Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 1 of 12
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`Casey Curran (SBN 305210)
`ccurran@irell.com
`Sharon Song (SBN 313535)
`ssong@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`Case No. 3:17-cv-05659-WHA
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`JUNIPER NETWORKS, INC.’S MOTION
`IN LIMINE NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24,
`2015 CALL BETWEEN THE PARTIES
`AND ANY REFERENCE TO WHO MADE
`THE RECORDING
`
`December 4, 2018
`Date:
`9:00 a.m.
`Time:
`Courtroom: Courtroom 12, 19th Floor
`Before:
`Hon. William Alsup
`
`10607453
`
`JUNIPER’S MIL NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24, 2015
`CALL BETWEEN THE PARTIES
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 2 of 12
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`I.
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`INTRODUCTION
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`Finjan has made a number of assertions about a call that took place between the parties on
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`November 24, 2015. As an example, John Garland—one of Finjan’s
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` Ex. 5 (Deposition Transcript of John Garland on May 24,
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`2018) at 194:13-16. Fortunately, Mr. Coonan—a North Carolina resident who was in North
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`Carolina at the time—recorded the call—and the transcript of this recording provides a more
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`reliable way to verify what was said than either party’ alleged recollections. Thus, to the extent
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`issues discussed in the substance of the call are relevant to the trial, the relevant portions of the
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`transcript should be available for the parties to discuss or introduce as evidence. Finjan has made
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`clear, however, that they want to make an additional, improper use of the call: to suggest that Mr.
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`Coonan acted illegally or unethically in making the recording. Not only is this assertion legally
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`false and inflammatory, but (given the fact that California is a two-party consent state), even the
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`suggestion that Mr. Coonan recorded the call without consent is likely to prejudice a California
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`jury against Juniper. Moreover, Finjan’s ad hominem attack on Mr. Coonan is irrelevant to any
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`issues in dispute in this case. While the content of the call could be relevant to issues in dispute,
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`the circumstances of the recording are not. Juniper therefore respectfully moves this Court to (1)
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`allow the parties to discuss and introduce portions of the transcript of the call after they have made
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`a showing of relevance to the Court; but (2) to prohibit either party from discussing the
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`circumstances of the recording (including which party made the recording), or introducing the
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`recording itself (from which the jury could discern this information). This proposal ensures that
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`any potentially relevant information from the call can be considered by the jury, while avoiding
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`any potential prejudice to Juniper.
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`Juniper presents this motion pursuant to Federal Rules of Evidence 403 and 404, as a
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`discussion of the circumstances surrounding the recording would likely prejudice Juniper, confuse
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`the issues, mislead the jury, and require an undue consumption of time.
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`10607453
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`- 1 -
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`JUNIPER’S MIL NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24, 2015
`CALL BETWEEN THE PARTIES
`(Case No. 3:17-cv-05659-WHA)
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`

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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 3 of 12
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`II.
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`FACTS
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`During pre-suit negotiations, representatives from both parties spoke via phone on
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`November 24, 2015—Scott Coonan, Senior Director of IP participated on behalf of Juniper and
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`John Garland, VP of Business Development participated on behalf of Finjan. Due to the tenor of
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`the negotiations, Mr. Coonan decided it best to record the conversation to memorialize any
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`information exchanged. Ex. 11 (Declaration of Scott Coonan).
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`At the time of the call, Mr. Coonan was a resident of North Carolina, and he took the call
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`from his home office in North Carolina. Id. Mr. Garland is a resident of New Jersey. Ex. 5
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`(Deposition Transcript of John Garland on May 24, 2018) at 13:12-13 (“. . . my primary residence
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`right now is in Flemington, New Jersey.”).
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`Through discovery, Juniper has produced both the recording and a certified transcript of
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`the call. Because of the difference in sound quality between the speakers, it is readily apparent
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`that Mr. Coonan was the person making the recording. Both Mr. Coonan and Mr. Garland are
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`available to testify at trial as necessary.
