Case 3:17-cv-05659-WHA Document 214 Filed 10/26/18 Page 1 of 2
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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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`Hon. William Alsup
`U.S. District Court, Northern District of California
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`Re:
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`Finjan, Inc. v. Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA
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`Dear Judge Alsup:
`Defendant Juniper Networks, Inc. (“Juniper”) respectfully requests the Court
`reconsider in part its October 26, 2018 Order Denying Stipulated Request To Modify Scheduling
`Order concerning a briefing schedule for Daubert motions.
`Juniper agrees with the Court that experts should have been available at an earlier
`date. However, the requested briefing schedule is the result of Finjan, Inc.’s (“Finjan”) delay in
`making its expert available for deposition. Particularly given the absurd position Finjan’s damages
`expert has expressed (i.e., a minimum of $55.5 million in damages for an expired patent with less
`than $2 million in total sales of the accused products during the relevant damages period), Finjan
`should not be allowed to prejudice Juniper’s ability to exclude this testimony.
`On September 12, 2018, the day after opening expert reports were served, Juniper
`requested dates to depose Finjan’s damages expert, Mr. Kevin M. Arst, and for a Rule 30(b)(6)
`witness on Finjan’s licensing practices, which are a subject of the damages experts’ reports. The
`earliest date Finjan offered for its 30(b)(6) witness was November 2, 2018, despite Juniper’s efforts
`to secure an earlier date, and it did not provide a firm date for Mr. Arst’s deposition. Because of
`this delay, the parties agreed that Juniper’s rebuttal damages report would not be due until
`November 7, 2018. Finjan then agreed to provide Mr. Arst for deposition on November 9, 2018.
`Because Finjan has delayed the date of Mr. Arst’s deposition until November 9,
`Juniper is not able comply with the standard briefing schedule set by Local Rule 7-2 for a Daubert
`motion. Given the positions Mr. Arst has taken in his report, a Daubert motion is particularly
`appropriate in this case. Mr. Arst has opined that the appropriate range of damages for Juniper’s
`alleged infringement of Claim 10 of the ’494 Patent is from $55.5 million to $64.7 million, even
`though the relevant patent expired before Finjan filed this lawsuit, and the relevant damages period
`is roughly 14 months. During that time period, Juniper sold less than $2 million in total revenue
`(not profits) of the accused products. Thus, Mr. Arst’s proposed damages result in a royalty rate of
`roughly 3,000% or higher.
`It would be inequitable to allow Finjan’s delay to preclude Juniper’s Daubert
`motion, particularly in light of the absurd nature of Mr. Arst’s report. Juniper is cognizant of the
`Court’s need to have sufficient time with a full set of briefing and proposes the following revised
`schedule govern Juniper’s Daubert motion:
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`10589363
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`Case 3:17-cv-05659-WHA Document 214 Filed 10/26/18 Page 2 of 2
`I R E L L & M A N E L L A L L P
`
`
`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
`
`Juniper’s Opening Brief: November 12, 2018
`Finjan’s Opposition: November 21, 2018
`Juniper’s Reply: November 26, 2018
`Hearing: December 4, 2018 at 9:00 AM (Pretrial Conference)
`Alternatively, Juniper is amenable to any briefing schedule that works most
`agreeably with the Court’s calendar.
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`Respectfully submitted,
`/s/ Jonathan S. Kagan________
`Jonathan S. Kagan
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
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`10589363
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