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

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Juanita R. Brooks (CA SBN 75934) brooks@fr.com 

Roger A. Denning (CA SBN 228998) denning@fr.com 

Frank J. Albert (CA SBN 247741) albert@fr.com 

Megan A. Chacon (CA SBN 304912) chacon@fr.com 

K. Nicole Williams (CA SBN 291900) nwilliams@fr.com

Oliver J. Richards (CA SBN 310972) ojr@fr.com 

Jared A. Smith (CA SBN 306576) jasmith@fr.com 

Tucker N. Terhufen (CA SBN 311038) terhufen@fr.com 

FISH & RICHARDSON P.C. 

12860 El Camino Real, Suite 400 

San Diego, CA 92130 

Telephone: (858) 678-5070 / Fax: (858) 678-5099 

Aamir Kazi (Admitted Pro Hac Vice) kazi@fr.com 

Alana C. Mannige (CA SBN 313341) mannige@fr.com 

FISH & RICHARDSON P.C. 

1180 Peachtree Street NE, 21st Floor 

Atlanta, GA 30309 

Telephone: (404) 892-5005 / Fax: (404) 892-5002 

Attorneys for Plaintiff 

FINJAN LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION 

FINJAN LLC, a Delaware Limited Liability 

Company, 

 

 Plaintiff, 

v. 

CISCO SYSTEMS, INC., a California 

Corporation, 

 Defendant. 

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

FINJAN LLC’S OPPOSITION TO CISCO 

SYSTEM, INC.’S ADMINISTRATIVE 

MOTION TO CONTINUE THE 

OCTOBER 19, 2020 JURY TRIAL OR TO 

IMPLEMENT PROCEDURES THAT 

ENSURE A FAIR TRIAL 

Hon. Beth Labson Freeman 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 1 of 7
1 FINJAN’S OPPOSITION TO CISCO’S 

MOTION TO CONTINUE TRIAL 

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

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Plaintiff Finjan LLC (“Finjan”) hereby responds to and opposes in part Defendant Cisco 

Systems, Inc.’s (“Cisco”) Administrative Motion to Continue the October 19, 2020 Jury Trial or to 

Implement Procedures that Ensure a Fair Trial (Dkt. No. 720) (“Cisco’s Motion”). On October 1, 

2020, the Court met with both counsel for Finjan and Cisco by video regarding Cisco’s Motion and 

the Northern District of California’s ability to proceed with civil jury trials amid the COVID-19 

pandemic. As a result of those discussions, November 2, 2020 is the new trial date. Thus, the issue 

of Cisco’s request for a continuance of the trial is now moot. Dkt. No. 720 at 1:1-18, 2:7-3:19.1 

Cisco’s Motion, however, remains problematic. It further requests that the Court order all fact 

witnesses appear remotely and that neither party have a corporate representative at trial. Dkt. No. 

720 at 1:19-2:5, 3:20-5:12. Translated, Cisco’s Motion is a thinly veiled attempt to specifically 

exclude Finjan’s CEO and corporate representative, Phil Hartstein, from testifying live at trial, thus

prejudicing Finjan. Cisco’s Motion should thus be denied. 

I. Finjan Has a Right to be Present in the Courtroom 

The courtroom is a public place. And it is a tenet of our system that a party is allowed to 

represent itself in that courtroom and effectively participate in the prosecution or defense of its case. 

See, e.g., Toytrackerz LLC v. Koehler, Civil Action Case No. 08-2297-GLR, 2009 U.S. Dist. LEXIS 

50620, at *4 (D. Kan. 2009) (“As a corporate party, Plaintiff . . . has a right to be present by a 

corporate representative at trial and other evidentiary hearings and during depositions.”); Manville 

Sales Corp. v. Paramount Sys., Inc., Civil Action No. 86-4157, 1988 U.S. Dist. LEXIS 7520, at *3 

(E.D. Pa. 1988) (“A party has a right to be present at trial to effectively participate in the defense of 

the case.”); Denton v. James-Hutchison, No. 16-5314 RJB, 2018 U.S. Dist. LEXIS 133796, at *6 

(W.D. Wash. Aug. 7, 2018) (denying plaintiff’s motion requesting defendants appear by video 

teleconference; plaintiff argued that defendants had an unfair advantage because plaintiff was forced 

to appear by video.); Fed. R. Civ. P. 43(a) (“At trial, the witnesses’ testimony must be taken in 

open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted 

 

1

 Finjan reserves all rights to oppose further requests for continuances. 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 2 of 7
2 FINJAN’S OPPOSITION TO CISCO’S 

MOTION TO CONTINUE TRIAL 

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

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by the Supreme Court provide otherwise. For good cause in compelling circumstances and with 

appropriate safeguards, the court may permit testimony in open court by contemporaneous 

transmission from a different location.”) (emphasis added). Even in the midst of a pandemic, that 

should not change simply because one party feels disadvantaged by its own selection of fact 

witnesses who refuse to come to the courtroom. 

