Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 1 of 335 PageID #: 32975
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`1
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`CIVIL ACTION NO.
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`6:12-cv-855-RWS
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`(Lead Consolidated Case)
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`Tyler, Texas
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`February 1, 2016
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`9:02 a.m.
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`VIRNETX INC. AND SCIENCE
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`APPLICATIONS INTERNATIONAL
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`CORPORATION,
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`Plaintiffs,
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`VS.
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`APPLE INC.,
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`Defendant.
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`---------------------------------------------------------
`
`REPORTER'S TRANSCRIPT OF JURY TRIAL, VOLUME 6
`
`BEFORE THE HONORABLE ROBERT W. SCHROEDER III
`
`UNITED STATES DISTRICT JUDGE
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`---------------------------------------------------------
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`1
`
`CIVIL ACTION NO.
`
`6:12-cv-855-RWS
`
`(Lead Consolidated Case)
`
`Tyler, Texas
`
`February 1, 2016
`
`9:02 a.m.
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`VIRNETX INC. AND SCIENCE
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`APPLICATIONS INTERNATIONAL
`
`CORPORATION,
`
`Plaintiffs,
`
`VS.
`
`APPLE INC.,
`
`Defendant.
`
`---------------------------------------------------------
`
`REPORTER'S TRANSCRIPT OF JURY TRIAL, VOLUME 6
`
`BEFORE THE HONORABLE ROBERT W. SCHROEDER III
`
`UNITED STATES DISTRICT JUDGE
`
`---------------------------------------------------------
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 2 of 335 PageID #: 32976
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`APPEARANCES:
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`COURT REPORTER:
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`2
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`BRENDA HIGHTOWER SMITH, CSR-FCRR
`Official Court Reporter
`Eastern District of Texas
`Texarkana Division
`500 N. State Line Ave, Third Floor
`Texarkana, Texas
`75501
`903.794.1018
`brenda_smith@txed.uscourts.gov
`
`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
`
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANT:
`
`BRADLEY W. CALDWELL
`JASON D. CASSADY
`JOHN AUSTIN CURRY
`CALDWELL CASSADY & CURRY
`2101 Cedar Springs Road, Suite 1000
`Dallas, Texas
`75201
`
`T. JOHN WARD, JR.
`WARD, SMITH & HILL, PLLC
`1127 Judson Road, Suite 220
`Longview, Texas
`75601
`
`ROBERT CHRISTOPHER BUNT
`PARKER BUNT & AINSWORTH
`100 East Ferguson, Suite 1114
`Tyler, Texas
`75702
`
`GREGORY S. AROVAS
`ROBERT A. APPLEBY
`JEANNE M. HEFFERNAN
`JOSEPH A. LOY
`LESLIE M. SCHMIDT
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York
`
`10022
`
`F. CHRISTOPHER MIZZO
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C.
`20005
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 3 of 335 PageID #: 32977
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`3
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`AKSHAY S. DEORAS
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, California
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`94104
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`MICHAEL E. JONES
`JOHN F. BUFE
`ALLEN F. GARDNER
`POTTER MINTON
`110 North College Avenue, Suite 500
`Tyler, Texas
`75702
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`******************************************
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 4 of 335 PageID #: 32978
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`(Open court, all parties present.)
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`COURT SECURITY OFFICER:
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`All rise.
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`THE COURT:
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`Good morning.
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`Can we have the
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`4
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`jury brought in?
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`MR. CALDWELL:
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`I think we can for the cross of
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`Dr. Blaze.
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`There are certainly issues that we --
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`THE COURT:
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`I know there are a number of
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`issues later on.
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`But we can go ahead and start with
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`Dr. Blaze.
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`MR. CALDWELL:
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`I think so.
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`We can take care
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`of that on the first break.
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`THE COURT:
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`Okay.
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`Good.
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`(Jury in.)
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`THE COURT:
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`Please be seated.
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`Good morning, ladies and gentlemen of the
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`jury.
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`Welcome back.
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`I hope everyone had a nice, restful
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`weekend.
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`When we concluded on Friday afternoon,
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`Dr. Blaze had completed his direct examination.
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`Mr. Caldwell, you may cross-examine the
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`witness.
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`MR. CALDWELL:
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`Thank you, Your Honor.
