Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 1 of 49
`
` Pages 1 - 49
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) No. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC.,
`)
` )
` Defendant.
`)
` ) San Francisco, California
` Thursday, May 9, 2019
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` KRIS KASTENS, ESQ.
` MISSY G. BRENNER, ESQ.
`
`For Defendant: IRELL & MANELLA LLP
` 1800 Avenue of the Stars, Suite 900
` Los Angeles, California 90067-4276
` BY: JONATHAN S. KAGAN, ESQ.
`
`
` IRELL & MANELLA LLP
` 840 Newport Center Drive, Suite 400
` Newport Beach, California 92660
` BY: REBECCA CARSON, ESQ.
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Official Reporter
`
`
`
` Pages 1 - 49
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) No. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC.,
`)
` )
` Defendant.
`)
` ) San Francisco, California
` Thursday, May 9, 2019
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` KRIS KASTENS, ESQ.
` MISSY G. BRENNER, ESQ.
`
`For Defendant: IRELL & MANELLA LLP
` 1800 Avenue of the Stars, Suite 900
` Los Angeles, California 90067-4276
` BY: JONATHAN S. KAGAN, ESQ.
`
`
` IRELL & MANELLA LLP
` 840 Newport Center Drive, Suite 400
` Newport Beach, California 92660
` BY: REBECCA CARSON, ESQ.
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Official Reporter
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 2 of 49
`
` 2
`
` 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
`
`Thursday - May 9, 2019
`
` 7:59 a.m.
`
`P R O C E E D I N G S
`
`---000---
`
`THE CLERK: Calling civil action 17-5659, Finjan, Inc.
`
`versus June, Inc.
`
`Counsel, please step forward and state your appearances
`
`for the record.
`
`MR. ANDRE: Good morning, Your Honor. Paul Andre,
`
`Lisa Kobialka, Kris Kastens, and Missy Brenner for plaintiff
`
`Finjan.
`
`MS. KOBIALKA: Hello.
`
`THE COURT: Welcome to you.
`
`MR. ANDRE: Thank you.
`
`MR. KAGAN: Good morning, Your Honor. Jonathan Kagan,
`
`of Irell & Manella. With me is Rebecca Carson.
`
`THE COURT: Welcome to you.
`
`MR. KAGAN: Thank you.
`
`THE COURT: We have two motions. We'll start with the
`
`motion by Finjan. Please, go ahead.
`
`MS. KOBIALKA: Your Honor, Lisa Kobialka on behalf of
`
`Finjan.
`
`So Finjan brought this Rule 60 motion under two different
`
`grounds, one under 60(b)(2) and then one under 60(b)(3),
`
`because there were incredibly misleading omissions that were
`
`made throughout discovery with respect to Sky ATP.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 3 of 49
`
` 3
`
` 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
`
`And the first thing I can point to was an interrogatory
`
`that specifically asked about the databases in Sky ATP. That
`
`was in April of 2018, which would have given us plenty of time
`
`if they had been honest in their response about what those
`
`databases were.
`
`And what they did was they indicated what databases there
`
`were, that they're willing to tell us about, whether or not --
`
`THE COURT: Wait. See, you got a false start, and
`
`then I got confused.
`
`MS. KOBIALKA: Sorry.
`
`THE COURT: Give me the question and the answer again,
`
`but be clear-cut instead of false start.
`
`MS. KOBIALKA: Fair enough.
`
`Interrogatory No. 12 explicitly asked:
`
`"Identify and describe all databases that are
`
`incorporated or used by the accused products."
`
`They responded:
`
`"Based on an investigation to date, Sky ATP" -- so
`
`we're specifically talking about the product at issue that
`
`was at trial -- "does not store results from the
`
`adapter" -- and it gives the claim construction -- "in a
`
`collection of interrelated data organized according to a
`
`database schema to serve one or more applications."
`
`But it goes on, and this is where it's really misleading,
`
`because of the omission.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 4 of 49
`
` 4
`
` 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
`
`THE COURT: Now, read slowly then.
