EXHIBIT 38 

Case 5:17-cv-00072-BLF Document 612 Filed 05/04/20 Page 1 of 3
207

2es

i INDEX OF PROCEEDINGS

1 WITED sTaras DISTRIer couer

FOR THE NORTHERN DISTRICT OF CALIMNIA

2 sAN Joss DIVIston DEFENDANT'S OPENING STATEMENT (CONT'D) P. 240

3

FINJAN, INC, A DEfÆABE

« coaroPArrow- 4 FOR THE PLAINTIFF'S:

CASE NO. LV 13-03999-BLF

5 PLAINTIFF,

SAN Joss, CALuoss1A 5 PHILIP HARTSTEIN

JuñY 21, 2015

DIRECT EXAM BY MR. ANDRE P. 282

aos oaAT sysTms, Inc., A 6 CROSS-EXAM BY MR. POPLAWSKI P. 307

DELMARE CORPOPRITON, VOŒME 2 REDIRECT EXAM BY MR. ANDRE P, 332

DEFENDANT. PAGES 205 - 417 7 RECROSS-EXAM BY MR. POPLAWSKI P. 335

saatan mas 298-299

ir 8 DAVID R. KROLL

TRANSCRIPT OF TRIAL DIRECT EXAM BY MS. KOBIALKA P. 337

11 BEFORE THE BONOPABLE SEPH LABSON FRFRN

UNITED STATES DISTRICT MGB AND A JURY 9 CROSS-EXAM BY MS. ELSON P. 344

12

13

AxP-2-8,A-R A-N-C-E-8

EORTHE PLAINUFF: KPRŒR, LEVIN, NAFTALIS & FPANKEL, VIDEO DEPOSITION OF SHLOMO TOUBOUL P. 366

14 LLP

BY: PAUL J. ANDRE

15 LISA KOBIALKA HARRY BIMS

16 $iŠfansms 12 DIRECT EXAM BY MR. ANDRE P. 367

HANNAH Les CROSS-EXAM BY MS. ELSON P. 385

12 990 maasH BoAo

gg

18

MENIO PARK, CALIIOPNIA 94025 VIDEO DEPOSITION OF GERALD HARRISON P. 402

14

14 208 Tam Darmowr: zou INI Icu a RoseTI VIDEO DEPOSITION OF PATRIK RUNALD P. 403

29 oñIvrA KIN 15

V3⁄43⁄4 ELSON

21 633 Mr FIFTH STRElff, 15TH FIDOR

WS ANGUßS, CALIFOWIA 90071 17

orricrAL cceer REPORFER: IRENE L. RODRIGUEZ, CSR, WR, CRR

gg

24 CEREIFICATE NUMBER 8074

21

25 nocesvises asconoso av meansicAL sTenoePArm, 22

TRANSCRIFT NODUCED WTTE COMPTER.

24

mm smus coun anoams 25

UNITED STATES COURT REPORTERS

206 208

1 APPEARANCES:(CONT')

2 FOR INTEL: KIRKLAND & ELLIS IND.EX OF EXHIBITS

BY: 3ASON CHOY

3 333 SOUTH HOPE STREET

3 IDENT. EVIDENCE

LOS ANGELES, CALIFORNIA PLAINTIFF'S:

4 90071 4

177 291

5 ALSO PRESENT: 5 288 296

JIM HOY 289 298

GEOFF THOMAS 6 296 300

PHIL HARTSTEIN 467 301

3ULIE MAR-SPINOLA

7 609 367

8

DEFENDANT'S:

10 g

11 10

12 11

13 12 JOINT:

13 2085 313

2018 403

15

14

16

15

17 16

18 17

ig 18

20

21

20

21

22

22

23

23

24

24

25 26

UNITED STATES COURT REPORTERS UNITED STATES COURT REPORTERS

i of 126 sheets Page 205 to 208 of 297 07/21/2015 09:57:40 PM

FINJAN-CISCO 262911

-lilli-Mi--mi

Case 5:17-cv-00072-BLF Document 612 Filed 05/04/20 Page 2 of 3
335 337

05:00 1 As LuCRATIVE. IN FACT, THAT'S WHERE WE STARTED TO ACHIEVE 05:02 1 MR. ANDRE: YES, YOUR HONOR.

