Case 3:17-cv-05659-WHA Document 429-4 Filed 04/11/19 Page 1 of 4
`Case 3:17-cv-05659-WHA Document 429-4 Filed 04/11/19 Page 1 of 4
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`EXHIBIT 4
`EXHIBIT 4
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`REDACTED VERSION OF
`REDACTED VERSION OF
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`DOCUMENT SOUGHT TO BE
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`SEALED
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`Case 3:17-cv-05659-WHA Document 429-4 Filed 04/11/19 Page 1 of 4
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`EXHIBIT 4
`EXHIBIT 4
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`REDACTED VERSION OF
`REDACTED VERSION OF
`DOCUMENT SOUGHT TO BE
`DOCUMENT SOUGHT TO BE
`SEALED
`SEALED
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`Case 3:17-cv-05659-WHA Document 429-4 Filed 04/11/19 Page 2 of 4
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`990 Marsh Road
`Menlo Park, CA 94025-1949
`T 650.752.1700
`F 650.752.1800
`
`Kris Kastens
`Partner
`T 650.752.1715
`F 650.752.1815
`kkastens@kramerlevin.com
`
`December 17, 2018
`
`Johnathon Kagan
`Irell & Manella LLP
`1800 Ave. of the Stars, Suite 900
`Los Angeles, CA 90067
`T (310) 277-1010
`F (310) 203-7199
`
`Re:
`
`Discovery Items - Case No. 17-cv-05659-WHA
`
`Counsel,
`
`Finjan has identified the below issues with respect to the discovery that Juniper
`has provided to date, which include Juniper’s improper withholding of material under a
`non-existent joint defense agreement and Juniper’s failure to produce certain Joe
`Security documents.
`
`I.
`
`Juniper’s Invocation of the Joint Defense Group Exception to Waiver of
`Privilege
`
`Juniper has identified in its privilege log several communications with third-parties
`as privileged under a joint defense / common interest exception. In particular, Juniper
`claims protection under the joint defense/common interest exception for documents
`and communications that have been exchanged between Juniper and multiple third
`parties, including competitors like Sophos, Cisco, Palo Alto Networks, FireEye, Symantec,
`and Proofpoint. See Juniper Privilege Log Nos. 0162, 0163, 0164, 0165, 0166, 0167, 0170,
`0171, 0172, 0173, 0174, and 0175. According to Juniper’s privilege log, these
`communications all involve its in-house attorney, Scott Coonan, and all pertain to the
`subject of “Finjan in-house JDG” (joint-defense group). However, for the privilege to
`possibly apply, these communications must have been 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)(declining to extend attorney
`client privilege over third party communications absent an agreement because “a
`
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`
`SILICON VALLEY | NEW YORK | PARIS
`
`
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`Case 3:17-cv-05659-WHA Document 429-4 Filed 04/11/19 Page 3 of 4
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`Johnathon Kagan
`December 17, 2018
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`shared desire to see the same outcome in a legal matter is insufficient to bring a
`communication between two parties within the exception.”).
`
`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 any part of a joint defense agreement with these parties. In
`particular, Mr. Coonan denied that Juniper joined this particular joint defense group.
`Coonan Tr. at 174:8-24
`
`
`
` Additionally, Mr. Coonan’s
`supervisor, Meredith McKenzie, confirmed that she did not know if Juniper was part of a
`joint defense group, further showing there was no valid agreement. McKenzie Tr. at
`50:23-51:8
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` Juniper cannot now claim joint defense group protection over
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`any of this material.
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`Further confirming that this material is not protected under any joint defense
`exception, on October 23, 2018, Finjan served its fourth set of RFPs, all of which request
`some form of documents or things pertaining to any joint defense group against Finjan
`that Juniper may have joined. Juniper served its response to this set of RFPs on
`November 23, 2018, all of which appear to be claiming that anything responsive is either
`privileged or doesn’t exist. See Juniper’s Responses to RFP Nos. 98-106 (claiming no
`documents responsive to Finjan’s request for documentation for any joint defense
`agreement).
`
`Confirm that Juniper will produce any document being held based on a claim of
`a joint defense group by January 28th, 2018, or provide times that Juniper is available to
`meet and confer on this issue.
`
`II.
`
`Joe Security Documents
`
`Finjan’s RFP Nos. 87-91 ask for documents/communications regarding Joe
`Security, Joe Sandbox, and Joe Static, including use (RFP. No. 87), products exchanged
`or service provided by (No. 88), manuals, guides (No. 89), contacts (No. 90), contracts
`(No. 91).
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`2
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`Case 3:17-cv-05659-WHA Document 429-4 Filed 04/11/19 Page 4 of 4
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`Johnathon Kagan
`December 17, 2018
`
`After a review of Juniper’s current production, it appears that it has not produced
`material that is provided by Joe Security describing how to integrate its software into
`other systems. In particular, the Joe Security Installation guide that Juniper produced at
`JNPR-FNJN_29040_01462115, references several other highly relevant guides that have
`not been produced. These include:
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`Page 4 references the “cookbook guide”
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`Page 7 references “corresponding guides” for non-remote virtualization setup
`installation
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`Page 28 references Joe Sandbox “interface guide,” Joe Sandbox “user
`guide,” “Malware Analysis Cookbook” (Wiley – 2010)
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`Confirm that Juniper will produce these documents by January 28th, 2018, or provide
`times that Juniper is available to meet and confer on this issue.
`
`Respectfully submitted,
`
`Kris Kastens
`
`KK
`
`3
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