Case 3:17-cv-05659-WHA Document 424 Filed 04/11/19 Page 1 of 5
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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
`)
`
`)
`DEFENDANT JUNIPER NETWORKS,
`)
`INC.’S ADMINISTRATIVE MOTION TO
`)
`FILE UNDER SEAL
`)
`
`)
`Judge: Hon. William Alsup
`)
`)
`)
`
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`FINJAN, INC.,
`
`Plaintiff,
`
`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
`
`10664264
`
`
`
`
`JUNIPER’S ADMINISTRATIVE MOTION
`TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
`

`

`Case 3:17-cv-05659-WHA Document 424 Filed 04/11/19 Page 2 of 5
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
`this
`PLEASE TAKE NOTICE THAT Juniper Networks, Inc., (“Juniper”) files
`administrative motion to file under seal in light of the Court’s order permitting each party to file one
`comprehensive motion by April 11 at Noon regarding Docket Numbers 90, 95, 97, 99, 112, 125,
`127, 132, 136, 151, 153, 156, 170, 228, 229, 236, 238, 244, 246, 254, 261, 276, 304, 351, 359, and
`364 (the “respective dockets”). See Dkt. 388. Attached Exhibit A lists the documents that Juniper
`previously filed that Juniper requests to seal. Attached Exhibit B lists the documents that Finjan,
`Inc., (“Finjan”) previously filed that Juniper requests to seal.
`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.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`Pursuant to Civil Local Rules 7-11 and 79-5, Juniper hereby brings this administrative
`motion to seal or redact the documents in the respective dockets that disclose Juniper’s confidential
`(1) source code, (2) license agreements, or (3) communications between Finjan and Cyphort that a
`nondisclosure agreement covers.
`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). “‘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.”1 Demaree v. Pederson, 887
`F.3d 870, 884 (9th Cir. 2018) (internal quotations and alterations omitted) (quoting Kamakana, 447
`
`
`1 Not all of these documents are attached to dispositive motions, so Juniper needs to show
`only “good cause.” But these documents meet the higher “compelling reasons” standard. See
`Kamakana, 447 F.3d at 1179.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664264
`
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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 424 Filed 04/11/19 Page 3 of 5
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`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.
`Juniper requests that the Court permit Juniper to seal three types of information because
`compelling reasons exist: (1) confidential source code, (2) confidential license agreements, and (3)
`confidential settlement discussions between Finjan and Cyphort.
`A.
`Confidential Source Code
`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).
`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—so compelling
`reasons exist to seal or redact the documents.
`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
`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
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664264
`
`
`- 2 -
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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 424 Filed 04/11/19 Page 4 of 5
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`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.
`Although the trial did disclose some of Juniper’s source code, see Trial Ex. 99, the parties
`did not reveal the entire source code at trial. The portions of source code that Juniper seeks to keep
`sealed is still confidential, and the aforementioned harm will occur should the Court deny Juniper’s
`request.
`B.
`Confidential License Agreements
`According to the Ninth Circuit, 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.
`As listed in Exhibits A and B, several of the documents that Juniper seeks to seal or redact
`contain information regarding confidential license agreements. 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. Additionally, should third parties have
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664264
`
`
`- 3 -
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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 424 Filed 04/11/19 Page 5 of 5
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`access to this information, Juniper will enter potential negotiations at a disadvantage. Compelling
`reasons therefore exist for sealing these documents.
`C.
`Nondisclosure Agreement
`Additionally, 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.
`Accordingly, “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. In light of the
`foregoing reasons, Juniper respectfully requests that the Court issue an order sealing the disclosure
`of Juniper’s source code, license agreement terms, and confidential negotiations in the documents
`identified in Exhibits A and B.
`Dated: April 11, 2019
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`Respectfully submitted,
`
`IRELL & MANELLA LLP
`
`By: /s/ Ingrid Petersen
`Ingrid Petersen
`Attorneys for Defendant
`Juniper Networks, Inc.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10664264
`
`
`- 4 -
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`JUNIPER’S ADMINISTRATIVE MOTION
`TO FILE UNDER SEAL
`(Case No. 3:17-cv-05659-WHA)
`
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