Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 1 of 20
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`
`
`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
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`__________________________________________________________________________________
`FINJAN’S REPLY IN SUPPORT OF ITS
`CASE NO. 17-cv-05659-WHA
`MOTION FOR RELIEF FROM JUDGMENT
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 2 of 20
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`
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ........................................................................................................................ 1 
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`FACTUAL BACKGROUND ....................................................................................................... 2 
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`
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`I. 
`
`II. 
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`III. 
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`ARGUMENT ................................................................................................................................ 3 
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`A. 
`
`Juniper’s Withholding of Relevant Documents Responsive to Finjan’s 2018
`Document Requests Is Newly Discovered Evidence. ....................................................... 3 
`
`1. 
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`2. 
`
`3. 
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`4. 
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`Juniper Omitted Responsive Joe Sandbox Documents from Its
`Production. ............................................................................................................ 3 
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`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 
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`B. 
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`Juniper’s Concealment of the Joe Sandbox Documentation Constitutes
`Discovery Misconduct Which Prejudiced Finjan. .......................................................... 14 
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`FINJAN’S REPLY IN SUPPORT OF ITS
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 3 of 20
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`
`
`Federal Cases
`
`
`
`TABLE OF AUTHORITIES
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`
`
`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
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`Other Authorities
`
`Federal Rules of Civil Procedure 34(b)(2)(C) ..................................................................................... 5, 14
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 4 of 20
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`Federal Rules of Civil Procedure 60 ................................................................................................. passim
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 5 of 20
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`INTRODUCTION
`Finjan is entitled to relief from the jury verdict entered on December 14, 2018 (Dkt. No. 333,
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`
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`I.
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`“Verdict”) and this Court’s subsequent order denying Finjan’s Motion for Judgment as a Matter of Law
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`on March 11, 2019 (Dkt. No. 387, “Order”) because but for Juniper’s fraudulent concealment of key
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`evidence that proved that Sky ATP had a “database” as recited in Claim 10 of U.S. Patent No.
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`8,677,494 (“the ‘494 Patent”), which was the pivotal issue at the December 2018 trial, the jury would
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`have found infringement. Finjan repeatedly requested such information in discovery for months before
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`trial, but Juniper misrepresented that it had completed its production and stymied Finjan’s diligent
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`efforts to obtain this evidence. Juniper thus prevented the jury from carrying out its civic duty to
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`consider all the evidence before it, interfered with the Court’s ability to dispense justice, and deprived
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`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
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`discovery misconduct. In fact, Juniper does not reasonably dispute that Finjan requested specific
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`documents from Juniper about Joe Security and Joe Sandbox, that Juniper had them and did not provide
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`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.
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`Juniper offers a handful of citations that are devoid of the technical information found in the
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`documents Finjan had long requested, in order to allege that Finjan could have intuited what Juniper
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`was withholding and thus sought it through subpoena or court intervention. These citations, however,
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`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)
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`stores the results of the dynamic analysis or (ii) uses a database with a clear schema. In fact, all but one
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`of the documents were produced on November 6, 2018, buried among over 460,000 pages of
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`documents produced that day. Finjan timely followed up in December 2018. The single document
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`Juniper cites that was produced before November 2018 appears only to reference a publicly available
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`database within a schedule of third-party licenses. Not only does this appear to be a different database,
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`but there is no technical information whatsoever in the licensing information. Thus, Juniper cannot
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 6 of 20
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`credibly contend that it withheld only “cumulative” documents given its failure to produce any
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`substantive technical information on Joe Sandbox until February 2019.
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`Juniper’s refusal to search a readily identifiable server containing Joe Sandbox-specific
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`information in response to Finjan’s Joe Sandbox-specific discovery requests is inexcusable and done in
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`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
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`requests. The tidbits of Joe Sandbox information produced did not put Finjan on notice that Juniper
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`failed to comply with its discovery obligations in response to Finjan’s explicit requests. Finjan could
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`not have pursued the documents by court intervention or subpoena when Juniper represented its
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`production was complete, failed to identify in its document request responses any withheld information,
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`and provided no information that what Joe Sandbox gave to Juniper even existed.
