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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

DUANE MORRIS LLP 

D. Stuart Bartow (CA SBN 233107)

DSBartow@duanemorris.com

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

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

1075 Peachtree NE, Suite 2000

Atlanta, GA 30309

Telephone: 404.253.6900

Facsimile: 404.253.6901

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION

FINJAN, INC., a Delaware Corporation, 

Plaintiff, 

v. 

CISCO SYSTEMS, INC., a California 

Corporation, 

Defendant. 

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

DEFENDANT CISCO SYSTEMS, INC.’S 

NOTICE RE THE IMPACT OF THE 

COVID-19 PANDEMIC ON THE JUNE 1 

TRIAL DATE 

Date: April 30, 2020 

Time: 1:30 PM 

Courtroom: 3, 5th Floor 

Judge: Hon. Beth L. Freeman 

REDACTED

Case 5:17-cv-00072-BLF Document 588 Filed 04/28/20 Page 1 of 7
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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

1 

During the March 26, 2020 hearing on the parties’ respective Daubert motions, Finjan 

sought to move the June 1 trial date to the Fall in light of the COVID-19 pandemic and its likely 

impact on the ability to empanel a jury and otherwise proceed with trial. Ex. A at 79. Optimistic 

that additional information would be available by the time of our pretrial hearing, this Court 

indicated it would address Finjan’s request at that time, as the Court believed it might have greater 

clarity regarding the ability to proceed with the current schedule, which includes jury selection on 

May 29 and trial on June 1. Id. at 80. 

In anticipation of the pretrial conference set for April 30, 2020, defendant Cisco Systems, 

Inc. (“Cisco”) files this Notice to provide the Court with information Cisco believes relevant to the 

Court in determining whether the jury selection and jury trial of this case can safely and effectively 

proceed on May 29 and June 1, respectively, and to express its concerns (both heath and logistics 

related) with maintaining the existing schedule in light of COVID-19 pandemic. As explained 

below, if the Court determines that it will maintain the current jury trial schedule, Cisco’s legal team 

must attempt to navigate international travel policies and prohibitions for four of its witnesses, 

determine a plan for self-quarantining in the Bay Area in advance of trial, and other extremely 

complicating trial logistics as a result of the COVID-19 pandemic. Further complicating matters 

was the announcement made just yesterday, April 27, 2020, that Santa Clara and surrounding 

counties intend to extend the existing shelter in place orders at least through the end of May, 2020. 

This extension is, in Cisco’s view, a significant and insurmountable hurdle to navigate with jury 

selection on May 29 and trial on June 1. See also Ex. P (local orders factor for reopening). 

Despite the passage of over a month since the Daubert hearing, it remains uncertain when it 

will be safe to bring large groups together from across the country and the world to spend 

substantial time in close proximity, as required for trial preparation and the trial itself—and what 

precautionary measures need to be taken to ensure the health and safety for gatherings of this size. 

Available information from the CDC, the White House, the Administrative Office of the U.S. 

Courts, and the governors of California and of other states from which witnesses in this case will 

be traveling indicates that proceeding with jury selection on May 29 will be in contravention of the 

county and state shelter in place orders, that jury selection on May 29 and a trial on June 1 will 

Case 5:17-cv-00072-BLF Document 588 Filed 04/28/20 Page 2 of 7
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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

2 

require counsel and witnesses to unnecessarily travel from out of state and out of the country, and 

that federal courts are still developing safeguards to protect jurors, counsel, the Court, and the 

witnesses against exposure to COVID-19 during trial (Ex. P), all of which strongly mitigates 

against proceeding on the scheduled dates. 

While jury trials are currently suspended in the Court through May 1, 2020 (as of April 28, 

2020) [Ex. G], the shelter in place order for Santa Clara County (and six other Bay Area counties) 

will be extended, largely unmodified, through the end of May 2020. Ex. C. Cisco attaches for 

reference the current order because the new order has not yet issued but is expected to largely 

mirror the existing order with slight modifications. Ex. O. Likewise, the state-wide stay at home 

order for California remains in effect “until further notice,” and the Governor of California recently 

indicated that even when the state-wide order changes, stricter local orders will control. Ex. H; Ex. 

Q. Thus, Cisco, its witnesses, trial vendors, and counsel will be unable to arrive in California late 

in the week of May 18th, as needed to prepare in person for trial, and it does not appear that jury 

selection can go forward on May 29. 

Moreover, the White House plan provides for a phased reopening of the economy, as 

certain thresholds are met over a period of time, and it is unclear where California stands with 

respect to these thresholds and whether the thresholds can be met in time for a June 1 trial. In fact, 

data from the Institute for Health Metrics and Evaluation (IHME), an independent global health 

research center at the University of Washington, forecasts that May 18-24 is the earliest time frame 

that California may possibly be in a position to begin the steps to relax social distancing but only if 

it enforces containment strategies that include “limiting gathering size.” Ex. J. See also Ex. N. 