`
`MS. KOBIALKA: It goes on to say:
`
`"To the extent Sky ATP uses any other database that
`
`may or may not have had schema, such databases are
`
`irrelevant to this matter. Such as, for example, Customer
`
`Database, which is used to track information. Dynamo DB
`
`and Amazon RDS, which do store adapter results, are
`
`schema-less and, thus, do not fall within Finjan's
`
`definition of database, which is, quote, a collection of
`
`interrelated data organized according to a database schema
`
`to serve one or more applications."
`
`Nowhere is there any mention of the Joe Sandbox file
`
`database, which we discovered and were able to confirm, in
`
`February of this year, months after the trial, on this very
`
`issue, that, in fact, Joe Sandbox file database stores the
`
`results, and it has a database. And that's part of Sky ATP.
`
`They omitted it explicitly from their interrogatory response.
`
`Several months prior to this interrogatory request, we
`
`specifically asked for documents regarding Sky ATP, the
`
`operation of Sky ATP. And we were told throughout discovery,
`
`You have everything.
`
`They explicitly wrote in their interrogatory response --
`
`THE COURT: Is this the same one?
`
`MS. KOBIALKA: Oh, excuse me, document response.
`
`THE COURT: All right. Okay. Hold that thought.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 5 of 49
`
` 5
`
` 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
`
`I just want to hear on the interrogatory answer. What is
`
`your response on the interrogatory answer?
`
`MR. KAGAN: So the first -- the thing that the Court
`
`may recall but I will remind the Court of is that Sky ATP is a
`
`program that was written by Juniper Networks.
`
`What that program does is it licenses certain components
`
`or features that it uses from other companies, but it does not
`
`have the source code for those. They're not a part of Sky ATP.
`
`They're licensed third-party components. One of those is Joe
`
`Sandbox.
`
`So what Juniper knows is what Juniper's product does. It
`
`knows where Sky ATP stores information. What Joe Sandbox does
`
`internally, which is now something that Finjan is focusing on,
`
`is not something that Juniper knows.
`
`Juniper does not have the source code for Joe Sandbox.
`
`Juniper does not -- Juniper's prohibited from doing any reverse
`
`engineering to try to figure out what Joe Sandbox does
`
`internally.
`
`And, also, this -- we can get more complex on this. Sky
`
`ATP doesn't store anything in Joe Sandbox. So Joe Sandbox does
`
`an analysis and it sends information to Sky ATP, but it's a
`
`one-way connection.
`
`Sky ATP then takes that data, analyzes it, and stores it
`
`in precisely the locations that were described in the
`
`interrogatory. Sky ATP never goes back and stores anything in
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 6 of 49
`
` 6
`
` 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
`
`Joe Sandbox.
`
`What they're talking about is two different things,
`
`talking about apples and oranges. They're talking about what
`
`Joe Sandbox does internally, in terms of its analysis, which is
`
`something that Juniper explained numerous times, in numerous
`
`depositions, that it's what we call a black box. We really
`
`don't know what Joe Sandbox does internally.
`
`THE COURT: Okay. Hold that thought.
`
`What do you say to that?
`
`MS. KOBIALKA: It doesn't excuse them for not
`
`searching the server with the documents regarding Joe Sandbox,
`
`which we received in February of this year, that actually
`
`detail about the Joe Sandbox file database that stores the
`
`results.
`
`THE COURT: What server are you talking about?
`
`MS. KOBIALKA: It is the server that they referred to
`
`as their iWeb server.
`
`THE COURT: Their what?
`
`MS. KOBIALKA: The iWeb server that they refer to in
`
`their briefing.
`
`THE COURT: Is that one that's owned by Juniper?
`
`MS. KOBIALKA: It has all of Juniper's content on it.
`
`THE COURT: Is it like the cloud?
`
`MS. KOBIALKA: Yes. So if I have a Google Docs
`
`account, and I have documents I create and put them up on
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 7 of 49
`
` 7
`
` 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
`
`Google, I'm able to say that's my content. I'm able to
`
`download it.
`
`That's what they were able to do in this instance. They
`
`have information that gets put on the server that serves them.
`
`THE COURT: Go over there, Ms. Kobi- -- sorry.
`
`MS. KOBIALKA: Kobialka.
