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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

SABLE NETWORKS, INC., ET AL * September 28, 2020 

 *

VS. * CIVIL ACTION NOS. 

 *

JUNIPER NETWORKS, INC. * W-20-CV-524

DELL TECHNOLOGIES, INC., ET AL W-20-CV-569 

BEFORE THE HONORABLE ALAN D ALBRIGHT

TELEPHONIC DISCOVERY HEARING

APPEARANCES:

For the Plaintiff: Daniel P. Hipskind, Esq.

Dorian S. Berger, Esq.

Berger & Hipskind LLP

9538 Brighton Way, Suite 320

Beverly Hills, CA 90210

For Defendant Juniper: Paige Arnette Amstutz, Esq.

Stephen Burbank, Esq.

Stephen E. McConnico, Esq.

Scott, Douglass & McConnico, LLP

303 Colorado Street, Suite 2400

Austin, TX 78701

Eugene Y. Mar, Esq.

James Alex Reese, Esq.

Farella Braun & Martel, LLP

235 Montgomery Street, 17th Floor

San Francisco, CA 94104

For Defendant Dell: Michael J Newton, Esq.

Brady Randall Cox, Esq.

Alston & Bird LLP

Chase Tower, 2200 Ross Avenue

Suite 2300

Dallas, TX 75201

Emily Chambers Welch, Esq.

Alston & Bird LLP

1201 West Peachtree St., Ste. 4900

Atlanta, GA 30309

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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Court Reporter: Kristie M. Davis, CRR, RMR

PO Box 20994

Waco, Texas 76702-0994

(254) 340-6114

Proceedings recorded by mechanical stenography, transcript 

produced by computer-aided transcription. 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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(September 28, 2020, 1:30 p.m.) 

MS. MILES: Telephonic discovery hearing in Civil Action 

6:20-CV-524, styled Sable Networks, Incorporated and Sable IP, 

LLC versus Juniper Networks, Incorporated and Case No. 

6:20-CV-569, styled Sable Networks, Incorporated, Sable IP, LLC 

versus Dell Technologies Incorporated, Dell Incorporated and 

EMC Corporation. 

THE COURT: If I could hear announcements from all 

counsel, specifically who will be speaking, and a reminder to 

everyone, when you talk on the record, please identify who you 

are so we can get it down accurately. Starting with the 

plaintiff, please. 

MR. HIPSKIND: Thank you and good afternoon, Your Honor. 

This is Daniel Hipskind on behalf of the plaintiffs, and I'm 

joined on this call by my colleague Dorian Berger, and I will 

probably be the primary speaker. 

THE COURT: Very good. Thank you, sir. 

MS. AMSTUTZ: Good afternoon, Judge Albright. This is 

Paige Amstutz with Scott, Douglass & McConnico. I'm joined by 

my colleague -- or with my colleague Stephen Burbank. We also 

have our client representative Mr. Dave Saunders on the line, 

along with our co-counsel Eugene Mar and Alex Reese from 

Farella Braun & Martel, and depending on the topic at hand, you 

will hear from Mr. Mar or Mr. Reese. 

THE COURT: Very good. Thank you, and thank you to

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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everyone who's a client representative who took the time to be 

on this call today. I appreciate that. 

Who's up next? 

MR. NEWTON: Your Honor, this is Mike Newton representing 

the Dell defendants. With me are Brady Cox and Emily Welch of 

Alston & Bird. Unfortunately we don't have Mr. Tom Brown today 

of Dell because it is Yom Kippur. 

THE COURT: Okay. Anyone else? 

Okay. So when last we were together, we were trying to 

figure out what to do with everyone's schedule. Why don't we 

start -- Mr. Newton, I apologize. I've had several hearings 

since then. If you'll get me back refocused on -- I remember 

we were trying to coordinate Markmans and some other schedules. 

If you'll bring me up to speed, I'll let everyone chime in 

about what they think we ought to do. 

MR. NEWTON: Sure. This is Mike Newton again. 