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 5 of 335 PageID #: 32979
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`5
`DR. MATTHEW BLAZE, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
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`BY MR. CALDWELL:
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`CROSS-EXAMINATION
`
`Q.
`
`A.
`
`Q.
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`Good morning, Dr. Blaze.
`
`Good morning.
`
`Do you recall that we met at your first
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`deposition?
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`A.
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`Q.
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`Yes, I believe that was my first deposition, yes.
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`Just as a reminder, I'm Brad Caldwell.
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`You
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`understand that I represent VirnetX, correct?
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`A.
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`Q.
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`Yes.
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`Now, Dr. Blaze, you spent a lot of time going
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`through your CV and experiences.
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`But would you agree
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`with me that the most important things in your analysis
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`09:04AM
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`are the patents, the patent claims, and how the
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`patents -- I'm sorry -- and how the products work?
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`A.
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`Certainly.
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`And, of course, the Court's
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`construction.
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`Q.
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`Absolutely.
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`And we'll talk about that in just a
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`09:04AM
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`second.
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`Dr. Blaze, I'm not sure this came out.
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`Are you
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`being paid by Apple or Apple's lawyers for your work on
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`the case?
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`A.
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`Q.
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`A.
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`09:04AM
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`Yes.
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`How much per hour?
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`$600.
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 6 of 335 PageID #: 32980
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`Q.
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`Now, as between you and Dr. Jones, who has spent a
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`lot more time studying these products and studying the
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`patents?
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`A.
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`Well, I believe Dr. Jones has been working -- been
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`engaged by VirnetX for considerably longer than I have.
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`My involvement in this case started after his.
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`And I
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`believe he -- I don't recall the exact number of hours he
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`said he's put into this case, but I believe it was more
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`than the number of hours I've put in.
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`Q.
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`I believe he testified that he had put about 700
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`hours into the case?
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`A.
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`Q.
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`A.
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`Q.
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`Uh-huh.
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`Does that sound about right?
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`Yeah, I think so.
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`You're more on the order -- at least through your
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`deposition, you're more on the order of 100 to 125, 130?
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`A.
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`So I've spent -- by the end of the year, 2015, I
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`had spent a total of 250 hours.
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`And I haven't calculated
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`my -- I haven't done any billing since the beginning of
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`the year.
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`Q.
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`When did you first get involved in the case,
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`Dr. Blaze?
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`09:05AM
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`A.
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`Q.
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`It was in mid to late, 2014.
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`At the time of your second deposition, you told us
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`09:05AM
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`you had billed somewhere between fifty and $100,000.
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 7 of 335 PageID #: 32981
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`Does that sound right?
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`A.
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`Q.
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`That sounds right.
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`Okay.
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`So even if we pick something slightly on
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`the high side, like 80,000 for the sake of discussion, is
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`that okay for the sake of discussion?
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`A.
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`Yeah.
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`As I said, by the end of the year I had
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`billed for 250 hours.
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`Q.
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`You realize I'm asking you at the time of your
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`second deposition about 80,000 is fair for the sake of
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`discussion, correct?
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`A.
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`Q.
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`point?
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`A.
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`Q.
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`A.
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`Q.
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`09:06AM
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`Yes.
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`And that would be approximately 133 hours at that
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`Yes, doing the division.
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`Dr. Blaze --
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`And I can't give you an exact number.
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`Dr. Blaze, will you agree with me that you did not
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`have access to the entire universe of documents in this
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`case?
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`A.
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`I don't -- I don't know that I didn't.
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`Certainly,
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`I'm not aware that any documents weren't available to me.
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`Q.
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`Well, you were not given access to the document
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`production database, right?
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`A.
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`I wasn't given access to database, that's right.
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`I didn't do queries on any computer database for -- of
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 8 of 335 PageID #: 32982
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`documents, no.
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`Q.
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`And, in fact, when you got documents, it's because
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`Apple's lawyers gave them to you; isn't that right?
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`A.
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`Well, I was -- I was shown the relevant documents
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`that each side had produced and had access to all of
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`those documents.
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`Q.
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`Dr. Blaze, my question was:
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`When you were given
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`documents, they were the ones that were given to you by
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`Apple's lawyers, right?
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`A.
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`Apple's lawyers were the -- my source for all
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`documents, yes.
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`Q.
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`A.
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`All right.
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`I didn't independently obtain any Apple documents
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`from anyone other than the lawyers.
