Case 3:17-cv-05659-WHA Document 398 Filed 03/19/19 Page 1 of 2
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`A REGISTERED LIMITED LIABILIT Y L AW PARTNERSHIP
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`INCLUDING PROFESSIONAL CORPORATIONS
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`March 19, 2019
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`Hon. William Alsup
`U.S. District Court, Northern District of California
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`Re: Dkt. No. 394, Finjan, Inc. v. Juniper Networks, Inc.,
`Case No. 3:17-cv-05659-WHA (N.D. Cal.)
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`Dear Judge Alsup:
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`W E B S I T E : w w w . i r e l l . c o m
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`W R I T E R ' S D I R E C T
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`The Court should deny Finjan’s letter brief regarding the source code computer because it
`is both premature and moot.
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`Because Finjan had already spent 13 days reviewing the source code computer in
`connection with the second round of early summary judgment and both parties have already filed
`opening and opposition briefs including expert declarations, Juniper assumed that Finjan’s recent
`request to review source code was related to infringement allegations for patents not at issue in
`this round of early summary judgment. And because the Court had previously vacated the fact
`discovery cut-off date for those other patents (Dkt. 348), Juniper did not believe there was an
`immediate need for source code review to occur this week. Therefore, given staffing limitations,1
`Juniper preferred to host the next code review a week or two later than Finjan’s originally requested
`dates of March 20th and 21st. See Dkt. 394-1 at 4 (Juniper: “Because the Court vacated the fact
`discovery cutoff date, we should have no trouble finding mutually agreeable dates, even
`accommodating travel schedules.”).
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`It was not until two days ago, on Sunday March 17th, that Finjan claimed its requested
`source code review relates to the current round of summary judgment motions. Finjan’s Sunday
`e-mail says that Finjan needs this immediate review in order to inspect code that Juniper
`allegedly “raised for the first time in [Juniper’s] opposition before [Finjan] fil[es] its reply brief.”
`Dkt. 394-1 at 1. But this is clearly a pretext: Finjan requested the code review on March 13th—
`the day before Juniper filed its opposition. Compare Dkt. 394-1 at 10-11 (Finjan requesting on
`March 13th to review the source code) with Dkt. 390 (Juniper opposition brief filed March 14th).
`Thus, the calendar reveals that Finjan lied to Juniper and this Court about its “need” to review
`Juniper’s source code on an expedited basis. Finjan also failed to inform the Court that Finjan
`has suggested March 28th and 29th as additional dates for source code review, which would
`occur before Finjan’s reply brief is due (Ex. 2), or that Juniper had informed Finjan that the 28th
`might work (Dkt. 394-1 at 1).
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`1 Finjan’s originally requested review dates of March 20th and 21st are logistically difficult for
`Juniper because some of Juniper’s counsel’s staff are on leave that week, so the staff member who
`normally proctors the source code review will be covering the reception desk.
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`Case 3:17-cv-05659-WHA Document 398 Filed 03/19/19 Page 2 of 2
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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 LIABILIT Y L AW PARTNERSHIP
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`INCLUDING PROFESSIONAL CORPORATIONS
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`Notwithstanding Finjan’s dishonest attempt to manufacture a timing emergency, Juniper
`has been trying to work with Finjan to provide the requested source code. Juniper acknowledged
`that its expert, Dr. Rubin, discussed several specific source code functions in his opposition
`declaration but only physically attached code for representative functions due to page limitations.
`Dkt. 389-6 at ¶ 56 (Rubin declaration: “The handle_verdict_code() function is representative of
`the others”). As a result, even though Finjan has already spent almost three weeks reviewing
`Juniper’s source code—which includes all of the functions identified by Dr. Rubin—Juniper
`expressly agreed to print out and produce this code to Finjan. Dkt. 394-1 at 1 (Juniper: “Dr.
`Rubin attached as an exhibit some representative code for specific functions; we will produce the
`other code for functions that Dr. Rubin specifically cited but did not attach due to page limits.”).
`And Juniper agreed to do this the day before Finjan filed its motion.
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`In short, before Finjan filed its motion, Juniper had already agreed to produce the code
`discussed above, and Juniper expects to confirm at least one additional date for source code review
`(March 28th or 29th) by this Wednesday, March 20th—well before Finjan’s reply is due on April
`4th.2 Finjan’s motion should therefore be denied as premature and moot.
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`Respectfully submitted,
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` /s/ Rebecca L. Carson
`Rebecca L. Carson
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
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`2 Possibly as part of its effort to manufacture a timing emergency, Finjan’s letter brief incorrectly
`states that its reply brief is due April 1st (Dkt. 394 at 1); reply briefs are not actually due until April
`4th. See Dkt. 219 (reply briefs due April 4th).
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