So Cisco has a Markman scheduled for January 14th, and 

what we were thinking about doing is trying to consolidate the 

Juniper and Dell hearings perhaps for maybe April 2nd, and what 

that would allow us to do, since we do have patents that 

overlap between the Cisco, Dell and Juniper cases, is to brief 

less than all the terms once we see what your tentative will be 

on January 14th. So we had proposed a schedule to the other 

side where we start the Markman exchange process in early 

January and ultimately conclude with a Markman on April 2nd 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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which would involve Juniper and Dell at a single Markman 

hearing. 

THE COURT: And is Juniper okay with that? 

MR. MAR: Your Honor, this is Eugene Mar for Juniper 

Networks, and we are in agreement with Mr. Newton and the Dell 

team about having a consolidated Markman hearing out in April 

so we can have the benefits of Your Honor's ruling in the Cisco 

Markman hearing from January, and so we are in accord with the 

proposed dates that Mr. Newton has also suggested to plaintiffs 

here. 

THE COURT: And Mr. Hipskind? 

MR. HIPSKIND: Yes, Your Honor. This is Dan Hipskind for 

the plaintiff. 

We are fine with Dell's proposal regarding Markman. I 

think our concern is that they would use this -- or that the 

defendants would use this modest movement in the Markman date 

to gain an unfair advantage in unrelated areas if we move the 

trial dates that are on schedule. Specifically, we're 

concerned about four areas of prejudice if we move the trial 

dates, and those would be -- 

THE COURT: Mr. Hipskind, help me out here. If we set 

trials -- tell me -- I think that's right. I think that's when 

I pulled the plug and said we needed to have Juniper's counsel 

on. If you'll remind me when I scheduled the -- I assume I've 

scheduled Cisco and Juniper already for trial? 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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MR. HIPSKIND: Yes, Your Honor. 

THE COURT: Tell me those dates, please. 

MR. HIPSKIND: I will have to look up the Cisco date, but 

the Juniper trial date is February 28th, 2022, and the Cisco 

case is sometime in January 2022. 

THE COURT: Okay. Okay. That helps me, and that means -- 

so let me ask before I hear from Mr. Hipskind -- and I'll 

certainly give him a chance. Do the Juniper people intend -- 

that's a terrible way of asking. Let me try again. 

Mr. Mar, let me actually treat you like people. I 

apologize for that. Mr. Mar, if the Markman were not -- if 

Juniper were not until April 2nd, that would still give you 

about ten months to get ready for trial. Mr. Mar or Mr. Reese 

either one, how many patents are involved in the plaintiff's 

case against Juniper? 

MR. MAR: Your Honor, this is Eugene Mar. 

The answer to your question, Your Honor, there are six 

patents involved. 

THE COURT: Okay. Now, the advantage will be -- well, 

here's what I'm thinking about doing, which I ordinarily would 

not do, but it seems to me it may make sense in this unique 

case, and I think there's even maybe another case that is 

coming along as well that the plaintiff has filed. Ordinarily 

I stay discovery until the Markman for many reasons, but those 

reasons may not apply to this case. So for those of you who 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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have not been in front of me, what's going to happen at the 

Cisco Markman is at the -- number one, I'll be giving out 

tentatives the day before the Markman and at the Markman I will 

be confirming what the claim constructions are going to be. 

Here's what I'm going to do in this case so that I can keep 

everyone on track, at least Cisco and Juniper on track, and 

then this will benefit Dell as well in terms of when I set 

their trial date. I'm going to go ahead and open discovery for 

everyone -- by everyone I mean Cisco and Dell and Juniper and 

obviously the plaintiff, but I'm going to allow discovery to 

commence in this one unique case all at the same time when 

discovery gets exchanged between the plaintiff and Cisco. So 

that will allow Juniper to be conducting discovery in advance. 

That'll give Juniper in essence a year to be getting ready on 

most of the claim terms. And also we'll have the Markman on 

April 2nd and then we'll figure out where to go from there, but 

I'll be able to hold the trial date I think if I do that for 

Juniper. I'll allow discovery to take place. 

