`
`
`
`PAUL 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
`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 REPLY IN
`SUPPORT OF ITS MOTION FOR RELIEF
`FROM JUDGMENT PURSUANT TO FED. R.
`CIV. P. 60(B)
`
`Date:
`Time:
`Courtroom:
`Before:
`
`
`May 9, 2019
`8:00 a.m.
`12, 19th Floor
`Hon. William H. Alsup
`
`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
`
`REDACTED VERSION OF DOCUMENTS FILED UNDER SEAL
`
`__________________________________________________________________________________
`FINJAN’S REPLY IN SUPPORT OF ITS
`CASE NO. 17-cv-05659-WHA
`MOTION FOR RELIEF FROM JUDGMENT
`
`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 441-4 Filed 04/19/19 Page 2 of 20
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ........................................................................................................................ 1
`
`FACTUAL BACKGROUND ....................................................................................................... 2
`
`
`
`I.
`
`II.
`
`III.
`
`ARGUMENT ................................................................................................................................ 3
`
`A.
`
`Juniper’s Withholding of Relevant Documents Responsive to Finjan’s 2018
`Document Requests Is Newly Discovered Evidence. ....................................................... 3
`
`1.
`
`2.
`
`3.
`
`4.
`
`Juniper Omitted Responsive Joe Sandbox Documents from Its
`Production. ............................................................................................................ 3
`
`Juniper Cannot Identify that It Produced a Single Document Describing
`the Relevant Database. .......................................................................................... 5
`
`Finjan Diligently Pursued the Joe Sandbox Documents. ...................................... 8
`
`Juniper’s Concealed Discovery Is Sufficiently Material That It Would
`Change the Outcome of this Case. ...................................................................... 10
`
`B.
`
`Juniper’s Concealment of the Joe Sandbox Documentation Constitutes
`Discovery Misconduct Which Prejudiced Finjan. .......................................................... 14
`
`
`
`
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`i
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 3 of 20
`
`
`
`Federal Cases
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Belinda K. v. Baldovinos,
`No. 10-CV-02507-LHK, 2012 WL 3249481 (N.D. Cal. Aug. 7, 2012) ............................................ 14
`
`Berger v. Rossignol Ski Co.,
`No. C05-2523 CR B, 2006 WL 2038324 (N.D. Cal. July 17, 2006)) ............................................... 13
`
`Casey v. Albertson's Inc.,
`362 F.3d 1254 (9th Cir. 2004) ........................................................................................................... 15
`
`Cusano v. Klein,
`485 Fed. Appx. 175 (9th Cir. 2012) ................................................................................................... 10
`
`De Saracho v. Custom Food Mach., Inc.,
`182 F.R.D. 601 (N.D. Cal. 1998) ....................................................................................................... 15
`
`DeVera v. Japan Airlines,
`No. 92 CIV. 6698 (JES), 1994 WL 698330 (S.D.N.Y. Dec. 13, 1994) ............................................. 10
`
`Haworth, Inc. v. Herman Miller, Inc.,
`998 F.2d 975 (Fed. Cir. 1993)............................................................................................................ 10
`
`Immersion Corp. v. Sony Computer Entm’t Am., Inc.,
`No. C 02-0710 CW, 2006 WL 618599 (N.D. Cal. Mar. 8, 2006) ..................................................... 15
`
`Jones v. Aero/Chem Corp.,
`921 F.2d 875 (9th Cir. 1990) ....................................................................................................... 14, 15
`
`Prism Techs., LLC v. Sprint Spectrum L.P.,
`No. 8:12CV123, 2015 WL 12803695 (D. Neb. Dec. 9, 2015),
`aff'd, 849 F.3d 1360 (Fed. Cir. 2017) ................................................................................................ 13
`
`Srinivasan v. Devry Inst. of Tech.,
`53 F.3d 340, 1995 WL 242307 (9th Cir. 1995) ................................................................................. 13
`
`Venture Indus. Corp. v. Autoliv ASP, Inc.,
`457 F.3d 1322 (Fed. Cir. 2006).......................................................................................................... 15
`
`Willis v. Mullins,
`809 F. Supp. 2d 1227 (E.D. Cal. 2011).............................................................................................. 14
`
`Other Authorities
`
`Federal Rules of Civil Procedure 34(b)(2)(C) ..................................................................................... 5, 14
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`ii
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 4 of 20
`
`
`Federal Rules of Civil Procedure 60 ................................................................................................. passim
`
`
`
`
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`iii
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 5 of 20
`
`
`
`INTRODUCTION
`Finjan is entitled to relief from the jury verdict entered on December 14, 2018 (Dkt. No. 333,
`
`
`
`I.
