Case 3:17-cv-05659-WHA Document 394 Filed 03/18/19 Page 1 of 3
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`Paul Andre
`Partner
`T 650-752-1700
`F 650-752-1800
`PAndre@KRAMERLEVIN.com
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`March 18, 2019
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`990 Marsh Road
`Menlo Park, CA 94025-1949
`T 650.752.1700
`F 650.752.1800
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`Honorable William Alsup
`U.S. District Court, Northern District of California
`San Francisco Courthouse
`Courtroom 12 – 19th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
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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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`Plaintiff Finjan, Inc. (“Finjan”) respectfully requests that Defendant Juniper
`Networks, Inc. (“Juniper”) be ordered to make its source code available for inspection on
`either March 20th or 21st, 2019, so that Finjan and its expert can investigate allegations
`made by Juniper in its Opposition brief filed on March 14th, 2019. Finjan timely requested
`to review this source code on March 13th, but Juniper has refused to make it available
`without any specific basis beyond stating it has generic “staffing” issues. As a source
`code review can typically be easily accommodated, Finjan asked Juniper to state in
`writing what these staffing issues are and to confirm that they actually prevent Juniper
`from hosting a review, which Juniper has not done after three separate requests. Finjan’s
`immediate investigation of this source code is important because Juniper cites in its
`Opposition source code that it did not attach to its brief, to which Finjan did not cite in its
`opening brief, and to which Finjan does not have access without viewing on the source
`code review computer. Finjan only has until April 1st to file its reply, and its expert, who is
`located in Boston, is only available on March 20th and 21st to review the source code.
`While Finjan certainly wished to resolve this issued without involving the Court, the time
`sensitive nature unfortunately requires immediate intervention from the Court. Juniper’s
`failure to confirm that it could not actually host the review indicates that Juniper is
`intentionally frustrating Finjan’s ability to review its source code before Finjan files its reply.
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`I.
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`Background
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`On March 13th, 2019, Finjan timely requested to review Juniper’s source code on
`March 20th, 2019, identifying that its expert and two attorneys would attend. Ex. A at 10-
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`KRAMER LEVIN NAFTALIS & FRANKEL LLP
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` SILICON VALLEY | NEW YORK | PARIS
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`Case 3:17-cv-05659-WHA Document 394 Filed 03/18/19 Page 2 of 3
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`Hon. William Alsup
`March 18, 2019
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`11. In response, Juniper stated that it may be “problematic” to host a source code
`review that date. Ex. A at 10. Finjan responded, stating that its expert would be
`attending the review and has very little availability and asked Juniper to explain why it
`could not host the review that day. Ex. A at 8. Juniper again responded that it may not
`be able to host on the 20th because of “staffing logistics,” without further explanation. Ex.
`A at 7. Finjan immediately responded, and yet again asked Juniper to confirm that this
`alleged staffing issue actually prevented it from hosting a source code review on the
`20th, and stated, if so, Finjan would seek alternative dates. Ex. A at 6. Juniper responded
`that the issue was “a simple scheduling issue” without further explanation. Ex. A at 5.
`Juniper then responded at 4:18PM on Friday, March 15th, that “it appears unlikely that
`March 20” would work for a review and asked Finjan to provide alternative dates. Ex. A
`at 4. Finjan responded at 5:04PM that it could also review, at great inconvenience to its
`expert, on March 21st instead. Ex. A at 3. Finjan called Juniper’s counsel at around
`5:15PM to discuss the scheduling issue that was preventing the source code review, and
`asked Juniper’s for a call to discuss. Ex. A at 3. Juniper did not return Finjan’s call, and
`responded to Finjan’s email at 11:32 PM that night, stating that it was concerned that
`March 21st would also not work, and that Finjan should inspect the code in April. Ex. A at
`2. Finjan responded that it needed to review before it filed its reply brief, and that it
`understood Juniper to be refusing to make its source code available to review on either
`the 20th or 21st, and to provide in writing the scheduling issue that prevented the review
`and whether Juniper represented that it cannot host the review on either March 20th or
`21st, or Finjan would ask the Court to intervene. Ex. A at 1. Juniper responded at 11:00 PM
`on March 17th that it would print out some of the source code cited by its expert, but did
`not respond to Finjan with any explanation for why the full source code was not
`available on March 20th or 21st. Ex. A at 1.
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`II.
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`Argument
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`Finjan timely requested to review Juniper’s source code seven days before the
`requested inspection, as required under the protective order, and Juniper has refused to
`make the code available on either of the dates that Finjan has provided: March 20th or
`21st. Juniper has been unwilling to confirm that it has a legitimate reason for this refusal,
`instead of it being an unseemly tactic to frustrate Finjan’s review. Finjan’s timely review is
`important, because Juniper cites source code in its opposition to Finjan’s Motion for
`Summary judgment that Finjan does not have in its possession. For example, Juniper’s
`expert cites source code that Finjan did not cite in its opening brief, and which Juniper
`did not attach a copy of to its opposition brief. See, e.g., Dkt. No. 390-1 at 12-13, 20, 22.
`While Juniper agreed to produce some of this source code late last night, Finjan should
`still be able to review it in the full context of the source code. Furthermore, as Finjan just
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`Case 3:17-cv-05659-WHA Document 394 Filed 03/18/19 Page 3 of 3
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`Hon. William Alsup
`March 18, 2019
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`received Juniper’s opposition a few days ago, there may be additional issues that will
`require investigation into Juniper’s source code. Finjan should be able to review
`Juniper’s source code with input from its expert in preparation of its reply brief.
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`It is not difficult for Juniper to make its code available for inspection—all that is
`required of Juniper is a single staff member to monitor the review. This could be
`performed by any staff member at Juniper’s office, including an attorney, although an
`attorney is not required. Additionally, Juniper has availability on these dates, as it has
`repeatedly requested Dr. Mitzenmacher’s deposition on the 20th and 21st. Finjan has also
`given Juniper numerous opportunities to affirmatively state that it could not host the
`review on these dates, to which Juniper continually gives non-committal answers. Given
`the circumstances, Finjan’s is only able to conclude that Juniper’s refusal to make the
`source code available on either the 20th or 21st is a smoke screen to frustrate Finjan’s
`attempts to review its source code. As such, Finjan requests that the Court order Juniper
`to make its source code available on either March 20th or the 21st for inspection.
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`III.
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`Conclusion
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`Finjan requests that the Court order Juniper to make the source code available
`for inspection on March 20th or 21st.
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