you, just
`
`give me a stipulation. But, otherwise, these dates would control.
`
`The exchange of claim terms would be March 6th. The exchange
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`of preliminary claim constructions March 20th.
`
`The joint claim
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`construction and pre-hearing statement March 30th. The completion
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`of claim construction discovery May 1st. The opening brief from
`
`Packet May 15.
`
`The responding constructions May 22.
`
`The reply
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`June 1.
`
`And then the tutorials June 15 and the hearing June 19th.
`
`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. And from
`
`the end of July to the proposed close of discovery date is about
`
`five months.
`
`It seems like a reasonable amount of time.
`
`Does -- does Plaintiff think that it’s going to take less
`
`time to do discovery in this case?
`
`MR. VOWELL:
`
`So just to be clear, I think right now
`
`you’re looking at the date from the Juniper schedule?
`
`THE COURT:
`
`That’s correct.
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`MR. VOWELL:
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`And so I think that’s plenty of time.
`
`There -- in the -- I don’t want to speak for Palo Alto, but in our
`
`case we have started discovery and done quite a bit of discovery.
`
`I don’t think we would need that much time to finish discovery
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`with Palo Alto.
`
`THE COURT:
`
`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.
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`From Palo Alto’s perspective?
`
`MR. BATCHELDER:
`
`That should be fine.
`
`THE COURT: Okay. All right. Okay. All right. Okay.
`
`So now I think I’m going to end up making you guys do some work
`
`instead of me.
`
`If end of fact discovery -- so then the question
`
`is how quickly -- in most cases, I will require the initial
`
`experts’ reports at the end of fact discovery to sort of move the
`
`trial date along.
`
`But I’ve never -- I’m pleased to say I never
`
`tried a patent case, I was never involved in thinking about patent
`
`cases before I came on the bench, so I -- and I do think that
`
`they’re different animals.
`
`So -- so what do you want to do -- what do you want to do
`
`about that?
`
`Do you want the same sort of breaks that -- that we
`
`previously set as far as timing is concerned?
`
`MR. BATCHELDER:
`
`I would say, Your Honor, from our
`
`perspective, Palo Alto Networks’ perspective, it is useful to have
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`a gap between the close of fact discovery and the close of expert
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`discovery and expert reports so that the experts can take into
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`account in their reports the full set of discovery that’s been
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`taken.
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`MR. VOWELL:
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`I would agree with that as well, and I
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`think we were able to work with Palo Alto to come up with a sort
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`of basic structure and schedule based on the earlier dates.
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`I
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`think we could probably do that, given -- if we start with this
`
`end of fact discovery at the end of October, we could probably put
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`together an agreed schedule from that point in time.
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`THE COURT:
`
`Okay. So if you want to do that, then the
`
`only issue is gonna be my trial schedule. But if that gets you to
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`a trial --
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`MR. VOWELL:
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`And, Your Honor, if I may, I was gonna
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`suggest given where you put the end of fact discovery, if we moved
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`out the current proposed trial date in the Palo Alto case roughly
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`two months, I think that would -- we would be able to accommodate
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`the remaining dates in that time frame. So it’s currently set for
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`March 29th, 2021 --
`
`THE COURT:
`
`Right.
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`MR. VOWELL:
`
`-- so if we made that --
`
`THE COURT:
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`May 31st?
`
`MR. VOWELL:
`
`Yes, Your Honor.
`
`I think that would
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`probably work.
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`THE COURT: I think that makes sense. Okay. Well, why
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`don’t we do that then.
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`We can --
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`MR. VOWELL:
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`And then, Your Honor, if I may --
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`THE COURT: You’re going to give me back-to-back patent
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`trials.
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`Talk about my favorite thing.
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`So let’s do May 31st. I think that’s reasonable. Okay. And
`
`so then what was your next idea?
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`MR. VOWELL: Then for Juniper, I’m looking at our client
`
`proposal -- is August 23rd, but we could perhaps move that back a
`
`bit if it gave us a little more separation. And I would defer to
`
`Juniper to see if they would agree with that.
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`MR. ALLGOOD:
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`Your Honor, we wouldn’t oppose that.
`
`I
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`think the rest of the schedule probably falls pretty much in line.
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`THE COURT:
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`Okay.
`
`MR. ALLGOOD:
`
`It’s just going to be on the Court’s
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`schedule as far as whenever your availability --
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`THE COURT: So what date would you like to choose? I’m
`
`wide open.
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`MR. VOWELL:
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`Perhaps middle of September of 2021.
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`THE COURT:
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`Yeah. So September 20?
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`MR. VOWELL:
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`That --
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`THE COURT:
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`Actually, how about September 13th?
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`MR. VOWELL:
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`That works, Your Honor.
`
`THE COURT:
`
`Okay.