`
`THE COURT: Kobialka. Go get the -- draw me a cartoon
`
`so that I can understand your argument on why they should have
`
`been able to turn these documents over.
`
`He says it's a black box and they didn't have the
`
`materials. And you say they did have the material. So
`
`somebody is lying to me.
`
`Go over there.
`
`MS. KOBIALKA: Okay. I don't know if I have --
`
`THE COURT: What? Just draw it for me. I can't
`
`understand your argument. It's too complicated.
`
`Bring it over here so that I can see it better.
`
`MS. KOBIALKA: Okay.
`
`THE COURT: Thank you.
`
`Pull it in a little closer.
`
`What does that say there, "JPR"?
`
`MS. KOBIALKA: Juniper, it stands for Juniper.
`
`THE COURT: What's that?
`
`MS. KOBIALKA: That's their server that they were able
`
`to download information from to produce in this case once we
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 8 of 49
`
` 8
`
` 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
`
`pointed out that they hadn't gotten that information. This is
`
`a server with information --
`
`THE COURT: Give me -- all right. Give me one example
`
`of the information that is so earth shattering now.
`
`MS. KOBIALKA: The user guide and the interface guide,
`
`that was produced in February of 2019, that actually describes
`
`the database, the file database in Joe Sandbox.
`
`THE COURT: And that was --
`
`MS. KOBIALKA: And they never searched --
`
`THE COURT: That was resident there all along?
`
`MS. KOBIALKA: Yes.
`
`So they have their declarations that they testified they
`
`didn't search for it until late 2018, early 2019. That's
`
`Mr. Aquino's declaration and Mr. Islah's declaration.
`
`They said they weren't even asked to look for this
`
`particular information. We had specific requests asking for
`
`manuals, guides. They represented to us in fact discovery that
`
`everything, all technical production, has been done for Sky
`
`ATP. You have everything.
`
`That turned out not to be true. And the information that
`
`they provided wasn't in any other documentation that had been
`
`provided.
`
`THE COURT: Read to me where they said you have
`
`everything.
`
`See, now, it's got to say that. If you're putting a spin
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 9 of 49
`
` 9
`
` 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
`
`on it then I start losing faith in what you're saying. Read to
`
`me where they said you have everything.
`
`MS. KOBIALKA: Okay. So for Request 89,
`
`specifically -- so I'll just use that one. There's a couple
`
`others, but I'll use 89.
`
`THE COURT: Yes.
`
`MS. KOBIALKA: (Reading)
`
`"All documents, manuals, guides or other documents
`
`provided by Joe Security to Juniper, including document
`
`description, the operation, use or API of any Joe Security
`
`product, including its Joe Sandbox and Joe Static
`
`product."
`
`THE COURT: Somebody is clicking a notebook. Who is
`
`doing that?
`
`MR. KASTENS: Sorry.
`
`THE COURT: It's like a thunderstorm going on over
`
`there. Meanwhile your partner is trying to explain something
`
`to me and you're destroying the effectiveness of it.
`
`MR. KASTENS: Sorry.
`
`THE COURT: Please stop and let her have my undivided
`
`attention.
`
`All right. Continue, please.
`
`MS. KOBIALKA: The response that they provided to that
`
`specific request asking for all documents, manuals, guides that
`
`Joe Security provided to Juniper was:
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 10 of 49
`
` 10
`
` 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
`
`"Subject to the specific objections and general
`
`objections incorporated herein, Juniper responds that it
`
`has 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."
`
`It goes on:
`
`"Juniper further responds, subject to its objections,
`
`that it has also produced licenses with Joe Security" --
`
`THE COURT: Wait. Say that again. It has already
`
`produced what?
`
`MS. KOBIALKA: "Licenses with Joe Security for
`
`products used by Sky ATP."
`
`THE COURT: Uh-huh.
`
`MS. KOBIALKA: This response does not say, as
`
`required --
`
`THE COURT: Well, you said it said, "We have given you
`
`everything." Where does it say that?
`
`MS. KOBIALKA: Juniper responds that it has already
`
`completed its technical production detailing the operation of
`
`Sky ATP.
