IN RE: IN THE MATTER OF THE APPLICATION OF THE NEW YORK TIMES COMPANY FOR ACCESS TO CERTAIN SEALED COURT RECORDS

Filing 80

IN RE: IN THE MATTER OF THE APPLICATION OF THE NEW YORK TIMES COMPANY FO...TAIN SEALED COURT Doc. 80 Att. 2 RECORDS

Dockets.Justia.com

Kevin Jeffay, Ph.D. Washington, DC

May 8, 2009 Page 1

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

---------------x JUNIPER NETWORKS, INC., Plaintiff, : : : v. : : ABDULLAH ALI BAHATTAB, Defendant. : : No. 1:07cv1771-PLF

---------------x Washington, D.C. Friday, May 8, 2009 Videotaped Deposition of KEVIN JEFFAY, Ph.D., called for examination by counsel for Plaintiff, pursuant to notice, at the Law Offices of Dewey & LeBoeuf, 1101 New York Avenue, NW, Washington, D.C., commencing at 8:34 a.m., before Barbara A. Huber, Notary Public in and for the District of Columbia, when were present on behalf of the respective parties:

Alderson Reporting Company 1-800-FOR-DEPO

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APPEARANCES: On behalf of Plaintiff: JASON HOFFMAN, ESQUIRE Kaye Scholer, LLP The McPherson Building 901 15th Street, NW Washington, D.C. 20005-2327 [phone] [e-mail] On behalf of Defendant: ROBERT A. AUCHTER, ESQUIRE HENRY W. ASBILL, ESQUIRE Dewey & LeBoeuf, LLP 1101 New York Avenue, NW Washington, D.C. 20005-4213 [phone] [e-mail] [e-mail] Also Present: Scott J. Coonan, Juniper Networks Jonathan Clay, Videographer
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CONTENTS EXAMINATION BY: Counsel for Plaintiff

PROCEEDINGS VIDEOGRAPHER: We are now on the record in the matter of Juniper Networks, Incorporated, versus with Abdullah Ali Bahattab. Today's date May 8, 2009. The time is 8:34 a.m. This is the video recorded deposition of Kevin Jeffay being taken at Dewey & LeBoeuf, 1101 New York Avenue, Northwest, Washington, D.C. 20005. I am the camera operator. My name is Jonathan Clay, in association with Alderson Reporting, located at 1155 Connecticut Avenue, Northwest, Washington, D.C. The court reporter is Barbara Huber, also in association with Alderson Reporting. Will all and attorneys please identify themselves and the parties they represent, beginning with the party noticing this providing. MR. HOFFMAN: Jason Hoffman from Kaye Scholer, LLP, on behalf of the Plaintiff, Juniper Networks, Inc. MR. COONAN: Scott Coonan, director of

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IP litigation and licensing for Juniper Networks. MR. AUCHTER: Robert Auchter, Dewey & LeBoeuf, on behalf of Defendant, Abdullah Ali Bahattab. MR. ASBILL: Henry Asbill, on behalf of Dr. Bahattab. VIDEOGRAPHER: Will the court reporter please administer the oath. Whereupon, KEVIN JEFFAY, Ph.D., was called as a witness by counsel for Plaintiff, and having been duly sworn by the Notary Public, was examined and testified as follows: EXAMINATION BY COUNSEL FOR PLAINTIFF BY MR. HOFFMAN: Q Could you please state your name for the record? A Kevin Jeffay. Q Mister -- sorry. Dr. Jeffay, do you hold a Ph.D.? A I do. Q And what do you hold a Ph.D., in?

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DEPOSITION EXHIBITS: PAGE No. 201 - Nondisclosure Agreement 13 No. 202 - Expert Report of Kevin Jeffay, Ph.D. 18 No. 203 - Sign-In Sheet 39 No. 204 - Arun K. Iyengar, et al., Paper 179 No. 205 - Joseph L. Hellerstein Paper 205 No. 206 - Huseyin Simitci, et al., Paper 217 No. 207 - Panjai Tantatsanawong, et al., Paper 221 No. 208 - Bohdan Bodnar, et al., Article 237 No. 209 - E-Mails, January/February 1999 243

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A Computer science. Q And what year did you get your Ph.D.? A I'm sorry, what year? Q What year? A I believe it was conferred in 1989. Q And from what university? A That would be the University of Washington. Q Have you ever been deposed before? A I have. Q How many times? A Probably about a dozen. Q And for each of your depositions, was it because you were testifying as an expert in a case? A Ostensibly. I mean, sometimes I think I was there just as a consultant. Q The let me make the question a little clearer. How many times have you testified at a deposition? A About a dozen.
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A -- a deposition. Q -- make the question a little clearer. How many times have you been deposed? A About a dozen. Q And for the dozen times that you've been deposed, how many times were you test -- being deposed as an expert? A I -- I don't know that I can give you a -- a good answer. Probably at least half. Q And do you understand the rules of a deposition? A Generally, yes. Q And you understand that you're under oath? A I do. Q When you were you retained by Dr. Bahattab? MR. AUCHTER: Objection. Form. THE WITNESS: I believe it was in December of '08. BY MR. HOFFMAN: Q Prior to December '08, have you ever -Page 9

