Case 3:17-cv-05659-WHA Document 311 Filed 12/10/18 Page 1 of 4
`
`
`
`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
`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
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`FINJAN, INC., a Delaware Corporation,
`Case No.: 17-cv-05659-WHA
`
`
`PLAINTIFF FINJAN, INC.’S MOTION TO
`
`SEAL COURTROOM
`
`
`
`
`Plaintiff,
`
`v.
`
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`
`Defendant.
`
`
`
`
`
`____________________________________________________________________________________
`PLTF. FINJAN, INC.’S MOTION TO SEAL Case No. 17-cv-05659-WHA
`COURTROOM
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 311 Filed 12/10/18 Page 2 of 4
`
`
`
`I.
`
`INTRODUCTION
`
`Plaintiff Finjan, Inc. (“Finjan”) respectfully requests to seal the courtroom during trial when
`
`certain confidential third party licensing and technical information is discussed.
`
`II.
`
`LEGAL STANDARD
`
`The public interest in having access to the judicial record is outweighed when public disclosure
`
`of a party’s confidential information would result in competitive harm or the disclosure of trade
`secrets. See Kamakana v. City & Cnty. Of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006); In re
`Electronic Arts, Inc., No. 08-74426, 2008 WL 4726222, at **2 (9th Cir. Oct. 28, 2008) (citing
`Restatement on Torts definition of “trade secret” and further noting that “compelling reasons” may
`
`exist if sealing is required to prevent judicial documents from being used “as sources of business
`
`information that might harm a litigant's competitive standing.”) (citation omitted); Apple Inc. v.
`
`Samsung Elecs. Co., 727 F.3d 1214, 1223, 1225-26 (Fed. Cir. 2013) (applying “compelling
`
`reasons” standard and holding that trial court abused its discretion by unsealing trade secret
`
`information regarding “profit, cost, and margin data”).
`
`III. ARGUMENT
`
`Finjan and Juniper intend to introduce testimony, exhibits, and demonstratives related to certain
`
`confidential license agreements during the testimony of Finjan’s Director of Business Development,
`Mr. John Garland, and Juniper’s damages expert, Dr. Keith Ugone.1 These agreements and related
`negotiation documents contain confidential business, licensing, and technical information of Finjan
`and its licensees including F5 Networks, Inc. (“F5”) and additional third parties.2 The named third
`parties treat this information as highly confidential within their own businesses, and Finjan and such
`
`third parties have taken measures to apply an extremely high level of protection to this information to
`
`avoid public disclosure. Accordingly, Finjan seeks to seal the courtroom during any testimony
`
`
`1 As done in a previous litigation, Finjan v. Blue Coat, Case No. 13-3999-BLF, Finjan requests sealing
`of the courtroom the day before the testimony sought to be sealed.
`2 Pursuant to confidentiality agreements with two licensees, their identity may not be revealed publicly.
`The license agreements and confidential licensing discussions are: Trial Exhibits 198, 1011, 1102,
`1106, 1108, 1311, 1493, 1494, 1495, 1496
`
`1
`____________________________________________________________________________________
`PLTF. FINJAN, INC.’S MOTION TO SEAL Case No. 17-cv-05659-WHA
`COURTROOM
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 311 Filed 12/10/18 Page 3 of 4
`
`
`
`regarding the confidential terms of their license agreements with Finjan and publication of the
`
`agreements to the jury. For two licensees, pursuant to confidentiality agreements, Finjan cannot
`
`mention their names publicly.
`
`Disclosure of the confidential terms of Finjan’s license and technology agreements including
`
`payment terms would reveal what Finjan and each of the third parties agreed to keep confidential as
`
`part of their negotiations. Each of the license agreements themselves contain a confidentiality
`
`provision prohibiting public disclosure of their terms, and therefore Finjan requests that the Court seal
`
`the courtroom during the time that the confidential terms of these agreements are discussed during
`
`trial.
`
`Finjan will endeavor to have the parties present evidence in such a way as to minimize the need
`
`for sealing. Certain confidential documents, for instance, likely can be discussed generally on the
`
`record without specific reference to the portions that may require sealing. Finjan commits to take steps
`
`to minimize its sealing requests, and limit them to instances where there is no practical alternative to
`
`sealing.
`
`The Court previously granted motions to seal the courtroom during discussion of Finjan’s
`
`confidential license agreements in prior litigations. See Finjan, Inc. v. Blue Coat Sys., Inc., No. 13-
`
`3999, Dkt. No. 400, Finjan, Inc., v. Blue Coat Sys. Inc., No. 15-3295, Dkt. No. 394. Courts have
`
`preserved the confidentiality of license agreements. See Apple, Inc. v. Samsung Electronics Co., et al.,
`
`Case No. 11-cv-01846-LHK, 2012 WL 3283478 at *7 (N.D. Cal. Aug. 9, 2012) (granting sealing of
`
`license agreements as the agreements themselves contain “a whole host of terms” that would be
`
`unnecessary to make public (e.g. termination conditions, side-agreements, waivers and could result in
`
`“significant competitive harm” to the licensees if disclosed); see also In re Electronic Arts, Inc., 2008
`
`WL 4726222, at **2 (writ of mandamus directing district court to file pricing terms and royalty rates
`
`of license agreement under seal); see also Open Text S.A. v. Box, Inc., No. 13-cv-04910-JD, 2014 WL
`
`7368594, at *3 (N.D. Cal. Dec. 26, 2014) (granting motion to seal pricing terms of license agreement);
`see also U.S. v. Zhang, 590 Fed. Appx. 663, 667 (9th Cir. 2014) (district court adequately supported
`decision to close the courtroom for one witness’ testimony disclosing trade secrets in documents).
`2
`____________________________________________________________________________________
`PLTF. FINJAN, INC.’S MOTION TO SEAL Case No. 17-cv-05659-WHA
`COURTROOM
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 311 Filed 12/10/18 Page 4 of 4
`
`
`
`Accordingly, Finjan seeks to seal the courtroom only when the specific and limited portions of trial
`testimony as it relates to the discussion of the confidential terms of the above listed exhibits.3
`IV. CONCLUSION
`
`The relief requested by Finjan is necessary and narrowly tailored to protect the above listed
`
`third parties’ confidential business, technical, and licensing information. Accordingly, Finjan
`
`respectfully requests that the Court grant its Administrative Motion to Seal the Courtroom.
`
`
`
`
`
`
`Dated: December 10, 2018
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Lisa Kobialka
`Paul J. Andre (State Bar No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`3 Finjan will provide the Court with redacted portions of the trial testimony that require to be sealed
`when the transcript of trial proceedings is available for review.
`3
`____________________________________________________________________________________
`PLTF. FINJAN, INC.’S MOTION TO SEAL Case No. 17-cv-05659-WHA
`COURTROOM
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`