Case 3:17-cv-05659-WHA Document 429 Filed 04/11/19 Page 1 of 3
`
`
`
`
`
`
`Kris Kastens
`Partner
`T 650.752.1715
`F 650.752.1815
`kkastens@kramerlevin.com
`
`
`990 Marsh Road
`Menlo Park, CA 94025-1949
`T 650.752.1700
`F 650.752.1800
`
`
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
`
`April 11, 2019
`
`Honorable William Alsup
`U.S. District Court, Northern District of California
`San Francisco Courthouse
`Courtroom 12 – 19th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
`
`Re:
`
`Juniper’s Assertion of Joint Defense Group Privilege
`Case No. 17-cv-05659-WHA
`
`Dear Judge Alsup:
`
`The Court should compel Juniper Networks, Inc. (“Juniper”) to produce communications
`it had with third parties about Finjan, Inc. (“Finjan”) and its patents that Juniper is improperly
`withholding as “privileged” under the guise of a joint defense group (“JDG” or “common
`interest”) privilege. Juniper has provided no basis for asserting this privilege over Juniper’s
`Privilege Log Entries 0162, 0163, 0164, 0166, 0167, 0171, 0174, and 0175 because Juniper does
`not have a JDG or common interest agreement with any of the third parties identified in these
`entries. Ex. 1 (Juniper’s June 28, 2018, Privilege Log excerpt). In fact, both Juniper’s Senior
`Director of IP Litigation and Strategy and Vice President and Deputy General Counsel testified
`that they were not aware of any such agreement. As these are the individuals who would be
`knowledgeable as to whether such an arrangement exists, Juniper cannot reasonably continue to
`assert privilege. Despite numerous meet and confers, Juniper has not identified any JDG
`Agreement and refuses to withdraw the privilege designation.
`Background
`I.
`Juniper served a privilege log with several entries with the subject line of “FW: Finjan in-
`house JDG / SUBJECT TO COMMON INTEREST.” Id. These communications all included
`Scott Coonan, Juniper’s head of patent litigations, as well as representatives from Juniper’s
`competitors Palo Alto Networks and Blue Coat. On November 16, 2018, Finjan deposed Mr.
`Coonan, and asked him if Juniper was part of a JDG or common interest agreement at the time of
`
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`
`
`
`
`
`
`SILICON VALLEY | NEW YORK | PARIS
`
`
`

`

`Case 3:17-cv-05659-WHA Document 429 Filed 04/11/19 Page 2 of 3
`
`Honorable William Alsup
`April 11, 2019
`
`
`
`
`these emails. Mr. Coonan, who was the Juniper representative on these communications and is
`in charge of managing all of Juniper’s intellectual property litigations, stated that he was
`unaware of Juniper being party to any joint defense agreement with these parties. Mr. Coonan
`knew of a joint defense group against Finjan from conversations he had with some of the
`members, but denied that Juniper joined this particular joint defense group. Ex. 2 (Coonan Nov.
`
`16, 2018 Depo. Tr.) at 174:8-24
`)(emphasis added). Despite
`being identified as a recipient of the third party communications on Juniper’s privilege log, Mr.
`Coonan denied having received any communications from members of the group. Id. at 193:25-
`
`194:2
`
`).
`
`Mr. Coonan would know if Juniper entered into a joint defense agreement. Mr. Coonan
`stated that he has authority to join defense groups on Juniper’s behalf. Id. at 234:8-15
`
`
`
`
`
`)(emphasis added). Even Mr. Coonan’s supervisor, Meredith McKenzie, admitted that
`she did not know if Juniper agreed to join the defense group against Finjan, but that Mr. Coonan
`would be the person to know if such an agreement exists. Ex. 3 (McKenzie Nov. 14, 2018 Depo.
`Tr.) at 50:23-51:8
`
`
`
`
`
`
`
`
`
` (emphasis added). All of this confirms that Juniper never entered into an
`agreement to be part of the joint defense group against Finjan.
`
`Given that there was no basis for Juniper’s claim of privilege and work product over
`these communications, Finjan wrote a letter to Juniper’s outside counsel on December 20, 2018,
`asking for Juniper’s basis for its claim of privilege. Ex. 4 (K. Kastens Dec. 17, 2018 letter to J.
`Kagan). Finjan then met and conferred with Juniper on this issue, but Juniper was unable to
`provide a basis for the claim of privilege, and would not confirm that any agreement existed.
`Finjan again met and conferred with Juniper about this issue on March 29, 2019, asking Juniper
`to identify any relevant JDG or common interest agreements. Ex. 5 at 4 (Emails between Y.
`Caire and I. Peterson dated Mar. 22, 2019–Apr. 6, 2019). Juniper again did not provide a basis
`for its claim of privilege. Id. at 1-2.
`Juniper Improperly Claims Privilege Under the Joint Defense Privilege
`II.
`Juniper cannot show that its communications with third-parties regarding Finjan are
`
`
`
`
`
`2
`
`

`

`Case 3:17-cv-05659-WHA Document 429 Filed 04/11/19 Page 3 of 3
`
`Honorable William Alsup
`April 11, 2019
`
`
`
`
`covered under the common interest privilege because these communications were not made “in
`pursuit of a joint strategy in accordance with some form of agreement – whether written or
`unwritten.” In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012)(emphasis
`added)(citation omitted)(declining to extend attorney client privilege over third party
`communications absent an agreement because “a shared desire to see the same outcome in a
`legal matter is insufficient to bring a communication between two parties within the exception.”).
`In order for Juniper to assert privilege over these communications there “must be some evidence
`of an actual agreement between the parties.” United Food & Commercial Workers Local
`1776 & Participating Employers Health & Welfare Fund v. Teikoku Pharma USA, No. 14-MD-
`02521-WHO, 2016 WL 5906590, at *5 (N.D. Cal. Oct. 11, 2016)(emphasis added)(citation
`omitted)(holding that privilege did not apply where there was no evidence showing an agreement
`to protect the shared information). Mr. Coonan testified that it is a good idea for the parties to a
`joint defense group to have an agreement in place to establish the rights and responsibilities of
`the parties, and that Juniper had entered into these types of formal agreements when joining
`defense groups in the past. Ex. 2 (Coonan Nov. 16, 2018 Depo. Tr.) at 207:9-17; Tr. 210:3-12
`
`
`
`
`
`
`
`
`).
`
`While the subject line of the emails on Juniper’s privilege log stated that they were “JDG
`/ SUBJECT TO COMMON INTEREST,” Juniper has not provided any evidence that there was
`actually any such agreement, even after several requests from Finjan. And, Mr. Coonan – who
`was personally involved in the third-party communications according to the privilege log – was
`unaware of any agreement. Since Juniper did not enter into the predicate agreement necessary
`for asserting common interest or joint defense privilege, Juniper cannot shield its relevant
`discussions with third-parties about Finjan.
`
`Therefore, the Court should find that this material, and any other material Juniper is
`withholding under a claim of a common interest privilege, is not privileged, and is thus relevant
`and discoverable under Fed. R. Civ. P. 26(b)(1), and Juniper should be compelled to produce
`these documents.
`
`Respectfully submitted,
`/s/ Kristopher Kastens
`Kris Kastens
`Counsel for Plaintiff Finjan, Inc.
`
`
`
`
`
`3
`
`