`
`THE COURT: That's not the same words. That doesn't
`
`say we have given you everything. It says we have completed
`
`something.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 11 of 49
`
` 11
`
` 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
`
`MS. KOBIALKA: They said they gave us everything about
`
`Sky ATP in response to a specific request about Sky ATP
`
`relating to Joe Security documents to Juniper.
`
`THE COURT: See, when you put spin on it then I don't
`
`know how much I can trust a word you say.
`
`MS. KOBIALKA: Your Honor, there's no dispute that Joe
`
`Security Sandbox is part of Sky ATP. They're not disputing
`
`that. They didn't dispute it in their briefing. That's not at
`
`issue here. It is one of the databases of Sky ATP, which was
`
`the key focus of our December trial.
`
`There are pictures in their brief. On page 13 of their
`
`brief they show how Joe Security, which has the database that
`
`we're talking about, is part of Sky ATP. That's what this
`
`cloud is (indicating).
`
`THE COURT: Let me see that document.
`
`Which one of these is Joe Security?
`
`MS. KOBIALKA: There are two boxes on that, that says
`
`"Joe Security." If you look in the upper left-hand corner, the
`
`second --
`
`THE COURT: I see one that says --
`
`MS. KOBIALKA: Second and fourth.
`
`MR. KAGAN: It's the second one in from the left, and
`
`the fourth one in.
`
`THE COURT: All right. Go back and read that
`
`interrogatory and the answer again.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 12 of 49
`
` 12
`
` 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
`
`MS. KOBIALKA: The interrogatory versus the request
`
`for documents?
`
`THE COURT: Yeah. Start with the interrogatory.
`
`MS. KOBIALKA: The Interrogatory No. 12:
`
`"For each accused instrumentality identify and
`
`describe all databases that are incorporated or used
`
`either directly or indirectly by the accused
`
`instrumentalities."
`
`There's more to it about identifying and describing the
`
`type of database, et cetera, but the key to that interrogatory
`
`is: Identify all databases that are used directly or
`
`indirectly by the accused instrumentalities.
`
`THE COURT: Okay. What was the answer?
`
`MS. KOBIALKA: (Reading)
`
`"Based on investigation to date, Sky ATP does not
`
`store results from the adapters in, quote, a collection of
`
`interrelated data organized according to a database schema
`
`to serve one or more applications, closed quote. To the
`
`extent Sky ATP uses any other database that may or may not
`
`have schema, such databases are irrelevant to this matter,
`
`such as, for example, Customer Database, which is used to
`
`track customer information. Dynamo DB and Amazon RDS,
`
`which do store adapter results are schema-less and, thus,
`
`do not fall within Finjan's definition of, quote,
`
`database, end quote, which is, quote, a collection of
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 13 of 49
`
` 13
`
` 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
`
`interrelated data organized according to a database schema
`
`to serve one or more applications, closed quote.
`
`And they cite a number of Amazon Web pages.
`
`THE COURT: All right. So, now, in the material that
`
`you got in February, explain to me in one or two sentences why
`
`that was such earthshaking information.
`
`MS. KOBIALKA: Because for the first time in the
`
`material that they provided, which is the user guide and the
`
`installation guide, it identified databases that had a schema
`
`that stored the results. The very issue that we had talked
`
`about in the December trial.
`
`And at no point did Juniper say "We omitted this
`
`information." At no point. We figured it out because we had
`
`seen a document, after they had told us they didn't have any
`
`further documents, that was attached. Looked like some sort of
`
`installation guide from Joe Security. And we said, Wait a
`
`minute, it looks like you do, in fact, have Joe Security
`
`documents. They haven't been produced.
`
`That was provided to us among 36,000 pages of documents in
`
`November, right before trial. So we followed up with them as
`
`soon as we reasonably could in this case and said, It looks
`
`like you've got more information.
`
`In February they suddenly produce the user guide and the
`
`interface. And I can give you specific pages. We cited to it
`
`explicitly in our brief.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 14 of 49
`
` 14
`
` 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
`
`It talks about the file database format and this strict
`
`structure, the very structure that was the basis of their
`
`non-infringement case. Right? They couldn't have made this
`
`non-infringement argument that they did in the December trial
`
`if they had produced these documents.
