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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`R C a r s o n @ i r e l l . c o m
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`Honorable Thomas S. Hixson
`U.S. District Court Magistrate Judge
`
`
`April 23, 2019
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`
`
`Re: Dkt. No. 394, Finjan, Inc. v. Juniper Networks, Inc.,
`Case No. 3:17-cv-05659-WHA (N.D. Cal.)
`
`
`Dear Judge Hixson:
`We write in response to Finjan’s April 11, 2019 letter seeking production of privileged
`communications between Juniper and members of a joint defense group (“JDG”) relating to the
`defense of a series of lawsuits filed by Finjan. Dkt. 429 (“Finjan Motion”). As Finjan notes, “the
`subject line of the emails on Juniper’s privilege log stated that they were ‘JDG / SUBJECT TO
`COMMON INTEREST.’” Finjan Motion at 3.1
`The essence of the dispute between the parties is whether communications among entities with
`a common legal interest are protected from disclosure only if the parties enter into an express “JDG
`or common interest agreement.” See Finjan Motion at 1. As discussed below, although Juniper
`exchanged privileged communications with a JDG relating to the defense of Finjan’s lawsuits, Juniper
`ultimately decided to not become a member of that JDG and therefore did not sign a formal JDG
`agreement. Contrary to Finjan’s argument, however, Juniper’s decision did not waive privilege for
`Juniper’s communications with the JDG.
`The factual background set forth in Finjan’s letter is largely accurate but omits some key facts.
`First, before Finjan sued Juniper, Finjan had sued a number of other companies on the same or similar
`patents in this District, including Blue Coat, FireEye, Palo Alto Networks, Proofpoint, Sophos, and
`Symantec. See Case Nos. 5:15-cv-03295-BLF (Blue Coat); 4:13-cv-03133-SBA (FireEye); 4:14-cv-
`04908-PJH (Palo Alto Networks); 4:13-cv-05808-HSG (Proofpoint); 3:14-cv-01197-WHO (Sophos);
`and 4:14-cv-02998-HSG (Symantec). These other defendants had established a well-functioning JDG
`to defend against Finjan’s patent infringement allegations, and they had suggested to Juniper that
`Juniper might want to join the JDG if Finjan filed suit against Juniper. See Ex. 1 (Coonan Tr.) at
`176:15-24. After Finjan sued Juniper, Juniper exchanged communications with members of the JDG
`about the JDG and Finjan’s lawsuits. See Ex. 1 (Coonan Tr.) at 212:10-213:2. Juniper ultimately
`decided, however, not to become a member of the JDG and therefore did not sign a formal JDG
`agreement. See Ex. 1 (Coonan Tr.) at 174:23-24. The communications at issue in this motion all date
`from the time period when Juniper was considering whether to formally join the JDG. Ex. 2 (privilege
`log) at Nos. 0162, 0163, 0164, 0166, 0167, 0171, 0173, 0174, and 0175 (communications from Nov.
`
`1 Although all documents are marked with some type of privilege designation, either ‘JDG’ or
`‘common interest,’ Finjan’s statement is not entirely accurate: privilege log entries 0172 and 0173
`are marked “Finjan in-house JDG call” but do not expressly include the “SUBJECT TO COMMON
`INTEREST” language. The remainder of the communications do, however, include the “SUBJECT
`TO COMMON INTEREST” designation.
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`10667056
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`Case 3:17-cv-05659-WHA Document 445 Filed 04/23/19 Page 2 of 3
`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`2015 and Feb. 2016). Each of the communications is labeled with the legend “Finjan in-house JDG,”
`“SUBJECT TO COMMON INTEREST,” or both. Id.
`The sole question raised by Finjan’s motion is whether Juniper’s communications with the
`JDG about Finjan’s lawsuits are protected by the common interest privilege even though Juniper
`declined to become a member of the JDG and thus did not execute a formal JDG agreement. Juniper’s
`position is that these communications are protected by the common interest privilege because they
`meet all the requirements for that privilege, even though Juniper elected not to join the JDG.
`The elements of the common interest privilege are explained in Nidec Corp. v. Victor Co. of
`Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007): “The common interest privilege . . . applies where
`(1) the communication is made by separate parties in the course of a matter of common [legal]
`interest; (2) the communication is designed to further that effort; and (3) the privilege has not been
`waived” (alterations in original) (quoting U.S. v. Bergonzi, 216 F.R.D. 487, 495 (N.D. Cal. 2003)).2
`See also Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 WL 1088297, at *4 (N.D. Cal.
`Mar. 17, 2014) (quoting the Nidec elements); Love v. Permanente Medical Group, No. C-12-05679
`DMR, 2014 WL 644948, at *2 (N.D. Cal. Feb. 19, 2014) (also quoting the Nidec elements); Ellis v.
`J.P. Morgan Chase & Co., No. 12-cv-03897-YGR (JCS), 2014 WL 1510884, at *6 (N.D. Cal. Apr. 1,
`2014) (also quoting the Nidec elements). The communications withheld by Juniper meet each of
`these three elements. Specifically: (1) there was a community of interests between Juniper and the
`members of the JDG regarding defense of the lawsuits Finjan had filed against each of the defendants;
`(2) the communications related to this common legal interest and Juniper’s potential involvement
`with the JDG in the defense of these lawsuits; and (3) the parties intended these communications to
`remain subject to the privilege and have not waived the privilege.