`
`MR. ALLGOOD:
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`Acceptable for Juniper, Your Honor.
`
`THE COURT:
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`Okay.
`
`Okay.
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`So then the pre-trial for
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`Juniper would be August 16, 2:00 p.m., and the trial for Palo Alto
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`will be May 3rd, 2:00 p.m.
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`And then the dispositive motion
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`hearing date cutoff for Palo Alto will be February 24, and the
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`dispositive motion cutoff -- hearing date cutoff for Juniper will
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`be June 9. And if you want to then propose the rest of the dates,
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`stipulate amongst yourselves what those -- the rest of the dates
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`would look like, that’s fine by me and I’ll sign off on it.
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`MR. VOWELL:
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`Thank you. I think we can do that.
`
`THE COURT:
`
`Okay.
`
`All right.
`
`That was easier than I
`
`thought.
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`ADR.
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`In both cases, do you want to do ADR after claim
`
`construction?
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`Is that what the desire is?
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`MR. BATCHELDER: I think that would make the most sense.
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`THE COURT:
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`Okay.
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`MR. ALLGOOD: Yes, Your Honor. We currently have within
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`60 days for the claim construction ruling and we have agreed to a
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`mediator.
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`THE COURT:
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`Oh, you have. Good.
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`MR. ALLGOOD:
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`Yes, Your Honor.
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`THE COURT:
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`Who’s going to do it?
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`MR. ALLGOOD:
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`Judge Infante.
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`THE COURT:
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`Wonderful.
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`MR. VOWELL:
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`And that’s with respect to Juniper.
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`THE COURT: That’s with respect to Juniper. And -- and
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`have you decided --
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`MR. BATCHELDER:
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`We proposed some names and I don’t
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`believe we ever got a reaction, so we can follow up on that.
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`THE COURT:
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`Okay.
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`Well, why don’t you do that and
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`figure that out in the next week and just post something on ECF
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`and let me know who’s going to do it. Same thing -- 60 days after
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`claim construction. I don’t want you to think that you can’t talk
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`about resolving this sooner than that, but -- but that will be the
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`date.
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`And we’ll use -- we’ll have a further CMC at the -- after the
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`claim construction hearing just to talk about anything that’s
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`going on.
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`If you need to cone in for some reason for the case
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`management related issues, just contact Ms. Davis and we can get
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`on the schedule basically when we want to on a Tuesday.
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`And you heard me -- on discovery, so don’t have any discovery
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`disputes. That’s my order. But if you do, you have to sit down,
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`work it out, and then send me a letter.
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`So those are all the things that were on my mind. Anything
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`else in either of the cases from Plaintiffs?
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`MR. VOWELL:
`
`Not from the Plaintiff’s perspective.
`
`THE COURT: Okay.
`
`From Palo Alto?
`
`MR. BATCHELDER: Your Honor, for Palo Alto Networks, I
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`will say that if Your Honor would be open to it, we would file a
`
`stay motion based on the filing of the IPRs not waiting until the
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`petitions are ruled on.
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`This would be -- it sort of would be
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`within your discretion to grant it.
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`It would be a two-for-one
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`deal perhaps, if you would, and it would obviate a claim
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`construction hearing and all the processes associated with that.
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`So it would be -- we don’t want to do it if it’s just a burden to
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`your calendar but, if it’s something you’d be open to, we would
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`certainly be willing to --
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`THE COURT: You know, the -- when this first came up --
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`because I’m so excited all the time to be working on these cases,
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`I granted them sort of willy-nilly and -- and I don’t anymore
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`because lots of times they just fall on the vine and all are done
`
`as the lay thing. So I haven’t reentered one for a few years, and
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`I can’t imagine that this is a special case.
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`MR. BATCHELDER: Thank you.
`
`MR. VOWELL:
`
`Thank you.
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`THE COURT: Save your money.
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`MR. BATCHELDER: That’s why I asked.
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`THE COURT:
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`Yeah.
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`No, I’m glad you did.
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`Is there
`
`anything else that -- from your perspective that we haven’t talked
`
`about?
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`Honor.
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`MR. BATCHELDER:
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`Not from Palo Alto Networks, Your
`
`THE COURT: Okay.
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`How about from Juniper?
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`MR. ALLGOOD:
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`Nothing else from Juniper, Your Honor.
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`THE COURT:
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`Okay.
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`Great.
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`Well, good luck.
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`I’m glad
`
`you’re working together well on this. That’s really important and
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`we’ll see you at the claim construction hearing.
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`MR. BATCHELDER: Thank you, Your Honor.
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`Packet Intelligence Ex. 2005 Page 11 of 12
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`Case 3:19-cv-02471-WHO Document 55 Filed 02/18/20 Page 12 of 12
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`Packet Intelligence Ex. 2005 Page 12 of 12
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