Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 1 of 7
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`Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 2 of 7
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`Allen, Paula
`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Song, Sharon
`Friday, September 28, 2018 11:40 AM
`~Manes, Austin; ~Andre, Paul; ~Hannah, James; ~Hedvat, Shannon; ~Kastens,
`Kristopher; ~Kobialka, Lisa; ~Lee, Michael; ~Martinez, Cristina; ~Nguyen, Stephanie
`Kagan, Jonathan; Carson, Rebecca; Curran, Casey; Glucoft, Josh; Wang, Kevin
`RE: Protective Order for exhibits in IPR Proceedings
`
`Counsel,
`
`Unless Finjan agrees to allow Juniper to use Finjan’s discovery responses in the IPR proceedings by 5:00pm today, we
`will be moving the Court to amend the Protective Order to allow Juniper to use confidential information produced in the
`District Court case in the IPRs so long as those materials are sealed and protected. To the extent Austin is not available
`to confer today, please provide times this afternoon that another member of your team is available. We have been
`trying to meet and confer with you on this issue since Monday, and Finjan’s attempt to delay the meet and confer
`process is inappropriate.
`
`In addition, to the extent that this issue is not resolved by the time that Juniper files its IPR petitions, Juniper intends to
`inform the Board that Finjan is refusing to allow the Board to consider its highly relevant admissions on licensing issues
`in the parallel litigation that relate to secondary considerations.
`
`Finally, pursuant to paragraph 6.2 of the Protective Order, Juniper challenges the confidentiality designation for the
`entirety Finjan’s responses to Interrogatory Nos. 3, 4, and 6 included in Finjan’s First Supplemental Objections and
`Responses to Juniper’s First Set of Interrogatories. Finjan’s information contained therein is not sensitive information
`that cannot be protected with less restrictive means. Further, the information includes non-technical or purely financial
`or license information that is not properly designated as “Highly Confidential – Attorneys’ Eyes Only.” Please let us
`know when you are available to meet and confer on this separate issue.
`
`Best,
`
`Sharon S. Song
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900 | Los Angeles, CA 90067
`310.203.7507 (direct) | ssong@irell.com
`
`
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Thursday, September 27, 2018 8:40 PM
`To: Song, Sharon; ~Andre, Paul; ~Hannah, James; ~Hedvat, Shannon; ~Kastens, Kristopher; ~Kobialka, Lisa; ~Lee,
`Michael; ~Martinez, Cristina; ~Nguyen, Stephanie
`Cc: Kagan, Jonathan; Carson, Rebecca; Curran, Casey; Glucoft, Josh; Wang, Kevin
`Subject: RE: Protective Order for exhibits in IPR Proceedings
`
`Sharon,
`
`There is HC-AEO information throughout these Interrogatory responses and they were properly marked as
`such. Also, these Interrogatories seek information on marking, but you claim Juniper wants to present
`information on licensing. Those are two separate issues. If you’re looking for information on Finjan’s licensing or
`licenses, as you know from Finjan’s production there is plenty of that information in Finjan’s public filings that
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`Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 3 of 7
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`Juniper can use without disclosing Finjan’s confidential information. Finjan is also obligated to maintain the
`confidentiality of third party information pursuant to its licensing agreements and protective orders. To the
`extent we have received permission to produce third party confidential information, we have done so.
`
`Further, the PO restricts the use of any confidential information for purposes outside this litigation, not just HC-
`AEO information. But to the extent you’re challenging the HC-AEO designations, please expressly state so
`under paragraph 6.2 and identify which portions of this document you’re challenging. I cannot tell from your
`email if you are actually making a challenge or, if so, what portions you’d like to challenge.
`
`Finally, you only sent me this document yesterday afternoon. I am in court tomorrow, but I’d be happy to meet
`and confer with you on it next week. I note that under the PO we have 14 days to meet and confer from the
`date that you expressly challenge the designations in writing.
`
`Austin
`
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`
`
`Austin Manes
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Song, Sharon <ssong@irell.com>
`Sent: Thursday, September 27, 2018 1:03 PM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>; Andre, Paul <PAndre@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Hedvat, Shannon H. <SHedvat@KRAMERLEVIN.com>; Kastens, Kris
`<KKastens@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Lee, Michael H.
`<MHLee@KRAMERLEVIN.com>; Martinez, Cristina <CMartinez@KRAMERLEVIN.com>; Nguyen, Stephanie
`<SNguyen@KRAMERLEVIN.com>
`Cc: Kagan, Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Curran, Casey <ccurran@irell.com>;
`Glucoft, Josh <JGlucoft@irell.com>; Wang, Kevin <kwang@irell.com>
`Subject: [EXTERNAL] RE: Protective Order for exhibits in IPR Proceedings
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`Austin,
`
`In the past, Finjan has argued that its licensing of certain patents serves as a secondary consideration of non-
`obviousness. See, e.g., IPR2018-00391, Paper 12 at 36-46. Finjan's interrogatory responses are highly relevant to
`rebutting any contention by Finjan that there is a nexus between Finjan’s licenses and the patents-in-suit. As such, they
`are relevant to the obviousness analysis.