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`Juniper takes too narrow an interpretation of Finjan’s infringement claim for Sky ATP, as
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`Finjan has consistently alleged that Sky ATP components performing dynamic analysis generate a list
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`of suspicious operations which are part of the security profile data contemplated by Claim 10. Juniper
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`does not contradict Finjan’s explanation that this database with a schema would have met even the
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`definition of “database” set forth by Juniper’s expert, Dr. Rubin. Nor does Juniper argue that it still
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`could have delivered any of the closing arguments that Finjan identified as directly contradicted by the
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`Joe Sandbox database. For these reasons, Finjan is entitled to relief, because Juniper finally produced
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`new evidence which would have changed the outcome on the sole issue at trial, and/or because of
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`Juniper’s discovery misconduct, which prevented Finjan from fully and fairly litigating its claims.
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`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
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`produce this information until February 2019. Dkt. No. 412-5 (Mot. Ex. 3) at 10; Dkt. No. 412-7 (Mot.
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`Ex. 5) at 6. None of Juniper’s alleged explanations excuse Juniper’s concealment of the Joe Sandbox
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`documents that it finally produced on February 4, 2019 (“the Joe Sandbox documents”). These
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`documents included the Joe Sandbox User Guide and Interface Guide, which described for the first
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION FOR RELIEF FROM JUDGMENT
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 7 of 20
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`time Joe Sandbox’s
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`. See Dkt.
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`No. 412-3 (Mot. Ex. 1), at JNPR-FNJN_29043_01517143-44; Dkt. No. 412-4 (Mot. Ex. 2), at JNPR-
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`FNJN_29043_01517207-08. Juniper’s Opposition confirmed that when it misrepresented that its Sky
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`ATP production was complete, Juniper had not even looked for the requested Joe Sandbox documents,
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`which it possessed. Dkt. No. 435-2 (Declaration of Khurram Islah (“Islah Decl.”) at ¶ 5; Dkt. No. 435-1
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`(Declaration of Julienne Aquino (“Aquino Decl.”)) at ¶¶ 3-4.
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`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
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`for the documents requested, despite representing to Finjan that its production of such documents was
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`complete. Specifically, Mr. Islah states in his declaration that Juniper did not ask him to look for any
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`responsive documents until “late 2018 or early 2019,” months after Finjan’s express requests in
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`February and July 2018. Dkt. No. 435-2 (Islah Decl.), ¶ 5. Given that Mr. Islah identifies himself as
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`knowledgeable about Sky ATP’s use of Joe Sandbox and was later Juniper’s corporate designee on that
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`subject, it is unreasonable that Juniper did not ask him whether any responsive documents existed or
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`were provided to Juniper by Joe Security LLC (the Swiss entity that licenses the Joe Sandbox
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`component to Juniper). Id. at ¶ 3. Even Juniper’s paralegal did not search for Finjan’s requested Joe
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`Sandbox documents at the time that Juniper responded to Finjan’s discovery requests. See Dkt. No.
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`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
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`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
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`CASE NO. 17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 8 of 20
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`contained the Joe Sandbox binary code as received from Joe Security, which appears to be exactly
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`where Juniper should have looked for, inter alia, “documents provided to Juniper from Joe Security,”
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`but it did not do so until after the December 2018 trial. Id. at ¶¶ 4-5; Dkt. No. 435-2 (Islah Decl.), ¶¶ 6-
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`7; Dkt. No. 412-8 (Mot. Ex. 6) at 10. Mr. Islah explains that Juniper’s engineers at least generally
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`know the documents are available, even if they are not located in the main technical repositories or are
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`infrequently accessed, because the documents are used “if something appears to be broken or if we are
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`considering adding a new functionality offered by Joe Sandbox (neither of which is common).” Dkt.
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`No. 435-2 (Islah Decl.), ¶ 7. This statement is corroborated by the handful of emails that Juniper
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`ultimately produced in November 2018, long after Finjan’s requests for documents regarding Joe
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`Sandbox, which attached a Joe Sandbox installation guide. See, e.g., Dkt. No. 411-16 (Mot. Ex. 13) at
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`JNPR-FNJN_29040_014625115. Thus, Juniper misrepresented in its responses to Finjan’s requests for
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`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.
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`Juniper’s refusal to even look for the responsive documents moots its attempted excuses about
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`the documents’ location. Juniper’s boilerplate objection regarding “non-network drives,” which
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`Juniper used with all or substantially all of its requests for production responses, is premised on the
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`hollow claim that information on such drives was cumulative of its technical repositories. This is
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`problematic for at least five reasons. First, as noted above, Juniper made that representation in bad
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`faith, as it did so without even checking its technical repositories for Joe Sandbox documents or asking
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`Mr. Islah whether such documents existed. The most basic investigation would have revealed that the
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`requested Joe Sandbox guides and manuals were not cumulative of what had been produced and were
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`reasonably accessible, such that Juniper could not in good faith refuse to search for them.