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`Q.
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`Would you agree that it's important to review
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`source code when doing an infringement analysis in a case
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`like this?
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`A.
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`Q.
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`Yes.
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`So we know you were probably around 130 hours by
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`09:07AM
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`the time of your second deposition.
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`So before that
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`point, approximately how many hours had you spent
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`reviewing source code?
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`A.
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`It would be hard to put an exact number on that.
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`But somewhere between -- somewhere between 30 and 60.
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`But this is a very rough estimate.
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`I -- you know, I
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 9 of 335 PageID #: 32983
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`didn't account for that time separately.
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`Q.
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`Dr. Blaze, you understand that in this case you've
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`been identified as an expert witness, correct?
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`A.
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`Q.
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`Yes.
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`And that means you're treated a little differently
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`than the fact witnesses in this case, right?
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`Yes.
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`You can give opinions?
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`Yes.
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`You're compensated?
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`Yes.
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`And unlike witnesses like Mr. Jansen, you are
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`allowed to stay in court whenever other witnesses are
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`testifying or when the court is sealed, correct?
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`A.
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`Q.
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`That's my understanding, yes.
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`But you missed most of the technical testimony on
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`Friday, right?
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`You weren't in here?
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`A.
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`You're talking about the testimony of the Apple
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`technical witnesses?
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`Q.
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`A.
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`Q.
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`Yes, sir.
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`That's right.
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`Obviously you were here for your own testimony.
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`I
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`just mean you weren't here when Mr. Jansen, Mr. Wood, and
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`Mr. Thirumalai testified on Friday, correct?
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`09:09AM
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`A.
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`That's right.
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 10 of 335 PageID #: 32984
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`Q.
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`I would like to talk a little bit about your
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`slides.
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`But before I go there, do you recall having some
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`slides where you listed like three elements related to
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`the '135 patent and you had some red X's?
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`A.
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`Q.
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`Yes.
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`And your point was those were elements that were
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`not met, correct?
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`A.
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`Q.
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`Yes.
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`Because we're trying to find out if all the
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`elements of the claims are met by the accused products,
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`aren't we?
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`A.
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`Q.
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`That's right.
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`So at some level of abstraction, it's your X's on
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`that chart versus Dr. Jones' checks that he found the
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`09:09AM
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`elements met, correct?
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`A.
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`Very broadly, yes.
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`Although, I mean, I should
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`point out that my understanding is that within each claim
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`a single element missing is sufficient for the purpose
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`of -- of non-infringement.
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`Q.
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`Yes, sir.
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`Now, you were here when Dr. Jones testified
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`and when he was cross-examined, weren't you?
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`A.
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`Q.
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`Yes.
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`Would you agree with me you did not hear
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`09:10AM
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`Mr. Arovas expose any mistakes in Dr. Jones' analysis of
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 11 of 335 PageID #: 32985
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`how the products work?
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`A.
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`Q.
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`I think -- I think that's a fair statement.
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`In fact, you would agree with me that even
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`Dr. Jones had no substantial disagreement about how the
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`products worked, right?
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`A.
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`In terms of the technical operation of products,
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`that's right.
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`We have disagreements about what you
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`would -- would conclude from those things.
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`Q.
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`Well, in fact, in your deposition, isn't it true
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`that you told us you originally thought Dr. Jones was
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`wrong about some of the sequence of events in the VPN On
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`Demand process flow?
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`A.
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`It's possible.
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`But you would have to refresh my
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`recollection precisely.
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`Q.
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`Well, do you remember telling us that you'd said
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`that before VPN On Demand software even looks and sees
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`that it's specified a domain name, it has already done a
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`DNS resolution?
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`Do you recall that?
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`09:11AM
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`A.
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`I don't recall the exact -- the exact testimony
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`that you're referring to, but I'll certainly take your
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`word for it.
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`Q.
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`Well, and then you also said it wasn't clear to
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`you that Dr. Jones understood that.
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`Do you -- does that
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`sound about right?
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`09:11AM
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`A.
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`I don't recall.
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`Q.
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`Well, in fact, his recitation of the order of the
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`steps was correct and your criticism of him was
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`backwards; isn't that right?
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`A.
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`Again, I -- I don't recall the precise question or
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`my precise answer, but...
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`Q.
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`Well, do you agree that the name, the domain name
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`is checked on the list before any DNS resolution in the
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`flowchart?