`Finjan does not (and cannot) dispute that all of the documents they are seeking satisfy these
`three requirements. First, the communications involve a “matter of common legal interest” because
`they relate to lawsuits Finjan filed against several different defendants on the same or related patents.
`These defendants thus all have a common legal interest in defending against Finjan’s allegations and
`invalidating Finjan’s patents. See, e.g., Love, 2014 WL 644948, at *3 (finding a “common legal
`interest in defending against anticipated litigation against all three entities by Plaintiff”); In re
`Subpoenas to Intel Corp., No. 4:17-mc-80099-KAW, 2018 WL 984776, at *4 (N.D. Cal. Feb. 20,
`2018) (“[T]he Court agrees that Intel and the defendants share a common interest in their position
`that the accused products do not infringe on TQ Delta’s patents.”); Callwave Communications, LLC
`v. Wavemarket, Inc., No. C14-80112 JSW (LB), 2015 WL 831539, at *4 (N.D. Cal. Feb. 23, 2015)
`(“Location Labs and AT&T have a[ common legal] interest in defeating Callwave’s claims of patent
`infringement in the Underlying Litigation.”). Second, the communications all relate to Juniper’s
`potential involvement and participation in the JDG—whose purpose it is to defend against Finjan’s
`patents. Finally, neither Juniper nor (to the best of Juniper’s knowledge) any member of the JDG has
`waived privilege regarding these communications. Accordingly, all of the requirements for
`invocation of the common interest privilege have been satisfied.
`Notwithstanding that Juniper satisfies all the required elements of the common interest
`privilege, Finjan argues that Juniper cannot invoke the privilege because it ultimately decided not to
`
`2 “Of course, since it is an anti-waiver exception, it comes into play only if the communication at
`issue is privileged in the first instance.” Nidec, 249 F.R.D. at 578. Finjan does not challenge the
`privileged nature of these communications—all of which were between counsel and relate to the
`defense of a lawsuit.
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`Case 3:17-cv-05659-WHA Document 445 Filed 04/23/19 Page 3 of 3
`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
`
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`join the JDG by signing the formal JDG agreement. See Finjan Motion at 3. This argument is
`premised on the incorrect assumption that an express agreement is required to preserve the privileged
`status of common interest communications. As even the cases cited by Finjan make clear, an
`agreement to maintain the privileged nature of the communications can be “written or unwritten” (In
`re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (emphasis added)), and no express
`agreement is required, as “the conduct of parties can imply the existence of a joint defense agreement”
`(United Food & Commercial Workers v. Teikoku Pharma USA, No. 14-md-02521-WHO, 2016 WL
`5906590, at *5 n. 6 (N.D. Cal. Oct. 11, 2016)). See also Love, 2014 WL 644948, at *2 (“agreement
`may be implied from conduct and situation”).
`This case involves not only an implied agreement to keep the communications among the JDG
`members and Juniper confidential, but also an actual, written manifestation of this agreement on the
`communications themselves. Finjan acknowledges, as it must, that each document for which it is
`seeking production expressly states that it is “SUBJECT TO COMMON INTEREST,” subject to the
`“Finjan in-house JDG,” or both. See Finjan Motion at 1. It is difficult to imagine a clearer expression
`of the parties’ agreement to maintain the privilege of these documents than an actual reference to the
`privilege on the documents themselves. See, e.g., U.S. v. Esformes, No. 16-20549-Cr-Scola/Otazo-
`Reyes, 2018 WL 5919517, at *12 (S.D. Fla. Nov. 13, 2018) (“The Court does not find the fact that
`the Moscowitzes did not sign the JDA [Joint Defense Agreement] dispositive. The parties, through
`counsel, exchanged confidential material, frequently labeled their emails ‘joint defense,’ . . . . It is
`clear by their conduct, all parties operated under the assumption that their actions and statements were
`covered by a valid JDA.”); Abselet v. Leven Neale Bender Yoo & Brille L.L.P., No. CV 16-6263-JFW
`(JEMx), 2017 WL 8236270, at *3 (C.D. Cal. June 7, 2017) (The fact that a “letter was marked
`‘Privileged Common Interest Communication’ and confirmed counsel’s agreement that ‘our
`communications . . . are subject to the common interest privilege’ [] demonstrates that the parties
`intended the letter to remain confidential.”). Whether Juniper ultimately decided to become a member
`of the JDG or not is irrelevant to the question of whether there was an agreement to keep the
`communications confidential and subject to the common interest privilege at the time it made those
`communications.
`In sum, Juniper shared a common interest with the JDG in defending against Finjan’s patents.
`Juniper confidentially communicated with the JDG about Juniper’s potential involvement with the
`JDG, and those communications were uniformly designated as being privileged from discovery.
`These communications thus satisfy all requirements for the common interest privilege, so Finjan is
`not entitled to review Juniper’s privileged communications with the JDG.
`Respectfully submitted,
`
` /s/ Rebecca L. Carson
`Rebecca L. Carson
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
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`10667056
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