05:00 2 PROFITABILITY. IT ACTUALLY PAID BACK THOSE THAT INVESTED IN 05:02 2 THE COURT: MR. HARTSTEIN, YOU'RE ALSO FREE TO GO.

05:00 3 THE COMPANY. 05:02 3 MS. KOBIALKA, YOUR NEXT WITNESS.

05:00 4 Q. AND THOSE WHO INVESTED IN THE COMPANY, ARE THEY STILL 05:02 4 MS. KOBIALKA: YES. ATTHIS TIME WE WOULD LIKE TO

05:00 5 INVOLVED WITH THE COMPANY TODAYT 05:02 5 cALL DAVID KROLL.

05:00 6 A. SO THE COMPANY'S ORIGINAL VENTURE CAPITAL INVESTORS AND 05:03 6 THE COURT: MR. KROLL, IF YOU COULD COME FORWARD TO

05:00 7 CORPORATE OWNERS LIKE CISCO AND MICROSOFT, WHEN WE ACTUALLY 05:03 7 THE WITNESS STAND AND RAISE YOUR RIGHT HAND TO BE SWORN.

05:00 8 BECAME A NASDAQ COMPANY, THEY OWNED 90 PERCENT OF OUR PUBLIC 05:03 8 THE CLERK: RAISE YOUR RIGHT HAND.

05:00 9 COMPANY. 05:03 9 (PLAINTIFF'SWITNESS, DAVID R. KROLL, WAS SWORN.)

05:00 10 SO THE SAME PEOPLE WHO GAVE FINJAN MONEY AND GAVE SHLOMo 05:03 10 THE WITNESS: YES.

05:00 11 MONEY TO FUND THE COMPANY STILL TODAY UNDER MY LEADERSHIP ARE 05:03 1 THE CLERK: PLEASE BE SEATED. IF YOU WOULD STATE

05:00 1Ž EQUITY OWNERS IN THE COMPANY. 05:03 12 YOUR NAME AND SPELL YOUR LAST NAME FOR THE REPORT.

05:00 13 Q. AND WHAT DOES THAT TELL YOU ABOUT FINJAN7 05:03 13 THE WITNESS: SURE. DAVID ROSS KROLL, K-R-O-L-L.

05:00 14 A. IT TELLS US IT IS THESAME FIN3AN WE WERE WHEN WE WERE 05:03 14 DIRECT EXAMINATION

05:00 15 DEVELOPING THOSE PRODUCTS AND THE SAME FINJAN WE WERE WHEN WE 05:03 15 BY MS. KOBIALKA:

05:00 16 WERE LICENSING THAT TECHNOLOGY AND THOSE PATENTS. 05:03 16 Q. MR, KROLL, ARE YOU AN INVENTOR ON THE FINJAN '633 AND '822

05:01 17 Q. THANK You. 05:03 17 PATTNTS?

05:01 18 I HAVE NO FURTHER QUESTIONS, YOUR HONOR. 05:03 18 A. YES.

05:01 19 THE COURT: ANY FURNER QUESTIONS FOR THIS WITNESS? 05:03 19 Q. I'D LIKE TO PULL UP JTX 2004, WHICH IS THE '822 PATENTS.

05:01 20 MR. POPLAWSKI: 3UST VERY BRIEFLY, YOUR HONOR. 05:03 20 AND MAY I MOVE THAT - PUBLISH THATTO THE JURY?

05:01 21 RECROSS-EXAMINATION 05:03 21 THE COURT: YES. WHAT NUMBER WAS THAT AGAIN?

05:01 22 BY MR. POPLAWSKI: 05:03 22 MS. KOBIALKA: JTX 2004.

05:01 23 Q. I'D LIKE TO FOLLOW UP WITH YOU, MR. HARTETEIN, ON YOUR 05:03 23 THE COURT: 2004, THANK YOU.

05:01 24 Discuss10N WITH MR. ANDRE ABOUTTHE 2002 OEM AGREEMENT AND 05:03 24 BY MS. KOBIALKA:

05:01 26 LOOKING FORWARD TO 2013. 05:03 6 Q. AND DO YOU SEE 3TX 20047

UNITED STATES COURT REPORTERS UNITED STATES COURT REPORTERS

336 338

05:01 1 YOU'RE NOT IN ANY POSITION TO INTERPRETOR EXPLAIN THAT 05:04 1 A. I DO, YES.

