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Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK 

DUANE MORRIS LLP

Nicole E. Grigg (CA SBN 307733) 

negrigg@duanemorris.com 

D. Stuart Bartow (CA SBN 233107) 

dsbartow@duanemorris.com 

2475 Hanover Street 

Palo Alto, CA 94304-1194 

Telephone: 650.847.4146 

Facsimile: 650.847.4151 

DUANE MORRIS LLP 

Joseph A. Powers (PA SBN 84590) 

Admitted Pro Hac Vice 

japowers@duanemorris.com 

Jarrad M. Gunther (PA SBN 207038) 

Admitted Pro Hac Vice 

jmgunther@duanemorris.com 

30 South 17th Street 

Philadelphia, PA 19103 

Telephone: 215.979.1000 

Facsimile: 215.979.1020 

Attorneys for Defendant 

CISCO SYSTEMS, INC. 

DUANE MORRIS LLP 

L. Norwood Jameson (GA SBN 003970) 

Admitted Pro Hac Vice

wjameson@duanemorris.com 

Matthew C. Gaudet (GA SBN 287789) 

Admitted Pro Hac Vice

mcgaudet@duanemorris.com 

David C. Dotson (GA SBN 138040) 

Admitted Pro Hac Vice 

dcdotson@duanemorris.com 

John R. Gibson (GA SBN 454507) 

Admitted Pro Hac Vice

jrgibson@duanemorris.com 

Jennifer H. Forte (GA SBN 940650) 

Admitted Pro Hac Vice

jhforte@duanemorris.com 

Alice E. Snedeker 

Admitted Pro Hac Vice

aesnedeker@duanemorris.com 

1075 Peachtree NE, Suite 2000 

Atlanta, GA 30309 

Telephone: 404.253.6900 

Facsimile: 404.253.6901 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FINJAN LLC., a Delaware Limited Liability 

Corporation, 

Plaintiff, 

v. 

CISCO SYSTEMS, INC., a California 

Corporation, 

Defendant. 

 

Case No.: 5:17-cv-00072-BLF-SVK 

CISCO SYSTEMS, INC.’S 

ADMINISTRATIVE MOTION TO 

CONTINUE THE OCTOBER 19, 2020 

JURY TRIAL OR TO IMPLEMENT 

PROCEDURES THAT ENSURE A 

FAIR TRIAL 

Case 5:17-cv-00072-BLF Document 720 Filed 09/29/20 Page 1 of 8
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28 1 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

Following the hearing held on September 17, 2020, Cisco reviewed and carefully considered 

the Court’s comments and more fully assessed the logistics and safety risks of a trial in San Jose 

during the pandemic in which all participants (witnesses, counsel, jurors, and the Court) are wearing 

masks. Cisco likewise investigated the willingness of its witnesses to travel from outside the country 

or from other cities within the country to appear at trial under the current conditions. To perfect the 

record, including and following up on Cisco’s concerns articulated at the September 17 hearing, 

Cisco formally requests a continuance to the Court’s first available date in January 2021, during 

which Cisco understands the Court’s docket has availability. 

If this case must press forward in the current environment, Cisco respectfully requests a 

shorter continuance of the trial currently set for jury selection on October 16, 2020 to November 2, 

2020 (or the Court’s first available date thereafter) to enable Cisco’s lead trial counsel to have a 

procedure to address a medical condition that periodically impacts his ability to draw a full breath of 

air, which is exacerbated when wearing a mask or talking while wearing a mask. A short 

continuance will allow him to have a currently scheduled medical procedure that, if successful, 

should ameliorate this condition and allow him to wear a mask in the courtroom throughout the trial 

without any additional side effects. The basis for this request is described below and more fully 

explained in the attached Declaration of L. Norwood Jameson (the “Jameson Declaration”), which is 

being filed under seal to protect personal privacy. 

