Case 3:13-cv-04910-JD Document 213 Filed 06/20/14 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`Before The Honorable James Donato, Judge
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`) No. C-13-4843 JD
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`OPEN TEXT S.A.,
`Plaintiff,
`
`vs.
`ALFRESCO SOFTWARE, LTD,
`et al.,
`
`Defendants.
`
`OPEN TEXT S.A.,
`Plaintiff,
`
`vs.
`BOX, INC., et al.,
`Defendants.
`
`) No. C-13-4910 JD
`)
`
`))
`
`)) S
`
`an Francisco, California
`Wednesday, June 18, 2014
`TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND
`RECORDING
`
`(APPEARANCES ON THE FOLLOWING PAGE)
`
`Transcribed by:
`
`Echo Reporting, Inc.
`Contracted Court Reporter/
`Transcriber
`echoreporting@yahoo.com
`
`Echo Reporting, Inc.
`
`EX 2005 Page 1
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`
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`Before The Honorable James Donato, Judge
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`) No. C-13-4843 JD
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`OPEN TEXT S.A.,
`Plaintiff,
`
`vs.
`ALFRESCO SOFTWARE, LTD,
`et al.,
`
`Defendants.
`
`OPEN TEXT S.A.,
`Plaintiff,
`
`vs.
`BOX, INC., et al.,
`Defendants.
`
`) No. C-13-4910 JD
`)
`
`))
`
`)) S
`
`an Francisco, California
`Wednesday, June 18, 2014
`TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND
`RECORDING
`
`(APPEARANCES ON THE FOLLOWING PAGE)
`
`Transcribed by:
`
`Echo Reporting, Inc.
`Contracted Court Reporter/
`Transcriber
`echoreporting@yahoo.com
`
`Echo Reporting, Inc.
`
`EX 2005 Page 1
`
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`Case 3:13-cv-04910-JD Document 213 Filed 06/20/14 Page 2 of 30
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`APPEARANCES:
`For Plaintiff:
`
` BY:
`
`Cooley, LLP
`101 California Street
`Fifth Floor
`San Francisco, California
` 94111
`THOMAS J. FRIEL, JR., ESQ.
`Cooley, LLP
`380 Interlocken Crescent
`Suite 900
`Boomfield, Colorado 80021
` BY: WAYNE O. STACY, ESQ.
` BY: PAUL LOOMIS, ESQ.
`
`For Defendants:
`
`Reed Smith
`101 2nd Street, Suite 1800
`San Francisco, California
` 94105
` BY: JOHN P. BOVICH ESQ.
` BY: JAMES A. DAIRE, ESQ.
`Kilpatrick Townsend
`Two Embarcadero Center
`8th Floor
`San Francisco, California
` 94111
` BY: A. JAMES ISBESTER, ESQ.
`Kilpatrick Townsend
`1100 Peachtree Street NE
`Atlanta, Georgia 30309
`AUDRA ANN DIAL, ESQ.
`
` BY:
`
` Echo Reporting, Inc.
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`Case 3:13-cv-04910-JD Document 213 Filed 06/20/14 Page 3 of 30
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`1:31 p.m.
`
`Wednesday, June 18, 2014
`P-R-O-C-E-E-D-I-N-G-S
`--oOo--
`THE CLERK: Calling related actions civil 13-4910,
`Open Tex S.A. versus Box, Inc. and civil 13-4843, Open Text
`versus Alfresco Software, Limited.
`Counsel, please come forward and state your appearances
`for the Court.
`MR. FRIEL: Good morning, your Honor. Pleasure to
`be in your courtroom. Tom Friel, Cooley, LLP. With me
`today, Wayne Stacy, also with Cooley. We have in-house Paul
`Loomis.
`
`THE COURT: All right. Welcome.
`MR. FRIEL: Thank you.
`MR. BOVICH: Good afternoon, your Honor. John
`Bovich with Reed Smith representing Box. With me is my
`colleague James Daire.
`THE COURT: Welcome.
`MR. ISBESTER: Good afternoon, your Honor. James
`Isbester of Kilpatrick Townsend representing the Alfresco
`Defendants. And with me is Audra Dial.
`THE COURT: Welcome to you too.