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`A.
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`So the domain name is checked before the -- I'm
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`sorry.
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`I'm not quite sure what -- what sequence of
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`events you're talking about.
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`You're not -- without
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`looking at the flowchart, I'm...
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`MR. CALDWELL:
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`This is Slide 1, Mr. Diaz.
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`Q.
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`(By Mr. Caldwell) This is the flowchart you wanted
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`to see, correct?
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`MR. APPLEBY:
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`This is confidential, Your
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`Honor.
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`Maybe seal the courtroom?
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`THE COURT:
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`Yeah.
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`Ladies and gentlemen of the
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`gallery, the courtroom is going to need to be sealed.
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`We'll let you back in just as quickly as we can.
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`MR. CALDWELL:
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`Your Honor, hopefully I can --
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`I mean, I -- we'll have to just see how the order goes,
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`but hopefully I can try to group some of this in the next
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`ten minutes.
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`THE COURT:
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`Very well.
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`09:11AM
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 13 of 335 PageID #: 32987
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`(Courtroom sealed.)
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`(Proceedings during this time are included in
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`a separate SEALED volume.)
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`(Courtroom unsealed.)
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`MR. CALDWELL:
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`May I proceed, Your Honor?
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`THE COURT:
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`You may.
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`Q.
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`(By Mr. Caldwell) So my question was:
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`On the
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`Internet, if you intercept a packet, you can always see a
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`sender, a destination, IP address?
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`Q.
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`right?
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`A.
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`Q.
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`Yes.
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`Even with communications that are anonymous,
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`That's right.
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`So the fact that someone might intercept the
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`09:54AM
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`packet and see an external IP address does not resolve
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`the question of whether or not the communication is
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`anonymous, right?
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`A.
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`That's right.
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`That question has to be resolved by
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`whether the IP address that they see is one of the
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`communicating parties.
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`MR. CALDWELL:
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`Can I have Slide 19, Mr. Diaz?
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`Q.
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`(By Mr. Caldwell) Do you recall showing us this
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`slide, Mr. Blaze?
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`A.
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`Q.
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`Yes.
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`Now, there's something that's missing from what
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`
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 14 of 335 PageID #: 32988
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`the hacker would see in your slide, right?
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`A.
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`I'm not sure what you mean that's missing.
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`It's --
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`Q.
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`Well, we just got through talking about how
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`there's an external IP address.
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`And let's just say if we
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`use these same IP addresses that Apple puts on its
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`slides, which I just added at the bottom -- okay?
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`Yes.
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`The hacker would see those, wouldn't he?
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`Yes.
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`And that's in something you agree is a VPN, right?
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`That's right.
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`You're not disputing that that provides the
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`claimed anonymity even though you can see those IP
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`addresses, correct?
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`A.
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`Q.
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`That's right.
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`And wouldn't you also agree that iPhones are
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`typically going to be behind some sort of a NAT whether
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`it's a cellular NAT or a router in a house?
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`A.
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`I -- I don't know if I'd agree that that would be
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`the typical scenario.
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`I -- I agree it would be a common
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`scenario, but I'm not sure I'd use the word "typical."
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`Q.
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`A.
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`You're just not sure whether it's typical?
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`That's right, because there are a variety of ways
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`in which these devices are used.
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`Some networks are
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`
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 15 of 335 PageID #: 32989
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`behind NATs; some networks are -- are not.
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`Q.
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`Did you ever test getting a publicly routable
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`IPV -- IPV4 address on an iPhone?
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`A.
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`I've certainly obtained in -- over the course of
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`using an iPhone, I've certainly gotten publicly routable
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`IP addresses.
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`Q.
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`A.
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`Q.
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`A.
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`yes.
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`Q.
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`A.
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`Q.
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`IPV4 addresses?
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`Yes.
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`Did you test that?
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`I certainly used an Internet connection with that,
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`Did you put it in your report?
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`I don't think so.
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`Now, in this scenario where an iPhone is behind a
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`NAT, like a wireless router at my house or at your
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`school --
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`A.
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`Q.
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`Fair?
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`Uh-huh.
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`-- the iPhone actually has a different address
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`than --
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`A.
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`I'm sorry.
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`Just to -- to correct that, in my
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`universe, no, it wouldn't -- wouldn't be behind a NAT.