Mr. Hartstein is Finjan. He, as the company, has a right to be present at trial to confront 

Cisco as Finjan’s corporate representative and to testify live as a fact witness if he is willing to do 

so, and he is. Cisco has presented no legitimate reason why Finjan should be stripped of its right to

have Mr. Hartstein present in the courtroom. Moreover, Mr. Hartstein’s presence in the courtroom 

poses no violations of or complications to the Court’s intended protocol for maintaining the health 

and safety of the jury, the Court, and the attorneys present. As this Court indicated during the 

October 1, 2020 videoconference, each party will be allowed two individuals at counsel table during 

trial. Finjan intends for those two individuals to be a combination of (1) Ms. Brooks and Mr. 

Denning or (2) Ms. Brooks or Mr. Denning with whomever is conducting the examination, if it is 

neither of them or (3) Ms. Brooks or Mr. Denning and Mr. Hartstein. Finjan should not be punished 

for having its corporate representative and key fact witness willing to show up at trial—just as the 

jury, the Court, the attorneys, and many experts are doing—simply because Cisco recognizes Mr. 

Hartstein is a compelling witness and does not want the jury fairly exposed to him at trial. See Sept. 

17, 2020 Hearing Tr. at 47:6-12. 

II. Cisco’s Concerns are Largely Remediable 

Cisco’s Motion presents numerous issues that are largely remediable without the extreme 

sanction of prohibiting live fact witness testimony or the occasional presence of Finjan’s corporate 

representative, and thus, present no real prejudice to Cisco. The COVID-19 pandemic is not new. 

Cisco, like Finjan, has known about the pandemic for over 8 months now and has had ample 

opportunity to take into consideration strategic solutions for trying its case during the pandemic. 

Instead, Cisco has focused its efforts on five different occasions to delay an already 3-year old case

to some indeterminate point in the future when there is a COVID-19 vaccine available to everyone. 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 3 of 7
3 FINJAN’S OPPOSITION TO CISCO’S 

MOTION TO CONTINUE TRIAL 

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

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Sadly, there is no telling when that day will come; especially as the fall and winter seasons are upon

us. And as this Court previously counseled the parties, there may be no better time than the present 

to proceed with this trial regardless of fact witnesses’ ability to attend trial live. See Sept. 17, 2020 

Hearing 48:5-9. 

The new reality for all is that wearing face masks is a necessity and part of daily life. Cisco 

argues that “having witnesses wear face masks obstructs the most basic function of a jury: evaluating 

credibility.” Dkt. No. 720 at 3:22-23. Cisco goes so far as to argue that “[t]he role of the jury 

assessing witnesses’ credibility is a core instruction to any jury and is at the heart of the jury 

system.” Id. at 3:23-24 (emphasis added). Two pages later, Cisco says that “the jury will see all of 

the paid experts testify in-person in trial. . . .” Id. at 5:3-4. The juxtaposition of those two statements 

demonstrates the absurdity of Cisco’s argument. 

This is a patent case. The only witnesses who will directly address the main issue in the 

case, i.e., do Cisco’s accused products infringe the asserted claims, are those very “paid experts.” 

Under Cisco’s reasoning it is the experts, not the fact witnesses, who should be required to testify 

remotely, thereby allowing the jury to exercise its “most basic function” of judging their credibility

and preserving “the heart of the jury system.” Thus, it is hard to follow Cisco’s rationale or 

justification for prohibiting live fact witnesses when they plan on having live expert testimony. In 

fact, there is no justification for the extraordinary request, other than Cisco fears Mr. Hartstein’s 

credibility as a fact witness for Finjan. 

