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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FINJAN,

PLAINTIFF,

VS.

CISCO SYSTEMS, INC.,

DEFENDANT.

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CV-17-00072-BLF

SAN JOSE, CALIFORNIA

SEPTEMBER 18, 2019

PAGES 1-24

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE BETH LABSON FREEMAN

UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S

FOR THE PLAINTIFF: PAUL J. ANDRE

KRAMER LEVIN NAFTALIS & FRANKEL

990 MARSH ROAD

MENLO PARK, CA 94025

FOR THE DEFENDANT: LOUIS NORWOOD JAMESON

DUANE MORRIS LLP

1075 PEACHTREE STREET, N.E., SUITE 2000

ATLANTA, GA 30309

APPEARANCES CONTINUED ON THE NEXT PAGE

OFFICIAL COURT REPORTER: SUMMER FISHER, CSR, CRR

CERTIFICATE NUMBER 13185

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED WITH COMPUTER

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A P P E A R A N C E S (CONTINUED):

FOR THE PLAINTIFF: JAMES R. HANNAH

KRAMER LEVIN NAFTALIS & FRANKEL

990 MARSH ROAD

MENLO PARK, CA 94025

FOR THE DEFENDANT: JOSEPH ANDREW POWERS

DUANE MORRIS LLP

30 SOUTH 17TH ST.

PHILADELPHIA, PA 19103

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SAN JOSE, CALIFORNIA SEPTEMBER 18, 2019

P R O C E E D I N G S

(COURT CONVENED AT 9:11 A.M.)

THE CLERK: CALLING CASE 15-0072. FINJAN VERSUS

CISCO SYSTEMS.

COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES.

MR. ANDRE: GOOD MORNING, YOUR HONOR.

PAUL ANDRE FOR FINJAN, WITH ME TODAY IS JAMES HANNAH.

MR. HANNAH: GOOD MORNING, YOUR HONOR.

THE COURT: GOOD MORNING. NICE TO SEE YOU.

MR. JAMESON: GOOD MORNING, YOUR HONOR.

WOODY JAMESON FOR CISCO SYSTEMS, AND WITH ME IS

JOE POWERS. AND FROM THE CLIENT, CISCO, IS LEAH WATERLAND.

THE COURT: GOOD MORNING. HAVE YOU APPEARED BEFORE?

MR. JAMESON: THIS IS MY MAIDEN VOYAGE.

THE COURT: EXCELLENT. WELCOME.

MR. JAMESON: THANK YOU.

I HAVE BEEN IN THE COURTROOM OBSERVING SOME OF THE TRIALS

IN THE PAST, BUT THIS IS THE FIRST APPEARANCE IN FRONT OF YOU,

SO I LOOK FORWARD TO IT.

THE COURT: GOOD. AND WHERE HAVE YOU TRAVELLED FROM?

MR. JAMESON: ATLANTA, GEORGIA.

THE COURT: WELCOME. GLAD TO HAVE YOU.

MR. JAMESON: A SOUTHERNER IN CALIFORNIA.

THE COURT: THAT'S GREAT. AND MR. ANDRE IS NO

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STRANGER TO THIS COURTROOM.

MR. ANDRE: AND YOUR HONOR, I'M ACTUALLY --

MR. HANNAH BROUGHT ME ALONG TO TALK ABOUT YOUR ORDER REGARDING

THE HEARING, AND MR. HANNAH IS GOING TO DO THE SUBSTANTIVE

ARGUMENT, IF WE GET TO THAT.

THE COURT: THAT SOUNDS GREAT. THAT SOUNDS GREAT.

AND I WELCOME THE CISCO REPRESENTATIVE TOO. THANK YOU FOR

MAKING THE TIME.

WELL, LET'S TALK ABOUT MY INITIAL NOTE TO YOU, BECAUSE I'M

SURE THAT GOT YOUR ATTENTION.

SO THERE ARE A BUNCH OF MOTIONS THAT ARE STACKING UP THAT

WOULD BE AFFECTED BY THIS CONCERN OF MINE. I WOULD SAY THAT

PERHAPS THE MOTION TO STRIKE THE HALL-ELLIS REPORT IS UNTIMELY.

IT MAY BE DIFFERENT, BECAUSE THAT ACTUALLY WOULD FALL UNDER MY

SCHEDULING ORDER, AND IT MIGHT BE A DIFFERENT CIRCUMSTANCE.

BUT I'VE GOT TODAY'S MOTION, I'VE GOT A MOTION TO STRIKE, I'VE

GOT A DEFENSE MOTION TO STRIKE EXPERTS, TWO OF THEM, ACTUALLY,

THE DAMAGES THEORIES FROM LAYNE-FARRAR AND A SECOND MOTION.

SO THESE AREN'T DAUBERT MOTIONS, THEY ARE NOT ATTACKING

THE FOUNDATION OR THE QUALIFICATIONS OF THE EXPERTS, THEY ARE

ATTACKING THE ADMISSIBILITY OF EVIDENCE.

AND THEY ARE UNTETHERED TO ANY OFFERING OF THESE

PARTICULAR OPINIONS INTO EVIDENCE. AND SO IT WOULD BE LIKE YOU

PROVIDING TO ME A THUMB DRIVE OF ALL OF THE DISCOVERY IN THE

CASE AND ASKING ME TO SORT IT TO ADMISSIBLE AND UNADMISSIBLE

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BEFORE YOU DO YOUR WORK SO THAT YOU CAN ONLY RELY ON ADMISSIBLE

EVIDENCE. AND WE DON'T DO THAT. SO I WANT TO KNOW WHY THESE

MOTIONS ARE APPROPRIATE.