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`Second, it is flatly untrue, as demonstrated below. The documents were not cumulative of what
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`had been produced, which is why Juniper finally produced them later. Third, Juniper failed to comply
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`with the Rule 34 requirement to identify what documents it is withholding, which necessarily includes
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`identification of categories of documents that Juniper did not search for in responding to Finjan’s
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`document requests. Fed. R. Civ. P. 34(b)(2)(C) (“An objection must state whether any responsive
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 9 of 20
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`materials are being withheld on the basis of that objection. An objection to part of a request must
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`specify the part and permit inspection of the rest.”).
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`Fourth, Juniper’s objection about “non-network drives” does not apply to the iWeb server where
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`Mr. Islah maintained the files he obtained from Joe Security. Dkt. No. 435-2 (Islah Decl.), ¶ 5. Juniper
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`stated it would not search “non-network drives,” apparently in reference to flash drives, etc., because
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`these would be cumulative of information on its “active network servers.” See, e.g., Dkt. No. 412-8
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`(Mot. Ex. 6) at 8. Juniper thus agreed to search “active network servers.” Id. The iWeb server is
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`active and networked, as Mr. Islah was able to download files onto it and retrieve them. Dkt. No. 435-2
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`(Islah Decl.), ¶ 5. Juniper offers no explanation to the contrary, making only the conclusory statement
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`that the iWeb server is “remote” and “third-party,” which does not address Juniper’s objection. Opp. at
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`9, n.3. Mr. Islah does not affirm one way or the other whether the iWeb server is networked, but it
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`must be in order to function as he claims. Dkt. No. 435-2 (Islah Decl.), ¶ 5.
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`Finally, Juniper’s claim that it does not have any source code for Joe Sandbox does not address
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`the inherent problems with Juniper’s untruthful claim to Finjan that it had completed its production
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`relating to Sky ATP, which included “technical specifications, design and development documents, and
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`administration guides” in July 2018. Dkt. No. 412-8 (Mot. Ex. 6) at 7-11. In response to Finjan’s
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`request for “Documents, manuals, guides, or other documents provided by Joe Security to Juniper,”
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`Juniper responded that “it had already completed its technical production detailing the operation of Sky
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`ATP, which includes both the complete Sky ATP source code as well as many thousands of pages of
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`technical specifications, design and development documents, and administration guides.” Id. at 10-11.
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`Nowhere does Juniper indicate that it is withholding documents or that it is refusing to search for them.
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`2.
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`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
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`misconduct. Seven of these eight documents were produced in Juniper’s November 2018 production,
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`and three are duplicative. See Mot. at 4; Dkt. No. 434-7 (Opp. Ex. 3); Dkt. No. 434-11 (Opp. Ex. 13);
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`Dkt. No. 434-12 (Opp. Ex. 14). The November production was months after Finjan’s document
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 10 of 20
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`requests were served in February and July of 2018, and Finjan should not have been required to further
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`second-guess Juniper’s previous representations that everything had been produced. See Dkt. No. 412-
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`5 (Mot. Ex. 3) at 10; Dkt. No. 412-7 (Mot. Ex. 5) at 6. Juniper’s belated productions in November
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`2018 and February 2019 were well after expert reports were served in September 2018 (which Juniper
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`does not dispute), and well after fact depositions were taken. Fact depositions relating to Sky ATP, in
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`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.
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`Further, the only document Juniper cites which was produced prior to November 2018 is an
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`attachment to the Juniper-Joe Security license (“License”) titled
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` Dkt. No. 434-5 (Opp. Ex. 1) at JNPR-FNJN_29035_00962478
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` id. at JNPR-FNJN_29035_00962490 (
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`). There is no indication that that publicly available database
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`is the same as the “file database” described in the User Guide and Interface Guide. Given that the
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`License only mentions publicly available third-party software and the
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` is described in detail
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`only in Joe Security’s confidential technical documents, like the User Guide and Interface Guide, these
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`would seem to be distinct databases. Thus, the mere allusions in the License did not give Finjan any
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`insight in the technical workings of Joe Sandbox as the dynamic analysis component of Sky ATP.