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`The addresses are publicly routable.
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`Q.
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`At your house, do you have a typical consumer
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`router?
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 16 of 335 PageID #: 32990
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`A.
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`Q.
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`No.
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`Okay.
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`You understand what I mean by "a typical
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`consumer router"?
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`A.
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`Q.
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`No.
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`The average person who's the audience for an
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`iPhone might have a wireless router at their house,
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`right?
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`A.
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`Q.
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`Yes.
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`And in the scenario where you're using that, your
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`NAT or router has an IP address and your phone has a
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`different IP address that's a non-publicly routable
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`address, correct?
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`A.
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`Q.
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`That's the NAT scenario, yes.
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`Yes.
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`And so in that scenario, when we actually
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`09:57AM
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`modify your slide to reflect the addresses, you're seeing
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`an address of a VPN server and of the NAT rather than the
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`phone or anything in the private network, correct?
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`A.
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`When there's a VPN running from a phone that's
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`behind a NAT to the VPN server, yes.
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`Q.
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`Anonymity requires something that hides the
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`identifying information about at least one of the end
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`points, correct?
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`A.
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`Q.
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`That's right.
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`Now, you gave us a report in the case.
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`Do you
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`recall when that was that you put out your report?
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 17 of 335 PageID #: 32991
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`A.
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`Well, I -- I issued two reports -- two reports in
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`this case.
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`I don't remember the dates.
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`Q.
`
`A.
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`Q.
`
`Okay.
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`It was awhile ago, right?
`
`That's right.
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`And you were deposed after that, your deposition
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`was taken?
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`A.
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`Q.
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`That's right.
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`And even after your report's out and you're in
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`your deposition, didn't you tell us you had not even
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`thought about whether it's sufficient for anonymity that
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`you're hiding one of the communicating parties?
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`A.
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`That's right.
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`I'm assuming -- for the purpose of
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`my analysis, I'm assuming that VPNs do provide anonymity.
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`Q.
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`But you had put out a report on all these issues
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`without even thinking about the issue of whether hiding
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`one of the communicating parties is sufficient for
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`anonymity, correct?
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`A.
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`In -- in the VPN context, that's right.
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`I'm
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`assuming for the purpose of my analysis that VPNs do meet
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`the anonymity requirement.
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`So I didn't -- didn't include
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`an analysis of that in -- in my report.
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`Q.
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`You clarified as to VPNs, so let's talk a little
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`bit about FaceTime or iMessage.
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`Would you agree with me
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`that VirnetX does not need to prove that FaceTime or
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`09:59AM
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`iMessage is anonymous as to all possible attackers,
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`
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 18 of 335 PageID #: 32992
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`correct?
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`A.
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`Q.
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`That's right.
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`But there's no requirement that you hide from law
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`enforcement that has a subpoena, is there?
`
`A.
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`Q.
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`A.
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`Q.
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`No.
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`That's not an element of the claim, right?
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`No.
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`So when you show some Comcast manual that says we
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`could get you some old dynamic IP addresses when you come
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`to us with a Court order or a legal request, you're not
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`suggesting that that means anonymity is negated, are you?
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`A.
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`Well, that -- that informs us in doing the
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`analysis of how IP addresses are critical for anonymity
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`of various ways in which IP addresses can be used to find
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`further information.
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`Q.
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`But for the jury's purpose, you would agree that
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`the anonymity does not have to apply against all possible
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`attackers and it just has to apply against some
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`reasonable threat model, correct?
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`A.
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`Q.
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`That's right.
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`So what's reasonable varies in different context.
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`Wouldn't you agree?
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`A.
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`Q.
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`Absolutely.
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`So for a CIA agent or some top-secret corporate
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`communication, you might expect a higher degree of
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 19 of 335 PageID #: 32993
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`anonymity than you might expect for my wife talking to
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`her sister, correct?
`
`A.
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`That's right.
`
`I -- I think there -- you've
`
`described a scenario in which anonymity might not even be
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`required at all.
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`MR. CALDWELL:
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`Can I see Slide No. 21?
`
`Thank
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`you.
`
`Q.
`
`(By Mr. Caldwell) Let's talk a little bit about
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`anonymity, but first I want to use a few of the slides
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`that -- that you had.
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`Which of these slides are yours?
`
`A.
`
`I'd have to -- I'd have to look carefully.