`
`“Verdict”) and this Court’s subsequent order denying Finjan’s Motion for Judgment as a Matter of Law
`
`on March 11, 2019 (Dkt. No. 387, “Order”) because but for Juniper’s fraudulent concealment of key
`
`evidence that proved that Sky ATP had a “database” as recited in Claim 10 of U.S. Patent No.
`
`8,677,494 (“the ‘494 Patent”), which was the pivotal issue at the December 2018 trial, the jury would
`
`have found infringement. Finjan repeatedly requested such information in discovery for months before
`
`trial, but Juniper misrepresented that it had completed its production and stymied Finjan’s diligent
`
`efforts to obtain this evidence. Juniper thus prevented the jury from carrying out its civic duty to
`
`consider all the evidence before it, interfered with the Court’s ability to dispense justice, and deprived
`
`Finjan of a fair trial on the merits of its infringement claim. Incredibly, Juniper filed a Motion for
`Sanctions (Dkt. No. 409), but its unsupported complaints are swallowed by Juniper’s months of
`
`discovery misconduct. In fact, Juniper does not reasonably dispute that Finjan requested specific
`
`documents from Juniper about Joe Security and Joe Sandbox, that Juniper had them and did not provide
`
`them because it said its production was complete, and that the database evidenced in these documents
`stores dynamic analysis results in the exact manner Juniper’s expert testified was required.
`
`Juniper offers a handful of citations that are devoid of the technical information found in the
`
`documents Finjan had long requested, in order to allege that Finjan could have intuited what Juniper
`
`was withholding and thus sought it through subpoena or court intervention. These citations, however,
`
`do not eliminate Juniper’s discovery obligations to truthfully, completely, and accurately respond to
`Finjan’s discovery requests. Further, none of the documents Juniper cited show how Joe Sandbox (i)
`
`stores the results of the dynamic analysis or (ii) uses a database with a clear schema. In fact, all but one
`
`of the documents were produced on November 6, 2018, buried among over 460,000 pages of
`
`documents produced that day. Finjan timely followed up in December 2018. The single document
`
`Juniper cites that was produced before November 2018 appears only to reference a publicly available
`
`database within a schedule of third-party licenses. Not only does this appear to be a different database,
`
`but there is no technical information whatsoever in the licensing information. Thus, Juniper cannot
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`1
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 6 of 20
`
`
`
`
`
`credibly contend that it withheld only “cumulative” documents given its failure to produce any
`
`substantive technical information on Joe Sandbox until February 2019.
`
`Juniper’s refusal to search a readily identifiable server containing Joe Sandbox-specific
`
`information in response to Finjan’s Joe Sandbox-specific discovery requests is inexcusable and done in
`
`bad faith. Juniper admits that it did not ask the person that it would later make a corporate designee on
`Joe Sandbox to look for responsive documents until “late 2018 or early 2019,” months after Finjan’s
`
`requests. The tidbits of Joe Sandbox information produced did not put Finjan on notice that Juniper
`
`failed to comply with its discovery obligations in response to Finjan’s explicit requests. Finjan could
`
`not have pursued the documents by court intervention or subpoena when Juniper represented its
`
`production was complete, failed to identify in its document request responses any withheld information,
`
`and provided no information that what Joe Sandbox gave to Juniper even existed.