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`III. ARGUMENT
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`Although it is legal in North Carolina (and New Jersey, for that matter) for a party to
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`record any phone call in which he or she is participating, California requires both parties to
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`consent to the recording. As the jury in this case will be comprised of lay-persons who are
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`probably somewhat familiar with the law in California—and not at all familiar with the law in
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`North Carolina—they are likely to have a negative reaction if they believe one party recorded a
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`call without the consent of the other, even if (as here) it was completely legal to do so. Indeed,
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`Finjan has made clear that it wants to attack Mr. Coonan for making the recording and introduce
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`the actual recording of the call. See Ex. 6 (Finjan’s Trial Exhibit List) at 52 (offering the audio
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`recording as Trial Exh. No. 256). Finjan has claimed, repeatedly and falsely, that Mr. Coonan
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`acted illegally and improperly in making the recording.1 For example, Finjan has argued that Mr.
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`1 Notably, the fact that the call was recorded was brought to the Court’s attention early on
`and was a non-issue. See Ex. 7 (July 5, 2018 Hearing Transcript at 7:18-24) (THE COURT: Well,
`is that true? You recorded it? MS. CURRAN: Yes. An employee of Juniper Networks, Inc.,
`recorded the call. THE COURT: What state was that person in? MS. CURRAN: He was in North
`JUNIPER’S MIL NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24, 2015
`CALL BETWEEN THE PARTIES
`(Case No. 3:17-cv-05659-WHA)
`
`10607453
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`- 2 -
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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 4 of 12
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`Coonan’s recording was a “violation of Federal Wiretap Act 18 U.S.C. § 2511(2)(d) and Cal.
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`Penal Code § 632 (a), (b).” Ex. 8 (Dkt. 153) at 13 n. 10. Again, in its July 13, 2018 letter brief to
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`the Court, Finjan argued that Mr. Coonan acted “in violation of California and federal laws
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`prohibiting interception of communications without consent.” Ex. 9 (Dkt. 155) at 3 n. 4. Finjan’s
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`witnesses have further testified that they believe Mr. Coonan’s actions were a “borderline” ethical
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`violation and demonstrated a lack of integrity. See, e.g., Ex. 10 (Deposition of Julie Mar-Spinola,
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`VP of Legal Operations) at 127:11-128:6
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` (emphasis added). Allowing Finjan to accuse or even imply that Mr. Coonan and
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`Juniper engaged in illegal and unethical behavior in front of the jury will cause substantial
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`prejudice, confusion of the issues, misleading of the jury, and undue consumption of time, and
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`amounts to no more than inadmissible character evidence. Federal Rules of Evidence 403 and 404
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`exist to keep precisely this type of evidence and arguments away from the jury.
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`Moreover, the audio recording itself is unnecessary and cumulative in establishing any
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`potentially relevant portions of the call. Because Juniper has produced a certified transcript of the
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`call and both Mr. Coonan and Mr. Garland will be testifying at trial, the recording itself is merely
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`cumulative, and the difference in audio quality between the speakers makes it clear that Mr.
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`Coonan is the recording party. This might prejudice a California jury, even without Finjan’s
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`inflammatory statements, as a California jury might think Mr. Coonan did something untoward by
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`recording the call, as jurors in California are likely aware (at some level) that California law
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`prohibits recording a call absent notice or consent by both parties. Allowing the transcript of the
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`call to be admitted (to the extent either party can establish the relevance of the portions they wish
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`to use) thus introduces a piece of cumulative evidence that carries with it a great risk of prejudice.
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`Carolina at the time; a one-party consent state for recording phone calls. THE COURT: Well, so
`what’s the problem?).
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`10607453
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`- 3 -
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`JUNIPER’S MIL NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24, 2015
`CALL BETWEEN THE PARTIES
`(Case No. 3:17-cv-05659-WHA)
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`

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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 5 of 12
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`Finjan’s repeated claims of illegality are both incorrect and threaten to become an
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`irrelevant side-show, consuming an undue amount of time. Presenting these issues to the jury
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`could create a “trial within a trial” over wiretapping laws that have no place in a patent litigation.
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`Moreover, Finjan’s accusations are just wrong: Mr. Coonan was within his legal right to record his
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`conversation. Federal law provides a one-party consent rule and because Mr. Coonan was a party
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`to the call, he was free to record it. See 18 U.S.C. § 2511(2)(d) (“It shall not be unlawful under
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`this chapter for a person not acting under color of law to intercept a wire, oral, or electronic
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`communication where such person is a party to the communication or where one of the parties
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`to the communication has given prior consent to such interception . . .”) (emphasis added).