MR. ANDRE, IT'S YOUR MOTION.

MR. ANDRE: SURE.

AND I CALLED MY COLLEAGUE OVER HERE ON MONDAY AND TALKED

TO HIM AND SAID WHY DON'T WE JUST AGREE TO PUSH THEM OFF TO THE

PRETRIAL BECAUSE I THINK THEY WOULD HAVE THE SAME EFFECT.

THE COURT: OH, ABSOLUTELY.

MR. ANDRE: IT WOULD HAVE THE SAME EFFECT.

SO LET ME TELL YOU WHY WE FILED THE MOTION TO STRIKE.

IT'S BECAUSE WE HAVE BEEN GETTING A LITTLE BIT WHIPSAWED BY

DIFFERENT JUDGES IN THIS DISTRICT WITH OUR FINJAN CASES. WE

HAD AN ISSUE WHERE WE DIDN'T FILE A MOTION TO STRIKE AND THEY

SAID, YOU COULD HAVE DONE THAT EARLIER.

SO WE ARE BEING OVERLY CAUTIOUS HERE WITH COUNSEL. WE'VE

SEEN IT WITH DIFFERENT JUDGES REQUIRING A MOTION TO STRIKE. WE

THINK IT HAS THE SAME AFFECT AS IF WE PUSH TODAY OFF TO THE

PRETRIAL. WHEN I TALKED TO MY COLLEAGUE HERE HE SAID, AND I

AGREE WITH HIM, IT MIGHT NARROW THINGS, IT MIGHT FOCUS THE

CASE. SO THAT'S AN ADVANTAGE.

THE COURT: OF COURSE.

MR. ANDRE: BUT AT THE SAME TIME, BY THE TIME WE GET

TO IT AT THE PRETRIAL, THIS MAY BE MOOT. THE CASE MAY BE

NARROWED --

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THE COURT: MR. ANDRE, YOU HAVE THE EXPERIENCE WITH

ME AND MR. JAMESON DOESN'T, EVEN WHEN YOU FILE THE NIGHT BEFORE

DURING TRIAL, EVIDENTIARY OBJECTIONS FOR THE NEXT MORNING, I

WAIT UNTIL THE NEXT MORNING TO EVEN LOOK AT THEM BECAUSE SO

MUCH CHANGES AND SO MUCH IS MOOT OVERNIGHT.

MR. ANDRE: YEAH.

THE COURT: AND YOU'VE WATCHED THAT AND PARTICIPATED

IN IT THROUGH SEVERAL TRIALS.

MR. ANDRE: AND THAT'S THE REASON I MADE THE OFFER

THAT I WOULD BE QUITE WILLING TO PUNT THIS UNTIL WE GET CLOSER

TO TRIAL BECAUSE SOME OF THESE ISSUES MAY BE MOOT, BUT I DO

AGREE WITH COUNSEL, IT WOULD ALSO NARROW THE CASE, SO I THINK

THAT'S SELF-EVIDENT.

THE COURT: RIGHT.

BUT OF COURSE IF DISTRICT COURTS WERE TO PERFORM THAT

FUNNEL, THAT'S WHY I SAY, YOU GIVE ME ALL THE PRODUCED EVIDENCE

IN THE CASE AND LET ME NARROW IT BEFORE YOU ROLLED UP YOUR

SLEEVES.

MR. ANDRE: SO FROM OUR POSITION, WE ARE QUITE HAPPY

TO WAIT. BUT AT THE SAME TIME, WE ARE WILLING TO ARGUE AS

WELL.

WE JUST DON'T HAVE ANYTHING WAIVED. WE CAN TAKE THE

CURRENT BRIEFING AS FILED, BOTH THE ONES THAT WERE SCHEDULED

FOR THE NOVEMBER HEARING AND THIS ONE, AND JUST CONSIDER THEM

FILED.

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THE COURT: WELL, THEY VIOLATE THE PAGE LIMITS. THEY

HAVE TO BE FIVE PAGES FOR MY MOTIONS IN LIMINE.

MR. ANDRE: WELL, MAYBE WE GET AN EXCEPTION ON THAT

BECAUSE THIS IS PRETTY DENSE STUFF.

THE COURT: IT'S JUST THE WAY IT GOES.

MR. ANDRE: WE CAN MAKE IT FIVE PAGES --

THE COURT: I KNOW YOU CAN.

MR. ANDRE: -- IF NEED BE. WE CAN BE MORE SUCCINCT,

I'M SURE.

THE COURT: MR. JAMESON, IN YOUR VIEW, BECAUSE YOU

ARE SPONSORING SOME OF THESE MOTIONS AS WELL.

MR. JAMESON: YES, YOUR HONOR.

AND I GUESS MY STARTING PROPOSITION IS I THINK THAT THESE

MOTIONS ARE RIPE TO BE DECIDED NOW.

I OBVIOUSLY DISAGREE ON THE MERITS WITH THEIR MOTION,

WHICH WE WILL GET INTO IT, BUT IF YOU LOOK AT THE HISTORY OF

THIS CASE, AND QUITE FRANKLY A LOT OF THE FINJAN CASES, THEY

ARE INCREDIBLY COMPLICATED.

THE COURT: I KNOW, I'VE HAD A COUPLE OF THEM MYSELF.

MR. JAMESON: I KNOW YOU HAVE.