So give me just a second to run through my dates here. 

Let me add to that -- so let me add to that for Juniper, given 

this is a very odd duck for me in the way I'm doing things, if 

you -- if counsel for Juniper and plaintiff -- I would 

recommend that you go ahead now that you know you've got these 

kind of weird dates that are coming up, if you need help from 

me figuring out how best to organize your discovery and expert 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

8

reports, obviously talk with each other and try and get this 

worked out, but if for some reason you have problems, let me 

know. 

Also because of the unique situation we have here, if 

Juniper and the plaintiff want to adjust in some ways when 

their motions are filed to give themselves a little more time 

and make them closer to trial than what's in the standard 

schedule, I'll do that because at least some of what Juniper's 

going to be doing will be delayed by about two months. That is 

if they find the extra claim terms are necessary to be 

identified and construed, but this will give Juniper and the 

plaintiff a jump and they'll actually wind up having -- let me 

double-check here. But they'll actually -- Juniper will 

actually wind up having more than a year to do discovery and 

get ready for trial. 

So to recap, I'm going to set the Markman for Juniper and 

Dell for April 2nd of this year. Discovery will be allowed to 

open for Cisco and Juniper and Dell beginning immediately after 

the Markman takes place in the Cisco case on January 14th, and 

I'm going to maintain for now the trial date for Juniper of 

February 28th, 2022. 

So having said all that, Mr. Hipskind, is there anything 

else you needed to add? 

MR. HIPSKIND: No. As to the Juniper case, that all 

sounds great for the plaintiffs. Nothing to add. The only 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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thing to add for the Dell case would be a request for a 

March 2022 trial date. 

THE COURT: I'm going to take up -- I'm just -- I don't 

have a calendar here. March would -- probably sounds okay. 

April sounds okay, but let's -- let's take that up when I 

typically do. Well, let me ask the counsel -- Mr. Newton, is 

there any reason for you to think you wouldn't be ready by 

March of 2022, especially given the fact that your two trials 

are already going to possibly have come and gone and you'll get 

started discovery in February? 

MR. NEWTON: Your Honor, this is Mike Newton.

March is fine. We'll be ready. 

THE COURT: Okay. Mr. -- so everyone knows, I just don't 

have my calendar here. No one that knows me -- and some people 

on this call know me very well. No one would ever give me 

control over a calendar. And so I'll have to go to people who 

are much better at that than I am. And if we can set it in 

March, Mr. Hipskind, we will. If we don't have something 

available then, it'll be April, but it'll be in the March/April 

time period. 

If you -- if -- let me do this. Give me a second. I'll 

go ahead -- if you all will just be kind enough to give me a 

second, I'll e-mail my clerks and see if we can get a March 

date. Just a second. 

Gentlemen and ladies, I think we can accommodate March. 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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My law clerk Hannah will get back to you today I think sometime 

and give you the date in March of 2022. I think I was told 

that counsel for Juniper might have an issue they wanted to 

raise as well before we parted. So Mr. Mar or Mr. Reese? 

MR. REESE: Yes, Your Honor. Thank you very much. 

Go ahead, Eugene. 

MR. MAR: Your Honor, this is Eugene Mar. Just one

administrative thing. We do have a discovery issue, and Mr. 

Reese will be raising that with you shortly.

On the scheduling order, as -- we need a new deadline I 

guess by which the parties could submit a new scheduling order 

to the Court. I was hoping we could have at least a week. 

Given some of the dates articulated today, I think there might 

be some compression on the back end of the schedule that we'll 

have to work out with the plaintiffs. I'm particularly 

concerned about summary judgment and some of the pretrial 

conference events overlapping on a very short schedule for the 

Court. So if the Court perhaps could give us a week to work 

out with the plaintiffs a new proposed scheduling order to 

submit to you, Your Honor, that might be good. 