Also, most of Cisco’s witnesses will be traveling by air to San Jose from around the country—

and, in four instances, from outside of the United States—for this trial. These witnesses and the 

locations from which they would be flying are as follows: 

Case 5:17-cv-00072-BLF Document 588 Filed 04/28/20 Page 3 of 7
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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

3 



 Stephen Becker (expert witness): Austin, Texas 

 Patrick McDaniel (expert witness): State College, Pennsylvania 

 Atul Prakash (expert witness): Ann Arbor, Michigan 

 Walter Overby (expert witness): Des Moines, Iowa 

Grigg Decl. ¶ 2. To proceed with the trial as currently scheduled, Cisco’s trial team, including 

lawyers, support staff, and trial support vendors, would have to relocate from around the country to 

San Jose, beginning the week of May 18th, as mentioned above. For example, trial counsel for 

Cisco will be traveling to San Jose from Atlanta, Georgia and Philadelphia, Pennsylvania. 

The CDC’s current COVID-19 guidelines continue to warn against airplane travel and hotel 

stays, advising citizens to stay home as much as possible, avoid close contact with others, and 

practice social distancing. Ex. B. The shelter in place order issued by Santa Clara County also 

recommends that individuals moving into the Bay Area quarantine for fourteen days after arrival. 

Ex. O. The CDC has emphasized the importance of quarantining and social distancing for certain 

high risk groups, undoubtedly members of the 

jury pool, and individuals who live with those who will be at trial. Ex. D; Grigg Decl. ¶ 4. 

 

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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

4 

. India also has a stringent lockdown order in effect. Ex. L. Even if these witnesses 

were able to come to the United States, the CDC still recommends that individuals traveling from 

outside the United States self-quarantine for fourteen days after arrival, which would in effect 

require these witnesses to arrive in the U.S. two weeks before their anticipated testimony date and 

may further remove them from their families if they are required to self-quarantine upon their return 

to their home country. Exs. B, F, L. 

In addition to the directives from governmental and health authorities, Cisco’s current 

corporate policy, 

 

. 

Grigg Decl. ¶ 8. 

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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

5 

Cisco recognizes this trial has been on calendar for a long time, and understands the 

importance of moving it to trial. However, Cisco respectfully submits that the COVID-19 pandemic 

and related health concerns strongly militate against jury selection proceeding on May 29, with a 

jury trial proceeding on June 1, 2020. Ex. J. The wide range of locations of Cisco’s witnesses and 

trial team creates an even greater risk of exposure to infection from COVID-19 based on air travel, 

the need to stay at hotels, and the close proximity demanded by a jury trial. Further, Cisco’s fact 

witnesses, experts, and trial team are reasonably concerned about the possibility of their ability to 

self-quarantine for fourteen days after returning to reduce the risk of infecting their families. Grigg 

Decl. ¶¶ 2-7; Exs. B, E, F, L. Of course, these risks equally apply to prospective jurors who would 

participate in jury selection, and increase for those jurors actually selected. See also Ex. P. 

As of the date of the Pretrial Conference, this case will be less than a month from jury 

selection. Cisco requests that, if possible the Court notify the parties of whether trial will proceed 

as scheduled at the Pretrial Conference. If this trial is going to be postponed, which Cisco believes 

is the right thing to do under the circumstances of this unprecedented pandemic, Cisco will need to 

provide the necessary notices to its experts, trial support vendors, and hospitality providers. If, on 

the other hand, the trial will proceed on June 1, Cisco’s legal team will need to consider how Cisco 

can comply with such an order while simultaneously complying with local and state orders; 

protecting the health and safety of its employees, witnesses, and counsel; and allowing Cisco to 

fully and properly participate in a trial in a way that will not severely prejudice its case. 

 

 

Dated: April 28, 2020 DUANE MORRIS LLP 

/s/ Nicole E. Grigg 

Nicole E. Grigg 

D. Stuart Bartow 

L. Norwood Jameson (admitted pro hac vice) 

Matthew C. Gaudet (admitted pro hac vice) 

David C. Dotson (admitted pro hac vice) 

John R. Gibson (admitted pro hac vice) 

Jennifer H. Forte (admitted pro hac vice) 

Joseph A. Powers (admitted pro hac vice) 

Jarrad M. Gunther (admitted pro hac vice) 

Case 5:17-cv-00072-BLF Document 588 Filed 04/28/20 Page 6 of 7
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DEFENDANT CISCO SYSTEMS, INC.’S NOTICE RE THE IMPACT OF THE COVID-19 PANDEMIC ON THE JUNE 1 TRIAL DATE

CASE NO. 5:17-CV-00072-BLF-SVK 

6 

Attorneys for Defendant 

CISCO SYSTEMS, INC. 

Case 5:17-cv-00072-BLF Document 588 Filed 04/28/20 Page 7 of 7