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`Moreover, Mr. Coonan is a North Carolina resident and made the call there, which also has a one-
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`party consent rule. See N.C. Gen. Stat. § 15A-287 (it is a crime to “willfully” intercept or record
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`“any wire, oral, or electronic communication” . . . “without the consent of at least one party to the
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`communication”); see also State v. Price, 170 N.C. App. 57, 65–66 (2005) (“[U]nder both the law
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`of [North Carolina] and federal law, that the interception of telephone calls does not violate the
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`statutory prohibitions so long as at least one party to the communication consents.”).2 Thus, Mr.
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`Coonan was within his legal right to record his conversation and arguing or even suggesting that
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`Mr. Coonan engaged in illegal wiretapping amounts to nothing more than highly prejudicial and
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`inadmissible character evidence under Fed. R. Evid. 403 and 404, especially in front of a
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`California jury that is likely unfamiliar with the one-party consent laws of North Carolina.
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`IV. CONCLUSION
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`For the reasons discussed above, Juniper respectfully requests that this Court enter an order
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`in limine under Fed. R. Evid. 403 and 404 to allow relevant portions of the transcript of the
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`parties’ November 24, 2015 call into evidence (to the extent either party can show the relevance of
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`the portions they intend to use), but preclude any reference to the circumstances of the recording
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`2 Mr. Garland is a New Jersey resident, which is also a one-party consent state. N.J. Stat.
`Ann. § 2A:156A-4(d) (“It shall not be unlawful under this act for: . . . A person not acting under
`color of law to intercept a wire, electronic or oral communication, where such person is a party to
`the communication or one of the parties to the communication has given prior consent to such
`interception . . .) (emphasis added).
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`10607453
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`JUNIPER’S MIL NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24, 2015
`CALL BETWEEN THE PARTIES
`(Case No. 3:17-cv-05659-WHA)
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 6 of 12
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`(including which party made the recording) or playing the audio recording itself (as the jury could
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`readily discern who created it). Allowing Finjan to present an inflammatory narrative that Juniper
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`engaged in illegal or unethical behavior will lead to substantial prejudice, particularly when
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`presented to a California jury that is unfamiliar with the one-party consent rules of another state.
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`The existence of non-prejudicial alternatives further demonstrate that Finjan’s tactics serve no
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`purpose other than to attack Juniper’s character and cause substantial prejudice, confusion of the
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`issues, misleading of the jury, and undue consumption of time. Thus, the Court should grant
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`Juniper’s motion in limine.
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`Dated: November 14, 2018
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`Respectfully submitted,
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`IRELL & MANELLA LLP
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`By: /s/ Rebecca Carson
`Rebecca L. Carson (SBN 254105)
`rcarson@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`10607453
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`JUNIPER’S MIL NO. 3 TO EXCLUDE THE
`RECORDING OF THE NOVEMBER 24, 2015
`CALL BETWEEN THE PARTIES
`(Case No. 3:17-cv-05659-WHA)
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`

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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 7 of 12
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`
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`PAUL ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
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`Attorneys for Plaintiff
`FINJAN, INC.
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`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`
`
`
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`Defendant.
`
`
`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF’S FINJAN INC.’S
`OPPOSITION TO DEFENDANT’S
`MOTION IN LIMINE NO. 3 TO
`EXCLUDE RECORDING OF THE
`NOVEMBER 24, 2015 CALL BETWEEN
`THE PARTIES AND ANY REFERENCE
`TO WHO MADE THE RECORDING
`
`December 4, 2018
`
`Date:
`9:00 a.m.