`All right. Let's get lead counsel for each party, all
`three of you up, please.
`Okay. We are on the knife's edge of inefficiency and
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`chaos. So let's see what we can do to bring this together.
`I'm going to start with just a couple of organizing
`questions. The first is, why are we not consolidating this
`for all purposes, including trial? I'll start with the
`Plaintiff, Mr. Friel.
`MR. FRIEL: Yes. I'm happy to address that.
`Consolidation for some purposes would be appropriate
`pretrial. I think discovery, a Markman proceeding. The
`question of consolidating them for trial is really an issue
`under the American Invents Act.
`Before the American Invents Act, we would have probably
`sued both parties together or could have, and consolidation
`would have been easy. Now the parties are entitled to
`separate trials.
`THE COURT: Well, you can agree to have joint -- a
`consolidated trial.
`MR. FRIEL: Sorry?
`THE COURT: You can agree to have a consolidated
`
`trial.
`
`MR. FRIEL: Yes. That's right.
`THE COURT: Is someone objecting to that on the
`Defense side?
`MR. ISBESTER: I'm afraid so, your Honor, yes.
`THE COURT: And why is that?
`MR. ISBESTER: Two reasons. One is very
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`practical.
`
`please.
`
`THE CLERK: Counsel, move in front of the mic,
`
`THE COURT: Remember we're electronically
`recorded, so you have to state who you are every time.
`MR. ISBESTER: James Isbester on behalf of
`Alfresco, your Honor.
`Alfresco and Box are, of course, close competitors.
`And there is some concern that in a consolidated trial, it
`would be very difficult to maintain the confidentiality of
`materials from each other. That's the practical --
`THE COURT: I'm not sealing courtrooms for trial.
`This is a public -- this is an open courtroom. So anybody
`from Box can walk in and watch the trial.
`MR. ISBESTER: Your Honor, I appreciate your
`giving us that -- that heads up. May I ask that you at
`least allow us to make presentation of particular -- that
`particular portions of the trial or particular portions of
`the record be --
`THE COURT: We're not going to do that right now.
`But as a general proposition --
`MR. ISBESTER: Some later date.
`THE COURT: -- courtrooms in the United States are
`open to the public, and it's a very high threshold to close
`them. So even if we got to that point, it would be for a
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`Case 3:13-cv-04910-JD Document 213 Filed 06/20/14 Page 6 of 30
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`fraction at most of your evidentiary proceedings.
`So I want you to think about -- it's terribly
`inefficient to have this case -- it's the same patents in
`both cases, isn't it, Mr. Friel?
`MR. FRIEL: There's an overlap.
`THE COURT: Okay. It's terribly inefficient for
`me to have to do two of these things on different tracks
`when we get to trial. So I want you to think about that and
`revisit the issue with the understanding that you are not
`getting a sealed courtroom for the entirety of your trial.
`That's just not going to happen.
`There may be portions, very tiny portions that are
`sealed, but if you're basing your consolidation reluctance
`on the idea that it's going to be a closed courtroom, that's
`the wrong basis for doing it. Okay.
`MR. ISBESTER: Understood, your Honor. As I said,
`there were two.
`THE COURT: What's the second one?
`MR. ISBESTER: That the cases are not, in fact, so
`identical that consolidation would be possible without an
`immense amount of jury confusion. As Mr. Friel just noted,
`the patents aren't identical. They simply overlap. There
`are additional patents that are asserted against Bos that
`are not asserted against Alfresco.
`In addition, the products are different infringement --
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`THE COURT: Well, then which patents overlap?
`There are how many? There are like a dozen patents here,
`Mr. Friel?
`
`MR. FRIEL: Yes. That's correct, your Honor.
`THE COURT: Okay. Which patents overlap?
`MR. BOVICH: Your Honor, John Bovich for Box. I
`don't have the numbers at my fingertips. The answer is,
`there's overlap of nine.
`THE COURT: Nine of the 11?
`MR. BOVICH: Nine of the 12.
`THE COURT: Nine of the 12. All right.
`MR. BOVICH: Three families -- Groupware has seven
`patents. All overlap. Marketing Dialogue has two patents.
`Those overlap. There's a third family called Sync
`(phonetic) which is asserted against Box only.