In addition, if this trial is going forward under the current rules for conducting trials during 

the pandemic, Cisco also requests that the Court issue an Order requiring all fact witnesses to testify 

remotely and that neither party have a corporate representative at counsel table during trial. Such an 

Order is necessary to level the playing field because many of Cisco’s fact witnesses reside outside 

this district, in other states and in other countries, and Cisco cannot reasonably compel them to travel 

to California during the pandemic. Such an Order should extend to corporate representatives because 

the logical Cisco corporate representatives for this trial are not willing to travel to California during 

the foreseeable circumstances and expose themselves to the health risks associated with an extended 

stay in California during the trial. 

Case 5:17-cv-00072-BLF Document 720 Filed 09/29/20 Page 2 of 8
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28 2 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

Per the Court’s September 24, 2020 Order, Cisco recognizes that the Northern District of 

California has determined that jury trials can resume, effective October 1, 2020. The Court 

nonetheless has discretion to continue this trial. See, e.g., United States v. Cea, No. 2:19-cr-126-

MCE, Order at 3-4 (E.D. Cal. Mar. 25, 2020) (Ex. A). The Court should exercise that discretion here 

based on the considerations of safety and fairness, as addressed in more detail below. 

I. Cisco’s Reasons for the Requested Continuance 

Cisco concurs with the Court’s assessment of the health risks posed by Covid-19, as 

articulated at the September 17th hearing in this matter. See Ex. B at 41 (“I do think that the concern 

over Covid is a valid reason for a continuance if you are making that argument.”). Indeed, this case 

is not between competitors where one party is at risk of suffering irreparable injury. Rather, it is 

purely about money. And this does not justify proceeding with a jury trial during the pandemic that 

risks the health of the jurors, the Court and the Court’s staff, the witnesses, and the legal teams for 

both parties. This civil case will have at least 8 jurors, plus the Court and members of the Court’s 

staff, plus client representatives, plus at least a half dozen (likely more) members of each legal team 

(and IT support) present in the same courtroom for extended periods over the course of two weeks. 

Further, these individuals will each be interacting with family and friends (for in-town participants) 

and other members of the legal team and hotel staff (for out-of-town participants) when not in the 

courtroom. Cisco notes the particular danger posed by trying complex civil cases, necessitating war 

rooms staffed with many lawyers and assistants working long hours over those weeks. All of this 

presents a heightened health risk for everyone involved and, as Cisco explained at the September 

17th hearing, this alone is sufficient basis for this Court to exercise its discretion and continue the 

trial date until January 2021. 

Separate and apart from these risks, as the Court noted at the September 17th hearing, the 

State of California’s safety requirements,1 the Safety Protocols for the Northern District of 

California Courthouses, and this Court’s procedures for its courtroom, mandate that all trial 

                                                      

1

  https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID19/Guidance-for-Face-Coverings_06-18-2020.pdf at Ex. C; 

https://www.sccgov.org/sites/covid19/Pages/business-guidance.aspx#business_ops_requirements 

at Ex. D.

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28 3 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

participants – including counsel for the parties – wear face masks throughout trial, even throughout 

the entirety of opening and closing arguments and during lengthy witness examinations. Ex. B at 42 

(“I want to be clear that if we go further with trial, everyone in the Courtroom will be wearing a 

mask all of the time. Your witnesses will testify with masks, they will be encased in plexiglass, you 

will be – you will be asking questions and giving opening and closing arguments in a mask. And, I 

don’t know how much experience you have wearing a mask, but I do my criminal pleas in the 

Courtroom with a mask on, and I feel like I am going to suffocate after a half an hour.”) (Ex. B at 

42). This legal requirement presents a particular challenge for Cisco’s lead trial counsel, Mr. 

Jameson, who was not available for the September 17th hearing. While Mr. Jameson had informed 

Mr. Gaudet as a friend and colleague of his medical issue and the need for a medical procedure, Mr. 

