Case 3:17-cv-05659-WHA Document 416 Filed 04/05/19 Page 1 of 4
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua P. Glucoft (SBN 301249)
`jglucoft@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca L. Carson (SBN 254105)
`rcarson@irell.com
`Ingrid M. H. Petersen (SBN 313927)
`ipetersen@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`Case No. 3:17-cv-05659-WHA
`)
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`DEFENDANT JUNIPER NETWORKS,
`)
`INC.’S ADMINISTRATIVE MOTION TO
`)
`FILE UNDER SEAL
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`
`)
`Judge: Hon. William Alsup
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`FINJAN, INC.,
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`Plaintiff,
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`vs.
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`JUNIPER NETWORKS, INC.,
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`Defendant.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`
`
`
`
`
`
`JUNIPER’S ADMINISTRATIVE MOTION TO FILE
`UNDER SEAL
`Case No. 3:17-cv-05659-WHA
`
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`

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`Case 3:17-cv-05659-WHA Document 416 Filed 04/05/19 Page 2 of 4
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`Declaration of Frank Jas
`(the “Jas Declaration”)
`Exhibit 1 (Excerpts of
`Mitzenmacher Deposition)
`Exhibit 3 (Source Code)
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`Highlighted Portions
`of Paragraphs 3 and 5
`Page 82:20-21; 83:14-
`18
`Entire Exhibit
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`Exhibit 4 (Source Code)
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`Entire Exhibit
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`Exhibit 5 (Source Code)
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`Entire Exhibit
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`Exhibit 6 (Source Code)
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`Entire Exhibit
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`Exhibit 7 (Source Code)
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`Entire Exhibit
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`Juniper & Finjan
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`Juniper
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`Juniper
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`Juniper
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`Juniper
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`Juniper
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`Juniper
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`Juniper
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
`PLEASE TAKE NOTICE THAT pursuant to Civil Local Rules 7-11 and 79-5, Defendant
`Juniper Networks, Inc. (“Juniper”) respectfully moves to file under seal the following:
`Document
`Portion to Be Sealed Basis for Sealing Designating Party
`Highlighted Text in
`Confidential
`Juniper
`Reply Regarding
`Pages 8:6-13; 9:3.
`Source Code
`Summary Judgment for
`Finjan’s ʼ780 Patent
`Highlighted Text in
`Nondisclosure
`Pages 13:28; 14:2-4.
`Agreement/FRE
`408
`Confidential
`Source Code
`Confidential
`Source Code
`Confidential
`Source Code
`Confidential
`Source Code
`Confidential
`Source Code
`Confidential
`Source Code
`Confidential
`Source Code
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`This motion is based upon this Notice of Motion; the accompanying Memorandum of Points and
`Authorities; the Declaration of Ingrid Petersen (the “Sealing Declaration”); other evidence and
`arguments that the Court may consider; and all other matters of which the Court may take judicial
`notice.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`Pursuant to Civil Local Rules 7-11 and 79-5, Juniper hereby brings this administrative
`motion to file under seal Juniper’s disclosure of confidential source code in the reply and its
`supporting documents.
`It is well established that the right to inspect and copy judicial records is not absolute but
`rather is subject to a number of exceptions to guard against harmful use of sensitive materials. See
`Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006). Because the
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`
`
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`JUNIPER’S ADMINISTRATIVE MOTION TO FILE
`UNDER SEAL
`Case No. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 416 Filed 04/05/19 Page 3 of 4
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`documents relate to a motion for summary judgment, the “compelling reasons” standard applies. Id.
`at 1179. “‘Compelling reasons’ sufficient to outweigh the public’s interest in disclosure exist when
`court records might become a vehicle for improper purposes such as the use of records to gratify
`private spite, promote public scandal, circulate libelous statements, or release trade secrets.”
`Demaree v. Pederson, 887 F.3d 870, 884 (9th Cir. 2018) (internal quotations and alterations omitted)
`(quoting Kamakana, 447 F.3d at 1179). Under Ninth Circuit law, trade secrets are “any formula,
`pattern, device or compilation of information which is used in one’s business, and which gives him
`an opportunity to obtain an advantage over competitors who do not know or use it.” In re Elec.
`Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (quoting RESTATEMENT (FIRST) OF TORTS § 757
`cmt. b); see also Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972).
`Civil Local Rule 79-5 supplements the “compelling reasons” standard. Under this rule, a
`party seeking to file under seal must submit “a request that establishes that the document, or portions
`thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the
`law.” Id. Additionally, “[t]he request must be narrowly tailored to seek sealing only of sealable
`material.” Id.
`Courts within the Northern District of California have concluded that “[c]onfidential source
`code clearly meets the definition of a trade secret . . . [and therefore] meets the ‘compelling reasons’
`standard.” Fed. Trade Comm’n v. DIRECTV, Inc., No. 15-CV-01129-HSG, 2017 WL 840379, at
`*2 (N.D. Cal. Mar. 3, 2017) (second alteration in original) (quoting Apple, Inc. v. Samsung Elecs.
`Co., No. 11-CV-01846-LHK, 2012 WL 6115623, at *2 (N.D. Cal. Dec. 10, 2012), rev’d on other
`grounds, Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214 (Fed. Cir. 2013)); see also
`Opperman v. Path, Inc., No. 13-CV-00453-JST, 2017 WL 1036652, at *3 (N.D. Cal. Mar. 17, 2017).
`There are “compelling reasons” for sealing Exhibits 3, 4, 5, 6, and 7 in their entirety and the
`redacted portions of the reply, the Jas Declaration, and Exhibit 1 because those documents disclose
`Juniper’s confidential source code—the computerized instructions describing exactly how Juniper’s
`products work.
`For its source code, Juniper has accumulated significant research and development costs,
`and this sensitive trade secret is the foundation of Juniper’s highly proprietary software. By
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
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`JUNIPER’S ADMINISTRATIVE MOTION TO FILE
`UNDER SEAL
`Case No. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 416 Filed 04/05/19 Page 4 of 4
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`permitting competitors to receive this information without also spending development costs, public
`disclosure of Juniper’s source code would materially impair Juniper’s intellectual property rights
`and business positioning.
`Because the disclosure of Juniper’s source code would cause serious competitive
`consequences, Juniper takes numerous measures to maintain the secrecy of this information. The
`protective order in this action, for instance, details the significant lengths Juniper has taken to protect
`its source code. As the protective order describes, “[t]he source code shall be made available for
`inspection on a PC which may be a laptop PC and which may be provided without USB ports.” Dkt.
`No. 149 at 13. Additionally, “[t]he secured computer may be placed in a secured room without
`Internet access or network access to other computers, and the Receiving Party shall not copy,
`remove, or otherwise transfer any portion of the source code onto any recordable media or
`recordable device.” Id. Juniper has also implemented strict screening procedures for visitors at its
`engineering campus.
`Perhaps most importantly, publicly exposing the source code presents a security risk.
`Because the source code is at the center of Juniper’s network security products, permitting the
`disclosure of the source code could significantly harm the users of Juniper’s products.
`Additionally, portions of the reply contain discussions between Finjan and Cyphort
`regarding patent licensing/settlement negotiations. These discussions fall under the protection of
`Federal Rule of Evidence 408 and the Nondisclosure Agreement between Finjan and Cyphort.
`Accordingly, “compelling reasons” exist. And by seeking to seal only the portions that
`contain the source code or confidential negotiations, Juniper’s request is narrowly tailored. In light
`of the foregoing reasons, Juniper respectfully requests that the Court issue an order sealing the
`disclosure of Juniper’s source code and confidential negotiations in the documents identified above.
`Dated: April 5, 2019
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`Respectfully submitted,
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`By:
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` /s/ Ingrid Petersen
`Ingrid Petersen
`Attorney for Defendant
`Juniper Networks, Inc.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`
`
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`- 3 -
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`JUNIPER’S ADMINISTRATIVE MOTION TO FILE
`UNDER SEAL
`Case No. 3:17-cv-05659-WHA
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