AND IN FACT, IN THE FINJAN V. BLUE COAT CASE, IT APPEARS

THAT YOU ACTUALLY ENTERTAINED MOTIONS TO STRIKE OF THIS ILK AT

THIS STAGE OF THE CASE PRIOR TO TRIAL. AND IN OUR RESEARCH, IT

APPEARS THAT JUDGE GILLIAM DID IN FINJAN V. PROOFPOINT,

JUDGE ORRICK DID IN FINJAN V. SOPHOS, MAGISTRATE JUDGE CORLEY

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DID IN FINJAN V. SYMANTEC. AND GOING BACK IN TIME, IT LOOKS

LIKE YOU DID AS WELL IN CLEAR-VIEW TECHNOLOGIES V. RASNIC,

WHICH IS A LITTLE BIT OF A DATED CASE.

THE COURT: IT WILL LIVE ON FOREVER. THAT'S ANOTHER

MATTER.

MR. JAMESON: AND I THINK WHY THEY ARE TIMELY NOW, OR

AT LEAST ASPECTS OF THE MOTIONS ARE TIMELY, ARGUMENTS THAT BOTH

SIDES ARE MAKING ARE TIED TO A FAILURE TO DISCLOSE IN

COMPLIANCE WITH EITHER THE LOCAL RULES OR THE CMC ORDERS IN

THIS CASE.

AND THERE'S AN ARGUMENT WHILE THIS IS STYLED AS A MOTION

TO STRIKE EXPERT THEORIES, THEY COULD HAVE ARGUABLY FILED THIS

AS A MOTION FOR FAILURE TO COMPLY WITH THE COURT'S THIRD

ELECTION OF ASSERTED THEORIES IN THIS CASE.

THE COURT: AND OF COURSE YOU ARGUED THAT IN YOUR

PAPERS. THAT'S CERTAINLY POSSIBLE, THAT WOULD HAVE GONE RIGHT

TO THE MAGISTRATE JUDGE TO DEAL WITH. AND I THINK IT'S

JUDGE VAN KEULEN IN THIS CASE, SHE WOULD HAVE DEALT WITH IT.

YOU KNOW, I APPRECIATE THAT I HAVE ENTERTAINED THESE

MOTIONS IN THE PAST, AND AS I SAW THESE MOUNT UP HERE, OUR

TRIAL IS IN THE SPRING --

MR. ANDRE: JUNE 1ST.

THE COURT: WELL, EXTENDED SPRING.

THIS REALLY -- WHAT CONCERNED ME, MR. JAMESON, WAS THAT MY

STANDING ORDER LIMITS THE MOTIONS IN LIMINE TO FIVE. AND IF

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YOU FILE ALL OF THESE MOTIONS THROUGHOUT THE MONTHS LEADING UP

TO THE FINAL PRETRIAL CONFERENCE, I THINK IT'S A VIOLATION OF

MY STANDING ORDER.

AND IT'S NOT A DAUBERT. I MEAN, I CLEARLY LOOKED AT THAT,

AND I LOOKED AT ALL THE OTHER MOTIONS AND FELT THAT THE MOTION

TO STRIKE THE REPORT AS UNTIMELY WAS DIFFERENT, AND I WOULD

ADDRESS THAT. I DON'T THINK THAT'S REALLY EQUAL TO AN IN

LIMINE MOTION.

THANK YOU FOR DOING THE RESEARCH ON WHAT ALL THE OTHER

JUDGES HAVE DONE. I ACCEPT THAT I HAVE ALLOWED THESE MOTIONS

IN THE PAST, AND MR. ANDRE HAS BEEN ON THE WRONG SIDE OF THE

DECISION IN OTHER COURTROOMS, AND I'M SORRY FOR THAT

INCONSISTENCY, I KNOW IT EXISTS. AND I THINK, MR. ANDRE, YOU

FOUND A LOT OF THINGS WERE DIFFERENT IN THAT OTHER COURTROOM

THAN IN THIS COURTROOM. SO THAT'S THE WAY IT GOES, I'VE BEEN

TOLD THAT BEFORE.

BUT I JUST -- I THINK THIS IS OUT OF ORDER. I THINK THAT

THERE'S NO PROVISION IN ANY OF OUR LOCAL RULES, ANY OF MY

STANDING ORDERS OR THE RULES OF CIVIL PROCEDURE THAT ALLOW FOR

THESE SERIATIM, EVIDENTIARY EXCLUSION MOTIONS THROUGHOUT THE

LIFE OF THE CASE.

AND PART OF THAT IS, IT ALMOST FEELS LIKE IT'S AN ADVISORY

OPINION HERE OF WHAT WOULD BE ADMISSIBLE IF IT WAS OFFERED.

AND IN FACT, I'M DEPRIVED OF THE CONTEXT IN WHICH IT WOULD BE

OFFERED AT TRIAL.

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AND IT STARTS WITH, THIS IS FINJAN'S MOTION, SO FINJAN IS

PRESUMING THAT YOU WILL ACTUALLY GO FORWARD ON THIS INVALIDITY

THEORY. AND IN FACT, YOU MAY CHOOSE NOT TO. FINJAN MAY NOT

EVEN GO FORWARD ON THE PARTICULAR CLAIM, AND THEN THE

INVALIDITY THEORY WILL NOT BE SUBMITTED TO THE COURT.

AND SO THAT WOULD HAVE WASTED MY TIME, FIRST OF ALL, ON

EXCLUDING EVIDENCE THAT WILL NEVER BE OFFERED IN TRIAL OR TO

SUPPORT A SUMMARY JUDGEMENT MOTION.