`THE COURT: All right. Here's what we're going
`to -- we're definitely going to consolidate all the pretrial
`conduct. Okay. That's going to happen. And we are going
`to revisit the issue of consolidated trial when we get
`closer to that date.
`If 75-percent of the patents overlap, you know, it's
`very hard for me to see -- I think there's problems for the
`Plaintiff. I mean, you have two different trials, and they
`win or lose a fact issue in one of those trials, they're
`going to have offensive collateral estoppel issues and other
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`issues as well. It isn't fair to them. Not to mention,
`it's a consumption of the Court's resources in an unwise way
`to have three out of 12 patents, you know, put aside
`separately for an entire trial of all the patents.
`Anyway, we'll deal with that later. But right now I
`want you to all understand there is a good chance the trial
`will be consolidated. But we'll let discovery go forward in
`a consolidated fashion first, and then I'll see where we
`are.
`
`Now, on the dates, I've gotten eight zillion dates for
`everything from everybody. So I'm tempted just to ask you
`just to come back in two days with agreed-upon dates, or I
`can order them here. Go ahead, Mr. Friel.
`MR. FRIEL: Thank you. I would suggest, your
`Honor, that you set two dates in stone. That would be the
`Markman hearing, and the second is the trial date. And I
`think -- then send us off. I think we can come up with
`dates that are probably better for everybody in the
`courtroom and propose those to your Honor.
`THE COURT: Let me ask -- let me ask you this.
`I'm going to get back to that. I appreciate that. Let me
`ask you this. Are you all open to maybe having -- look,
`there are 200 claims here and a dozen patents. We're going
`to cut that down in a minute, but before we do, are you all
`interested in having a special master come in and help you
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`work these things out?
`MR. FRIEL: I apologize, your Honor. Which
`
`things?
`
`THE COURT: Coordinate the discovery, cut down the
`number of claims, coordinate the pretrial activities. Is
`that something you're open to?
`MR. FRIEL: I think we'd be open to having a
`special master on discovery issues. When it comes to
`cutting down the claims, I think that might be an issue for
`the Court. I understand -- clearly, we're not going to try
`200 claims.
`THE COURT: Well, a special master --
`MR. FRIEL: It's a question of getting enough
`discovery and enough informed information for us to be able
`to make the cut at a timely point.
`THE COURT: Well, 200 claims is about 90-percent
`
`too high.
`
`MR. FRIEL: I don't disagree, your Honor.
`THE COURT: Okay. So we're going to cut them down
`sooner rather than later. Now, do you want to do that
`yourself or do you want to have a special master help you do
`it? I need recommendations to the Court.
`MR. FRIEL: We can do that ourselves.
`THE CLERK: You are?
`MR. STACY: Wayne Stacy for Open Text.
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`In our proposal, we actually marked the 27th of June to
`drop to 32 claims. It was part of our effort to get to a
`trial faster.
`THE COURT: All right. You read my mind. So
`you're going to cut this thing down to 32 claims?
`MR. STACY: Yes.
`MR. FRIEL: Yes. Tom Friel. That's the third
`event on our schedule.
`THE COURT: Okay. All right. I'm going to sound
`testy for just one minute, but the Alfresco joint case
`management statement was fine. The Box one was virtually
`unreadable. Okay. I mean, it had footnotes that went on
`for a mile. It had dates here, see below, see this.
`The Box people and the Open Text, you need to do a
`little bit better next time. Make it a document that a
`judge with 250 plus cases can actually understand. The last
`one failed. Okay. So I missed that. I appreciate that.
`So on June 27th, you're going to make a commitment to a
`maximum of 32 claims.
`MR. FRIEL: That's correct.
`THE COURT: In both cases?
`MR. FRIEL: So in the -- yeah, I think both cases.
`THE COURT: All right. Good. Okay. We'll set
`that date.
`Now let's turn to the Plaintiff. Mr. Friel, when do
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`you want to do the Markman?
`MR. FRIEL: Well, we have it in our proposal that
`we do the Markman in September of this year, September 17th,
`in fact. That will be about -- the case will have been
`pending about 18 months, maybe a little bit less than that
`at that point. If you take a look on page nine --
`THE COURT: Oh, okay. I have my little chart
`here. Okay.