`
`
`We also note that Finjan has specifically faulted past petitioners for purportedly failing to address the licensing evidence
`that Finjan produced to those petitioners in litigation. See, e.g., id. at 38 (“In the active litigation between Patent Owner
`and Petitioner, Patent Owner has provided Petitioner with substantial evidence related to secondary considerations of
`nonobviousness. Thus, there is simply no excuse for Petitioner’s failure to address this critical portion of the obviousness
`analysis….”). In the event that Finjan does not allow Juniper to use the interrogatory responses, we intend to let the
`Board know that Finjan has made highly relevant admissions on licensing issues in the parallel litigation and that Finjan is
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`Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 4 of 7
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`refusing to permit those admissions to be considered by the Board. If Finjan relies on any purported secondary
`considerations of non-obviousness in its POPR, we will also seek leave from the Board for discovery on these issues, as
`well as authorization to file a pre-institution reply brief.
`
`
`Finjan’s unreasonable refusal to allow Juniper to use Finjan’s interrogatory responses in the IPR is compounded by the
`fact that much of the material in the responses is not properly designated as confidential to Finjan. For example,
`information about Finjan’s efforts (or lack thereof) to mark embodiments of the patents is not properly designated as
`“Confidential,” much less “Highly Confidential – Attorneys’ Eyes Only.” Please provide us with a copy of the
`interrogatory responses that more particularly identifies Finjan’s claims of confidentiality by noon tomorrow. In
`addition, we note that Finjan appears to be making improper use of the “Highly Confidential – Attorneys’ Eyes Only”
`designation. The Protective Order defines “Highly Confidential – Attorneys’ Eyes Only” as "extremely sensitive
`‘Confidential Information or Items,’ disclosure of which to another Party or Non-Party would create a substantial risk of
`serious harm that could not be avoided by less restrictive means.” Dkt. No. 149 at 2. It further notes that “[i]f a
`Producing Party designates non-technical, purely financial or license information as ‘HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY’ the Receiving Party may challenge the non-technical portions of that Information or Items as
`‘CONFIDENTIAL’ (defined in Section 2.2) under Section 6 below.” Id. As such, it is Juniper’s position that none of Finjan’s
`information is properly designated as Highly Confidential – Attorneys’ Eyes Only.
`
`If that Finjan maintains its improper confidentiality designations and refuses to provide a version highlighting the limited
`Finjan information that may be Confidential (and no Finjan information designated as Highly Confidential), we challenge
`Finjan’s confidentiality designations under Paragraph 6 and specifically Paragraph 6.2 of the Protective Order.
`
`
`We have been trying to confer with you about this since Monday. Please provide times today or tomorrow that you are
`available to confer.
`
`
`Thanks,
`
`Sharon S. Song
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900 | Los Angeles, CA 90067
`310.203.7507 (direct) | ssong@irell.com
`
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`From: Manes, Austin <AManes@KRAMERLEVIN.com>
`Sent: Thursday, September 27, 2018 10:41 AM
`To: Song, Sharon <ssong@irell.com>; ~Andre, Paul <pandre@kramerlevin.com>; ~Hannah, James
`<jhannah@kramerlevin.com>; ~Hedvat, Shannon <shedvat@kramerlevin.com>; ~Kastens, Kristopher
`<kkastens@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Lee, Michael
`<mhlee@kramerlevin.com>; ~Martinez, Cristina <cmartinez@kramerlevin.com>; ~Nguyen, Stephanie
`<SNguyen@KRAMERLEVIN.com>
`Cc: Kagan, Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Curran, Casey <ccurran@irell.com>;
`Glucoft, Josh <JGlucoft@irell.com>; Wang, Kevin <kwang@irell.com>
`Subject: RE: Protective Order for exhibits in IPR Proceedings
`
`Sharon,
`
`We do not agree to Juniper’s use of Finjan’s Interrogatory Responses, which are marked highly confidential, for
`any proceedings outside this litigation. The parties agreed that any use of protected material was to be only
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`Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 5 of 7
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`for “prosecuting, defending or attempting to settle” this litigation. Further, none of the interrogatories you
`attached are about prior art that would relate to any IPR proceedings, so we do not understand the request.
`
`Austin
`
`
`
`
`Austin Manes
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Song, Sharon <ssong@irell.com>
`Sent: Thursday, September 27, 2018 9:16 AM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>; Andre, Paul <PAndre@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Hedvat, Shannon H. <SHedvat@KRAMERLEVIN.com>; Kastens, Kris
`<KKastens@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Lee, Michael H.