Cisco then proceeds to do an about face when it argues that there is no way “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 

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

Id. at 4:25-5:1. So according to Cisco, even though the jury will not be able to judge Mr. Hartstein’s 

demeanor because they “cannot see anything but [his] eyes,” id. at 3:25, they will be able to form a 

relationship with him. Cisco’s motion should be seen for what it is, a transparent attempt to 

neutralize one and only one witness, Mr. Hartstein. 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 4 of 7
4 FINJAN’S OPPOSITION TO CISCO’S 

MOTION TO CONTINUE TRIAL 

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

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Cisco’s other justifications for requiring all fact witnesses to testify remotely are equally 

unfounded. For example, not all “paid experts” are going to testify in person, at least not on the part 

of Finjan, as some of Finjan’s experts will not be coming to California because they will be required 

to quarantine away from their families for fourteen days upon returning to their home state. 

Moreover, Mr. Hartstein will not be sitting “in the courtroom throughout the trial” since the rules 

prohibit more than ten people in the courtroom at one time. Id. at 5:1. Mr. Hartstein will only sit at 

counsel table on the rare occasion when either Ms. Brooks or Mr. Denning are not in the courtroom. 

As this Court is aware, this is a break from Finjan’s previous practice at other trials before this Court. 

Under normal circumstances, Mr. Hartstein and Ms. Mar-Spinola would attend every day of trial 

and would do so again, but for the new restrictions. Lastly, contrary to what Cisco says in its Motion, 

at the hearing on September 17, 2020, Cisco confirmed that some of its fact witnesses are willing to 

attend the trial in-person. See, Sept. 17, 2020 Hearing Tr. 47:4-5 (“There are four [fact witnesses] 

that are in the San Jose area that should be able to come.”). Thus the argument that Cisco would be 

unrepresented by live unpaid witnesses at trial, whereas Finjan would be, is simply not true. 

III. Conclusion 

Cisco’s Request to continue the trial is now moot as the Court has set a new trial date of 

November 2, 2020. Should the Court deem it unfeasible to proceed with trial on that date, Finjan 

reserves all rights to oppose further requests by Cisco to continue the trial to January 2021 or later. 

As stated above, Cisco’s Request to exclude fact witnesses from testifying at trial is a pointed 

effort to prohibit the jury from experiencing Mr. Hartstein’s testimony live. Such a request is in 

direct conflict with a party’s right to be present in the courtroom and represent itself at trial. All 

other concerns raised by Cisco are simply not going to come to pass. Thus, for the reasons stated 

herein, Finjan respectfully requests the Court deny Cisco’s Motion. 

 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 5 of 7
5 FINJAN’S OPPOSITION TO CISCO’S 

MOTION TO CONTINUE TRIAL 

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

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Dated: October 5, 2020 Respectfully Submitted, 

By: /s/ Megan A. Chacon 

Juanita R. Brooks (CA SBN 75934) brooks@fr.com 

Roger A. Denning (CA SBN 228998) 

denning@fr.com 

Frank J. Albert (CA SBN 247741) albert@fr.com 

Megan A. Chacon (CA SBN 304912) 

chacon@fr.com 

K. Nicole Williams (CA SBN 291900) 

nwilliams@fr.com 

Oliver J. Richards (CA SBN 310972) ojr@fr.com 

Jared A. Smith (CA SBN 306576) jasmith@fr.com 

Tucker N. Terhufen (CA SBN 311038) 

terhufen@fr.com 

FISH & RICHARDSON P.C. 

12860 El Camino Real, Suite 400 

San Diego, CA 92130 

Phone: (858) 678-5070 / Fax: (858) 678-5099 

Aamir Kazi (Admitted Pro Hac Vice) kazi@fr.com 

Alana C. Mannige (CA SBN 313341) 

mannige@fr.com 

FISH & RICHARDSON P.C. 

1180 Peachtree Street NE, 21st Floor 

Atlanta, GA 30309 

Phone: (404) 892-5005 / Fax: (404) 892-5002 

Attorneys for Plaintiff FINJAN LLC 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 6 of 7
6 FINJAN’S OPPOSITION TO CISCO’S 

MOTION TO CONTINUE TRIAL 

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

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CERTIFICATE OF SERVICE 

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

document has been served on October 5, 2020 to all counsel of record who are deemed to have 

consented to electronic service via the Court’s CM/ECF system. Any other counsel of record will 

be served by electronic mail and regular mail. 

 /s/ Megan A. Chacon 

chacon@fr.com 

Case 5:17-cv-00072-BLF Document 728 Filed 10/05/20 Page 7 of 7