THE COURT: Well, I think I'm generally perceived as a 

very unreasonable person, but maybe I can overcome that in just 

this one case by saying I really -- I won't be sitting here 

waiting for it. If you all need a reason, that's great. I 

could pretend that I am, but I won't be. And so -- and let 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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me -- but I tried to signal this earlier. I understand that 

this is kind of a cattywompus deal that I'm doing here. And 

so -- and I don't want to unfairly take away from Juniper or 

the plaintiff, but typically the defendant is the one who files 

more summary judgment motions and stuff. So I definitely want 

Mr. Hipskind to be listening and understand that I'm certainly 

okay if you all make certain you have adequate -- and it's 

probably for the plaintiff's benefit too. I want to make sure 

you all still have an adequate amount of time to do your 

discovery, to get your expert reports done, take the 

depositions of your experts and get all that done despite the 

schedule I'm giving you. I mean, it's not terribly onerous. 

It's not the Eastern District of Virginia, but I understand 

it's slightly compressed and I'm happy to have you eat up some 

of what would ordinarily be the Court's time. I will tell you 

realistically though I need to have the final reply of whatever 

you're filing, Markman -- Markman. Gosh -- summary judgment or 

Daubert to me at least probably a month before the trial if you 

guys really want me to have an adequate amount of time to 

review it. Less time than that. I worry that's too compressed 

for me to finish reading everything and to get you all a 

hearing and really -- and deal with it fairly. But I think if 

I have a month at the end, I think that will probably be fine. 

And so keep that in mind. Does that -- and whenever y'all work 

this out, fine. If you can't work it out for some reason, just 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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let my folks know and we'll get on the phone with you. 

I would suggest only this: I would try and figure out 

this week whether or not you can work it out because next week 

I start a trial and I'll be less available to resolve something 

like this by phone on short order. So if you don't think 

you'll be able to work it out, let me know by Friday and I'll 

have another hearing like this by phone and I'll help you guys. 

Otherwise, I just don't know starting next Monday for a week 

when I'm going to have -- be able to break away and help you 

guys out. 

MR. MAR: Understood, Your Honor. Thank you. 

THE COURT: And then I think you said you also might have 

a discovery motion? 

MR. REESE: Yes, Your Honor. Thank you. This is Alex 

Reese on behalf of Juniper Networks. 

So I thought, Your Honor, if I could just take a moment to 

give you a little bit of chronology that a dispute relates to 

the plaintiff'S amended preliminary infringement contentions 

which they provided on September 17th. There's a little bit of 

chronology that puts that in context and why there's a dispute 

here. So if I could just take a step back. 

As relevant to this case, Juniper makes routers and

firewall devices. Sable, the plaintiffs, filed their complaint 

against Juniper on June 15th, 2020, and in the complaint the 

plaintiff accused a line of Juniper routers called the MX line, 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

13

the MX series of routers of infringement. The complaint also 

cites a large number of documents relating to the MX products 

that cites probably about a dozen documents relating to the MX 

series of products. 

A couple months after that on August 14th we had a meet 

and confer with plaintiff's counsel during which we informed 

plaintiff's counsel that Juniper intended to file a motion for 

disqualification, the Berger and Hipskind law firm which is 

plaintiff's lead counsel in this case. And we explained on 

that call the basis for the motion, and the basis was that two 

attorneys at Berger and Hipskind previously represented Juniper 

in patent infringement cases that we believe are substantially 

related to this one. And part of the reason, we explained on 

that call, part of the reason that we believe they're 

substantially related is that those previous cases involved 

some overlap in accused products. In other words, the products 

accused of infringement and the cases where plaintiff's counsel 

defended Juniper several years ago overlapped with the products 

that were identified in plaintiff's complaint here. So we 

informed them of that on August 14th during a meet and confer 

phone call. And then a few weeks later on September 10th we 

filed our motion to disqualify opposing counsel. 