`
`These
`
`are either all mine or very similar to slides that I
`
`used.
`
`Q.
`
`Do you agree with me that the two on the right
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`were yours and the two on the left are the two that
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`Mr. Jansen or Dr. Jansen talked about on Friday morning
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`when you were not in Court?
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`A.
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`Well, again, I wasn't in Court, so I can't say
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`what he used.
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`But I certainly think it's possible that
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`he might have used those.
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`Q.
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`Well, I see that down in the bottom the iPhones
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`are tilted in a little bit.
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`Do you see that?
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`A.
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`Q.
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`Yes.
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`And then yours, the black line around the IP
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`header and all that is a little thicker black line,
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 20 of 335 PageID #: 32994
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`right?
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`A.
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`Q.
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`yours?
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`Yes.
`
`Did you just use his slides, or did he just use
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`A.
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`Well, the slides for this were produced by a trial
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`graphics firm that was made available to me.
`
`I assume it
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`was the same firm and they were using the same -- same
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`graphical elements.
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`Q.
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`And you have literally the exact same "to" and
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`All that stuff is identical, right?
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`A.
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`Q.
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`That's right.
`
`My question is:
`
`Who decided that those would be
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`the elements that you -- that you demonstrated?
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`Was it
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`you or Dr. Jansen?
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`A.
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`Oh, I decided what would be in -- in my slides.
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`THE COURT:
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`Mr. Caldwell, would now be a
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`convenient time to take a short break?
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`MR. CALDWELL:
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`It would be fine.
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`THE COURT:
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`Okay.
`
`We'll be in recess for ten
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`minutes.
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`COURT SECURITY OFFICER:
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`All rise.
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`(Jury out.)
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`(Court in recess.)
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`(Open court, all parties present, jury not
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`
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 21 of 335 PageID #: 32995
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`present.)
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`COURT SECURITY OFFICER:
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`All rise.
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`THE COURT:
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`Let's have the jury brought in.
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`MR. CALDWELL:
`
`Your Honor, there's one thing
`
`that we were going to approach the bench on.
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`I don't --
`
`maybe it would be easier, instead of the whisper fest --
`
`we can still approach if you want us to.
`
`THE COURT:
`
`Sure.
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`(Bench conference.)
`
`THE COURT:
`
`Okay.
`
`MR. CALDWELL:
`
`So in the last trial, the
`
`witness who testified on behalf of Apple was Patrick
`
`Gates.
`
`You've heard that before?
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`THE COURT:
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`Right.
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`MR. CALDWELL:
`
`He made statements about the
`
`technical operation of NATs, and I want to ask him these
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`questions.
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`And as I understand the rulings on this --
`
`and we're not talking about the design-around and
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`misrepresentation and whatnot.
`
`But I want to actually,
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`just like any other Apple engineer with sworn testimony,
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`I want to ask him if he agrees with the way that these --
`
`these NATs operate.
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`And I'm just approaching just to
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`make sure that's not -- not some sort of an issue to talk
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`about the technical --
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`MR. APPLEBY:
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`It's testimony from the other
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 22 of 335 PageID #: 32996
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`case in a different context.
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`THE REPORTER:
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`I can't hear.
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`MR. APPLEBY:
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`It's testimony from the other
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`case in a different context.
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`It's an improper
`
`impeachment of this -- of this witness.
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`THE COURT:
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`Why is it relevant?
`
`MR. CALDWELL:
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`It's an expert.
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`And he's
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`sitting there saying that NATs don't -- NAT -- he says
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`that NATs don't hide devices that's behind them.
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`The sworn testimony this -- the guy Apple
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`brought says, well, the addresses of the devices on the
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`network, that is, we say, behind the NAT, the addresses
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`of those devices that are using the NAT are hidden from
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`the rest of the Internet.
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`As a result, those devices are
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`effectively hidden.
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`And the reason why Apple wants a different
`
`case, yeah, they're pointing in the opposite direction in
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`this case.
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`But it's still a technical fact.
`
`He's a
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`technical expert.
`
`It's not like I'm impeaching Jamie
`
`Wood on what some other human said.
`
`This is an expert
`
`who considered the deposition of this guy in the trial
`
`testimony.
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`THE COURT:
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`Was he asked about it at his
`
`deposition?
