Case 3:17-cv-05659-WHA Document 425 Filed 04/11/19 Page 1 of 6
`
`
`
`PAUL J. ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`AUSTIN MANES (State Bar No. 284065)
`amanes@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`
`
`
`Defendant.
`
`
`Case No.: 3:17-cv-05659-WHA
`
`PLAINTIFF FINJAN, INC.’S
`ADMINISTRATIVE MOTION TO KEEP
`COURT FILINGS UNDER SEAL,
`PURSUANT TO THE COURT’S ORDER
`AT DKT. NO. 388
`
`
`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
`
`FINJAN’S ADMIN. MOTION TO KEEP
`COURT FILINGS UNDER SEAL
`
`CASE NO.: 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 425 Filed 04/11/19 Page 2 of 6
`
`
`
`I.
`
`INTRODUCTION
`
`Pursuant to the Court’s Order Denying Administrative Motions to File under Seal (Dkt. No.
`
`388), Plaintiff Finjan, Inc. (“Finjan”) files this comprehensive administrative motion to keep Court
`
`filings in this action under seal (the “Motion”). The information Finjan moves to keep filed under seal
`
`includes confidential details and terms of Finjan’s licenses with unrelated third-parties, including the
`
`dollar amounts of those licenses and copies of complete pages of those licenses, which Finjan agreed to
`
`protect from public disclosure. Disclosure of this confidential business information will cause significant
`
`harm to Finjan and those third parties by damaging their competitive positions in the marketplace and
`
`causing a chill on future negotiations, as unrelated third parties will no longer be assured that their
`
`confidential business information will be protected from public disclosure. The information Finjan seeks
`
`to keep sealed below is a narrow subset of the information identified in the twenty-six motions to seal
`
`that were the subject of this Court’s Order at Dkt. No. 388.
`II.
`
`ARGUMENT
`
`This Motion should be granted because good cause and compelling reasons exist to seal the
`
`documents identified below. Courts in the Ninth Circuit decide whether to seal Court records by
`
`balancing the interests of the party seeking to seal the record against that of the public. Kamakana v.
`
`City & Cty. of Honolulu, 447 F. 3d 1172, 1179 (9th Cir. 2006). Ninth Circuit law applies here because
`
`substantive patent law is not at issue. Apple Inc. v. Samsung Elecs. Co., 727 F.3d 1214, 1220-22 (Fed.
`
`Cir. 2013). While a party ordinarily must show compelling reasons for removing Court records from the
`
`public domain, a party seeking to seal the record need only show good cause when the sealing relates to
`
`non-dispositive motions because the public has a much lower interest in documents that are only
`
`tangentially related to the underlying cause of action. Id.
`
`Here, none of the documents Finjan seeks to seal involved the substantive issues of validity or
`
`infringement on which turned even the dispositive motions mentioned below. Finjan seeks to seal only
`
`those portions of documents that contain the confidential terms of Finjan’s licenses with third parties,
`
`who are unrelated to this action. Such information includes the specific terms and dollar amounts of
`
`these licenses, excerpted pages of the actual licenses themselves, and the identity of one licensee whose
`
`FINJAN’S ADMIN. MOTION TO KEEP
`COURT FILINGS UNDER SEAL
`
`1
`
`CASE NO.: 3:17-cv-05659-WHA
`
`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
`
`