`
`Juniper takes too narrow an interpretation of Finjan’s infringement claim for Sky ATP, as
`
`Finjan has consistently alleged that Sky ATP components performing dynamic analysis generate a list
`
`of suspicious operations which are part of the security profile data contemplated by Claim 10. Juniper
`
`does not contradict Finjan’s explanation that this database with a schema would have met even the
`
`definition of “database” set forth by Juniper’s expert, Dr. Rubin. Nor does Juniper argue that it still
`
`could have delivered any of the closing arguments that Finjan identified as directly contradicted by the
`
`Joe Sandbox database. For these reasons, Finjan is entitled to relief, because Juniper finally produced
`
`new evidence which would have changed the outcome on the sole issue at trial, and/or because of
`
`Juniper’s discovery misconduct, which prevented Finjan from fully and fairly litigating its claims.
`
`II.
`
`FACTUAL BACKGROUND
`Juniper cannot deny that Finjan expressly requested information relating to Juniper’s use of
`
`databases in Sky ATP in February 2018 and use of Joe Sandbox in July 2018, and that Juniper did not
`
`produce this information until February 2019. Dkt. No. 412-5 (Mot. Ex. 3) at 10; Dkt. No. 412-7 (Mot.
`
`Ex. 5) at 6. None of Juniper’s alleged explanations excuse Juniper’s concealment of the Joe Sandbox
`
`documents that it finally produced on February 4, 2019 (“the Joe Sandbox documents”). These
`
`documents included the Joe Sandbox User Guide and Interface Guide, which described for the first
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`2
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 7 of 20
`
`
`
`time Joe Sandbox’s
`
`
`
`. See Dkt.
`
`No. 412-3 (Mot. Ex. 1), at JNPR-FNJN_29043_01517143-44; Dkt. No. 412-4 (Mot. Ex. 2), at JNPR-
`
`FNJN_29043_01517207-08. Juniper’s Opposition confirmed that when it misrepresented that its Sky
`
`ATP production was complete, Juniper had not even looked for the requested Joe Sandbox documents,
`
`which it possessed. Dkt. No. 435-2 (Declaration of Khurram Islah (“Islah Decl.”) at ¶ 5; Dkt. No. 435-1
`
`(Declaration of Julienne Aquino (“Aquino Decl.”)) at ¶¶ 3-4.
`
`III. ARGUMENT
`
`A.
`
`Juniper’s Withholding of Relevant Documents Responsive to Finjan’s 2018
`Document Requests Is Newly Discovered Evidence.
`
`1.
`Juniper Omitted Responsive Joe Sandbox Documents from Its Production.
`Juniper’s contention that it could not have located the documents because of their location on a
`different server, which Juniper uses and maintains, is a red herring. Juniper admits it did not even look
`
`for the documents requested, despite representing to Finjan that its production of such documents was
`
`complete. Specifically, Mr. Islah states in his declaration that Juniper did not ask him to look for any
`
`responsive documents until “late 2018 or early 2019,” months after Finjan’s express requests in
`
`February and July 2018. Dkt. No. 435-2 (Islah Decl.), ¶ 5. Given that Mr. Islah identifies himself as
`
`knowledgeable about Sky ATP’s use of Joe Sandbox and was later Juniper’s corporate designee on that
`
`subject, it is unreasonable that Juniper did not ask him whether any responsive documents existed or
`
`were provided to Juniper by Joe Security LLC (the Swiss entity that licenses the Joe Sandbox
`
`component to Juniper). Id. at ¶ 3. Even Juniper’s paralegal did not search for Finjan’s requested Joe
`
`Sandbox documents at the time that Juniper responded to Finjan’s discovery requests. See Dkt. No.
`
`435-1 (Aquino Decl.), ¶¶ 3-4 (no search undertaken except in March and December 2018).
`Juniper further admits that the Joe Security documents were located on the server1 that
`
`
`1 An iWeb server is a server that Juniper would pay for third party iWeb to host. See https://iweb.com.
`While such a server may be accessed remotely, Juniper notably does not attempt to argue that accessing
`the server is burdensome, requires contacting a third party, or was difficult to ascertain as the location
`where relevant documents would be. Juniper and Mr. Islah would have a login for remote access and
`given that this server is dedicated to maintaining binary code received from Joe Security, there is no
`question it would be a reasonable place to look for documents received from Joe Security.
