Case 3:17-cv-05659-WHA Document 308 Filed 12/09/18 Page 1 of 6
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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
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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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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`
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`Defendant.
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`SAN FRANCISCO DIVISION
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF’S FINJAN INC.’S MOTION
`TO EXCLUDE CERTAIN SLIDES OF
`DEFENDANT JUNIPER NETWORKS,
`INC.’S OPENING DEMONSTRATIVES
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`Trial:
`Courtroom:
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`Before:
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`December 10, 2018
`12, 19th Floor
`Hon. William Alsup
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`FINJAN’S MOTION TO EXCLUDE CERTAIN
`OF JUNIPER’S OPENING DEMONSTRATIVES
`
`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 308 Filed 12/09/18 Page 2 of 6
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`INTRODUCTION
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`Finjan objects to and seeks to exclude slides DDX01.05, 23, 25, 31, 32, 34, 36, and 38 of
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`Juniper’s proposed opening demonstrative slides because they refer to evidence that was previously
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`withdrawn or excluded by Court. See Declaration of Kristopher Kastens filed herewith, Ex. 1. In
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`particular, Finjan seeks to exclude portions of Juniper’s opening demonstratives slides that (1) refer to
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`Dr. Keith Ugone because Juniper offered his opinion only as a rebuttal to the opinions of Finjan’s
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`damages expert, Mr. Kevin Arst, who is not presenting his opinions at trial, (2) refer to Finjan’s
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`settlement agreements that the Court excluded in its Daubert Order (Dkt. No. 301), (3) refer to
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`Juniper’s purported non-infringing alternatives because Juniper only offered these alternatives in
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`response to the damages theory put forth by Mr. Arst, who is not presenting his opinions at trial, and
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`represented during the Final Pretrial Conference that it would therefore not present such evidence; and
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`(4) mischaracterize evidence, refer to evidence not yet admitted, or are otherwise confusing,
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`misleading or prejudicial as set forth herein.
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`The chart below illustrates Finjan’s position for each of the disputed slides.
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`Juniper’s
`Slide
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`DDX01.05
`DDX01.23
`DDX01.25
`DDX01.31
`DDX01.32
`DDX01.34
`DDX01.36
`DDX01.38
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`Improper
`Ugone
`Evidence
`x
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`x
`x
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`Evidence Excluded or
`Withdrawn
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`Undisclosed or non-
`admitted
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`Mischaracterization
`of Evidence
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`X
`X
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`X
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`x
`x
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`x
`x
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`x
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`I.
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`The Court Should Exclude Juniper’s Demonstratives Related to Dr. Ugone’ Rebuttal
`Expert Opinions
`Juniper’s slides DDX01.05, 34, 36 should be excluded because they reference testimony from
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`Dr. Ugone that Juniper only offered in rebuttal to the opinions of Mr. Arst, who is not presenting his
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`opinions at trial.
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`FINJAN’S MOTION TO EXCLUDE CERTAIN
`OF JUNIPER’S OPENING DEMONSTRATIVES
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`1
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 308 Filed 12/09/18 Page 3 of 6
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`Rebuttal expert testimony is permitted “solely to contradict or rebut evidence on the same
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`subject matter” addressed by the other party's expert. Int'l Bus. Machines Corp. v. Fasco Indus.,
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`Inc.,1995 WL 115421, at *3 (N.D. Cal. Mar. 15, 1995) (citing Fed. R. Civ. P. 26); Parenti v. Cty. of
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`Monterey, 2017 WL 1709349, at *5 (N.D. Cal. May 3, 2017) (‘“[A] rebuttal expert cannot offer
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`evidence that does not contradict or rebut another expert’s disclosure.”’) (quoting Theoharis v. Rongen,
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`No. C13-1345RAJ, 2014 WL 3563386, at *3 (W.D. Wash. July 18, 2014)). Because Mr. Arst is not
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`presenting an opinion at trial (Dkt. No. 283), Dr. Ugone has no opinions to rebut. See Humphreys v.
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`Regents of Univ. of California, No. C 04-03808 SI, 2006 WL 1867713, at *5 (N.D. Cal. July 6, 2006)
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`(granting plaintiff’s motion to exclude defendant’s rebuttal expert because the exclusion of plaintiff’s
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`expert testimony rendered defendant’s rebuttal expert testimony unnecessary). To the extent Juniper
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`claims that Dr. Ugone put forth an independent analysis that is not rebutting Mr. Arst’s opinions, such
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`analysis should be excluded because a rebuttal expert cannot put forth their own theories and must
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`restrict their testimony to attacking the other party’s theory. Int'l Bus. Machines Corp.,1995 WL
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`115421, at *3 (“‘[R]ebuttal’ experts cannot put forth their own theories; they must restrict their
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`testimony to attacking the theories offered by the adversary's experts.”); Parenti, 2017 WL 1709349, at
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`*5; Cruz v. Durbin, 2014 WL 4182334, at *2 (D. Nev. Aug. 21, 2014) (“[An] expert's rebuttal
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`testimony may not introduce new, alternative or previously unconsidered theories.”); see also Lindner
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`v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Haw. 2008) (stating that rebuttal experts
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`cannot testify in case-in-chief and “cannot testify unless and until” the opinions for which they are
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`designated to rebut has been presented). As such, Juniper should not be able to present slides
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`referencing Dr. Ugone’s rebuttal opinions or including facts that were only disclosed through Dr.
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`Ugone.
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`Specifically, Slide DDX01.5 is titled “Juniper’s witnesses” and includes a picture of Dr.