`

`Case 3:17-cv-05659-WHA Document 425 Filed 04/11/19 Page 3 of 6
`
`
`
`name Finjan is obligated to keep confidential under the terms of its agreement with that entity.
`
`Specifically, Finjan seeks to keep the following documents filed under seal:
`
`Identification of Documents
`
`Dkt. No.
`
`Specific Page and
`Line Numbers to
`Seal
`Page 2, line 19
`Page 3, lines 7 and 18
`
`Unredacted
`Version filed at
`Dkt. No. 95-15
`
`Unredacted
`Version filed at
`Dkt. No. 105-3
`
`Page 8, line 11
`
`Unredacted
`Version filed at
`Dkt. No. 228-7
`
`Pages 7-12 of the Arst
`Report
`
`Unredacted
`Version filed at
`Dkt. 242-4
`
`Page 71, lines 7-14 of
`the October 23, 2018
`Deposition of Philip
`Hartstein
`
`Reason to Keep
`Sealed
`
`Identifies a
`confidential licensee
`who is also an
`unrelated third-party;
`Finjan is obligated to
`keep the name of the
`first licensee listed on
`each of these lines
`confidential
`Identifies a
`confidential licensee
`who is also an
`unrelated third-party;
`Finjan is obligated to
`keep the name of this
`licensee confidential
`Identifies specific
`terms and dollar
`amounts of Finjan’s
`confidential
`agreements with
`unrelated third-parties
`Identifies specific
`dollar amounts of
`Finjan’s confidential
`agreements with
`unrelated third-parties
`
`Exhibit 7 to the Carson
`Declaration filed in support
`Defendant Juniper Networks
`Inc.’s Motion for Summary
`Judgment regarding Claim 1
`of the ‘780 Patent.
`
`
`Exhibit 8 to the Carson
`Declaration filed in support
`Defendant Juniper Networks
`Inc.’s Motion for Summary
`Judgment regarding Claim 1
`of the ‘780 Patent.
`
`Exhibit 1 to Defendant
`Juniper Networks Inc.’s
`Motion to Exclude the
`Testimony of Mr. Kevin M.
`Arst
`
`Exhibit 6 to Defendant
`Juniper Networks Inc.’s
`Motion to Exclude the
`Testimony of Mr. Kevin M.
`Arst
`
`Exhibit 4 to Finjan’s
`Opposition to Defendant
`Juniper Networks Inc.’s
`Motion to Exclude the
`Testimony of Mr. Kevin M.
`Arst
`
`Finjan’s Motion to Exclude
`Opinions of Defendant’s
`Damages Expert Dr. Keith R.
`Ugone
`
`
`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
`
`Unredacted
`Version filed at
`Dkt. No. 238-
`10
`
`Page 79, line 2
`through Page 80 line
`23 of the October 23,
`2018 Deposition of
`Philip Hartstein
`
`Identifies specific
`terms of Finjan’s
`confidential
`agreement with an
`unrelated third-party
`
`Unredacted
`Version filed at
`Dkt. No. 229-4
`
`The dollar amounts
`listed in footnote 3 on
`Page 7, lines 25-27.
`
`Identifies specific
`dollar amounts of
`Finjan’s confidential
`agreements with
`unrelated third-parties
`
`FINJAN’S ADMIN. MOTION TO KEEP
`COURT FILINGS UNDER SEAL
`
`2
`
`CASE NO.: 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 425 Filed 04/11/19 Page 4 of 6
`
`Unredacted
`Version filed at
`Dkt. No. 229-8
`
`Pages 10-11 of the
`Arst Report
`
`Unredacted
`Version filed at
`Dkt. No. 229-
`12
`
`Unredacted
`Version filed at
`Dkt. No. 236-4
`
`Page 1 of Exhibit 5,
`Bates Numbered
`FINJAN-JN 039749
`
`Page 14, line 5
`
`Unredacted
`Version filed at
`Dkt. No. 244-8
`
`The Entire Exhibit 3
`
`Unredacted
`Version filed at
`Dkt. No. 261-
`11
`
`Unredacted
`Version filed at
`Dkt. No. 261-9
`
`Pages 108 and 128 of
`the PDF attached as
`Exhibit 8
`(i.e., Bates Numbered
`pages FINJAN-JN
`193242 and FINJAN-
`JN 193262)
`Pages 7-12 of the Arst
`Report
`
`Identifies specific
`terms and dollar
`amounts of Finjan’s
`confidential
`agreements with
`unrelated third-parties
`Includes copies of
`actual pages from
`Finjan’s confidential
`agreement with an
`unrelated third-party
`Identifies a
`confidential licensee
`who is also an
`unrelated third-party,
`whose name Finjan is
`obligated to keep
`confidential
`Includes copies of
`actual pages from
`Finjan’s confidential
`agreement with an
`unrelated third-party
`
`Identifies specific
`dollar amounts of
`Finjan’s confidential
`agreements with
`unrelated third-parties
`
`
`
`Exhibit 2 to Finjan’s Motion
`to Exclude Opinions of
`Defendant’s Damages Expert
`Dr. Keith R. Ugone
`
`
`Exhibit 5 to Finjan’s Motion
`to Exclude Opinions of
`Defendant’s Damages Expert
`Dr. Keith R. Ugone
`
`Defendant Juniper Networks
`Inc.’s Opposition to Finjan’s
`Motion to Exclude Opinions
`of Defendant’s Damages
`Expert Dr. Keith R. Ugone
`
`
`Exhibit 3 to the Kastens
`Declaration filed in support of
`Finjan’s Reply in support of
`its Motion to Exclude
`Opinions of Defendant’s
`Damages Expert Dr. Keith R.
`Ugone
`
`Exhibit 8 to the Manes
`Declaration filed in support of
`Finjan’s Opposition to
`Defendant Juniper Networks
`Inc.’s Motions in Limine Nos.
`1-3
`
`Exhibit 2 to the Wang
`Declaration filed in support of
`Defendant Juniper Networks
`Inc.’s Motions in Limine Nos.
`1-5
`
`
`Identifies specific
`terms and dollar
`amounts of Finjan’s
`confidential
`agreements with
`unrelated third-parties
`As set forth in the far-right column above and in the accompanying Declaration of Austin Manes,
`
`good cause and compelling reasons exist to keep this information filed under seal because it is the
`
`confidential business and financial information of both Finjan and third parties who are unrelated to this
`
`action. Finjan and its third party licensees have taken measures to apply a high level of protection to the
`
`information above because making their private business information public will render them
`3
`
`FINJAN’S ADMIN. MOTION TO KEEP
`COURT FILINGS UNDER SEAL
`
`CASE NO.: 3:17-cv-05659-WHA
`
`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
`
`