`3
`
`CASE NO. 17-cv-05659-WHA
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`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 441-4 Filed 04/19/19 Page 8 of 20
`
`
`
`
`
`contained the Joe Sandbox binary code as received from Joe Security, which appears to be exactly
`
`where Juniper should have looked for, inter alia, “documents provided to Juniper from Joe Security,”
`
`but it did not do so until after the December 2018 trial. Id. at ¶¶ 4-5; Dkt. No. 435-2 (Islah Decl.), ¶¶ 6-
`
`7; Dkt. No. 412-8 (Mot. Ex. 6) at 10. Mr. Islah explains that Juniper’s engineers at least generally
`
`know the documents are available, even if they are not located in the main technical repositories or are
`
`infrequently accessed, because the documents are used “if something appears to be broken or if we are
`
`considering adding a new functionality offered by Joe Sandbox (neither of which is common).” Dkt.
`
`No. 435-2 (Islah Decl.), ¶ 7. This statement is corroborated by the handful of emails that Juniper
`
`ultimately produced in November 2018, long after Finjan’s requests for documents regarding Joe
`
`Sandbox, which attached a Joe Sandbox installation guide. See, e.g., Dkt. No. 411-16 (Mot. Ex. 13) at
`
`JNPR-FNJN_29040_014625115. Thus, Juniper misrepresented in its responses to Finjan’s requests for
`
`production that there was nothing more to produce—including no further technical specifications or
`guides—despite not having conducted any search for the specific documents requested.
`
`Juniper’s refusal to even look for the responsive documents moots its attempted excuses about
`
`the documents’ location. Juniper’s boilerplate objection regarding “non-network drives,” which
`
`Juniper used with all or substantially all of its requests for production responses, is premised on the
`
`hollow claim that information on such drives was cumulative of its technical repositories. This is
`
`problematic for at least five reasons. First, as noted above, Juniper made that representation in bad
`
`faith, as it did so without even checking its technical repositories for Joe Sandbox documents or asking
`
`Mr. Islah whether such documents existed. The most basic investigation would have revealed that the
`
`requested Joe Sandbox guides and manuals were not cumulative of what had been produced and were
`
`reasonably accessible, such that Juniper could not in good faith refuse to search for them.
`
`Second, it is flatly untrue, as demonstrated below. The documents were not cumulative of what
`
`had been produced, which is why Juniper finally produced them later. Third, Juniper failed to comply
`
`with the Rule 34 requirement to identify what documents it is withholding, which necessarily includes
`
`identification of categories of documents that Juniper did not search for in responding to Finjan’s
`
`document requests. Fed. R. Civ. P. 34(b)(2)(C) (“An objection must state whether any responsive
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`4
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 9 of 20
`
`
`
`
`
`materials are being withheld on the basis of that objection. An objection to part of a request must
`
`specify the part and permit inspection of the rest.”).
`
`Fourth, Juniper’s objection about “non-network drives” does not apply to the iWeb server where
`
`Mr. Islah maintained the files he obtained from Joe Security. Dkt. No. 435-2 (Islah Decl.), ¶ 5. Juniper
`
`stated it would not search “non-network drives,” apparently in reference to flash drives, etc., because
`
`these would be cumulative of information on its “active network servers.” See, e.g., Dkt. No. 412-8
`
`(Mot. Ex. 6) at 8. Juniper thus agreed to search “active network servers.” Id. The iWeb server is
`
`active and networked, as Mr. Islah was able to download files onto it and retrieve them. Dkt. No. 435-2
`
`(Islah Decl.), ¶ 5. Juniper offers no explanation to the contrary, making only the conclusory statement
`
`that the iWeb server is “remote” and “third-party,” which does not address Juniper’s objection. Opp. at
`
`9, n.3. Mr. Islah does not affirm one way or the other whether the iWeb server is networked, but it
`
`must be in order to function as he claims. Dkt. No. 435-2 (Islah Decl.), ¶ 5.