`MR. FRIEL: And we have the same date proposed in
`the Alfresco because we assume that we would do one Markman
`hearing.
`
`THE COURT: Okay. Defendants, what's wrong with
`
`the 17th?
`
`MR. BOVICH: Your Honor, John Bovich for Box. I
`think it's too soon, given what is likely going to be the
`scope of the Markman hearing. We haven't gotten there yet
`in terms of framing up with the positions are. I took a
`look at the claim scope that's in -- now I understand your
`Honor has ordered a reduction. I came up with about 40
`terms that I thought would be in dispute by Box, so I'm well
`aware that your Honor is not going to entertain those 40.
`My point is, though, on a first cut, based on the claim
`scope today, from our perspective, it's going to be a big
`Markman. It's going to take us time to go back and forth
`with the disclosures and come up with a joint claim
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`construction statement.
`And we've asked for one in November, which is only two
`months later, but I think it would make a world of
`difference in terms of refighting the issues.
`THE COURT: Okay. We're going to do the claim
`construction hearing on October 15th. Is that a Wednesday?
`THE CLERK: 2014 or 2015?
`THE COURT: 2014.
`THE CLERK: Yes, it is a Wednesday.
`THE COURT: Okay. Let's do that Thursday. Yeah.
`October 16th at 9:00 a.m. How many hours per side do you
`want? This is going to be a big joint both case thing, so
`you ought to be able to coordinate a little bit, Defendants.
`MR. BOVICH: We will.
`THE COURT: All right. Mr. Friel.
`MR. FRIEL: We were thinking of two hours for the
`Plaintiff to handle all the terms.
`THE COURT: That sounds good. Defendants.
`MR. BOVICH: John Bovich. I agree with two hours.
`Question, though. Would your Honor entertain a request to
`exceed the 10-term limit, if, in fact, it's warranted by the
`parties?
`
`THE COURT: When would you advise me of that?
`MR. BOVICH: Most likely that would occur at some
`point during the wind-up when we're exchanging terms, no
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`later than the joint claim construction statement.
`THE COURT: I will let you use your discretion on
`that. But right now I'll set it for four hours on October
`15th, starting at 9:30 a.m. I'm sorry. October 16th, yep,
`at 9:30 a.m. Do you all want witnesses or -- I happen to
`like them, but it's up to you.
`MR. BOVICH: John Bovich, your Honor. We hadn't
`contemplated it at the moment.
`THE COURT: Okay. Well, I'll leave it up to. You
`guys can decide.
`MR. FRIEL: Thank you.
`THE COURT: If you want to bring in eye witnesses,
`that's perfectly fine with me.
`MR. FRIEL: Tom Friel. Would your Honor like a
`
`tutorial?
`
`THE COURT: Yes.
`MR. FRIEL: All right.
`THE COURT: I would like a tutorial on October
`9th. Can we do that?
`MR. FRIEL: Yes.
`THE COURT: Okay. That's also Thursday, isn't it,
`
`Lisa?
`
`tutorial?
`
`THE CLERK: Yes.
`THE COURT: All right. Now, who's going to do the
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`MR. FRIEL: I have to say --
`THE COURT: You may not know, but --
`MR. FRIEL: Tom Friel. Yeah, I have not made the
`decision yet as to what we would do.
`THE COURT: All right.
`MR. FRIEL: But it would probably be a combination
`of counsel and an expert, perhaps one of the inventors.
`THE COURT: All right. Defendants?
`MR. ISBESTER: James Isbester for Alfresco. Your
`Honor, I was going to ask you, who would you like us to
`provide for the tutorial?
`THE COURT: I kind of like nonlawyers, but I'll
`leave it up to you. All right. So we'll set that for the
`9th. Ninety minutes per side, does that sound right?
`MR. FRIEL: Yes.
`MR. ISBESTER: That sounds appropriate, your
`
`Honor.
`
`THE COURT: Okay. Let's do that at 2:00 p.m. on
`October 9th. If you have any special computer needs, you
`can call Ms. Clark, and she will make sure to get you hooked
`up. It's better to have laptop-based presentations rather
`than things that require screens because -- you know, we
`have monitors, so it's better to do that than to try to
`bring in projectors and screens. Okay.