That same day Sable provided its original infringement 

contentions, and even though the MX products, MX series of 

Juniper products were accused in the complaint in the September 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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10th infringement contentions, the MX products had been 

dropped, along with a couple other products lines that are 

identified in the complaint but not in the September 10th 

infringement contentions. 

So then a week later after having reviewed our 

disqualification motion, Sable amended infringement

contentions. The plaintiff sent proposed amended infringement 

contentions. And in those amended infringement contentions the 

plaintiff now re-accuses the MX line of routers. The same day 

they filed their opposition to this disqualification motion, 

and in that opposition the plaintiff admitted to having dropped 

certain products that are identified in the complaint but not 

in the infringement contentions for the purpose of avoiding 

disqualification. In other words, they were worried that the 

basis of Juniper's disqualification motion would be these 

overlapping products and so they dropped their infringement 

allegations against several lines of products in the hopes that 

it would help them avoid disqualification of their lead 

counsel. 

So with that -- with that rather lengthy chronology of 

already of a short case, of a young case I should say, we 

believe that the amended infringement contentions are improper 

because they don't comply with the Court's order governing 

proceedings. They don't comply with the Footnote 4 which I 

believe now might be Footnote 5 that requires diligence and 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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that any amendments be based on new information, information 

that the party did not have before the original contentions 

were served. And so we're asking the Court to strike the 

amended infringement contentions. Specifically it's just one 

chart, Exhibit E to the infringement contentions, that replaces 

the entire line of products that were accused in the original 

contentions served on September 10th and now accuses the MX 

products in Exhibit E. So that's the -- that is the basis or 

that is the chronology.

And the reason that we believe that the amended 

infringement contentions don't comply with the Court's order 

governing proceedings is, first, we don't believe that 

plaintiffs can show diligence. It clearly knew about the MX 

line of products since before filing the complaint because they 

are accused in the complaint. 

They also -- the plaintiff clearly reviewed a large amount 

of literature relating to the MX products before filing the 

complaint because it's quoted in the complaint, and they had 

three months, more or less, before they served their original 

infringement contentions, and in that time period they decided 

to drop the allegations of the MX products. So we don't 

believe they can show diligence. We also don't believe that 

the amendment is based on new information. There's no dispute, 

I believe, that the documents that plaintiffs rely on in their 

amended infringement contentions were all publicly available 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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before they served their original contentions in some cases 

several months or even information was publicly available even 

years before the original contentions. So although Sable has 

certified that it had not identified the information in the 

amended contentions before serving them, we believe information 

was available and perhaps it was in plaintiff's possession 

before they filed the amended infringement contentions. 

So we're asking the Court to strike the amended 

contentions and to go back to the original contentions which 

again accuse a different line of products, not the MX products, 

because we believe the amended contentions are improper. 

THE COURT: How are you prejudiced by the amendment? 

MR. REESE: To be candid, Your Honor, we don't think it 

causes much prejudice for Juniper. They filed these one week 

after their original contentions. So we believe that the Court 

should not allow these kind of tactics where they drop products 

specifically to avoid disqualification and then throw them back 

in once they read the basis of our disqualification motion. We 

don't think that complies with the standard that the Court set 

forth in its order governing proceedings. 

THE COURT: Okay. Well, yeah. You know, I don't -- you 

know, absent some prejudice to Juniper, which I don't see at 

this early stage, I don't really think it's -- I don't even 

know that I have the power -- I mean, in essence -- you're in 

essence actually kind of asking me to sanction them for their 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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conduct, and I don't -- I don't think it rises to that level by 

any means, and you can't show prejudice. So I don't know that 

I really even have the power to give you the relief that you're 

seeking in this situation if I can't make either finding. So 

I'm not going to do that at this time. I'm not going to strike 

the plaintiff's infringement contentions based on the scenario 

as I understand it. 

Is there anything else I can take up? 