`
`Finally, Juniper’s claim that it does not have any source code for Joe Sandbox does not address
`
`the inherent problems with Juniper’s untruthful claim to Finjan that it had completed its production
`
`relating to Sky ATP, which included “technical specifications, design and development documents, and
`
`administration guides” in July 2018. Dkt. No. 412-8 (Mot. Ex. 6) at 7-11. In response to Finjan’s
`
`request for “Documents, manuals, guides, or other documents provided by Joe Security to Juniper,”
`
`Juniper responded that “it had already completed its technical production detailing the operation of Sky
`
`ATP, which includes both the complete Sky ATP source code as well as many thousands of pages of
`
`technical specifications, design and development documents, and administration guides.” Id. at 10-11.
`
`Nowhere does Juniper indicate that it is withholding documents or that it is refusing to search for them.
`
`2.
`
`Juniper Cannot Identify that It Produced a Single Document Describing the
`Relevant Database.
`The eight snippets of documents that Juniper claims show a database do not excuse Juniper’s
`
`misconduct. Seven of these eight documents were produced in Juniper’s November 2018 production,
`
`and three are duplicative. See Mot. at 4; Dkt. No. 434-7 (Opp. Ex. 3); Dkt. No. 434-11 (Opp. Ex. 13);
`
`Dkt. No. 434-12 (Opp. Ex. 14). The November production was months after Finjan’s document
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`5
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 10 of 20
`
`
`
`
`
`requests were served in February and July of 2018, and Finjan should not have been required to further
`
`second-guess Juniper’s previous representations that everything had been produced. See Dkt. No. 412-
`
`5 (Mot. Ex. 3) at 10; Dkt. No. 412-7 (Mot. Ex. 5) at 6. Juniper’s belated productions in November
`
`2018 and February 2019 were well after expert reports were served in September 2018 (which Juniper
`
`does not dispute), and well after fact depositions were taken. Fact depositions relating to Sky ATP, in
`
`which Juniper’s witnesses uniformly claimed to have no visibility into Joe Sandbox’s functionality,
`were taken in the first half of 2018.2 Thus, Finjan did not have the information for its infringement
`expert or infringement report, which was served months earlier in September 2018.
`
`Further, the only document Juniper cites which was produced prior to November 2018 is an
`
`attachment to the Juniper-Joe Security license (“License”) titled
`
`
`
`
`
` Dkt. No. 434-5 (Opp. Ex. 1) at JNPR-FNJN_29035_00962478
`
` id. at JNPR-FNJN_29035_00962490 (
`
`
`
`). There is no indication that that publicly available database
`
`is the same as the “file database” described in the User Guide and Interface Guide. Given that the
`
`License only mentions publicly available third-party software and the
`
` is described in detail
`
`only in Joe Security’s confidential technical documents, like the User Guide and Interface Guide, these
`
`would seem to be distinct databases. Thus, the mere allusions in the License did not give Finjan any
`
`insight in the technical workings of Joe Sandbox as the dynamic analysis component of Sky ATP.
`
`The remaining documents that Juniper cites produced in November 2018 include the precise
`
`documents that Finjan pointed to when it determined that Juniper had been withholding documents
`
`relating to Joe Sandbox. See, e.g., Dkt. No. 411-16 (Mot. Ex. 13) at JNPR-FNJN_29040_014625115.
`
`These documents were among 36,144 documents produced on November 6, 2018, which was over
`
`460,000 pages of documents. Declaration of Kristopher Kastens (“Kastens Decl.”) filed herewith, ¶ 2.
`
`Thus, when it appeared from Juniper’s November production that Juniper’s engineers did, in fact,
`
`
`2 Finjan did not claim that the emails were produced after its infringement experts’ depositions, as
`Juniper seems to suggest. Opp. at 2.
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`6
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 11 of 20
`
`
`
`
`
`possess technical documents relating to Joe Sandbox, Finjan followed up promptly in December. Dkt.
`
`No. 412-16 (Mot. Ex. 14) at 2-3. Given the massive size of the November production and that trial was
`
`only about one month away at the time it was received, Finjan was diligent in following up.
`
`None of the documents that Juniper cites offers more than a passing mention of a “database,”
`
`and none of them explain anything about the Joe Sandbox database that would indicate its relevance to
`
`Claim 10 of the ‘494 Patent. For example, Juniper’s Opposition Exhibit 2, which appears to be a list of
`
`bug fixes, once mentions a
`
` without any explanation or additional information. Dkt. No.