`All right. Now, trial dates. Did Judge Davila set any
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`trial dates?
`MR. FRIEL: Tom Friel. We never got that far.
`THE COURT: Oh, okay. All right.
`MR. FRIEL: Judge Davila was sympathetic to Open
`Text's request in the Box case.
`THE CLERK: Who is speaking?
`MR. FRIEL: Sorry. Tom Friel. Thank you.
`So as I was saying, Judge Davila is -- was sympathetic
`to his denial of the preliminary injunction and the effect
`that would have in the marketplace. And he was not inclined
`to set an early trial. I think, as he said, there were
`going to be some changes. I think he knew there was going
`to be reassignment.
`And of course, we would -- because of irreparable harm
`that is continuing, I'd like to have an earlier date rather
`than a late date. The case is over a year old at the
`moment. So I think sooner rather than later would be what
`Open Text would prefer.
`THE COURT: Okay. I'm going to -- Defendants,
`what about --
`MR. BOVICH: John Bovich speaking, your Honor. I
`mean, I have Judge Davila's transcript. He actually said he
`wasn't going to accelerate the case, so we have a somewhat
`different view about what he said.
`We would also submit that in terms of the Plaintiff's
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`urgency, Plaintiff did have an opportunity to try to
`petition this Court to explain to this Court why there was
`something special and unique. They filed a motion for a
`preliminary injunction.
`They had the opportunity to submit every argument as to
`why the case was special and demanded immediate attention,
`and the Court denied it. So I believe the Court was not
`inclined to consider this an unusually -- a case requiring
`an unusually fast treatment.
`We have a lot to do, especially work we have to go
`accomplish in Canada.
`THE COURT: Well, this thing has been pending for
`a year. What's --
`MR. BOVICH: It has been pending a year.
`THE COURT: How can you have a lot to do?
`MR. BOVICH: If I may submit, your Honor, the
`reason it's been pending for a year is because of the
`Plaintiff's choice to forum-shop and the Plaintiff's choice
`to file a preliminary injunction in which it devoted
`substantial resources to the beginning of the case. And
`ultimately, that was decided against them.
`Depositions have not started. We have a lot of work to
`do, especially up in Canada. The Plaintiff is really a
`Luxembourg company. It's not much of a going concern in the
`United States. All of their witnesses are based in Canada.
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`A large percentage of their documents are likely based in
`Canada.
`We're going to have to come before your Honor and file
`a motion for letters rogatory. We have lawyered up in
`Canada. We have Canadian counsel who is guiding us through
`that process, but we will come to you with a request for a
`substantial amount of work that we need to do.
`THE COURT: Why do you need letters rogatory for
`the Plaintiff?
`MR. BOVICH: It's not for the Plaintiff. The
`Plaintiff is Open Text S.A.
`THE COURT: The third parties up in Canada?
`MR. BOVICH: Yes. Open Text Corporation, the
`real -- that's where all their trial witnesses come from, a
`third party.
`THE COURT: Mr. Friel, didn't you all agree to
`accept discovery on behalf of your Canadian colleagues?
`MR. FRIEL: Mr. Stacy will address this.
`MR. STACY: Wayne Stacy. So we are subject to the
`Ontario Business Records Protection Act. Going with a U.S.
`subpoena subjects them to a year in prison. So the --
`because Canada hasn't signed on to the Hague, the proper way
`to do it is to do a -- not joint, but unopposed letters
`rogatory so we comply with Ontario law for nonparties.
`And that law actually came out of a federal judge in
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`New York ordering a Canadian company to produce documents in
`the U.S. So we're kind of between a rock and a hard place
`for nonparty-related companies. And what we've offered is
`even use Open Text for its Canadian counsel to hand-walk the
`letters rogatory into the Ontario court, sit on it, use
`their influence to get them turned quickly so we can comply
`and --
`
`THE COURT: Well, what's the likely -- I mean, how
`long does it take to get al that done?
`MR. STACY: Well, they could have done -- started
`this process in February.
`THE COURT: I understand. But how long would it
`take? Does it add --
`MR. STACY: We can have the -- we can work out the
`letters rogatory tonight and have those to you tomorrow, if
`Mr. Bovich wants to -- and we're looking at weeks in Canada.