`
`THE COURT: Why is that?
`
`MS. KOBIALKA: Because their whole basis was it's a
`
`schema-less -- right? -- it's a schema-less database; it's a
`
`database without this structure.
`
`But it turns out, in fact, no, they had a database within
`
`Sky ATP that they failed to identify to us that, in fact, has a
`
`strict structure.
`
`It follows the very definition that Dr. Rubin used and
`
`applied throughout trial. So it absolutely is a material issue
`
`that occurred. And we didn't get these documents, which were
`
`in their possession and control, because they didn't search for
`
`it, according to their own declarations that they submitted,
`
`until after trial.
`
`And these documents detail where these databases are, how
`
`they are structured.
`
`THE COURT: All right.
`
`MS. KOBIALKA: And they don't dispute it. It's not
`
`disputed in their briefing.
`
`THE COURT: What's not disputed?
`
`MS. KOBIALKA: That, in fact, these databases meet the
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 15 of 49
`
` 15
`
` 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
`
`definition of Dr. Rubin.
`
`THE COURT: Is that not true, Mr. Kagan?
`
`MR. KAGAN: We do not address it because we don't have
`
`enough information to know. We still don't have the source
`
`code for those databases. These are just user guides and
`
`manuals.
`
`THE COURT: Wait. She just got through reading
`
`something to me that said "databases."
`
`MR. KAGAN: Your Honor, there is no dispute that there
`
`are databases located within the Joe Sandbox. We do not
`
`dispute that.
`
`THE COURT: Well, then what-- wouldn't this be
`
`relevant to the trial?
`
`MR. KAGAN: Well, it wouldn't for a number of reasons.
`
`But one fact that may make this whole issue moot is we
`
`disclosed in July of 2018 that there was, in fact, a database
`
`in Joe Sandbox.
`
`We gave a document, the license agreement, that
`
`specifically says that there is a database, that the Joe
`
`Sandbox includes a database. It's called an H2 Database. And
`
`it provides a link.
`
`And we cited this in our brief, describing what the H2
`
`Database is. And if you just bothered to click on that link,
`
`it says this is a SQL database. That's capital S-Q-L database.
`
`So this is the same type of database that existed in what's
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 16 of 49
`
` 16
`
` 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
`
`been referred to in trial as the Results Database.
`
`So as of July, Finjan was absolutely aware that this
`
`database existed.
`
`In May of 2018, we informed Finjan -- they deposed
`
`numerous of our witnesses, and they asked them: Tell us about
`
`the operation of Joe Sandbox.
`
`And each of the witnesses said: We don't know. We do not
`
`have access to the source code. We don't know exactly what is
`
`done.
`
`THE COURT: What was it that was up in that box up in
`
`the sky there?
`
`MR. KAGAN: Well, this diagram is not exactly
`
`accurate.
`
`May I?
`
`THE COURT: Yeah.
`
`MR. KAGAN: Okay. So these three boxes on the bottom
`
`represent Juniper's technical repositories.
`
`So all of Juniper's technical information for Sky ATP is
`
`maintained on three separate servers. One is called
`
`Confluence; one is called Jira; and one is called Gnat. So
`
`this is where Juniper stores its technical information about
`
`Sky ATP.
`
`You have to remember that Sky ATP is the product that
`
`Juniper designed. We license product from third parties such
`
`as Joe Sandbox.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 17 of 49
`
` 17
`
` 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
`
`When we get -- we just get the object code. It's like
`
`buying the Microsoft Word program or something. We just get
`
`it, install it. That is not on a Juniper network. We don't
`
`put that in our system.
`
`THE COURT: Which program?
`
`MR. KAGAN: That's Joe Sandbox.
`
`So we go to Joe Sandbox, and we say we want a program --
`
`they say, we have a program that it will do a dynamic analysis
`
`for you. We say, Oh, that's great. We'll license it from you.
`
`So they say, okay, here's -- if you want the information,
`
`you pay us some money, you can use our program. You don't get
`
`the source code. You don't really get to know what's going on
`
`under the hood, but you can use it so you can send an input,
`
`send a file, and we'll tell you what the file is doing.