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Q And for each time you've testified at a -- at a deposition, have you testified as an expert? A No. Q How many times have you testified as an expert? A Six, seven, maybe. Excuse me. I -- I assume you meant testified in court? Q No. We're talking about a deposition. A Okay. I'm sorry then. I misunderstood. Q Well, but -- okay. Let -- let's try the question again. A Okay. Q How many times have you testified at a deposition? A So perhaps I don't know what you mean by -- well, when I answered your question previously, I just meant I'd been deposed about a dozen times. I don't necessarily appreciate any distinction you're making between being deposed and testifying at -Q Well, let me --

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had you had -- prior to December '08, had -- had you ever had -- ever -- start again. Prior to December '08, have you had any contact with Dr. Abdullah Ali Bahattab? A No. Q Had you ever heard of him? A I don't believe I had. Q Who contacted you in December of '08? A Actually, I believe I was contacted in November of '08, but I wasn't retained until December. Q Okay. Who contacted you in November of '08? A I believe it was Mr. Brandon Jordan. Q And who is Mr. Brandon Jordan? A I understand him to be an associate in the law firm of Dewey & LeBoeuf. Q And what did Mr. Jordan request of you in November of '08? A I don't recall the specifics of what he requested. Q Do you recall anything about your

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of Juniper source code, correct? A I -- I think that was the root -- the root purpose. As I say, initially, the -- you know. The task was to help them understand how the routers operated. Q And you reviewed Juniper documents also to figure out how the routers operated, correct? A Correct. Q And you read doctor -- sorry, Mr. Mallya's testimony about how Juniper's routers operated, correct? A Correct. Q And you didn't find any infringement, did you? A Well, given the time that I'd spent on it, I guess what I would say is that I was not comfortable alleging infringement. Q Why were you not comfortable alleging infringement? A Because I hadn't -- given the time that I had spent, I hadn't seen any evidence that there was infringement.

evidence ever. So I think the -- you know, at -at -- at some point, I was -- wasn't asked to look anymore. Q So did you find any evidence that Juniper infringed Dr. Bahattab's patent after reviewing Mr. Mallya's deposition transcript? A Well, I mean, I -- I wouldn't be looking, honestly, to Mr. Mallya's transcript for -- for -- for evidence. You know, I -- I don't think the -- the questions and the answers were sufficient for one to, you know, to precisely get an understanding of that. Q So how -- what would be the best way to figure out whether or not, in doing an infringement analysis, whether or not Juniper infringed the '457 paint? MR. AUCHTER: Objection. Form, incomplete hypothesis. THE WITNESS: Well, as -- as -- as I recall, the '457 patent claim one is a -- I believe it's claim one -- is -- is -- is a method claim. In -- in general, let me just say that I

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Q And is that because Juniper doesn't practice any form of auto aggressive moving average in its routers? MR. AUCHTER: Objection to form. THE WITNESS: No. I looked at the -the bulk of my focus was on one -- one release, one source code release of -- of one product, and, in addition, you know, as I mentioned, the documents and Mr. Mallya's testimony. But -- but the bulk of my study was -- was for the -- for the -- for the latest release of -- of the J series. And given that review, I -- I didn't see any evidence that they -- that that -- what I saw practiced the invention of the '457 patent. BY MR. HOFFMAN: Q And when did you reach that conclusion? A I don't know that it was a -- you know, it's -- it's -- it's -- it's -- it's an instant. I mean, you know, if -- if you're -- you know, if -- if you're looking for something and you -and you can't find it and you keep looking and you can't find it, I mean you -- you know, I never saw

think for something like this, you know, to get an independent assessment as to whether or not something does or doesn't do it, I practice a set of steps. I think you should look at the source code. BY MR. HOFFMAN: Q You think the source code's the single most important piece of evidence to review in determining whether or not Juniper's routers infringed Dr. Bahattab's patent? MR. AUCHTER: Objection. Form, vague and confused. THE WITNESS: I mean, I'm -- I'm not going to characterize the relative merits. What I would say is for me, personally, if I was going to accuse a product of infringing something, I would want to see the source code. BY MR. HOFFMAN: Q So on March 17th, 2009, when Mr. Jordan and Mr. Auchter came to meet you at the source code review room, did you communicate with Mr. Auchter and Mr. Jordan at that time that you

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had not found any evidence that Juniper infringes the patent? A I think at that time, I showed them -- I described for them the analysis that I had done. I showed them what I had found. And I think I communicated that, you know, in -- in -- in my opinion, this wasn't evidence of infringement. Q And did you go back on March 1st to review the source code just to double-check that Dr. Bhattacharjee had gotten it right? A April. Q Oh, April 1st. Excuse me. A I was asked to, yeah, just double-check Dr. Bhattacharjee's analysis. Q And his conclusion, Dr. Bhattacharjee's conclusion that your conclusion were the same as with respect to the fact that Juniper doesn't infringe Dr. Bahattab's patent, correct? MR. AUCHTER: Objection to form. THE WITNESS: Well, I think we -- we had different tasks. I mean, I wasn't asked to opine on in -- infringement. I was asked to determine

