Case 3:17-cv-05659-WHA Document 403 Filed 03/25/19 Page 1 of 2
`
`1 8 0 0 A V E N U E O F T H E S T A R S , S U I T E 9 0 0
`L O S A N G E L E S , C A 9 0 0 6 7 - 4 2 7 6
`T E L E P H O N E ( 3 1 0 ) 2 7 7 - 1 0 1 0
`F A C S I M I L E ( 3 1 0 ) 2 0 3 - 7 1 9 9
`
`
`I R E L L & M A N E L L A L L P
`
`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
`
`8 4 0 N E W P O R T C E N T E R D R I V E , S U I T E 4 0 0
`
`N E W P O R T B E AC H , C A L I F O R N I A 9 2 6 6 0 - 6 3 2 4
`
`T E L E P H O N E ( 9 4 9 ) 7 6 0 - 0 9 9 1
`F A C S I M I L E ( 9 4 9 ) 7 6 0 - 5 2 0 0
`W E B S I T E : w w w . i r e l l . c o m
`
`W R I T E R ' S D I R E C T
`
`T E L E P H O N E ( 9 4 9 ) 7 6 0 - 5 2 2 2
`R C a r s o n @ i r e l l . c o m
`
`
`
`Hon. William Alsup
`U.S. District Court, Northern District of California
`
`March 25, 2019
`
`
`
`
`
`
`Re: Dkt. No. 394, Finjan, Inc. v. Juniper Networks, Inc.,
`Case No. 3:17-cv-05659-WHA (N.D. Cal.)
`
`
`Dear Judge Alsup:
`Finjan’s letter brief is factually incorrect because Juniper has already informed Finjan that
`Juniper will fully comply with the Court’s Order at Dkt. No. 399 by making its entire source code
`available for review on March 28. In addition, Juniper will agree to print up to 100 pages of that
`source code for Finjan to attach to its reply brief, notwithstanding that (1) this far exceeds the
`number of pages that Finjan is allowed to attach as exhibits to its reply brief, and (2) Juniper has
`already printed for Finjan 750 pages of source code—the maximum number of pages to which
`Finjan is entitled under the Protective Order in this case. Dkt. 149 at 15 (750 page limit). In view
`of the above, it seems likely this “dispute” could have been avoided had Finjan elected to meet-
`and-confer with Juniper before sending its letter to the Court.1
`Even before Finjan sent its previous letter (Dkt. No. 394) to the Court, Juniper was making
`arrangements to produce its entire source code on March 28 and 29, which were dates that Finjan
`itself had requested from Juniper. See Dkt. No. 398-2 (Finjan: “Finjan also requests to review the
`source code on March 28 and 29.”). Given the Court’s March 19 Order, Juniper informed Finjan
`that it will make the code available on March 28. See Dkt. No. 399 (Court: “On March 28 at 9
`A.M. (or any earlier date agreed upon in writing by the parties), defendant Juniper Networks, Inc.
`shall produce to Finjan all of the source code requested by Finjan with respect to the instant
`discovery request.”). Juniper is making the entire source code available to avoid any potential
`dispute over whether there are portions of the code to which Juniper is citing but is not producing.
`Juniper’s March 28 production in electronic format of the complete source code will
`hopefully prevent Finjan from manufacturing additional discovery disputes. Tellingly, Finjan’s
`three discovery-related motions in a single week (Dkt. Nos. 394, 400, and 401) indicate that Finjan
`has switched litigation tactics as summary judgment has progressed: Instead of claiming that its
`substantive arguments on summary judgment are strong, Finjan has filed a number of discovery-
`related motions suggesting that the weakness of its arguments should be blamed on alleged
`inadequate discovery.2 To support this litigation tactic, Finjan has made increasingly burdensome
`
`1 Finjan filed this letter brief after sending just a single email and without even attempting to confer
`via telephone, as required under L.R. 37-1(a).
`2 As the Court is aware, Juniper made its complete source code available for inspection by Finjan
`for a full 13 days from December of 2018 through February of 2019 (before Finjan filed its opening
`
`10658191
`
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 403 Filed 03/25/19 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
`
`
`
`
`
`discovery demands in an attempt to manufacture discovery disputes. A perfect example of this is
`the source code that Juniper offered to voluntarily produce to Finjan. As Juniper explained in its
`last letter to the Court (Dkt. No. 398), Juniper’s expert had referred to several functions in the
`source code that were similar, but only attached the source code for representative functions to
`comply with the Court’s limitations on pages that can be submitted as exhibits. The source code
`for the remaining functions was less than 400 pages. After the Court issued its March 19 Order,
`however, Finjan made a new request, asking Juniper for a “[c]omplete copy of the source code”
`for a number of “directories” that go well beyond the specific functions cited in Dr. Rubin’s
`declaration and are many thousands—or potentially tens of thousands—of pages long.3 See Dkt.
`400-1 at 2 (emphasis added). While Dr. Rubin mentioned these directories primarily in his
`overview of the accused technology, he did not cite to or use any specific functions within these
`directories in reaching the specific opinions set forth in his declaration. See Dkt. No. 389-6 at
`¶¶ 34-36, 61 (directories cited by Dr. Rubin). Thus, it appears that Finjan’s request for thousands
`(or tens of thousands) of pages of physical source code is designed to (1) impose an undue burden
`on Juniper, (2) set up a potential future discovery dispute in which Finjan claims that Juniper
`produced the “wrong” source code, and (3) do an end run around the source code printing
`limitations to which Finjan and Juniper agreed in the Stipulated Protective Order. The way to
`avoid these potential problems is for Juniper to produce its entire source code in electronic format
`(again) on a date Finjan requested—which is precisely what Juniper has agreed to do.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
` /s/ Rebecca L. Carson
`Rebecca L. Carson
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
`
`
`
`
`
`
`summary judgment motion). Dkt. No. 398-1. Any deficiencies in discovery alleged by Finjan are
`therefore contrived because Juniper has been very forthcoming and cooperative during discovery.
`3 The directories requested by Finjan are massive.
` For example,
`the Cyphort-
`protected/Cortex/CyOS/Cortex/OsxCooker directory that is cited by Dr. Rubin as general
`background regarding the operation of the ATP Appliance (Dkt. No. 389-6 at ¶ 36) contains 414
`files, each of which in turn is generally comprised of many dozens of pages of source code.
`
`10658191
`
`
`- 2 -
`
`