SO, YOU KNOW, IN GOING THROUGH THESE, YOU KNOW, IF THESE

ARE THE KINDS OF MOTIONS I ULTIMATELY WOULD DECIDE AND IT'S

REALLY A TIMING ISSUE.

MR. JAMESON: YOUR HONOR, I DON'T KNOW WHETHER YOU'VE

ALREADY MADE UP YOUR MIND, BUT IN THE EVENT THAT YOU HAVEN'T

ALREADY MADE UP YOUR MIND --

THE COURT: YEAH, PLEASE.

MR. JAMESON: -- FROM A CASE MANAGEMENT PERSPECTIVE,

THE PARTIES, PREPARING FOR THIS TRIAL IS GOING TO BE AN

ABSOLUTE MONUMENTAL UNDERTAKING, AND PREPARING OUR EXPERTS FOR

TRIAL IS GOING TO BE A MONUMENTAL UNDERTAKING.

AND, YOU KNOW, WE CERTAINLY HAVE PUT FORTH EXPERT REPORTS

WITH INVALIDITY THEORIES THAT WE INTEND TO PRESENT TO THE JURY

ONE DAY, ABSENT WE BEING TOLD THAT WE CANNOT.

AND, YOU KNOW, THE NUMBER OF STICKY TABS I HAVE ON THE

BINDERS RELATING TO THIS MOTION ALONE FOR ME TO GET UP TO SPEED

TO ARGUE THESE MOTIONS --

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THE COURT: -- SURE, SURE.

MR. JAMESON: AND THAT'S JUST ONE MOTION. JUST THE

IDEA THAT WE ARE GOING TO DECIDE ALL OF THIS STUFF IN THE

30 DAYS BEFORE TRIAL, IT WOULD BE OF GREAT ASSISTANCE TO THE

PARTIES, EXPENSE OF THE PARTIES, TO UNDERSTAND, YOU KNOW, IF

THESE THEORIES ARE OUT. I MEAN, I DON'T WANT THE THEORY TO BE

OUT, BUT IT WOULD BE GOOD TO KNOW THAT.

AND IT'S THE SAME WITH RESPECT TO OUR MOTIONS AGAINST

FINJAN. I MEAN, IF DR. LAYNE-FARRAR CANNOT PUT FORTH A COUPLE

OF HER DAMAGES THEORIES BECAUSE FINJAN NEVER DISCLOSED THEM,

YOU KNOW, LEARNING THAT SOONER RATHER THAN LATER, IT'S GOING TO

SAVE THE PARTIES A LOT OF MONEY WITH RESPECT TO DAMAGES EXPERTS

AND TECHNICAL EXPERTS.

THE COURT: THE TRIAL IS A THOUSAND BITES, ISN'T IT.

WE DON'T DO IT THAT WAY THOUGH.

MR. JAMESON: WELL, BUT THAT IS THE ISSUE. AND IT'S

REALLY AN INTERESTING QUESTION TO ME, YOU ASKED THE QUESTION

ABOUT, IS THIS AN ADVISORY OPINION.

THE COURT: UH-HUH.

MR. JAMESON: WELL, BUT A DAUBERT MOTION BY

DEFINITION IS A FORM OF ADVISORY OPINION BECAUSE THAT THEORY

HAS NOT BEEN OFFERED INTO EVIDENCE YET AT TRIAL.

THE COURT: EXCEPT THE FEDERAL RULES OF EVIDENCE

PROVIDE FOR IT AND THE SUPREME COURT HAS ENDORSED THE FILING OF

THOSE MOTIONS IN ADVANCE OF TRIAL.

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MR. JAMESON: MOTIONS IN LIMINE ARE A FORM OF AN

ADVISORY OPINION AND THERE'S ACTUALLY CASE LAW THAT SAYS THAT

THEY ARE ADVISORY OPINIONS.

THE COURT: YOU KNOW, I THINK YOU ARE RIGHT ON THAT,

EXCEPT WHEN WE ARE ON THE EVE OF TRIAL AT THE FINAL PRETRIAL

CONFERENCE WHERE THE PARTIES IN THEIR FINAL PRETRIAL STATEMENT

HAVE SET THE ISSUES, AT LEAST THE OUTER BOUNDARIES. THE CASE

CAN CERTAINLY NARROW, BUT IT CAN'T EXPAND AT THAT POINT, IT

REALLY USES IT.

HERE'S MY CONCERN IS THAT I THINK THAT THIS PROCEDURE

ALLOWS THE PARTIES TO DEVELOP FAR-FETCHED UNSUPPORTED OPINIONS

THAT CAUSE THE OPPONENT TO PUT THIS ENORMOUS AMOUNT OF WORK

INTO BEATING THEM DOWN, KNOWING THAT THEY STILL HAVE TIME TO

REEVALUATE AND REPOSITION THE CASE IF THE CRAZINESS IS KNOCKED

OUT.

AND SO I'M TROUBLED BY THAT. YOU TALK ABOUT CASE

MANAGEMENT. I THINK THIS ACTUALLY ULTIMATELY HAS THE OTHER

IMPACT ON A CASE IN BLOWING IT UP. AND YOU BOTH HAVE LITIGATED

MANY OF THESE CASES. YOU'VE SEEN FAR-FETCHED OPINIONS OF

EXPERTS THAT YOU KNOW WILL NEVER SEE THE LIGHT OF DAY. BUT IF

THERE CAN BE A FORUM A YEAR IN ADVANCE OF TRIAL TO TEST THEM

OUT, THEN ALL YOU NEED THEN IS TO JUST COME UP WITH ANOTHER

GROUP OF OPINIONS.

