`
`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
`)
`
`DECLARATION OF INGRID PETERSEN
`)
`IN SUPPORT OF JUNIPER NETWORKS,
`)
`INC.’S ADMINISTRATIVE MOTION TO
`)
`FILE UNDER SEAL
`)
`
`)
`
`)
`)
`)
`
`
`FINJAN, INC.,
`
`Plaintiff,
`
`vs.
`
`
`JUNIPER NETWORKS, INC.,
`
`Defendant.
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664905
`
`
`DECLARATION OF INGRID PETERSEN ISO JUNIPER'S
`ADMINISTRATIVE MOTION TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
`
`
`
`
`Case 3:17-cv-05659-WHA Document 423-2 Filed 04/11/19 Page 2 of 5
`
`DECLARATION OF INGRID PETERSEN
`I, Ingrid Petersen, declare as follows:
`1.
`I am an attorney at the law firm of Irell & Manella LLP, counsel of record for Juniper
`Networks, Inc. (“Juniper”) in the above-captioned matter. I am a member in good standing of the
`State Bar of California and have been admitted to practice before this Court. I have personal
`knowledge of the facts set forth in this Declaration and, if called as a witness, could and would
`testify competently to such facts under oath.
`2.
`I submit this declaration in support of Juniper’s April 11, 2019, Administrative
`Motion to File Under Seal.
`3.
`Attached as Exhibit A is a true and correct copy of a chart of documents that Juniper
`requests the Court to seal or redact from Juniper’s filings.
`4.
`Attached as Exhibit B is a true and correct copy of a chart of documents that Juniper
`requests the Court to seal or redact from Finjan’s filings.
`5.
`I am informed and believe that the right of the public to inspect and copy public
`records “is not absolute” and that a court may seal confidential information disclosed during the
`course of a legal proceeding. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
`6.
`I understand that “compelling reasons” exist to seal a record when it might “become
`a vehicle for improper purposes,” such as the “release of trade secrets.” See Kamakana v. City &
`Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (quoting Nixon, 435 U.S. at 1179).
`7.
`It is my understanding that the Ninth Circuit has defined trade secrets as “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 Fed. 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).
`8.
`I also understand that 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
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664905
`
`
`DECLARATION OF INGRID PETERSEN ISO JUNIPER'S
`ADMINISTRATIVE MOTION TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
`- 1 -
`
`
`
`Case 3:17-cv-05659-WHA Document 423-2 Filed 04/11/19 Page 3 of 5
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`entitled to protection under the law.” Id. Additionally, “[t]he request must be narrowly tailored to
`seek sealing only of sealable material.” Id.
`9.
`I am further informed that 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).
`10.
`It is my understanding that several of the documents in Exhibits A and B disclose
`Juniper’s confidential source code—the computerized instructions describing exactly how Juniper’s
`products work.
`11.
`Additionally, I believe that Juniper has accumulated significant research and
`development costs, and this sensitive trade secret is the foundation of Juniper’s highly proprietary
`software. By 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.
`12.
`I am informed and believe that the disclosure of Juniper’s source code would cause
`serious competitive consequences and that Juniper takes numerous measures to maintain the secrecy
`of this information. It is also my understanding that 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.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664905
`
`
`DECLARATION OF INGRID PETERSEN ISO JUNIPER'S
`ADMINISTRATIVE MOTION TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
`- 2 -
`
`
`
`Case 3:17-cv-05659-WHA Document 423-2 Filed 04/11/19 Page 4 of 5
`
`13.
`Also, I am informed and believe that 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.
`14.
`I am informed and believe that some of Juniper’s source code was disclosed at trial.
`However, I believe that Juniper seeks only to seal or redact the source code that the parties did not
`publicly disclose.
`15.
`Additionally, it is my understanding that the Ninth Circuit has determined that
`confidential terms of patent license agreements, such as “pricing terms, royalty rates, and guaranteed
`minimum payment terms,” satisfy the “compelling reasons” standard. Elec. Arts, 298 F. App’x. at
`569-70 (holding district court erred by refusing to seal confidential licensing information under the
`“compelling reasons” standard). As the Ninth Circuit noted, this information “plainly falls within
`the definition of ‘trade secrets.’” Id. at 569.
`16.
`I am informed and believe that several documents within Exhibits A and B contain
`terms from Juniper’s confidential license agreements. And it is my understanding that these
`documents disclose specific details such as pricing, types of payments, and scope of licenses.
`Because the parties did not reveal these granular details at trial, they are still confidential. Should
`third parties have access to this information, I am informed and believe that Juniper will enter
`potential negotiations at a disadvantage.
`17.
`Also, I understand that several documents in Exhibits A and B 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.
`18.
`I, therefore, believe that “compelling reasons” exist for sealing the documents
`contained within Exhibits A and B. And by seeking to seal only the portions that contain the source
`code, license agreements, or confidential negotiations, Juniper’s request is narrowly tailored.
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664905
`
`
`DECLARATION OF INGRID PETERSEN ISO JUNIPER'S
`ADMINISTRATIVE MOTION TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
`- 3 -
`
`
`
`Case 3:17-cv-05659-WHA Document 423-2 Filed 04/11/19 Page 5 of 5
`
`Executed this 11th day of April 2019, at Newport Beach, California.
`I declare under penalty of perjury under the laws of the United States of America that the
`foregoing is true and correct.
`
`
`
`/s/ Ingrid Petersen
`Ingrid Petersen
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664905
`
`
`DECLARATION OF INGRID PETERSEN ISO JUNIPER'S
`ADMINISTRATIVE MOTION TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
`- 4 -
`
`