Case 3:17-cv-05659-WHA Document 451 Filed 04/26/19 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
`Plaintiff,
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`v.
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`JUNIPER NETWORK, INC.,
`Defendant.
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`Case No. 17-cv-05659-WHA (TSH)
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`ORDER DENYING MOTION TO
`COMPEL
`Re: Dkt. No. 429
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`Plaintiff Finjan, Inc., moves to compel Defendant Juniper Network, Inc., to produce eight
`emails listed as entries 0162, 0163, 0164, 0166, 0167, 0171, 0174 and 0175 on Juniper’s privilege
`log. The emails all included Scott Coonan, Juniper’s head of patent litigation, as well as
`representatives from Juniper’s competitors. The subject line of each email is: “RE: Finjan in-
`house JDG / SUBJECT TO COMMON INTEREST,” except that 0175 says “FW” instead of
`“RE.” It’s undisputed that “JDG” stands for joint defense group.
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`Prior to this lawsuit, Finjan had sued a number of other companies on the same or similar
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`patents. These other defendants had established a well-functioning joint defense group, and they
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`had suggested to Juniper that it might want to join if Finjan sued it. After the dispute between
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`Finjan and Juniper arose, but before the complaint in this case was filed, Coonan recalls having
`communications with Michael Ritter, Palo Alto Network’s Chief Patent Counsel, about the joint
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`defense group, and in particular about the experiences Ritter had had in the litigation. Coonan
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`recalls these being oral conversations and does not recollect them being emails. Yet, looking at
`the privilege log, and in particular the people listed on the emails, the subject lines, and the dates –
`that’s what these emails obviously were. Juniper ultimately decided not to join the joint defense
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`group. So, are the emails nonetheless privileged under the common interest doctrine?
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`Case 3:17-cv-05659-WHA Document 451 Filed 04/26/19 Page 2 of 3
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`“Rather than a separate privilege, the ‘common interest’ or ‘joint defense’ rule is an
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`exception to ordinary waiver rules designed to allow attorneys for different clients pursuing a
`common legal strategy to communicate with each other.” In re Pacific Pictures Corp., 679 F.3d
`1121, 1129 (9th Cir. 2012). It applies “‘where (1) the communication is made by separate parties
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`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.” Nidec Corp. v. Victor Co. of Japan, 249
`F.R.D. 575, 578 (N.D. Cal. 2007) (quoting United States v. Bergonzi, 216 F.R.D. 487, 495-96
`(N.D. Cal. 2003)). “It has been applied beyond the joint client context to the joint defense context
`– for example, when the defendants are co-defendants in the same action or are defendants in
`separate actions sued by the same plaintiff.” Id. “Moreover, the joint defense theory can extend to
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`interested third parties who have a community of interests with respect to the subject matter of the
`communications.” Id. (citations and quotation marks omitted).
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`These factors are satisfied here. Juniper had a common legal interest with the other
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`defendants that had been sued for infringing the same or similar patents. The communications
`were designed to further that effort because they appear to relate to Juniper’s potential
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`participation in the joint defense group. And neither Juniper nor any of the other recipients have
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`waived the privilege.
`Finjan says this isn’t good enough, citing Coonan’s testimony that Juniper ultimately did
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`not join the joint defense group. It is true that the common interest doctrine requires an
`agreement. “[T]he parties must make the communication in pursuit of a joint strategy in
`accordance with some form of agreement—whether written or unwritten.” In re Pacific Pictures
`Corp., 679 F.3d at 1129. But an agreement can be implied, and here it is implied by the subject
`line of the emails, which again states: “RE: Finjan in-house JDG / SUBJECT TO COMMON
`INTEREST.” It would be difficult to find a clearer example of the parties’ agreement that the
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`emails are subject to a common interest agreement than a statement to that effect on the emails
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`themselves. See, e.g., U.S. v. Esformes, No. 16-20549, 2018 WL 5919517, *12 (S.D. Fla. Nov.
`13, 2018) (“The Court does not find the fact that the Moscowitzes did not sign the JDA [Joint
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`Defense Agreement] dispositive. The parties, through counsel, exchanged confidential material,
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`Case 3:17-cv-05659-WHA Document 451 Filed 04/26/19 Page 3 of 3
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`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, 2017 WL 8236270, *3 (C.D.
`Cal. June 7, 2017) (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.”).
`Accordingly, Finjan’s motion to compel is DENIED.
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`IT IS SO ORDERED.
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`Dated: April 25, 2019
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`THOMAS S. HIXSON THOMAS S HIXSON
`United States Magistrate Judge
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