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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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`W R I T E R ' S D I R E C T
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`December 10, 2018
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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:
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`Finjan has informed Juniper that it wishes to play or read the deposition testimony from a
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`number of witnesses whose deposition testimony is not allowed pursuant to Federal Rule of Civil
`Procedure 32. Specifically, Juniper objects to Finjan’s request to present deposition testimony
`from Shlomo Touboul (“Touboul”), Raju Manthena (“Manthena”), and Scott Coonan (“Coonan”)
`pursuant to Federal Rule of Civil Procedure 32(a).
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`1.
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`Touboul
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`Finjan seeks to play deposition testimony from its own inventor taken in a 2015 lawsuit that did
`not involve Juniper. Juniper was neither present nor represented at Touboul’s deposition. Finjan
`should not be permitted to present this testimony, as it would violate Federal Rule of Civil
`Procedure 32(a)(1)(A)’s requirement that “the party [against whom the testimony seeks to be used]
`was present or represented at the taking of the deposition or had reasonable notice of it.”
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`Moreover, on November 5, 2018, Finjan informed Juniper that Finjan did not intend to call
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`Touboul at this trial. Juniper therefore agreed to postpone Touboul’s deposition until after the
`trial. It would be unfair to allow Finjan to reverse course now.
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`2.
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`Manthena
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`Raju Manthena is a Juniper software engineer who reports to Chandra Nagarajan (whose
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`deposition testimony will be presented at trial tomorrow). Rule 32(a)(3) would permit the use of
`Mr. Manthena’s deposition only if he had been an “officer, director, managing agent, or designee
`under Rule 30(b)(6) or 31(a)(4),” which he is not. When an individual is “required to seek higher
`approval of decisions of substance in regard to general operations of the corporation,” that
`individual is likely not a managing agent. Young & Assoc. Public Relations, L.L.C. v. Delta Air
`Lines, Inc., 216 F.R.D. 521, 524 (D. Utah 2003). The burden of establishing that a witness is a
`managing agent is on the party seeking to introduce deposition testimony. Juarez v. Autozone
`Stores, Inc., 2013 WL 12066127, at *3 (S.D. Cal. Nov. 8, 2013). Juniper has asked Finjan
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`10621112
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`Case 3:17-cv-05659-WHA Document 313 Filed 12/10/18 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
`
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`repeatedly why it believes Mr. Manthena could qualify as an officer, director, or managing agent.
`To date, Finjan has not replied.
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`Here, Finjan has not carried its burden. Manthena is not Juniper’s officer, director,
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`managing agent, or designee, he is a principal software engineer. Manthena needs to seek higher
`approval for decisions because he reports to Chandra Nagarajan. The Court should not allow
`Finjan to play Mr. Manthena’s deposition.
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`3.
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`Coonan
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`Coonan is an in-house attorney at Juniper who reports to Meredith McKenzie, Juniper’s
`Deputy General Counsel. No other employee reports to him, and he does not have general
`authority to bind Juniper without approval from others. Accordingly, his deposition testimony is
`also not authorized by Rule 32(a)(3).
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`In addition, Juniper will be calling Coonan to testify in its-case. Juniper has offered to
`allow Finjan to go beyond the scope of Juniper’s direct examination on its cross.
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`Additionally, Finjan has not complied with the Court’s standing order. Under paragraph
`20(a), Finjan needed to designate the testimony that Finjan intended to play at least five calendar
`days in advance. Finjan instead served its original designations on December 6, 2018, and made
`substantial revisions on December 7, 2018. Because Finjan has not complied with the standing
`order, Finjan cannot play Coonan’s deposition at the trial.
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`Thus, the Court should deny Finjan’s request to present Coonan’s deposition.
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`In light of this reasoning, Juniper implores the Court to deny Finjan’s request to show the
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`depositions of Touboul, Manthena, and Coonan.
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`Respectfully submitted,
`/s/ Joshua Glucoft
`Joshua Glucoft
`IRELL & MANELLA LLP
`Attorneys for Defendant Juniper Networks, Inc.
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