Jameson had not authorized Mr. Gaudet to disclose the personal medical information filed herewith 

and did not anticipate the possibility of a trial in which the wearing of a mask at all times would be 

a requirement for lawyers in the courtroom. As explained in the attached Jameson Declaration, Mr. 

Jameson was recently diagnosed with a condition that has a periodic side effect of temporary 

shortness of breath. This side effect can be and has been exacerbated when wearing a mask, even 

for short periods of time (much less for extended periods of time). Cisco requests a short 

continuance – to at least November 2, 2020 – to allow Mr. Jameson to have a procedure, which if 

successful, will address this issue and would then allow him to wear a mask for extended periods 

without additional personal hardships. 

II. Cisco’s Reasons for Remote Trial Testimony 

While Cisco believes that the wearing of face masks as required by state law and court rules 

are necessary to provide any degree of safety, having witnesses wear face masks obstructs the most 

basic function of a jury: evaluating credibility. The role of the jury in assessing witness credibility 

is a core instruction to any jury, and is at the heart of the jury system. See Stipulated Instruction 

No. 11 (Dkt. 565-1). If the jurors cannot see anything but a witness’s eyes, the jurors will have 

little ability to evaluate demeanor, and cannot rely on their life-long experience of “reading faces” 

to determine who is telling the truth. 

Case 5:17-cv-00072-BLF Document 720 Filed 09/29/20 Page 4 of 8
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28 4 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

Cisco investigated how other Courts have handled the issue of masks for jury trials during 

the pandemic. In those few venues where Courts have decided to proceed with jury trials, the 

Courts appear to be addressing this fairness issue by having witnesses testify without a mask, and 

also allowing the lawyers presenting in Court to not wear a mask, and some Courts have had jurors 

wear plastic face shields instead of masks. See Divisional Standing Order Regarding Trials in 

Waco, In Re: Waco Division Trials (W.D. Tex. Sept. 23, 2020) (Ex. E); Optis Wireless Tech., LLC 

et al v. Apple Inc., No. 2:19-cv-00066 (E.D. Tex.); GREE, Inc. v. Supercell Oy, No. 2:19-cv-00070 

(E.D. Tex.)). None of this appears to be permitted under the current safety protocols in California. 

Exs. C, D. 

In addition, consistent with the safety concerns expressed by the Court (and as required by 

local regulations in jurisdictions such as Santa Clara County, where Cisco’s U.S. headquarters is 

located), Cisco’s U.S. offices remain in a mandatory work-from-home phase; business travel of any 

sort in the U.S. is permitted in limited circumstances and only if the employee is “willing and 

comfortable with traveling.” Cisco has now confirmed that because of the health concerns caused by 

Covid-19 only one of its out-of-town witnesses (who are located across the United States, e.g., 

Texas, Maryland, Vermont, and in Canada, England, Israel, and India) is willing to travel and attend 

trial in-person, and only one in-town witness is willing to attend in-person. Unlike Finjan (which is 

now owned by Fortress, a $40+ billion-dollar investment entity), Cisco’s witnesses include several 

engineers who are focused on product research, development, maintenance, and/or updates. Finjan’s 

suggestion at the September 17th hearing that Cisco find any in-town employee willing to attend the 

trial in person is unreasonable and prejudicial; Cisco’s selected corporate representative, who is 

located in Calgary, Canada, is an inventor of the key accused product and is intricately connected to 

Cisco’s presentation of its case. 

There is no way to account for the jury’s reaction to the decision of Cisco’s witnesses not to 

attend in person for safety reasons when the jurors must be there in-person, nor to compensate for 

the difference in impact between in-person testimony (and the natural process of relationship 

forming) versus remote testimony. This concern is heightened by Finjan’s insistence on calling its 

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28 5 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

lead fact witness (Mr. Hartstein) in-person and having him sit in the courtroom throughout the trial. 