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`MR. CALDWELL:
`
`Was he -- well, he was asked
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 23 of 335 PageID #: 32997
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`about whether NATs provide anonymity.
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`THE COURT:
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`I know.
`
`But he -- was he
`
`confronted with Gate's statement at his deposition?
`
`MR. CALDWELL:
`
`With that particular Q and A
`
`from the trial, no.
`
`But he's -- he's --
`
`THE COURT:
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`I'm trying to understand why it's
`
`relevant.
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`MR. CALDWELL:
`
`Well, I don't understand -- I
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`mean, respectfully, I don't understand any world in which
`
`it's not relevant.
`
`You have an Apple guy who was
`
`specifically --
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`THE COURT:
`
`I know, but we're talking about --
`
`I mean, one of the things that I've said from the very
`
`beginning, Mr. Caldwell, is I don't want to have us retry
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`the first case.
`
`And it sounds to me like you're trying
`
`to retry the first case.
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`MR. CALDWELL:
`
`Definitely -- definitely not.
`
`And so let me characterize that.
`
`It's not my fault that it happens to be what
`
`he said in the trial.
`
`Just think about it.
`
`If it was
`
`just in Patrick Gate's deposition, right, I don't even
`
`have to say that he said it in the trial.
`
`But we all
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`confront experts with what the engineers say about the
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`operation of the products and the technology and the
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 24 of 335 PageID #: 32998
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`experts consider it.
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`I'm happy to say -- I can go
`
`edit --
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`THE COURT:
`
`I'm going --
`
`MR. CALDWELL:
`
`-- I can go edit the slide --
`
`THE COURT:
`
`Yeah, I'm going to allow you to
`
`ask him the question; but I don't want you to
`
`characterize it as being from the trial or the earlier
`
`litigation.
`
`If you want to say are you aware that, you
`
`know, Mr. Gates testified as follows.
`
`MR. CALDWELL:
`
`And I'll delete "trial" from
`
`that.
`
`Okay.
`
`MR. AROVAS:
`
`Okay.
`
`Your Honor, can I just --
`
`THE COURT:
`
`Mr. Arovas.
`
`MR. AROVAS:
`
`Yes?
`
`THE COURT:
`
`I'm going to have one person speak
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`on -- from each side on bench conferences, okay, unless
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`it's -- unless you're going to make a motion for a
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`mistrial, I'm going to rely on one person or the other
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`from each side to speak.
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`Okay?
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`MR. AROVAS:
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`My apologies, Your Honor.
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`THE COURT:
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`That's -- that's a new rule.
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`MR. AROVAS:
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`Okay.
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`And I appreciate knowing
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`it, and I will not break it.
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`(Bench conference concluded.)
`
`MR. CALDWELL:
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`I'm sorry.
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`10:22AM
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`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 25 of 335 PageID #: 32999
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`25
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`THE COURT:
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`Whenever you're ready.
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`MR. CALDWELL:
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`Yes, sir.
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`I'm sorry.
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`THE COURT:
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`Okay.
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`MR. CALDWELL:
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`That's my fault.
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`THE COURT:
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`Let's have the jury brought in.
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`COURT SECURITY OFFICER:
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`All rise for the
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`jury.
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`(Jury in.)
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`THE COURT:
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`Please be seated.
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`You may continue.
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`MR. CALDWELL:
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`Thank you, Your Honor.
`
`Q.
`
`(By Mr. Caldwell) Picking up where we left off,
`
`Dr. Blaze, would you agree with me that your slides and
`
`Dr. Jansen's slides were not prepared independently?
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`A.
`
`Q.
`
`No, I think that I would disagree.
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`Even though they have literally the identical
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`10:24AM
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`10:24AM
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`10:24AM
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`17
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`addresses, SIP information, you would disagree?
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`18
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`19
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`A.
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`Q.
`
`That's right.
`
`Even though they have literally the same
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`10:25AM
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`20
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`randomized set of encrypted data down in the red box --
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`25
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`10:25AM
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`MR. CALDWELL:
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`Can you highlight that,
`
`Mr. Diaz?
`
`Q.
`
`(By Mr. Caldwell) -- in both of them, you think
`
`they were prepared independently?
`
`A.
`
`Yes.
`
`
`
`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 26 of 335 PageID #: 33000
`
`26
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`Q.
`
`Well, I believe I asked you if you read Jamie
`
`Wood's testimony.