THIS WAY IT KIND OF, IT'S A LITTLE BIT LIKE BASE BALL

ARBITRATION HERE BECAUSE YOU DON'T KNOW UNTIL THE FINAL

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PRETRIAL CONFERENCE WHETHER IT'S IN OR OUT. AND IF ALL YOU

HAVE IS A CRAZY THEORY AND IT'S OUT, THEN YOU STAND THERE IN

FRONT OF THE JURY AND MAKE YOUR PITCH WITHOUT ANY SUPPORT.

AND I THINK THAT'S A GOOD CASE MANAGEMENT TOOL TO LET

EXPERIENCED LAWYERS GAUGE THE APPROPRIATENESS OF THE WORK THEY

ARE DOING RATHER THAN TOSSING IT ALL AGAINST THE WALL TO SEE

WHAT STICKS, BECAUSE THAT'S REALLY WHAT'S GOING ON HERE, IN MY

VIEW.

AND I ACKNOWLEDGE THE OBLIGATION OF THE COURT TO ASSIST IN

CONTROLLING THE COST OF LITIGATION, AND I'M ALWAYS CONCERNED

ABOUT THE IMPACT ON YOUR CLIENTS OF FUNDING THIS LITIGATION,

THEY HIRED THE BEST FIRMS IN THE COUNTRY AND YOU GIVE THEM THE

BEST WORK THAT YOU HAVE.

AND SO -- AND I'VE SEEN ATTORNEY'S FEES BILLS. I KNOW

THAT COMES AT QUITE A HIGH COST, AND I'VE WATCHED THIS CASE.

THIS CASE HAS BECOME MORE COMPLICATED BY THE MANNER IN WHICH

IT'S BEEN LITIGATED THAN ANY OF THE OTHERS.

AND YOU KNOW, I SAY THAT BECAUSE I'VE SEEN THE OTHER

CASES, I'VE HAD THIS DISCUSSION WITH MR. GAUDET IN THE PAST.

ABOUT THING THAT IS HAVE BEEN DISPUTED. NOW THIS ISN'T YOUR

MOTION TODAY, SO YOU ARE JUST DEFENDING, BUT I DON'T SEE THIS

CASE AS BEING TOO COMPLICATED TO GET READY FOR TRIAL.

I HAVE CASES WHERE I HAVE 50 OR 70 LAWYERS IN MY COURTROOM

WHO ARE GOING TO WORK ON THE CASE AND THEY FUNNEL IT ALL

THROUGH ME AND I DON'T KNOW, IT MAY NOT BE PRETTY SOME DAYS,

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BUT WE DO GET IT DONE, AND YOU'VE DONE THAT YOURSELF I'M SURE

WITH TEAMS THAT YOU'VE TAKEN INTO TRIAL ALL OVER THE COUNTRY.

SO I'M ACTUALLY NOT INCLINED TO CONSIDER THIS OR TWO OTHER

OF THE MOTIONS. AND, YOU KNOW, I WAS CONCERNED ABOUT SOME OF

THE ISSUES THAT WERE RAISED. I CERTAINLY THINK THAT THE ISSUE

OF MODIFICATION OF THE JANUS 0.8 IS A REALLY IMPORTANT

EVIDENTIARY ISSUE ON ADMISSIBILITY. I WAS CONCERNED ABOUT WHAT

YOU REFERENCE IN YOUR PAPERS, MR. JAMESON, AS A -- THE ROLE OF

THE FIRST AND SECOND ELECTIONS AND THE SEPARATE ROLE OF THE

THIRD ELECTION OF PRIOR ART REFERENCES.

MR. ANDRE DIDN'T COMMENT ON IT, BUT YOU SUGGEST THAT THE

PARTIES UNDERSTOOD THAT IN THE FIRST AND SECOND ELECTIONS YOU

WERE JUST THROWING OUT PRIOR ART REFERENCES, AND IT WAS ONLY IN

THE THIRD ELECTION THAT THE COMBINATIONS WOULD BE SET.

I DON'T RECALL THAT. AND THAT WAS SOMETHING THAT WAS

LEFT, MR. ANDRE DIDN'T ADDRESS IT IN THE REPLY BRIEF, OR I

MESSED IT, AND I APOLOGIZE ON THAT.

MR JAMESON: CAN I COMMENT ON THAT?

THE COURT: YEAH.

MR. JAMESON: OKAY. THIS GOES BACK TO THE ORIGINAL

CASE MANAGEMENT CONFERENCE IN THIS CASE, THE VERY FIRST ONE.

AND THE PARTIES HAD A FAIRLY SIGNIFICANT DISPUTE ABOUT HOW ARE

WE GOING TO NARROW THE PRIOR ART IN THIS CASE.

AND FROM CISCO'S PERSPECTIVE, WE WANTED TO FOLLOW THE

FEDERAL CIRCUIT MODEL RULES THAT USED TO BE OR AN APPROACH

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SIMILAR TO THAT. AND THERE WAS A -- AND OBVIOUSLY FINJAN

WANTED US TO DO THINGS MUCH EARLIER IN THE CASE, AND YOU MADE

COMMENTS ON THE RECORD ABOUT, YOU KNOW, THIS IS ALWAYS A TOUGH

ISSUE BECAUSE WE NEED TO BALANCE THE TWO AND BE FAIR TO BOTH

SIDES.