`
`So that's what our engineers call a black box. They don't
`
`really know how it works, they don't know how it operates.
`
`They know they send a file and get back a result. That's
`
`consistent. All the engineers said that. Cited in Finjan's
`
`moving papers, in fact.
`
`When they sent the program for Juniper to load onto the
`
`server, they did send some other files. Those were these user
`
`guides and installation guides. But they stayed up here
`
`(indicating). Juniper never put them in its technical
`
`repositories.
`
`THE COURT: What do you mean they stayed up there?
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 18 of 49
`
` 18
`
` 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
`
`MR. KAGAN: So all of -- these are computer servers
`
`(indicating).
`
`THE COURT: Yeah.
`
`MR. KAGAN: So all the information about Sky ATP
`
`Juniper stores here, okay. So when it writes source code, when
`
`it has bug reports, all that information is stored and tracked
`
`within Juniper.
`
`When we get third party -- when we license product from a
`
`third party, that's over here (indicating). It's outside of
`
`Juniper's network.
`
`So there was some other information that came with the
`
`program, like a user guide, but Juniper never moved that data
`
`from this database, which is outside of Juniper, into its
`
`network.
`
`THE COURT: Where is it resident?
`
`MR. KAGAN: It's resident up here on this Web server
`
`that's outside of Juniper's network.
`
`THE COURT: Who owned that web server?
`
`MR. KAGAN: It's a third party. Juniper just rents
`
`space on it.
`
`THE COURT: But Juniper rented the space where that
`
`information was?
`
`MR. KAGAN: Yes. So we rented a little corner of this
`
`Web server up here. And we did have -- that's where we hosted
`
`Joe Sandbox. And that's where these documents were located.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 19 of 49
`
` 19
`
` 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
`
`In other words, Juniper did have the user guide, the
`
`installation guide for Joe Security. We did have it. It was
`
`located on the Web server.
`
`THE COURT: All right. So you could have produced it.
`
`MR. KAGAN: We could have. But here's what happened:
`
`Remember in this case, Your Honor, things are happening in
`
`parallel. We were doing discovery on the issues for the '494
`
`patent, which is going to trial, but we're simultaneously doing
`
`discovery for all the other patents that are not going to trial
`
`immediately. So we were prioritizing, and Finjan is
`
`prioritizing discovery.
`
`What happened here, the way we found these documents is
`
`actually an example of how discovery should work. Discovery
`
`worked -- there's discussions of omissions and withdrawals and
`
`delays. None of that is true. These documents were discovered
`
`in the way that documents should be discovered in discovery.
`
`What happened was Finjan served us a document request,
`
`massive document request for all the Sky ATP documents.
`
`We searched. We gave them everything. We gave them the
`
`source code. We gave them a computer to review that had all
`
`the files on it. Every single thing. And we gave them the
`
`license with Joe Security, and we told them we don't actually
`
`have the source code for Joe Security. And this was true.
`
`And we told them that -- about our search. We said we're
`
`going to search our network drives, which is what these are.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 20 of 49
`
` 20
`
` 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
`
`These are not a Juniper network drive.
`
`So we had our internal technical paralegal work with a
`
`digital forensics team. They searched everything. And we
`
`produced everything we had, including the Joe Security license.
`
`Then there was another phase of discovery which related to
`
`ESI. That's the electronically stored information. And in
`
`October -- so this gets emails and electronic files.
`
`In October, Finjan gave us the terms that they wanted for
`
`us to do a search for that ESI. I think it was October 16th.
`
`So we did that search.
`
`THE COURT: On which servers?
`
`MR. KAGAN: On everything.
`
`THE COURT: Including the one up there?
`
`MR. KAGAN: Well, this really is internal for Juniper.
`
`So -- but if it goes outside or inside, it will pick it up. In
`
`other words, anything going in or out of Juniper will get
`
`picked up by that search.
`
`So in that search, and under this court's order and what
`
`we agreed to, we have 21 days to provide that information. And
`
`we told Finjan that the search terms they were using were too
`
`broad and they were going to generate too many results. And we
`
`actually told them how many documents they were going to get if
`
`they didn't narrow their search terms.