`
`But I don't know that I asked you
`
`about Dr. Jansen.
`
`Did you read Dr. Jansen's trial
`
`testimony?
`
`A.
`
`Q.
`
`No.
`
`Are you at least aware, because I understand
`
`you're not subject to the Rule -- are you at least aware
`
`that when Dr. Jansen was on that stand I went through
`
`with him some things that were missing from his slides
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`1 2 3 4 5 6 7 8 9
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`10:25AM
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`10:25AM
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`10
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`and we modified a slide?
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`11
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`12
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`13
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`14
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`A.
`
`Q.
`
`A.
`
`Q.
`
`All right.
`
`You were not aware of that?
`
`Not -- not specifically, no.
`
`Okay.
`
`Well, what I did -- and I won't walk
`
`10:26AM
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`15
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`through all the steps again.
`
`But basically what we
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`16
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`talked about is that it's reasonable to assume -- and I
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`17
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`will click back and forward here real quick.
`
`You can see
`
`18
`
`the elements that are being added?
`
`19
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`20
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`A.
`
`Q.
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`10:26AM
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`Yes.
`
`It's reasonable to assume that since you see a man
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`21
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`on the left-hand side and it's talking to a female, that
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`22
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`would be Susan's phone looking at Bob, for example,
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`23
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`correct?
`
`24
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`25
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`A.
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`Q.
`
`10:26AM
`
`All right.
`
`That's reasonable, isn't it?
`
`
`
`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 27 of 335 PageID #: 33001
`
`27
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`A.
`
`Q.
`
`Sure.
`
`And then one of them might be in a home, and one
`
`might be at a hotel.
`
`That's reasonable, isn't it?
`
`A.
`
`Q.
`
`Sure.
`
`That's a pretty common use for something like
`
`FaceTime.
`
`When I call back and tell my kids good night,
`
`that's a very typical use, right?
`
`A.
`
`Q.
`
`Certainly.
`
`And in that instance where the home has a router
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`1 2 3 4 5 6 7 8 9
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`10:26AM
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`10:26AM
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`10
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`with a network address translator, the 121.23 address is
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`11
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`actually the address of the NAT, correct?
`
`12
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`13
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`A.
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`Q.
`
`That's right.
`
`And, in fact, the user is almost certainly going
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`14
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`to have a non-publicly routable IP address, and the
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`10:27AM
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`consumer situation likely beginning with 192.168,
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`correct?
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`10:27AM
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`A.
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`That's right.
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`That's one of the address blocks.
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`There are others as well.
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`Q.
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`A.
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`Q.
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`Like 176.
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`And 10.0, that kind of thing, right?
`
`That's right.
`
`But still, of the 4 billion possible IP addresses,
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`22
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`there are only a few prefixes that are specifically
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`23
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`reserved for being behind NATs in the private space,
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`24
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`right?
`
`10:27AM
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`25
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`A.
`
`They're not specifically reserved for NATs, but --
`
`
`
`Case 6:12-cv-00855-RWS Document 442 Filed 02/04/16 Page 28 of 335 PageID #: 33002
`
`28
`
`They --
`
`-- they -- NATs are one scenario where they're
`
`Q.
`
`A.
`
`used.
`
`Q.
`
`Fair enough.
`
`They're specifically reserved not to
`
`be publicly routable?
`
`A.
`
`Q.
`
`That's right.
`
`And so, on the other hand, we have a hotel with a
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`NAT; and you see that would have the IP address that
`
`would be the 230 address, which I -- I forgot to type in
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`1 2 3 4 5 6 7 8 9
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`10:27AM
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`10:27AM
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`10
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`there.
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`We've got the 230 address, would be the address
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`11
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`of the NAT, correct?
`
`12
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`13
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`A.
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`Q.
`
`Yes.
`
`And then inside the hotel someone using their
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`14
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`Internet might have a 192.168 address or a 10.0 address,
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`10:28AM
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`15
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`right?
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`16
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`17
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`A.
`
`Q.
`
`That's right.
`
`So would you agree with me, then, that when your
`
`18
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`hacker on the Internet intercepts this packet, he does
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`19
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`not see the address of Susan's phone and Bob's phone,
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`10:28AM
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`20
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`correct?
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`21
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`22
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`23
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`24
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`25
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`10:28AM
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`A.
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`He sees the Internet address of Susan
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