AND LITERALLY, YOU KNOW, IT'S DOCUMENT 51, THE DIALOG ON

THIS BEGINS AT PAGE 13, AND IT GOES FOR ABOUT 13 PAGES. AND

MR. ANDRE'S STATEMENTS AT THAT POINT IN TIME WERE ALONG THE

LINES OF, WHAT I NEED TO KNOW IS WHAT ARE THE COMBINATIONS

30 DAYS BEFORE EXPERT REPORTS, BECAUSE WE ARE NOT TAKING

DISCOVERY ON THE INVALIDITY ISSUES.

SO AS LONG AS I KNOW WHAT THOSE COMBINATIONS ARE 30 DAYS

BEFORE EXPERT REPORTS, THAT'S ALL I CARE ABOUT.

AND I MEAN, THAT'S EFFECTIVELY, IT'S A PARAPHRASE, BUT

IT'S AT PAGE 20 THROUGH ABOUT 23 OF THE TRANSCRIPT. AND PRIOR

TO THAT, THE PARTIES HAD REACHED AN AGREEMENT THAT FIRST

ELECTION, WE ARE GOING TO IDENTIFY 12 REFERENCES, WE ARE NOT

IDENTIFYING ANY COMBINATIONS AT ALL.

SECOND ELECTION, WE ARE GOING TO TAKE THE 12 REFERENCES

DOWN TO SIX, NO COMBINATIONS AT ALL, AND THEN YOU DECIDED SO

SET A SECOND CMC FOLLOWING CLAIM CONSTRUCTION. AND AT THAT

SECOND CMC, THE PARTIES AGREED ON THIS APPROACH OF THE THIRD

ELECTION, WE ARE GOING TO TAKE THE SIX REFERENCES AND WE ARE

GOING TO COME UP WITH A TOTAL OF NO MORE THAN SIX COMBINATIONS

FROM THOSE REFERENCES.

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AND THE PARTIES WORKED THAT OUT.

THE COURT: SO, LET ME SAY THAT THIS IS SOMETHING

THAT THE TWO OF YOU NEED TO MEET AND CONFER ABOUT, BECAUSE IF I

WERE, AT SOME POINT, TO CONSIDER THIS AND DETERMINE THAT THE

PARTIES HAD AGREED TO THE CONTENT OF EACH OF THE ELECTIONS AND

WHEN THE COMBINATIONS WOULD BE SET FORTH, THAT WOULD GUIDE ME.

MR. ANDRE, DO YOU AGREE WITH THAT?

MR. ANDRE: I DON'T HAVE ANY MEMORY OF THAT.

THE COURT: NO, NO, AN AGREEMENT -- THAT APPROACH

THAT YOU TWO SHOULD TALK ABOUT IT.

MR. ANDRE: ABSOLUTELY.

THE COURT: BECAUSE IF THE TWO OF YOU COME TO THE

RECOGNITION THAT THAT WAS THE APPROACH, THEN SOME OF THESE

ISSUES SHOULD RESOLVE THEMSELVES.

MR. ANDRE: I AGREE WITH THAT, YOUR HONOR.

AND I THINK THAT IS A MEET AND CONFER AND WE WILL

OBVIOUSLY -- IF WE PUT THIS INTO A MOTION IN LIMINE, WE WILL

HAVE THAT MEET AND CONFER BEFORE THAT, AND IT WILL BE A

FIVE-PAGE MOTION IN LIMINE.

THE COURT: WELL, IT'S NOT A COMPLICATED ISSUE IF THE

ISSUE BOILS DOWN TO -- THE COMBINATIONS ARE EITHER IN THE FIRST

AND SECOND ELECTIONS OR THEY ARE NOT, THAT'S NOT ROCKET

SCIENCE, AND THAT'S NOT HARD, AND WHAT THE CONTOURS OF YOUR

AGREEMENT OF THE CONTENTS OF THESE ELECTIONS. BECAUSE MY

CONCERN, AND MY ONLY CONCERN IN MY ORDERS, IS THAT ONCE THE

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COMBINATIONS ARE SET, THEY CAN'T BE RESCRAMBLED.

MR. JAMESON: AND THAT MAKES PERFECT SENSE,

YOUR HONOR.

THE COURT: WELL, IT DIDN'T IN EARLIER LITIGATION.

MR. JAMESON: WELL, NO, I HEAR YOU LOUD AND CLEAR ON

THAT. AND THAT, LITERALLY, THAT'S HOW THE PARTIES CAME UP WORD

PROCESS THIS APPROACH AND ULTIMATELY --

THE COURT: AND YOU MAY BE SUCCESSFUL ON THIS,

MR. JAMESON, BUT I'M GOING TO DEFER TO MEET AND CONFER BECAUSE

I HAVE A FEELING IT'S GOING TO WORK ITSELF OUT. AND THAT'S THE

BETTER WAY TO GO.

MR. JAMESON: AND YOUR HONOR, IT WAS REALLY AT PAGES

19 AND 20 OF THIS TRANSCRIPT. AND, I MEAN, THERE'S CONTEXT

BEFORE AND AFTER.

THE COURT: GOOD. THAT'S HELPFUL.

MR. JAMESON: BUT THEN IT LEAD TO YOUR INITIAL CMC

ORDER WHERE YOU SET FORTH FIRST ELECTION, 12 REFERENCES, SECOND

ELECTION, SIX REFERENCES. NO COMBINATIONS REQUIRED. FURTHER

CMC, THAT'S WHEN WE IDENTIFY THE SIX COMBINATIONS THAT ARE

GOING TO BE PART OF --

THE COURT: ALL RIGHT. I'M GOING TO LET MR. ANDRE GO

BACK AND TAKE A LOOK AT THAT.

