Here's an example of the types of things Blue Coat attorneys keep hammering away with. They make a cogent argument:
I. Finjan Cannot Introduce Exhibits Through Witnesses that Have No Personal Knowledge of Those Exhibits.
Finjan seeks to introduce exhibits for which the respective witnesses specifically disclaimed any personal knowledge. Brewer Decl., Ex. A (disclosing PTX-696 for Mr. Hartstein
and JTX-3103 for Mr. Runald via video deposition designations). Finjan should be precluded
from introducing these documents because the witnesses lack the requisite personal knowledge.
Fed. R. Evid. 602.
PTX-696: Finjan seeks to introduce PTX-696, a mostly blank worksheet, through Mr.
Hartstein despite the fact that Mr. Hartstein repeatedly disclaimed knowledge of this document at
his deposition. Brewer Decl., Ex. B (unable to answer basic questions about origin and use of
document in deposition). Mr. Hartstein should be precluded from introducing or discussing the
document, both because he lacks the requisite personal knowledge, and because Blue Coat would
be unfairly prejudiced by permitting testimony now when Blue Coat was unable to get
substantive responses from Mr. Hartstein during his deposition.
JTX-3103: Finjan has disclosed JTX-3103 in conjunction with Mr. Runald’s video
deposition designations. Brewer Decl., Ex. A. During Mr. Runald’s deposition, he made it clear
that he has no knowledge of this document. Ex. C at 204:13-14 (“Q. Do you recognize [JTX-
3103]? A. I don’t”), 206:8-12 (Q. . . . “do you recognize [JTX-3013] as DRTR header code? A. I
don’t. Q. You’ve never seen this code before? A. I’ve never looked at the DRTR source code”).
Finjan should be precluded from introducing an exhibit without a proper sponsoring witness.
II. Mr. Hartstein Should Be Precluded from Testifying Based on Hearsay
In the Blue Coat II trial, Mr. Hartstein testified extensively about Finjan’s history and
licensing negotiations. Trial Tr. (Hartstein) at 339:15-392:13. Mr. Hartstein admits that he does
not have any personal knowledge of Finjan’s activities prior to 2013, and that his testimony was
premised on unidentified “corporate documents” and the general assertion that he “[came] up to
speed on the history of the company.” Id. at 395:4-9. Federal Rule of Evidence 602’s personal
knowledge requirement applies to corporate witnesses at trial. Union Pump Co. v. Centrifugal
Tech., Inc., 404 Fed. Appx. 899, 907-8 (5th Cir. 2010) (unpublished) (“a corporate representative
Case 5:15-cv-03295-BLF Document 494 Filed 01/07/18 Page 2 of 3
BLUE COAT’S OBJECTIONS TO FINJAN’S JANUARY 6, 2018, DISCLOSURES
15-cv-03295-BLF-SVK 2
may not testify to matters outside his own personal knowledge to the extent that information is
hearsay not falling within one of the authorized exceptions”); see also Stuart v. UNUM Life Ins.
Co. of Am., 217 F.3d 1145, 1154-55 (9th Cir. 2000) (analyzing whether corporate representative
had sufficient personal knowledge to give testimony). Because Mr. Hartstein’s testimony is
based on third party statements, and no source of his knowledge or exception to hearsay is
identifiable, his hearsay-based testimony should be excluded. Union Pump, 404 Fed. Appx. at
907-8. Mr. Hartstein, despite his status as a corporate representative, “is not permitted to repeat
rank hearsay.” Id.
III. Dr. Medvidovic May Not Rely on a Document that he Neither Cited nor Discussed in
His Report.
Finjan’s disclosed exhibits for Dr. Medvidovic include JTX-3018, which is U.S. Patent
No. 6,804,780 (“the ’780 patent”). Dr. Medvidovic has never opined regarding the ’780 patent in
this case. He has only mentioned the ’780 patent in passing: “I was retained as an expert in the
BC I Case. In that case, I submitted an expert report on January 12, 2015, detailing the
technology of . . . the ’780 Patent . . . .” Brewer Decl., Ex. D (Medvidovic Rpt. at ¶ 99). Further,
his report, including the list of materials considered, nowhere cites to nor discusses the ’780
patent. Because Dr. Medvidovic has not opined regarding the ’780 patent or any potential
relevance is has in this case, the Court should exclude JTX-3018.
Dated: January 7, 2018 MORRISON & FOERSTER LLP
By: /s/ Robin L. Brewer
Robin L. Brewer