`<MHLee@KRAMERLEVIN.com>; Martinez, Cristina <CMartinez@KRAMERLEVIN.com>; Nguyen, Stephanie
`<SNguyen@KRAMERLEVIN.com>
`Cc: Kagan, Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Curran, Casey <ccurran@irell.com>;
`Glucoft, Josh <JGlucoft@irell.com>; Wang, Kevin <kwang@irell.com>
`Subject: [EXTERNAL] RE: Protective Order for exhibits in IPR Proceedings
`
`Austin,
`
` I
`
` tried calling you regarding the below and left a voicemail yesterday evening. Please provide Juniper a response by
`noon today.
`
`Best,
`
`Sharon S. Song
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900 | Los Angeles, CA 90067
`310.203.7507 (direct) | ssong@irell.com
`
`From: Song, Sharon
`Sent: Tuesday, September 25, 2018 3:19 PM
`To: ~Manes, Austin; ~Andre, Paul; ~Hannah, James; ~Hedvat, Shannon; ~Kastens, Kristopher; ~Kobialka, Lisa; ~Lee,
`Michael; ~Martinez, Cristina; ~Nguyen, Stephanie
`Cc: Kagan, Jonathan; Carson, Rebecca; Curran, Casey; Glucoft, Josh; Wang, Kevin
`Subject: RE: Protective Order for exhibits in IPR Proceedings
`
`My apologies. The document we are requesting to use in our IPR petitions is attached.
`
`Sharon S. Song
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`Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 6 of 7
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`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900 | Los Angeles, CA 90067
`310.203.7507 (direct) | ssong@irell.com
`
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Tuesday, September 25, 2018 3:12 PM
`To: Song, Sharon; ~Andre, Paul; ~Hannah, James; ~Hedvat, Shannon; ~Kastens, Kristopher; ~Kobialka, Lisa; ~Lee,
`Michael; ~Martinez, Cristina; ~Nguyen, Stephanie
`Cc: Kagan, Jonathan; Carson, Rebecca; Curran, Casey; Glucoft, Josh; Wang, Kevin
`Subject: RE: Protective Order for exhibits in IPR Proceedings
`
`Sharon, I don’t think you attached anything to the first email. Can you please resend?
`
`
`
`
`Austin Manes
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`amanes@kramerlevin.com
`
`
`Bio
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`From: Song, Sharon <ssong@irell.com>
`Sent: Tuesday, September 25, 2018 3:05 PM
`To: Andre, Paul <PAndre@KRAMERLEVIN.com>; Hannah, James <JHannah@KRAMERLEVIN.com>; Hedvat, Shannon H.
`<SHedvat@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Kobialka, Lisa
`<LKobialka@KRAMERLEVIN.com>; Lee, Michael H. <MHLee@KRAMERLEVIN.com>; Manes, Austin
`<AManes@KRAMERLEVIN.com>; Martinez, Cristina <CMartinez@KRAMERLEVIN.com>; Nguyen, Stephanie
`<SNguyen@KRAMERLEVIN.com>
`Cc: #Juniper/Finjan [Int] <Juniper-Finjan@irell.com>
`Subject: [EXTERNAL] RE: Protective Order for exhibits in IPR Proceedings
`
`Counsel,
`
`
`Please respond to the below.
`
`
`Best,
`
`
`Sharon S. Song
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900 | Los Angeles, CA 90067
`310.203.7507 (direct) | ssong@irell.com
`
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`Case 3:17-cv-05659-WHA Document 199-2 Filed 10/04/18 Page 7 of 7
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`From: Song, Sharon
`Sent: Monday, September 24, 2018 4:04 PM
`To: ~Andre, Paul; ~Hannah, James; ~Hedvat, Shannon; ~Kastens, Kristopher; ~Kobialka, Lisa; ~Lee, Michael; ~Manes,
`Austin; ~Martinez, Cristina; ~Nguyen, Stephanie
`Cc: #Juniper/Finjan [Int]
`Subject: Protective Order for exhibits in IPR Proceedings
`
`
`Counsel,
`
`Juniper requests that Finjan agree to allow Juniper to use the attached document, Finjan’s First Supplemental Objections
`and Responses to Petitioner’s First Set of Interrogatories, as an exhibit in several inter partes review petitions Juniper
`will be filing involving the patents Finjan has asserted against Juniper. To the extent Finjan agrees, we would be willing
`to file the responses under seal and under a protective order that offers the same protection as the protective order in
`the district court litigation. Please let us know by tomorrow at noon if you agree that Juniper can use Finjan’s
`interrogatory responses in the IPR proceedings, and we will send you a draft protective order to review.
`
`If Finjan does not agree, please provide us times you are available tomorrow afternoon to meet and confer over this
`issue. In particular, please be prepared to discuss the propriety of Finjan’s designation of the entirety of the document
`as “Highly Confidential – Attorneys’ Eyes Only” under the Protective Order.
`
`
`Best,
`
`
`Sharon S. Song
`Irell & Manella LLP
`1800 Avenue of the Stars, Suite 900 | Los Angeles, CA 90067
`310.203.7507 (direct) | ssong@irell.com
`
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`PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside
`information. Any distribution or use of this communication by anyone other than the intended recipient(s) is
`strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by
`replying to this message and then delete it from your system. Thank you.
`
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