`
`434-6 (Opp. Ex. 2) at JNPR-FNJN_29040_01280977. The earlier version of the installation guide
`
`mentions
`
` Dkt. No. 434-7 (Opp. Ex. 3) at
`
`JNPR-FNJN_29040_01462129. The other documents offer allusions that are even more attenuated.
`
`Dkt. No. 434-8 (Opp. Ex. 10) at JNPR-FNJN_29040_01455985 (snippet of log from a server crash
`
`includes word “database”); Dkt. No. 434-9 (Opp. Ex. 11) at JNPR-FNJN 29040 01457211 (
`
`
`
`” with no additional specifics
`
`regarding what
`
` refers to); Dkt. No. 434-10 (Opp. Ex. 12) at JNPR-
`
`FNJN_29040_01457133 (mentioning
`
` within a long string); see generally Dkt. No.
`
`434-11 (Opp. Ex. 13) (same guide found in Opp. Ex. 3); Dkt. No. 434-12 (same). These references do
`
`not give Finjan notice that Juniper failed to search for documents or that it was withholding responsive
`
`documents, particularly given Juniper’s prior representations. Juniper cannot hide the ball for months
`
`after Finjan’s targeted requests, and then complain that Finjan should have intuited what Juniper was
`
`doing based on passing references buried within hundreds of thousands of pages of production.
`
`In contrast, the User Guide and Interface Guide produced among the Joe Sandbox documents
`
`that Juniper produced in February 2019 provide descriptions of the database at issue. These documents
`
`describe what is stored in the Joe Sandbox
`
`
`
`
`
`
`
`
`
` Dkt. No. 412-3
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`7
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 12 of 20
`
`
`
`
`
`(Mot. Ex. 1), at JNPR-FNJN_29043_01517143-44; Dkt. No. 412-4 (Mot. Ex. 2), at JNPR-
`
`FNJN_29043_01517207-08. Contrary to Juniper’s claim, these documents are not “cumulative” of a
`
`few mentions of a database—which in at least one instance is not the same database. See Opp. at 4.
`
`These documents only emphasize that Juniper knew it possessed relevant, responsive Joe
`
`Sandbox documents from Joe Security which it failed to search for and timely produce. For example,
`
`Mr. Nagarajan, who testified that he was unaware of how Joe Sandbox worked, is copied on all three
`
`emails that Juniper points to that Juniper produced in November of 2018. Dkt. No. 412-13 (Mot. Ex.
`
`11) at 33:18-34:3; Dkt. No. 434-8 (Opp. Ex. 10) at JNPR-FNJN_29040_01455978; Dkt. No. 434-9
`
`(Opp. Ex. 11) at JNPR-FNJN_29040_01457211; Dkt. No. 434-10 (Opp. Ex. 12) at JNPR-
`
`FNJN_29040_01457124. At least two of these emails involve a Joe Security representative using a Joe
`
`Security email address and exchanging troubleshooting information with the Juniper team. Dkt. No.
`
`434-8 (Opp. Ex. 10); Dkt. No. 434-10 (Opp. Ex. 12). Mr. Nagarajan was thus privy to communications
`
`about Joe Sandbox, which contradicts his testimony. See Dkt. No. 412-13 (Mot. Ex. 11) at 33:18-34:3.
`
`Thus, these documents do not disclose sufficient technical details of how the Joe Sandbox database
`
`functions to have used at the December 2018 trial on Claim 10 of the ‘494 Patent.
`
`3.
`Finjan Diligently Pursued the Joe Sandbox Documents.
`Finjan diligently pursued documents relating to Joe Sandbox, and Juniper kept Finjan in the
`
`dark through disingenuous discovery responses. In fact, Finjan requested documents provided by Joe
`Security LLC, and Juniper had a server for documents and binary code received from Joe Security
`LLC, which Juniper did not bother searching for in response to Finjan’s requests. Dkt. No. 412-8 (Mot.
