Case 3:17-cv-05659-WHA Document 137 Filed 07/02/18 Page 1 of 3
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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`June 26, 2018
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`W R I T E R ' S D I R E C T
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`Hon. William Alsup
`U.S. District Court, Northern District of California
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`Finjan, Inc. v. Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA
`Re:
`Dear Judge Alsup:
`Defendant Juniper Networks, Inc. (“Juniper”) respectfully moves the Court to issue
`an Order compelling Plaintiff Finjan, Inc. (“Finjan”) to produce notes Finjan’s Rule 30(b)(6)
`designee, Mr. John Garland, used to refresh his recollection before his deposition. The topic of this
`deposition is a crucial one in this case—notice. Finjan claims that it provided Juniper with specific
`notice about the patents-in-suit and the products—Sky ATP and the SRX—before it filed this
`lawsuit in a telephone call between Mr. Garland of Finjan and Scott Coonan of Juniper. Juniper, on
`the other hand, claims Finjan provided no such notice on this call; that it requested this information,
`but Finjan refused to provide it unless Juniper signed a confidentiality agreement (which it was
`unwilling to do). Juniper further contends that Finjan never even mentioned SkyATP on the call
`and made no specific accusations against the SRX, and that Finjan has not made any accusations in
`this case against the one product it mentioned, Juniper’s Advanced Malware Module.
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`To help flesh out the dispute between the parties, Juniper served a Rule 30(b)(6)
`notice on Finjan directed to “[a]ll facts and circumstances regarding any efforts taken to comply
`with the marking and notice provisions of 35 U.S.C. § 287 with respect to the Asserted Patents,
`including any efforts by Finjan to ensure compliance by its licensees with said marking provisions.”
`Ex. A (Notice of Dep.) at 2:2-4. Finjan designated Mr. Garland as its representative for the
`deposition. As part of his preparation,
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`Case 3:17-cv-05659-WHA Document 137 Filed 07/02/18 Page 2 of 3
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`Ex. B at 221:16-224:14.
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`The next day, Juniper’s Counsel again asked for these notes, or, if Finjan was
`attempting to claim some privilege, the basis for any such claim. Ex. C. Finjan’s Counsel never
`responded, so Juniper’s Counsel requested to meet and confer on the issue. Ex. D. The parties met
`and conferred on June 11, 2018 and were unable to reach an agreement. That day, Juniper’s
`Counsel sent a follow-up email explaining (again) that (1) Finjan is required to produce Mr.
`Garland’s notes pursuant to paragraph 29 of this Court’s Supplemental Order; (2) Mr. Garland’s
`notes are responsive to a number of Juniper’s Requests for Production; (3) Mr. Garland’s notes are
`responsive to two of Juniper’s Interrogatories; and (4) no privilege could apply to these documents,
`as they are not identified on Finjan’s privilege log. See Ex. D. In other words, the notes are
`responsive to discovery requests, not protected by any privilege, and are required to be produced
`pursuant to this Court’s order regarding documents used to refresh recollection at depositions.
`Again, Finjan’s counsel never responded. Therefore, on June 29, 2018 Juniper’s Counsel informed
`Finjan that if it did not agree to produce the notes by July 2, 2018, Juniper would need to raise the
`issue with the Court. Ex. F. Again, Finjan failed to respond.
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`It is settled law that documents used to prepare a Rule 30(b)(6) deponent are subject
`to disclosure. Under Rule 612 of the Federal Rules of Evidence, if a witness uses a writing to
`refresh his memory before testifying, the trial court is authorized to compel the production of that
`writing “if the court decides that justice requires the party to have those options.” “Rule 612 applies
`to written materials reviewed prior to a deposition.” United States v. 22.80 Acres of Land, 107
`F.R.D. 20, 25 (N.D. Cal. 1985) (citing In re Comair Air Disaster Litig., 100 F.R.D. 350, 353 (E.D.
`Ky. 1983)). “Rule 612(2) in particular has been interpreted to permit discovery of writings (or
`portions thereof) that a witness reviewed before a deposition for the purpose of refreshing his or her
`recollection; any privilege or work product protection against disclosure is deemed waived as to
`those portions so reviewed.” Id1. Further, pursuant to this Court’s Supplemental Order Finjan was
`required to “segregate and retain all materials used to refresh [Mr. Garland’s] memories” and
`“provide them to [Juniper’s] counsel at the outset of the deposition.” See Supplemental Order To
`Order Setting Initial Case Management Conference In Civil Cases Before Judge William Alsup
`¶ 29.
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`Juniper therefore seeks an order compelling Finjan to produce the notes that Mr. Garland
`made about his call with Mr. Coonan.
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`1 Mr. Garland’s notes, which he described as
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`223:2-3), are not privileged and, even if they could somehow be considered privileged, Finjan has
`waived the privilege by failing to timely assert it.
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`Case 3:17-cv-05659-WHA Document 137 Filed 07/02/18 Page 3 of 3
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`Respectfully submitted,
`/s/ Jonathan S. Kagan________
`Jonathan S. Kagan
`IRELL & MANELLA LLP
`Attorneys for Juniper Networks, Inc.
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