SO RECOGNIZING THAT DIFFERENT JUDGES SEE THESE

DIFFERENTLY, THIS REALLY IS A MATTER OF CONTROLLING TRIAL, AND

IT IS DIFFERENT FROM JUDGE TO JUDGE. I THINK THIS MOTION IS

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PREMATURE, MR. ANDRE. AND SO I AM NOT -- I AM GOING TO DENY

THE MOTION WITHOUT PREJUDICE TO BEING REFILED AS MOTION IN

LIMINE.

I WANT TO BE CLEAR THAT IN TERMS OF CONTROLLING THE CASE,

MY STANDING ORDERS ARE VERY CLEAR THAT THERE ARE FIVE IN LIMINE

MOTIONS PER SIDE. AND THIS WOULD REALLY BE FOUR MOTIONS,

FRANKLY. I DON'T THINK YOU WANT ME TO TREAT IT AS FOUR

MOTIONS, BECAUSE IT'S FOUR SEPARATE SUBJECT MATTERS.

AND I DON'T JUST TELL YOU YOU CAN FILE 25 PAGES OF IN

LIMINE MOTIONS, YOU GET FIVE MOTIONS. IF IT'S A DAUBERT, YOU

ARE WELCOME TO HAVE DAUBERT CHALLENGES, BUT EACH EXPERT IS A

SEPARATE MOTION. YOU CAN'T CRUNCH IT TOGETHER AND STICK IT IN.

MR. ANDRE KNOWS THIS, BUT I WANT YOU TO BE CLEAR ON THIS,

EACH MOTION IS A SEPARATE SUBJECT. IT MAY HAVE MANY

SUB-ISSUES, BUT IF YOU ARE TRYING TO STRIKE A PARTICULAR -- AN

OPINION, I THINK AN IN LIMINE MOTION CAN BE BASED ON THE

PARTICULAR COMBINATION, AND THEN IT MAY HAVE A THREAD THROUGH A

COUPLE OF EXPERTS, AND I UNDERSTAND THAT, BUT I DON'T WANT YOU

TO GET INTO TROUBLE ON THAT.

SO I AM GOING TO DENY THIS MOTION, AND I AM INCLINED TO --

THEN I ALSO HAVE A MOTION TO STRIKE INFRINGEMENT THEORIES AND A

MOTION TO STRIKE DAMAGES THEORIES AT DOCKET 312 AND 326 THAT

I'M INCLINED TO ALSO DENY WITHOUT PREJUDICE AS SIMPLY BEING

PREMATURE, AND THAT WOULD CLEAR THE CALENDAR FOR THOSE.

AND I WILL RETAIN THE MOTION TO STRIKE THE SUPPLEMENTAL

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INVALIDITY EXPERT REPORT OR THE INVALIDITY REPORT AS BEING

UNTIMELY AT DOCKET 365, WHICH ISN'T SET UNTIL JANUARY, BECAUSE

I THINK THAT'S DIFFERENT.

MR. JAMESON: AND YOUR HONOR, LET ME MAKE ONE

COMMENT, IF YOU DON'T MIND, WITH RESPECT TO THE -- THE MOTION

TO STRIKE THE DAMAGES THEORIES IS SIMILAR TO THE MOTION.

THE COURT: I KNOW.

MR. JAMESON: OKAY.

THE COURT: THAT'S WHY I WOULD BE TREATING IT

SIMILARLY.

MR. JAMESON: I UNDERSTAND.

THE MOTION TO STRIKE THE INFRINGEMENT CONTENTIONS, AT

LEAST IN MY OPINION, THAT IS DIRECTLY TIED TO TWO PRIOR COURT

ORDERS ON THAT VERY ISSUE. THE FIRST ORDER WAS BY

JUDGE VAN KEULEN. THEY OBJECTED TO JUDGE VAN KEULEN'S ORDER,

AND THEN IT WAS APPEALED OR BROUGHT TO YOU.

THE COURT: RIGHT. YEAH.

MR. JAMESON: AND YOU AFFIRMED WHAT JUDGE VAN KEULEN

DECIDED.

SO I FEEL LIKE THAT'S A LITTLE BIT OF A DIFFERENT ILK THAN

THE --

THE COURT: THAT'S THE ONE ON DAMAGES OR --

MR. JAMESON: THAT'S THE ONE ON INFRINGEMENT.

THE COURT: OKAY.

MR. JAMESON: IT REALLY IS A -- FROM OUR PERSPECTIVE,

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IT'S A FLAVOR OF A VIOLATION OF TWO COURT ORDERS THAT HAD

INSTRUCTED FINJAN WHAT COULD BE IN THE CASE AND WHAT'S NOT IN

THE CASE. AND SO I THINK THAT'S A LITTLE BIT DIFFERENT.

THE COURT: I WILL TAKE A LOOK AT IT.

MR. JAMESON: THANK YOU.

THE COURT: I WILL ABSOLUTELY -- THIS MORNING I WENT

THROUGH THEM AT A PRETTY HIGH LEVEL, AND I WANTED TO MAKE IT

CLEAR I WAS LOOKING AT ALL OF THESE MOTIONS.

MR. ANDRE, ANY THOUGHTS ON THAT?

MR. ANDRE: I THINK IT'S SIMILAR. I THINK THEY ARE

ALL SIMILAR TO THE MOTION TO STRIKE. WHEN YOU LOOK AT WHAT

THAT MOTION IS ABOUT, IT IS WHAT'S IN THE INFRINGEMENT

CONTENTIONS, THE EVIDENCE SIDE THERE, YOU ADD MORE EVIDENCE IN

EXPERT REPORTS IS WHAT IT COMES DOWN TO IT. IS EVERYTHING YOU

CITE IN THE INFRINGEMENT CONTENTIONS WHAT YOU ARE LOCKED INTO.