BY MR. HOFFMAN: Q Dr. Jeffay, you were investigating whether or not the J series router of Juniper infringes Dr. Bahattab's patent; is that correct? MR. AUCHTER: Objection. Form, mischaracterizes prior testimony. THE WITNESS: I -- I think the way I stated it was I was trying to understand how it worked. BY MR. HOFFMAN: Q Why did you pick to understand how the J series worked? A Because my recollection was that it was having -- from the documents and from Mr. Mallya's testimony, it was a software only router, didn't have ASICs or custom silicon in it. And so, therefore, all of the functions of the router were performed in software; and, therefore, all of the function would -- I assumed would be manifest in the source code. Q Did anybody from -- or did any of Dr. Bahattab's counsel ask you specifically to

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whether or not how the products operated, and whether or not there was any evidence of this. And that's -- that's what I did. And that's what I communicated to attorneys at Dewey & LeBoeuf. BY MR. HOFFMAN: Q And you communicated the fact that there was no evidence that Juniper infringed the patent, correct? A Well, I think the way I phrased it was that given the work I had done, I haven't seen -I had not -- hadn't -- I had not seen any evidence. MR. AUCHTER: We've been going about an hour. Can we take a break? MR. HOFFMAN: Sure. Good time to take a break. THE WITNESS: Okay. VIDEOGRAPHER: Off the record at 9:36 a.m. (Recess) VIDEOGRAPHER: Back on the record at 9:54 a.m.

investigate the J series? A No. Q So from the source code log, you reviewed source code on six days; is that correct? A Let's see. (Witness examined document). Yeah, as I mentioned, the -- the first day was not very -the first entry on the 12th was not a very substantive session, if you will. So from my perspective, I would say we have the -- the two periods on the 13th, the -- of -- of February, the period on the 17th of February, a period on the 9th of March, and the 17th of March, and then April 1st. So that's five sessions. Q And those five sessions occurred over a six-week period; is that correct? A Yeah, that's -- that's a reasonable characterization. Q And sitting here today, do you recall investigating any other series of Juniper's routers as to whether or not they infringed the '457 patent?

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so there's still a chance that his deposition could go forward Wednesday? MR. AUCHTER: As far as I know, the visa has been granted. And they informed him that they would be sending him his passport with the visa in it. I don't actually know that the visa's been granted, because it's the United States embassy. And until such time as he actually has his passport in hand with the visa stamp in it, I would not say that it's been granted. But he has gone to the interview. He was told that it was approved, and that they would send him his passport with the visa in it. And we have a Fed-Ex had tracting number I can send you. MR. HOFFMAN: I would appreciate it. MR. AUCHTER: If you can do better than we can at getting information from the embassy, good luck. MR. ASBILL: We also have a backup date from you that I assume is still -MR. HOFFMAN: Yes. May, I believe -March -- May --

VIDEOGRAPHER: This concludes the videotaped deposition of Dr. Kevin Jeffay, consisting of five tapes. Going off the record at 3:57 p.m.

(Whereupon at 3:57 p.m., the deposition of KEVIN JEFFAY, Ph.D. was adjourned.)

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MR. ASBILL: May 28. MR. HOFFMAN: -- 28 would be the backup date. MR. ASBILL: Is it your understanding the -- the visa will be like a 30-day visa, or do you have any idea? MR. AUCHTER: Absolutely no idea. MR. HOFFMAN: Well, we would -- this being Friday and obviously Wednesday is coming up very quickly, we would appreciate immediate contact as soon as you are aware of either delivery, or that he has a ticket, or that he's coming, and not to wait till -MR. AUCHTER: Yeah. MR. HOFFMAN: -- early next week. MR. AUCHTER: The -- the issue right now is the passport and the visa. And you simply cannot travel those. MR. HOFFMAN: Okay. MR. AUCHTER: Internationally. MR. HOFFMAN: Thank you. We're off.

ACKNOWLEDGEMENT OF DEPONENT

I, KEVIN JEFFAY, Ph.D., do hereby acknowledge I have read and examined the foregoing pages of testimony, and the same is a true, correct and complete transcription of the testimony given by me, and any changes or corrections, if any, appear in the attached errata sheet signed by me.

__________________ Date

__________________________

KEVIN JEFFAY, Ph.D.

_____________________________ NOTARY PUBLIC My Commission Expires:

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CERTIFICATE OF NOTARY PUBLIC I, BARBARA A. HUBER, CSR, the officer before whom the foregoing deposition was taken, do hereby certify that the witness whose testimony appears in the foregoing deposition was duly sworn by me; that the testimony of said witness was taken by me in stenotypy and thereafter reduced to print under my direction; that said deposition is a true record of the testimony given by said witness; that I am neither counsel for, related to, nor employed by any of the parties to the action in which this deposition was taken; and, furthermore, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially or otherwise interested in the outcome of this action. __________________________________ BARBARA A. HUBER, CSR Notary Public, in and for the District of Columbia My Commission Expires: March 14, 2012

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