MR. REESE: Yes, Your Honor. If I could -- this is Alex 

Reese again. If I could just ask if we could set -- some of 

this is a bit difficult to describe orally. If we could set 

forth the basis in a short, you know, no more than five page 

submission to the Court, I think it might aid in setting forth 

the full context, including the fact that much of the 

information that they're -- that the plaintiffs are now relying 

on was available long before the original contentions were 

served. That's a little hard to describe. 

THE COURT: Mr. Reese, I get that. I get that. It's 

just -- you know, none of us are perfect. I'm not taking the 

plaintiff's side here, but, you know -- you know, we're -- 

absent prejudice to you, if this were at the other end of 

the -- let me make clear. If this were at the other end of the 

case, we're about to go to trial, you know, you want to add -- 

they wanted to add something into an expert report that they've 

had for six months or something where I can't -- I've got -- 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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I'm trying to put all this on the record. You know, I have 

several tools here. If you had said you had prejudice, then I 

would have said, well, would having additional time to deal 

with them adding those products fix that because we could fix 

the prejudice. But when Juniper can't articulate -- and I 

don't think -- I think you're correct. I think you did exactly 

what you should. I would have been maybe a little disappointed 

if you would have said that Juniper was prejudiced unfairly, 

which is the standard, at this early stage. You know, the -- 

you know, I -- that's just not -- that's not my job, I don't 

think, is to keep people -- and it's not going to be my job to 

do that when you are -- not you in this case, but when a 

defense counsel says, Judge, you know, we did our best to find 

art and we didn't have it, or, we didn't appreciate we have the 

art but we didn't appreciate it, or, we had a reason why we 

didn't think it was the best thing to do to assert it at the 

time, but now we do. And plus you have a situation here where, 

you know, this isn't the last time I even allow infringement 

contentions. I'm going to allow amendment of the infringement 

contentions after the Markman and I'm going to allow amendment 

of invalidity contentions after the Markman. I really have a 

very strong belief that I ought to give the plaintiff every 

opportunity to assert whatever claims they feel that they're 

entitled to assert. I feel that defendants ought to have the 

opportunity to assert every defense that they have to 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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infringement or validity unless it's -- there's unfair 

prejudice to the other side by me allowing it to happen. I 

was -- I was on both sides of these issues for a long time, and 

so I -- I'm completely unbiased as to either side. I -- it's 

just as likely three years ago I would have been sitting in 

your seat, Mr. Reese, in this case as I would have been on the 

plaintiff's side. Probably more likely I would have been 

sitting on your side. 

I understand why you raised this issue, but you don't need 

to send me anything in writing. I think I've got a handle on 

what happened and I'm not going to strike the plaintiff's 

infringement contentions. 

Is there anything else we need to take up? 

MR. HIPSKIND: Your Honor, this is Daniel Hipskind for the 

plaintiffs. 

We have one other issue, if there's no other issues, that 

we'd like to request before we leave, which would be regarding 

this disqualification motion that Mr. Reese referenced. Their 

final reply brief is due Wednesday and we were hoping to obtain 

leave of the Court to file a short surreply by the next Monday 

which would be October 5th, and then at that point the motion 

would be fully briefed up and we would be ready for a hearing 

on that at the Court's convenience. 

THE COURT: Well, this is again going to kill my ambition 

to be unreasonable as often as possible, but the truth is, 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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Mr. Hipskind, I'm -- like I said, I'm starting trial Monday. 

So there's no imperative that you get this to us by Monday. If 

you all will get it filed next week -- and by you all I mean 

the plaintiff get it filed by next week, and then I do think 

this is something the Court needs to address very quickly 

though. So if you will get it filed next week and one of you 

would be so kind as to check with my court clerk if I'm 

available, and I should be the following week, I'd like to 

take -- I'd like to set a hearing on this to be done by Zoom, 

and -- unless you all wanted to do it in person in Waco which 

would be fine as well. But we can do it by Zoom. I would be 

happy to take this up not next week but the following week, and 

you all can contact my clerk. I think it's Hannah on this 

case, but I could be wrong. I think it's Hannah. If you'll 

check with her, you know, and get a couple of hours, you know, 

set aside, I will rule on this motion not next week but the 

following week.