`
`Ex. 6) at 10-11; Islah Decl., ¶¶ 4-5; Aquino Decl., ¶¶ 3-5. Instead, Juniper misrepresented, evidently
`
`sight unseen, that its production of documents relating to Sky ATP was complete, including technical
`
`specifications, guides, and other technical documents. Dkt. No. 412-8 (Mot. Ex. 6) at 11. Now,
`
`Juniper admits that the Joe Sandbox documents were readily available, and a cursory search would
`
`have revealed that these documents or the technical information contained in them were absent from
`
`Juniper’s production, even though Juniper’s engineers had them available to use for troubleshooting or
`
`other purposes. Islah Decl., ¶¶ 4-5, 7; Opp. at 4 (“[Juniper] was able to locate and produce additional
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`8
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 13 of 20
`
`
`
`
`
`documents shortly after receiving follow-up requests from Finjan after the trial.”).
`
`The documents Juniper produced in November 2018 referenced a User Guide and other Joe
`
`Sandbox documents, which is how Finjan discovered Juniper’s withholding of relevant documents
`
`despite its representations to the contrary. Dkt. No. 411-16 (Mot. Ex. 13) at JNPR-
`
`FNJN_29040_01462115. As evidence of Finjan’s diligence, it reviewed and discovered these
`
`documents buried within hundreds of thousands of pages of documents produced just a month before
`
`trial, and timely and reasonably followed up with Juniper. Dkt. No. 412-16 (Mot. Ex. 14) at 2-3. These
`documents did not describe the functionality of any Joe Sandbox database, as described above in Part
`
`A(2). Nor did the License produced in July 2018 contain any relevant information regarding the
`
`
`
`, or even any technical information at all. These documents thus have nothing to do with the
`
`existence of a database with a schema within Joe Sandbox, such that Finjan lacked any notice that Sky
`
`ATP had an additional database within the meaning of Claim 10.
`
`Moreover, since Juniper never identified that the Joe Sandbox database was used by Sky ATP to
`
`store the results of dynamic analysis, Finjan had no way of knowing that there was dispositive
`
`information in Juniper’s possession. Juniper makes much of the fact that Finjan was willing to take
`
`depositions related to Joe Sandbox after trial and followed up on Juniper’s production after trial, but
`
`that is due to the ongoing nature of this case’s schedule. Moreover, Juniper cannot eliminate its
`
`discovery obligations and shift them onto Finjan, or expect Finjan to know what is in Juniper’s
`
`possession when Juniper represented the production was complete. Finjan asked Juniper for a
`
`straightforward list of “all Databases that are incorporated or used, either directly or indirectly, by the
`
`Accused Instrumentalities” and Juniper identified other databases which stored the results of dynamic
`
`analysis—but it did not identify Joe Sandbox, a key, dishonest omission from its response. Dkt. No.
`
`411-10 (Mot. Ex. 10) at 13-14. Finjan’s first inkling that Juniper possessed any of these key responsive
`
`Joe Sandbox documents were the documents in the voluminous November 2018 production, and even
`
`then it did not know what was in them. Thus, Finjan could not move to compel.
`
`Finally, Finjan could not have obtained further discovery in time for trial from Joe Security, and
`
`expert reports and fact depositions were well past. Moreover, Juniper cannot claim that Finjan should
`
`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
`
`9
`
`CASE NO. 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 441-4 Filed 04/19/19 Page 14 of 20
`
`
`
`
`
`have burdened a third party and sought discovery through the Hague Convention because Juniper
`
`elected not to search for documents that, as it turns out, Juniper could have easily downloaded from a
`
`readily identifiable server in its possession. It is inappropriate to overly burden nonparties with
`
`discovery that that may be obtained from a party to the litigation. See, e.g., Haworth, Inc. v. Herman
`
`Miller, Inc., 998 F.2d 975, 978 (Fed. Cir. 1993) (denying nonparty discovery because the discovery
`
`sought was available from a party to the case). Juniper’s case law also does not support a blanket
`
`requirement that Finjan must seek documents which it did not know of and the contents of which it
`
`could not have known and is nothing like the facts of this case. Opp. at 8 (citing Cusano v. Klein, 485
`
`