The jury’s reactions to the reasonable decision of Cisco witnesses, who are not being paid, not to 

attend in-person are further exacerbated by the fact that the jury will see all of the paid experts 

testify in-person in trial, despite having to travel to do so. In other words, the jury will see that 

counsel and experts – who are paid to be there – were willing to attend, the jury will know that they 

were themselves required to attend, the jury will see Mr. Hartstein in attendance the whole time, but 

the jury will know that Cisco’s fact witnesses opted to stay home. Cisco is concerned there is no 

way it can overcome the natural resentment that this imbalance likely would engender in the jury – 

especially when the jurors may feel forced to put their own health at risk. Accordingly, if this case 

is going forward in the current environment, Cisco requests that the Court order that all fact 

witnesses appear remotely and that neither party have a corporate witness at trial. This would at 

least level the playing field if Finjan believes this case is so urgent it should not be continued. 

Conclusion

 There appears to be complete agreement between the parties and the Court about the danger 

of holding a jury trial during the pandemic. Cisco thus requests that this trial be continued at least 

until January. If the Court is not amenable to such a continuance, then Cisco requests a shorter 

continuance for the reasons explained in the attached Jameson Declaration. 

Additionally, Cisco requests that if this jury trial is conducted during the pandemic, then all 

fact witnesses be required to testify remotely and not appear in the courtroom. 

Dated: September 29, 2020 Respectfully submitted, 

/s/ Matthew C. Gaudet 

Nicole E. Grigg (CA SBN 307733) 

negrigg@duanemorris.com 

2475 Hanover Street 

Palo Alto, CA 94304-1194 

Telephone: 650.847.4150 

Facsimile: 650.847.4151 

L. Norwood Jameson (admitted pro hac vice) 

Email: wjameson@duanemorris.com 

Case 5:17-cv-00072-BLF Document 720 Filed 09/29/20 Page 6 of 8
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28 6 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

Matthew C. Gaudet (admitted pro hac vice) 

Email: mcgaudet@duanemorris.com 

David C. Dotson (admitted pro hac vice) 

Email: dcdotson@duanemorris.com 

John R. Gibson (admitted pro hac vice) 

Email: jrgibson@duanemorris.com 

Jennifer H. Forte (admitted pro hac vice) 

Email: jhforte@duanemorris.com 

1075 Peachtree Street, Ste. 2000 

Atlanta, GA 30309 

Telephone: 404.253.6900 

Facsimile: 404.253.6901 

Joseph A. Powers (admitted pro hac vice) 

Email: japowers@duanemorris.com 

Jarrad M. Gunther (admitted pro hac vice) 

Email: jmgunther@duanemorris.com 

30 South 17th Street 

Philadelphia, PA 19103 

Telephone: 215.979.1000 

Facsimile: 215.979.1020 

Attorneys for Defendant 

CISCO SYSTEMS, INC. 

 

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28 7 

Cisco’s Administrative Motion to Continue Oct. 19th Jury Trial 

or to Implement Procedures That Ensure a Fair Trial 

Case No. 5:17-cv-00072-BLF-SVK

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and correct copy of the above and foregoing 

document has been served on September 29, 2020 to all counsel of record who are deemed to have 

consented to electronic service via the Court’s CM/ECF system. 

 /s/ Matthew C. Gaudet 

 Matthew C. Gaudet 

CERTIFICATE OF CONFERENCE 

Counsel for the parties met and conferred on September 24, 2020, and September 28, 2020, 

regarding both bases for Cisco’s motion for continuance—the safety and fairness issues arising 

from Covid-19 and Mr. Jameson’s health condition. Plaintiff has indicated that it opposes this 

motion, and thus a stipulation pursuant to Civil L.R. 7-12 could not be obtained. 

 /s/ Matthew C. Gaudet 

 Matthew C. Gaudet 

Case 5:17-cv-00072-BLF Document 720 Filed 09/29/20 Page 8 of 8