05:01 2 OEM LICENSE AGREEMENT; RIGHT? 05:04 2 Q. AND IS THAT YOUR NAME WITH 7HE INVESTORS LISTED ON THE

05:01 3 A. I DON'T BELIEVE, NO. 05:04 3 FRONT PAGE OF THAT DOCUMENT?

05:01 4 O. AND YOU UNDERSTAND THAT FIN3AN WAITED TEN YEARS To suE 05:04 4 A. YES.

05:01 BLUE COAT FROM THE TIME THAT THE OEM AGREEMENT WAS TERMINATED 05:04 5 Q. AND I'D LIKE TO TURN TO JTX 2006 WHICH IS THE '633 PATENT.

05:01 6 in 20037 05:04 6 MAY I PUBLISH IT TO THE JURY, TOO, AS WELL?

05:01 7 A. I'M NOT SURE THOSE TWO ARE CONNECTED. 05:04 7 THE COURT: YES.

05:01 8 Q. OKAY. WOULD YOU PUT UP DEMONSTRATIVE H-9, PLEASE. 05:04 8 MS. KOBIALKA: THANK YOU.

05:02 9 NOW, WE'VE AGREED THAT FIN]AN AND BLUE COAT HAD AN OEM 05:04 9 Q. AND ARE YOU THE MR. KROLL THAT IS LISTED ON THE FRONT PAGE

05:02 10 AGREEMENT IN 2002; RIGHT? 05:04 10 oF THE '633 PATENT WHICH IS MARKED AS 3TX 20067

05:02 11 A. YEs. 05:04 11 A. YES, I AM.

05:02 12 Q. AND IN 2005 FINJAN REVERSE ENGINEERED OR PICKED APART 05:04 12 G. wHERE oo You CURRENTLY WORK, MR. KROLL?

05:02 13 etuE COATS PRODucr5; RIGHT? 05:04 13 A. I WORK AT RACKSPACE.

05:02 14 MR. ANDRE: OBJECTION,YOUR HONOR. OUTSIDE OFTHE 05:04 14 Q. AND WHAT IS YOUR POSITION THERE?

05:02 1Ô SCOPE OF EVEN MY REDIRECT. 05:04 10 A. VICE PRESIDENT OF GLOBAL COMMUNICATIONS.

05:02 16 THE COURT: SUSTAINED. 05:04 16 Q. AND PRIOR TO WORKING AT RACKSPACE, WHERE DID YOU WORK?

05:02 17 MR. ANDRE: THANK YOU. 05:04 17 A. I WORKED AT ADVANCED MICRO DEVICES, E-TRADE, FINJAN

05:02 18 MR. POPLAWSKI: OKAY. NO FURTHER QUESTIONS, YOUR 05:04 A SOFTWARE, CUNNINGHAM COMMUNICATION.

05:02 19 HONOR. 05:04 19 Q. WELL, WHAT AREA IS YOUR WORK EXPERIENCE INT

05:02 20 THE COURT: THANK YOU. IS THAT EVERYTHING FOR THIS 05:04 20 A. IT'S MAINLY IN MARKETING AND COMMUNICATIONS.

05:02 21 WITNESS, MR. ANDRE? 05:04 21 Q. AND FOR HOW MANY YEARS HAVE YOU BEEN DOING THAT?

05:02 22 MR. ANDRE: IT IS, YOUR HONOR. THANK You. 05:04 22 A. TWENTY-FIVE.

05:02 23 THE COURT: MR. HARTSTEIN, THANK YOU FOR YOUR 05:04 23 Q. AND CAN YOU BRIEFLY JUST DESCRIBE YOUR EDUCATIONAL

05:02 24 TESTIMONY. YOU MAY GO BACK TO YOUR SEAT. 05:04 24 sAcKGROUND?

05:02 25 AND IS THIS WITNESS EXCUSED? 05:04 25 A. SURE. I HAVE ASPEECH COMMUNICATION AND MARKETING DEGREE

UNITED STATES COURT REPORTERS UNITED STATES COURT REPORTERS

33 of 126 sheets Page 335 tc 338 of 417 07/21/2015 09:57:40 PV

FINJAN-CISCO 262943

Case 5:17-cv-00072-BLF Document 612 Filed 05/04/20 Page 3 of 3