`

`Case 3:17-cv-05659-WHA Document 425 Filed 04/11/19 Page 5 of 6
`
`
`
`“irreparably damaged in a way not correctable on appeal.” In re Electronic Arts, Inc., 298 Fed. Appx.
`
`568, 570 (9th Cir. 2008) (district court’s refusal to seal licensing terms and royalty rates was an abuse of
`
`discretion); Apple, Inc. v. Samsung Electronics Co., No. 11-cv-01846-LHK, 2012 WL 3283478 at *7
`
`(N.D. Cal. Aug. 9, 2012) (granting the sealing of licensing agreements because disclosure would cause
`
`“significant competitive harm to the licensing parties as it would provide insight into the structure of
`
`their licensing deals, forcing them into an uneven bargaining position in future negotiations”); Open Text
`
`S.A. v. Box, Inc., No. 13-cv-04910-JD, 2014 WL 7368594, at *3 (N.D. Cal. Dec. 26, 2014) (granting
`
`motion to seal pricing terms of license agreement).
`
`Disclosure of the specific terms, dollar amounts, and actual pages copied from Finjan’s
`
`confidential licenses will harm Finjan and these unrelated third parties because their competitors in the
`
`marketplace would be able to use this information to gain an advantage in future or ongoing business or
`
`licensing negotiations. Competitors in the marketplace could use such confidential information to
`
`unfairly compete by using such confidential proposed pricing and licensing terms in business dealings
`
`among others in the marketplace to undercut Finjan and its licensees. Additionally, Finjan’s future
`
`licensees will be unwilling to engage in discussions to enter new licenses or settle litigations because
`
`they will not be assured that such discussions could be protected from public disclosure. The harm to
`
`Finjan and these non-party licensees greatly outweighs any minimal interest the public may have in
`
`accessing the specific terms, dollar amounts, and actual pages of Finjan’s confidential licenses. And of
`
`course, once this information is disclosed there can be no remedy. See In re Copley Press, Inc., 518 F.
`
`3d 1022, 1025 (9th Cir. 2008) (“Secrecy is a one-way street: Once information is published, it cannot be
`
`made secret again.”).
`III. CONCLUSION
`Because the harm to Finjan and these unrelated third-party licensees far outweighs the
`
`confidential business information described above, that does not relate to any dispositive issues in the
`
`associated motions, Finjan respectfully requests that the Court keep the information described above
`
`filed under seal.
`
`
`
`FINJAN’S ADMIN. MOTION TO KEEP
`COURT FILINGS UNDER SEAL
`
`4
`
`CASE NO.: 3:17-cv-05659-WHA
`
`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
`
`

`

`Case 3:17-cv-05659-WHA Document 425 Filed 04/11/19 Page 6 of 6
`
`
`
`Dated: April 11, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`By: /s/ Lisa Kobialka____________
`Paul J. Andre (State Bar No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`Kristopher Kastens (State Bar No. 254797)
`Austin Manes (State Bar No. 284065)
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
`amanes@kramerlevin.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`FINJAN’S ADMIN. MOTION TO KEEP
`COURT FILINGS UNDER SEAL
`
`5
`
`CASE NO.: 3:17-cv-05659-WHA
`
`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
`
`