`So this process should have already been done.
`THE COURT: Do we know how long -- when you say
`weeks, is it -- what's the ballpark on how long?
`MR. STACY: What our Canadian counsel told us is
`that it could be anywhere from a week to they forget about
`it, and that's why they would babysit the process to get it
`through.
`
`THE COURT: All right.
`MR. STACY: We would -- I think everybody is in
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`agreement that it would move with dispatch.
`THE COURT: Should this case be in Canada? Do you
`want me to transfer it? You guys want to go to Ontario?
`MR. STACY: Not with the U.S. patents, no.
`THE COURT: All right.
`MR. BOVICH: John Bovich, your Honor. I'm just --
`I'm hearing something different from our Canadian counsel in
`terms of the time it's going to take to do this.
`THE COURT: Okay. How much have you heard?
`MR. BOVICH: What we've heard is about 90 days.
`Once the letters rogatory issue from this Court, they're
`brought up to Canada. That's time to enforce --
`THE COURT: Why have you not started that already?
`MR. BOVICH: Well, we could not do this in
`February, contrary to counsel's assertion. We did try to
`negotiate with them. We asked essentially the question your
`Honor asked, which is why can't we just do this by
`agreement.
`And initially they said you can, you don't have to go
`through -- you don't have to jump through these hoops. And
`then later they changed their mind and said, you do. That
`occurred in about March. So starting in March, we started
`coordinating with Alfresco jumping through those hoops.
`Since that time, the Plaintiff has produced --
`THE COURT: Well, I don't understand what
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`you're -- you don't need to rely on the Plaintiffs for legal
`advice about discovery in Canada. That's up to you. You
`need to figure that out for yourself. You've got Canadian
`contacts. You don't need to have them tell you what the
`rules are in Canada.
`I'm asking, why didn't you start this process in
`November, December, January, eight months ago, six months
`ago?
`
`MR. BOVICH: Because they told us we didn't need
`to. And then --
`THE COURT: That's not an answer. They told me?
`I mean, what kind of an answer is that?
`MR. BOVICH: Well, your Honor --
`THE COURT: You're the Defendant running your
`case. You're not -- they don't decide when you get to do
`discovery. You decide. And if you have a problem, you come
`to me. So to say that they told you something that turns
`out not to be right is not an excuse for not having done it.
`MR. BOVICH: I guess what I mean -- John Bovich
`speaking, your Honor. It isn't that we relied upon a
`representation as to what the law was. We relied on a
`representation that they wouldn't make us do it. In other
`words, it would be an agreement.
`THE COURT: You made that representation to
`Plaintiffs?
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`MR. BOVICH: We agreed to cooperate. And you've
`got to comply with Canadian law. That's the representations
`made. However, your Honor, may I point out one thing?
`Everything that's jointly controlled by the Canadian corp.
`and the U.S. corp. and the Luxembourg corp. has been
`produced. And that comes to roughly 1.25 million documents
`in response to 320 RFPs.
`All of the witnesses that are Canadian that will agree
`to appear voluntarily, we can provide voluntarily for
`corporate information. We just can't force an employee to
`show up that doesn't want to.
`So it's a process that if they'll serve the proper
`documents on it, we can facilitate --
`THE COURT: Well, I'm not going to get into
`Canadian law, but this is a double-edged sword. So if you
`don't produce someone, they're not showing up in court to be
`a witness for the Plaintiffs. You understand that?
`MR. BOVICH: Absolutely.
`THE COURT: All right. Okay. We're going to
`set -- what's the first Monday in February 2015?
`THE CLERK: February 2nd.
`THE COURT: Okay. Trial call will be February
`2nd, 2015 at 9:00 a.m. This is a jury trial?
`THE CLERK: Yes, your Honor.
`MR. BOVICH: Yes, your Honor.
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`MR. FRIEL: Tom Friel. Yes, your Honor.
`THE COURT: We're going to set both cases.
`Whether they're consolidated or not, we'll leave for a
`different day. Both cases will be set for that day.
`Okay. So we've got the Markman set, the jury trial
`set. I'm going to let you all figure out everything else in
`between.
`
`MR. FRIEL: Thank you.
`THE COURT: Anything else from me?
`MR. BOVICH: Can I ask -- yes.