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`The remaining documents that Juniper cites produced in November 2018 include the precise
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`documents that Finjan pointed to when it determined that Juniper had been withholding documents
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`relating to Joe Sandbox. See, e.g., Dkt. No. 411-16 (Mot. Ex. 13) at JNPR-FNJN_29040_014625115.
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`These documents were among 36,144 documents produced on November 6, 2018, which was over
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`460,000 pages of documents. Declaration of Kristopher Kastens (“Kastens Decl.”) filed herewith, ¶ 2.
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`Thus, when it appeared from Juniper’s November production that Juniper’s engineers did, in fact,
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`2 Finjan did not claim that the emails were produced after its infringement experts’ depositions, as
`Juniper seems to suggest. Opp. at 2.
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 11 of 20
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`possess technical documents relating to Joe Sandbox, Finjan followed up promptly in December. Dkt.
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`No. 412-16 (Mot. Ex. 14) at 2-3. Given the massive size of the November production and that trial was
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`only about one month away at the time it was received, Finjan was diligent in following up.
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`None of the documents that Juniper cites offers more than a passing mention of a “database,”
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`and none of them explain anything about the Joe Sandbox database that would indicate its relevance to
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`Claim 10 of the ‘494 Patent. For example, Juniper’s Opposition Exhibit 2, which appears to be a list of
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`bug fixes, once mentions a
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` without any explanation or additional information. Dkt. No.
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`434-6 (Opp. Ex. 2) at JNPR-FNJN_29040_01280977. The earlier version of the installation guide
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`mentions
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` Dkt. No. 434-7 (Opp. Ex. 3) at
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`JNPR-FNJN_29040_01462129. The other documents offer allusions that are even more attenuated.
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`Dkt. No. 434-8 (Opp. Ex. 10) at JNPR-FNJN_29040_01455985 (snippet of log from a server crash
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`includes word “database”); Dkt. No. 434-9 (Opp. Ex. 11) at JNPR-FNJN 29040 01457211 (
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`” with no additional specifics
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`regarding what
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` refers to); Dkt. No. 434-10 (Opp. Ex. 12) at JNPR-
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`FNJN_29040_01457133 (mentioning
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` within a long string); see generally Dkt. No.
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`434-11 (Opp. Ex. 13) (same guide found in Opp. Ex. 3); Dkt. No. 434-12 (same). These references do
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`not give Finjan notice that Juniper failed to search for documents or that it was withholding responsive
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`documents, particularly given Juniper’s prior representations. Juniper cannot hide the ball for months
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`after Finjan’s targeted requests, and then complain that Finjan should have intuited what Juniper was
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`doing based on passing references buried within hundreds of thousands of pages of production.
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`In contrast, the User Guide and Interface Guide produced among the Joe Sandbox documents
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`that Juniper produced in February 2019 provide descriptions of the database at issue. These documents
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`describe what is stored in the Joe Sandbox
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` Dkt. No. 412-3
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 12 of 20
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`(Mot. Ex. 1), at JNPR-FNJN_29043_01517143-44; Dkt. No. 412-4 (Mot. Ex. 2), at JNPR-
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`FNJN_29043_01517207-08. Contrary to Juniper’s claim, these documents are not “cumulative” of a
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`few mentions of a database—which in at least one instance is not the same database. See Opp. at 4.
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`These documents only emphasize that Juniper knew it possessed relevant, responsive Joe
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`Sandbox documents from Joe Security which it failed to search for and timely produce. For example,
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`Mr. Nagarajan, who testified that he was unaware of how Joe Sandbox worked, is copied on all three
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`emails that Juniper points to that Juniper produced in November of 2018. Dkt. No. 412-13 (Mot. Ex.
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`11) at 33:18-34:3; Dkt. No. 434-8 (Opp. Ex. 10) at JNPR-FNJN_29040_01455978; Dkt. No. 434-9
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`(Opp. Ex. 11) at JNPR-FNJN_29040_01457211; Dkt. No. 434-10 (Opp. Ex. 12) at JNPR-
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`FNJN_29040_01457124. At least two of these emails involve a Joe Security representative using a Joe
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`Security email address and exchanging troubleshooting information with the Juniper team. Dkt. No.