`Time:
`Courtroom: Courtroom 12, 19th Floor
`Before:
` Hon. William Alsup
`
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`
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`PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE NO. 3 CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 8 of 12
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`INTRODUCTION
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`Defendant Juniper Network’s Motion in Limine No. 3 (“MIL No. 3”) should be denied
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`because the telephone conference between Finjan’s licensing executive and Juniper’s in-house
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`counsel responsible for licensing is relevant to Juniper’s notice of the ‘494 Patent and the
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`corresponding infringing products SRX Gateways and Sky ATP products. The entirety of the
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`conference should be introduced because it provides the most accurate record and context for the
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`notice that Finjan provided to Juniper and the negotiations between the parties. If only excerpts of the
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`call are provided this is likely to confuse the jury and provide an incomplete record of what
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`transpired. Furthermore, the conference should be introduced in its audio format because that is the
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`most accurate record of the call, and includes information that allows the jury to weigh the credibility
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`of those speaking, including manner, tone, and demeanor lost in a transcript. The jury is entitled to
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`rely on this information in weighing and evaluating the credibility of the parties’ statements. Next,
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`the jury should be able to understand who recorded the call and the circumstances around it, as the
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`jury is entitled to know that it was recorded without the knowledge of Finjan, as these facts are
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`evidence of Mr. Garland and Mr. Coonan’s state-of-mind and support that Juniper anticipated
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`litigation with Finjan. Finally, Finjan will not argue that Mr. Coonan should be convicted for illegally
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`recording the call, mooting most of Juniper’s arguments of potential prejudice.
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`Thus, Finjan respectfully requests Defendant’s MIL No. 3 be denied.
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`ARGUMENT
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`A.
`The Entire Call Should Be Presented to the Jury
`The November 24, 2015 audio tape of the conversation between John Garland, Finjan’s
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`Director of Business Development, and Scott Coonan, Juniper’s Senior Director of IP, includes highly
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`probative evidence that Finjan provided notice to Juniper that Juniper infringed the ‘494 Patent with its
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`SRX Gateways and Sky ATP in 2015. Indeed, Juniper acknowledges (MIL No. 3 at 1) that the
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`conversation is relevant to the notice issue in dispute. As the call is relevant, the jury should be
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`provided with the entire call, as a partial record of the call would prevent them from understanding the
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`surrounding context, which they are allowed to consider in their role as factfinders. Dirks v. Cty. of
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`PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE NO. 3 CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 266 Filed 11/27/18 Page 9 of 12
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`Los Angeles, No. CV 07-2664 GAF (FMOx), 2008 WL 11355528, at *9 (C.D. Cal. Dec. 10, 2008)
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`(“An intelligible recording of relevant events will almost always be admitted into evidence.”) (citing
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`United States v. Rrapi, 175 F. 3d 742, 746 (9th Cir. 1999), cert. denied, 528 U.S. 912 (1999)).
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`Instead, Juniper asks that the Court limit which portions of the call that can be entered into
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`evidence on a case-by-case basis, without providing any specific examples of what it contends is so
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`prejudicial to Juniper on the call. See Fed. R. Evid. 106 (“an adverse party may require the
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`introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness
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`ought to be considered at the same time.”); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172
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`(1988) (“We take this to be a reaffirmation of the obvious: that when one party has made use of a
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`portion of a document, such that misunderstanding or distortion can be averted only through
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`presentation of another portion, the material required for completeness is ipso facto relevant and
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`therefore admissible under Rules 401 and 402”) (citation omitted). As Juniper provides no reason it
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`believes any of the substance of the call is prejudicial, its request to exclude certain portion should be
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`denied.
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`B.
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`The Jury Should Hear the Audio Because It Includes Highly Relevant
`Information That is Not Reflected in a Transcript
`Despite Defendant’s concession regarding the relevancy of the call, Juniper incorrectly
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`contends that the audio version of the call should be excluded under Fed. R. Evid. 403 and 404
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`because it will result in unfair prejudice to Juniper, confuse the issues, mislead the jury and require
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`undue consumption of time. To the contrary, by not presenting the audio tape, the jury will be misled.
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`The audio tape includes information not reflected in the transcript and the circumstance
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`surrounding the recording are probative of Defendant’s knowledge of the patents and anticipation of
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`potential litigation. Defendant’s contention that a transcript captures the same information as an audio
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`recording lacks credibility, as it is common sense that how something is said can be even more
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`important than what is said. As such, the tone and manner of the conversation captured in the audio
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`tape conveys far more information than a transcript. Indeed, numerous courts have found that it is the
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`tape recording—not the transcript––that is the actual evidence. United States v. Turner, 528 F.2d 143,
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`167-68 (9th Cir. 1975), cert. denied, Hackett v. U.S., 429 U.S. 837 (1976) (taped conversations
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`PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE NO. 3 CASE NO.: 3:17-cv-05659-WHA
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`normally constitute the actual evidence and transcripts are used only as aids to understanding the
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`tapes).