`THE COURT: Yes.
`MR. BOVICH: John Bovich, your Honor.
`THE COURT: Of course.
`MR. BOVICH: So two issues. One issue involves
`the deadline for our invalidity contentions.
`THE COURT: Okay.
`MR. BOVICH: We have a dispute of a week. The
`Plaintiff is asking that we serve those this Friday, the
`20th. We're asking for the 27th. A week would make a great
`deal of difference to us, Box and Alfresco, in terms of
`coordinating.
`We're going to serve a unified set of Defendants'
`invalidity contentions.
`THE COURT: All right. Plaintiffs, is a week
`going to kill you?
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`MR. FRIEL: I'm happy to grant a week for a joint
`
`set.
`
`THE COURT: All right. So ordered. June 27th.
`You said you had two?
`MR. BOVICH: Yes, your Honor. John Bovich again.
`So there was a letter brief sent to your Honor regarding
`interrogatories. It was sent last night. I'm not asking
`your Honor to address it now because I know we sent it last
`night. But there is a rather important issue that is framed
`up in the CMC statement involving compound rogs, an
`allegation of compound rogs.
`THE COURT: Yes.
`MR. BOVICH: And to cut to the chase, here's
`what's going on. The Plaintiffs served a rog on Box asking
`us to outline our infringement defenses as to 200 claims.
`We answered it. In other words, we didn't object and say
`that's 200 rogs. We answered the rog to the best of our
`ability. We don't know all of our infringement defenses,
`but more will arise during the course of the litigation.
`We have served a parallel rog on the Plaintiff asking
`them to explain what's wrong with our invalidity defenses.
`As your Honor may gather, invalidity is going to be a major
`issue in the case.
`Now, their answer isn't due yet. I'm not asking for an
`advisory opinion, but based on the fight we're having about
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`rogs, we're a little suspicious that they're not going to
`give us an answer to this rog. And it's really, really
`important to us for a number of reasons.
`Aside from the fact that we need their contentions as
`to invalidity, what happened during the P.I. is many of the
`positions the Plaintiff took to try to traverse the prior
`art, in fact, handed the Defendants noninfringement
`defenses. Because the prior art is very close to the
`accused products.
`So it's going to be important to us to get an answer to
`that. So I raise it now not because of our letter brief,
`but because it's a case management issue. To us, it doesn't
`matter whether your Honor deemed it one rog or whether your
`Honor said it's actually 57 rogs, but you have to answer it
`anyway. We're hoping to get some guidance that we're going
`to get an answer to that interrogatory. It's probably the
`most important one in the case.
`THE COURT: All right. Here's what we're going to
`do. On the 27th of June, the Plaintiff is going to elect no
`more -- we're going to reduce it to 25. Okay. Twenty-five
`claims. You're going to elect no more than 25 claims.
`Now, is that going to relieve your interrogatory issue?
`MR. BOVICH: I don't know if -- no, because I
`still need an answer. I still am going to need an answer to
`the interrogatory. The interrogatory is, we give them prior
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`art, and then we ask the question what's wrong with our
`prior art. Where do you disagree? We need their
`contention.
`THE COURT: Okay. All right. Mr. Friel, Mr.
`
`Stacy.
`
`MR. FRIEL: Your Honor, actually, you pointed out
`an interesting problem. We're being forced to narrow before
`we see their infringement -- invalidity contentions at all.
`THE COURT: You should have been forced to narrow
`about eight months ago. So you're going to narrow on the
`27th, and it's going to be --
`MR. FRIEL: Fair enough.
`THE COURT: -- no more than 25 claims. Okay.
`MR. FRIEL: That works. I don't know the
`interrogatory he's specifically speaking of. I think they
`filed something after close of business yesterday.
`THE COURT: I want to talk to you a little bit
`about that.
`MR. FRIEL: But we're going to answer.
`THE COURT: The Alfresco people have been fine.
`The Box people -- and I'm looking at both of you, Box
`Plaintiff, Box Defendant, have not been fine. I'm getting
`bombarded with letters, and you're edging into the top five
`problem case zone. You don't want to be in that zone.
`That's a zone that litigants don't enjoy being in. So
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`you're getting close to that zone.
`Now, I am -- I'
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