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`Ugone. Because Finjan Mr. Arst is not testifying at trial, Dr. Ugone should not be allowed to testify
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`regarding his rebuttal opinions. Next, Slide DDX01.34 shows Dr. Ugone’s rebuttal opinion regarding
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`the purported “maximum royalty” Juniper and Finjan would have agreed to, however Dr. Ugone
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`offered this opinion in rebuttal to the opinion of Mr. Arst– which will not be presented at trial.
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`FINJAN’S MOTION TO EXCLUDE CERTAIN
`OF JUNIPER’S OPENING DEMONSTRATIVES
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`2
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 308 Filed 12/09/18 Page 4 of 6
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`Because Dr. Ugone cannot offer his opinion in Juniper’s case-in-chief, Juniper should not be permitted
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`to reference his testimony in its opening demonstratives.
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`Slide DDX01.36, which identifies numerous Finjan licensees and prior litigations, is
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`objectionable for several reasons, including that Juniper only used this information through Dr. Ugone
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`in forming his damages opinion. In addition, DDX01.36 is improper because it refers to Finjan’s prior
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`litigations and settlements with third-parties that the Court excluded in its Daubert Order (i.e. Sophos
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`and Websense settlement) in its Daubert Order (Dkt. No. 301 at 10). Finally, DDX0.136
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`mischaracterizes certain of Finjan’s licenses as “settlements,” when, in fact, they were executed
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`outside the context of litigation (i.e., F-Secure, Avast, Barracuda).
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`II.
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`The Court Should Exclude Juniper’s Demonstratives Related to Excluded and Previously
`Withdrawn Evidence and Testimony
`Juniper’s Slides DDX01.31 and 32 should be excluded because they relate to non-infringing
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`alternatives, which Juniper’s counsel withdrew during the Final Pre-trial Conference. Juniper only
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`offered its purported non-infringing alternatives in response to the damages opinion of Mr. Arst, who
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`is not presenting his opinions at trial. As such, during the Final Pretrial Conference, Juniper’s counsel
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`represented to the Court that Finjan’s motion in limine to exclude evidence on non-infringing
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`alternative is moot “as long as plaintiff does not plan to introduce testimony through the technical
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`expert …” Dkt. No. 300, Pretrial Hearing Tr. at 48: 24 – 49:7. Finjan agreed that it will not introduce
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`such testimony on non-infringing alternatives through its technical experts. Id. at 49:9-10 (“That’s
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`correct. We are not going to do that.”). Juniper should not be permitted to present opening
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`demonstratives referencing non-infringing alternatives when it represented to the Court it will not
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`present such evidence. See Applera Corp.-Applied Biosystems Grp. v. Illumina, Inc., No. C 07-02845
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`WHA, 2008 WL 4810541, at *1 (N.D. Cal. Oct. 27, 2008)(a party’s representation during the pretrial
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`conference that it would not rely on noninfringing alternatives justified striking its rebuttal report as it
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`related to noninfringing alternatives).
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`FINJAN’S MOTION TO EXCLUDE CERTAIN
`OF JUNIPER’S OPENING DEMONSTRATIVES
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`3
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 308 Filed 12/09/18 Page 5 of 6
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`III. The Court Should Exclude Juniper’s Demonstratives Related to Trial Exhibits that are
`Not Yet Admitted
`Finjan objects to slide DDX01.38 because it is an excerpt from Trial Exhibit 71, which is
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`specific evidence that will not be admitted into the evidence at the time of the opening statement.
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`Juniper should not be permitted to quote in its opening statement from a document that is not yet
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`admitted into the evidence. United States v. McCabe, 131 F.3d 149 (9th Cir. 1997) (“Opening
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`statement should not refer to matters that are not to be presented as evidence.”). Finjan further
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`objects this slide as prejudicial, not relevant and misleading to the jury because there is no foundation
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`for the document at the time of opening statements and it has not yet been admitted into evidence.
`IV.
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`The Court Should Exclude Juniper’s Demonstratives That are Misleading
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`Finjan objects to Juniper’s opening demonstratives that are misleading or mischaracterize
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`evidence. The Court may exclude demonstratives whose prejudice outweighs its probative value. See
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`Dahlberg v. MCT Transp., LLC, 571 F. App'x 641, 647 (10th Cir. 2014) (“[A] demonstrative exhibit
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`will be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
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`confusion, a propensity to mislead, or needlessly cumulative presentation.”). Juniper’s Slide
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`DDX01.23 mischaracterizes evidence and is misleading because it presents a graph including a column
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`showing a number of 57,142, and a number 300. In its legend, the word “sold” in “SRX Devices sold”
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`is crossed out and instead changed to “enabled for SkyATP.” This graph is misleading because it
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`misstates the number of SRX Devices that were sold, and there is no basis or foundation for Juniper’s
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`crossing out of the word “sold.” DDX01.25 should also be excluded because it mischaracterizes
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`Juniper’s revenues for the accused Sky ATP. Moreover, this information can only be derived from
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`the spreadsheets that Juniper disclosed late and were subject to Finjan’s Motion in Limine, which the
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`Court reserved ruling on. Therefore, Juniper should not be permitted to reference these revenues
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`during its opening statement.
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`CONCLUSION
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`At least for the above mentioned reasons, Juniper’s opening demonstrative slides DDX01.05,
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`23, 25, 31, 32, 34, 36, and 38 should be excluded.
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`FINJAN’S MOTION TO EXCLUDE CERTAIN
`OF JUNIPER’S OPENING DEMONSTRATIVES
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`Case 3:17-cv-05659-WHA Document 308 Filed 12/09/18 Page 6 of 6
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`DATED: December 9, 2018
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`Respectfully submitted,
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`By: /s/ Kristopher Kastens
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`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
`
`Attorneys for Plaintiff
`FINJAN, INC.
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`FINJAN’S MOTION TO EXCLUDE CERTAIN
`OF JUNIPER’S OPENING DEMONSTRATIVES
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