IT'S SOMETHING, A SIMPLE MOTION IN LIMINE ON THAT GROUNDS

ALONE. THAT'S THE NUT SHELL OF THE ARGUMENT.

SO IS IT DIFFERENT, NOT REALLY.

MR. JAMESON: I WOULD JUST ASK THAT YOU TAKE A LOOK

AT IT.

THE COURT: I WILL ABSOLUTELY TAKE A LOOK AT IT, YES,

I WILL.

MR. JAMESON: THANK YOU.

THE COURT: AND LET ME BE CLEAR THAT TO THE EXTENT

THAT ANY OF THESE ISSUES ACROSS ANY OF THESE MOTIONS ARE RAISED

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BY THE EVIDENCE IN SUPPORT OF OR OPPOSITION TO THE SUMMARY

JUDGEMENT MOTION, YOU CERTAINLY CAN RAISE EVIDENTIARY

OBJECTIONS WITHIN THE CONFINES OF YOUR SUMMARY JUDGEMENT

PAPERS.

THAT WOULD BE ABSOLUTELY TIMELY. AND SO I DON'T WANT

ANYONE TO BE CONFUSED THAT YOU HAVE TO WAIT UNTIL TRIAL. I'M

JUST SAYING YOU HAVE TO WAIT UNTIL IT'S ACTUALLY OFFERED INTO

EVIDENCE, WHICH IS THE FINAL PRETRIAL CONFERENCE, THERE'S A

CONCESSION WE MAKE TO CLEARING THE WAY FOR TRIAL.

YOU ARE RIGHT. IT COULD EASILY BE SEEN AS AN ADVISORY ON

WHAT I DO AT TRIAL. BUT, YOU KNOW, THE FARTHER AWAY FROM TRIAL

AND THE FARTHER AWAY FROM ANY SUBSTANTIVE ARGUMENTS THAT GIVE

THE COURT CONTEXT THAN THESE THEORETICAL ARGUMENTS ON

ADMISSIBILITY ARE REALLY, YOU PUT A JUDGE IN A VERY DIFFICULT

POSITION.

AND IT'S AWFULLY EASY TO MAKE MISTAKES, EVEN HOW MANY

TIMES AT FINAL PRETRIAL CONFERENCES HAVE YOU WALKED OUT SAYING

GHEE, I JUST DIDN'T GET THE -- THE CONTEXT JUST WASN'T THERE.

WELL, WE CAN'T KNOW THE CASE THE WAY YOU KNOW IT. AS ONE JUDGE

SAID TO ME ONCE, I FINALLY UNDERSTAND THE CASE WHEN IT GOES TO

THE JURY. AND THAT'S PRETTY MUCH IT BECAUSE WE DO WHAT WE CAN.

MR. JAMESON: SOMETIMES WE DO TOO.

THE COURT: YEAH, WELL, THAT'S TRUE. I GET THAT.

ANYTHING ELSE WE NEED TO DISCUSS TODAY?

MR. ANDRE: I DON'T THINK SO, YOUR HONOR. I THINK WE

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ARE IN GOOD SHAPE.

THE COURT: I KNOW WE WILL COME BACK TO THESE ISSUES,

BUT AFTER SUMMARY JUDGEMENT, THE CASE WILL NARROW, AND AS YOU

GET READY FOR TRIAL, IT WILL NARROW MORE.

YOU KNOW, FIRST MR. ANDRE HAS TO GO FORWARD ON A PATENT

AND A PARTICULAR CLAIM BEFORE ANY OF THE INVALIDITY ISSUES EVEN

IS BEFORE THE COURT. AND THAT JUST TELLS ME THAT THERE WILL BE

SIGNIFICANT NARROWING.

WHATEVER THE TIME I GIVE YOU FOR THE TRIAL, MR. ANDRE CAN

TRY TO PROVE AS MUCH AS HE WANTS DURING THAT TIME, BUT HE'S

GOING TO BE BALANCING THE NEED TO PRESENT, THE NEED FOR THE

JURY TO UNDERSTAND.

SO IT JUST DOES BECOME MUCH MORE EFFICIENT AT THAT POINT.

MR. ANDRE: IT WORKINGS ITSELF OUT, USUALLY, DOESN'T

IT.

THE COURT: IT DOES. WELL, THAT'S THE ART OF BEING A

TRIAL LAWYER. I REALLY APPRECIATE THAT.

MR. JAMESON: WE LOOK FORWARD TO IT ONE DAY,

YOUR HONOR.

THE COURT: I HAVE NO DOUBT THIS CASE WILL GO TO

TRIAL.

MR. JAMESON: IT IS.

THE COURT: MY OTHER FINJAN CASES HAVE AS WELL, SO I

LOOK FORWARD TO IT.

OKAY. THANK YOU BOTH.

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MR. ANDRE: THANK YOU, YOUR HONOR.

MR. JAMESON: THANK YOU.

(THE PROCEEDINGS WERE CONCLUDED AT 9:41 A.M.)

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CERTIFICATE OF REPORTER

I, THE UNDERSIGNED OFFICIAL COURT

REPORTER OF THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

CERTIFY:

THAT THE FOREGOING TRANSCRIPT,

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

TRANSCRIPTION TO THE BEST OF MY ABILITY.

_________________________

SUMMER A. FISHER, CSR, CRR

CERTIFICATE NUMBER 13185 DATED: 10/7/19

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