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`The jury should be given the opportunity to listen to the actual recording and make a
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`determination.
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`As such, Defendant’s contention that the mere transcript is sufficient should be rejected.
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`C.
`The Jury is Entitled to Know the Circumstances Around the Call
`The jury should also be permitted to know the circumstances surrounding the call, and that it
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`was recorded without informing Mr. Garland. Permitting the jury to know this information will not
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`result in unfair prejudice under Fed. R. Evid. 403 and 404. To the contrary, exclusion of the
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`circumstances around the audio tape will result in unfair prejudice to Finjan and may mislead the jury
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`into believing that Finjan knew its conversation was recorded.
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`The circumstances around the call should be considered because Juniper appears to rely on its
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`self-serving statements in a telephone call that it secretly recorded (and which was intended to
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`provoke Finjan and present misleading facts). At the same time, Juniper seeks to prevent Finjan from
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`presenting evidence from which a jury could conclude that Juniper’s recorded statements are not
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`credible or should be given no weight because they were made in a staged secret recording, knowing
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`they may be presented to a jury. The jury should be permitted to be presented with information
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`concerning the circumstance of the recording, which is necessary to allow them to properly weigh the
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`information presented during the telephone conversation. For example, during the conversation
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`Defendant made inflammatory remarks regarding Finjan’s patents and denied infringement to provoke
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`Mr. Garland. As such, the jury should be allowed to consider the circumstance of the conversation
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`when evaluating statement made during the recorded conversation.
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`The jury should consider Juniper’s unusual decision––by its Senior Director of IP––to record
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`this conversation because this is highly probative evidence showing that Juniper anticipated potential
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`litigation by Finjan against Juniper. For this reason alone, the Court should deny Juniper’s MIL No. 3
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`and permit Finjan to cross-examine Mr. Coonan regarding his action and his reasons for taking the
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`highly unusual step of recording his conversation with Mr. Garland. Further, if Juniper recorded the
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`PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE NO. 3 CASE NO.: 3:17-cv-05659-WHA
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`telephone call simply to preserve an accurate record of the conversation, it would not have needed to
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`do so in secret, but would have notified Finjan’s representatives that it was recording the call. As
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`such, a jury is entitled to rely on this information and potential inferences to evaluate the credibility of
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`Defendant’s recorded statements and state-of-mind when it decided to secretly record the telephone
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`call.
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`Additionally, if the jury is not provided the full context of the call, they will be misled into
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`believing that Finjan knew the conversation was recorded. Defendant contends that because the jury
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`in this case may be familiar with California prohibiting the recoding of a call absent notice or consent
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`by both parties, a secret recording will be understood to be illegal. If the jury is not informed that the
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`conversation was secretly recorded, then the jury will reach the false/incorrect conclusion that Finjan
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`knew the conversation was recorded. As such, granting Defendant’s MIL No. 3 will mislead the jury
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`and prejudice Finjan.
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`Finally, Finjan will not argue that Mr. Coonan should be charged for illegally recording the
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`call during trial. To the extent Defendant is concerned the jury may believe that secretly recording the
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`conversation was illegal, this can be easily mitigated on direct, cross or through instructions regarding
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`the legality of recording such conversations. Accordingly, there is no unfair prejudice to Defendant
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`that substantially outweighs need for the jury to be presented with relevant information. United States
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`v. Jayavarman, 871 F.3d 1050, 1064 (9th Cir. 2017) (admitting into evidence secretly recorded tapes
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`discussing sexually explicit conduct where the probative value in establishing defendant’s state-of-
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`mind and belief regarding the victim’s age was not substantially outweighed by any risk of unfair
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`prejudice).
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`For the foregoing reasons, Defendant Motion in Limine No. 3 should be denied.
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`CONCLUSION
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`PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE NO. 3 CASE NO.: 3:17-cv-05659-WHA
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`DATED: November 23, 2018
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`Respectfully submitted,
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`By: /s/ Kristopher Kastens
`
`
`Paul J. Andre (State Bar No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`Kristopher Kastens (State Bar No. 254797)
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
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`Attorneys for Plaintiff
`FINJAN, INC.
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