So, Mr. Hipskind, if you'll just get your surreply filed 

by middle or late next week, that'll give me sufficient time to 

review it. Does that take care of your concern? 

MR. HIPSKIND: Yes, Your Honor. It does. Thank you. 

THE COURT: Anything else?

MR. REESE: Your Honor, this is Alex Reese again for 

Juniper. 

If I could just be heard on that issue. Just as 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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background, we had requested from plaintiff's counsel when we 

were -- when we were meet and conferring regarding the page 

limitations that would govern Juniper's motion for 

disqualification. We had proposed also additional pages for 

our reply brief. Plaintiff's counsel said they would agree but 

only if we agreed to a surreply. We refused and said we'll 

live with the five pages on reply because we think that it's 

our motion, so we should have the final word. If the Court is 

inclined to allow a surreply, which it seems like the Court is 

inclined to do, may we request ten pages for our reply brief 

which is due this week? We would otherwise be limited to five 

pages. 

THE COURT: Let me -- I hope that we post this hearing 

because you all have gotten to hear an awful lot about how I 

see the world. I think I have a hearing later today where the 

parties I think want to have 1,200 pages per side for their 

motions, and that is a little more weighty. I think I can tell 

everyone on this call that in my 900 -- what was it Joe Biden 

said the other day, he'd been a senator for 180 years? In my 

180 years of practicing law, I never denied anyone an extension 

of page limits. In fact, I usually said, I hope you -- I hope 

you file like 300 because I know how the Court will feel about 

that. So let me just assure you going forward in this case I 

think we have -- we try and keep our page limits with respect 

to the Markman at what the page limit is at because if we 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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don't, whatever number we give you all, you'll take, and we 

already have too much stuff to read. But in terms of the 

exchange of motions, responses, replies, surreplies, I would 

anticipate that everyone would agree without me needing to be 

involved or any exchange of anything else. A small addition. 

I find ten pages instead of five to be imminently reasonable, 

and you're certainly welcome to have ten pages for your reply 

and I think a surreply. I would -- I will always permit a 

surreply in every important motion as well. 

So, Mr. Reese, you have your ten pages. 

Mr. Hipskind, you have your surreply, and we will take up 

the motion to disqualify not next week but the following week. 

Is there anything else we need to take up? 

MR. HIPSKIND: Nothing on behalf of the plaintiffs, Your 

Honor. 

THE COURT: Mr. Reese or Mr. Mar? 

MR. MAR: Nothing else on behalf of Juniper. 

THE COURT: And, Mr. Newton, you've gotten to be awfully 

quiet throughout this entire process, which is always the best 

place to be I think whenever you're in front of a judge. 

So you all have a great week. Be safe out there. And 

like I said to all of you all, if you have any issues with -- 

in terms of resolving the scheduling order, just let me know as 

soon as you anticipate having those issues. I'll get involved. 

We'll get them resolved, but I want them resolved -- I want the 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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scheduling order issues resolved in September or very early 

October. I don't -- but, you know, I don't want you all 

feeling like you can't get started because of any delay with 

respect to that. I will be happy to be involved and resolve 

things for you if you have any issues. 

Have a good day. Take care. 

(Hearing adjourned at 2:06 p.m.) 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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UNITED STATES DISTRICT COURT )

WESTERN DISTRICT OF TEXAS )

I, Kristie M. Davis, Official Court Reporter for the 

United States District Court, Western District of Texas, do 

certify that the foregoing is a correct transcript from the 

record of proceedings in the above-entitled matter.

I certify that the transcript fees and format comply with 

those prescribed by the Court and Judicial Conference of the 

United States.

Certified to by me this 11th day of October 2020. 

 /s/ Kristie M. Davis

 KRISTIE M. DAVIS

Official Court Reporter

 800 Franklin Avenue

Waco, Texas 76701

 (254) 340-6114

kmdaviscsr@yahoo.com

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