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`434-8 (Opp. Ex. 10); Dkt. No. 434-10 (Opp. Ex. 12). Mr. Nagarajan was thus privy to communications
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`about Joe Sandbox, which contradicts his testimony. See Dkt. No. 412-13 (Mot. Ex. 11) at 33:18-34:3.
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`Thus, these documents do not disclose sufficient technical details of how the Joe Sandbox database
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`functions to have used at the December 2018 trial on Claim 10 of the ‘494 Patent.
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`3.
`Finjan Diligently Pursued the Joe Sandbox Documents.
`Finjan diligently pursued documents relating to Joe Sandbox, and Juniper kept Finjan in the
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`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.
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`Ex. 6) at 10-11; Islah Decl., ¶¶ 4-5; Aquino Decl., ¶¶ 3-5. Instead, Juniper misrepresented, evidently
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`sight unseen, that its production of documents relating to Sky ATP was complete, including technical
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`specifications, guides, and other technical documents. Dkt. No. 412-8 (Mot. Ex. 6) at 11. Now,
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`Juniper admits that the Joe Sandbox documents were readily available, and a cursory search would
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`have revealed that these documents or the technical information contained in them were absent from
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`Juniper’s production, even though Juniper’s engineers had them available to use for troubleshooting or
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`other purposes. Islah Decl., ¶¶ 4-5, 7; Opp. at 4 (“[Juniper] was able to locate and produce additional
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 13 of 20
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`documents shortly after receiving follow-up requests from Finjan after the trial.”).
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`The documents Juniper produced in November 2018 referenced a User Guide and other Joe
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`Sandbox documents, which is how Finjan discovered Juniper’s withholding of relevant documents
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`despite its representations to the contrary. Dkt. No. 411-16 (Mot. Ex. 13) at JNPR-
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`FNJN_29040_01462115. As evidence of Finjan’s diligence, it reviewed and discovered these
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`documents buried within hundreds of thousands of pages of documents produced just a month before
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`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
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`A(2). Nor did the License produced in July 2018 contain any relevant information regarding the
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`, or even any technical information at all. These documents thus have nothing to do with the
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`existence of a database with a schema within Joe Sandbox, such that Finjan lacked any notice that Sky
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`ATP had an additional database within the meaning of Claim 10.
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`Moreover, since Juniper never identified that the Joe Sandbox database was used by Sky ATP to
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`store the results of dynamic analysis, Finjan had no way of knowing that there was dispositive
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`information in Juniper’s possession. Juniper makes much of the fact that Finjan was willing to take
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`depositions related to Joe Sandbox after trial and followed up on Juniper’s production after trial, but
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`that is due to the ongoing nature of this case’s schedule. Moreover, Juniper cannot eliminate its
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`discovery obligations and shift them onto Finjan, or expect Finjan to know what is in Juniper’s
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`possession when Juniper represented the production was complete. Finjan asked Juniper for a
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`straightforward list of “all Databases that are incorporated or used, either directly or indirectly, by the
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`Accused Instrumentalities” and Juniper identified other databases which stored the results of dynamic
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`analysis—but it did not identify Joe Sandbox, a key, dishonest omission from its response. Dkt. No.
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`411-10 (Mot. Ex. 10) at 13-14. Finjan’s first inkling that Juniper possessed any of these key responsive
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`Joe Sandbox documents were the documents in the voluminous November 2018 production, and even
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`then it did not know what was in them. Thus, Finjan could not move to compel.
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`Finally, Finjan could not have obtained further discovery in time for trial from Joe Security, and
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`expert reports and fact depositions were well past. Moreover, Juniper cannot claim that Finjan should
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`Case 3:17-cv-05659-WHA Document 442 Filed 04/19/19 Page 14 of 20
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`have burdened a third party and sought discovery through the Hague Convention because Juniper
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`elected not to search for documents that, as it turns out, Juniper could have easily downloaded from a
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`readily identifiable server in its possession. It is inappropriate to overly burden nonparties with
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`discovery that that may be obtained from a party to the litigation. See, e.g., Haworth, Inc. v. Herman
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`Miller, Inc., 998 F.2d 975, 978 (Fed. Cir. 1993) (denying nonparty discovery because the discovery
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`sought was available from a party to the case). Juniper’s case law also does not support a blanket
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`requirement that Finjan must seek documents which it did not know of and the contents of which it
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`could not have known and is nothing like the facts of this case. Opp. at 8 (citing Cusano v. Klein, 485
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`Fed. Appx. 175, 179 (9th Cir