`
`And we strongly advised them to narrow their search terms.
`
`But they didn't. At a certain point they said, no, we
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 21 of 49
`
` 21
`
` 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
`
`understand we're going to get 36,000 documents, but that's what
`
`we want. We are said okay. And we then ran a search and gave
`
`them the documents.
`
`THE COURT: But was the universe searched? Did it --
`
`was it just down there on the bottom, or did it also include
`
`the iWeb?
`
`MR. KAGAN: It would include everything. Because this
`
`includes emails. So anything coming -- if there were emails
`
`bouncing back and forth with information, anything would be
`
`covered. Anything coming in and out of Juniper.
`
`THE COURT: Including those manuals?
`
`MR. KAGAN: Well, ESI, just emails.
`
`THE COURT: What? Oh, it's just the emails.
`
`MR. KAGAN: It just does emails.
`
`THE COURT: Oh, all right.
`
`MR. KAGAN: So in the emails some documents were found
`
`that referred to these documents.
`
`THE COURT: The manuals.
`
`MR. KAGAN: So there was a -- there was an
`
`installation guide, but it's just an earlier version of one of
`
`these documents.
`
`And then Finjan came to us. We produced this in November,
`
`before the trial and within the deadline, exactly where we were
`
`supposed to. Finjan came to us on December 17th, after the
`
`trial, and they said, You know, you refer to these other
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 22 of 49
`
` 22
`
` 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
`
`documents that weren't produced. Can you do an additional
`
`search to find these documents, to see if you have them, and
`
`produce them by January 28th? And we said, Sure, we'll do it.
`
`We didn't produce by January 28th. It took us until
`
`February 4th, but that's when we produced these documents.
`
`So what we did was we said, okay, maybe even though our
`
`initial search was reasonable, given everything in the case,
`
`seemed like it was going to catch everything, we missed a
`
`couple of documents. A handful of documents.
`
`Those are documents that were sitting up there in a zipped
`
`file, so they were compressed. People hadn't used them, but
`
`they were there. We identified them and we gave them to
`
`Finjan. Finjan had them by February 4th.
`
`Now, this is not -- there are no discovery motions filed.
`
`There were no claims of improper behavior. There was nothing
`
`until after Finjan lost their Rule 59 motion. And that
`
`happened on March 11th, okay. That was when this court issued
`
`the order.
`
`Finjan had all the documents, including these documents,
`
`by February 4th. The hearing on the Rule 59 motion was not
`
`until February 21st.
`
`If these documents were the smoking gun documents that
`
`Finjan claims, if they blew the whole case open and they had
`
`those documents on February 4th, they're required, under Rule
`
`60, to raise them before the Rule 59 hearing.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 23 of 49
`
` 23
`
` 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
`
`THE COURT: Read that part of the rule to me.
`
`MR. KAGAN: Your Honor, I do not have the rule in
`
`front of me. I'm sorry. I can get that to the Court.
`
`THE COURT: Here. I'll hand it to you.
`
`MR. KAGAN: Okay. So under Rule 60(b)(2) -- this is a
`
`listing of some of the reasons:
`
`"Newly discovered evidence that with reasonable
`
`diligence could not have been discovered in time to move
`
`for a new trial under Rule 59(b)."
`
`And there is a case.
`
`THE COURT: Can you hand that up to me?
`
`MR. KAGAN: Yeah.
`
`And there is a case which I would direct Your Honor to,
`
`that we cited in our brief, called Devera, D-e-v-e-r-a, vs.
`
`Japan Airlines.
`
`Well, let me back up.
`
`Your Honor, they were actually aware that Joe Security had
`
`some type of a database by at least as early as July of 2018,
`
`when we -- when we disclosed the license agreement which
`
`expressly says Joe Sandbox includes this H2 Database. And it
`
`has a link. All they had to do was click on that link. They
`
`didn't do that. They never contacted --
`
`THE COURT: What do you mean click on a link? Are you
`
`saying Finjan could have clicked on a link?
`
`MR. KAGAN: Yes.
`
`
`
`Case 3:17-cv-05659-WHA Document 465 Filed 05/10/19 Page 24 of 49
`
` 24
`
` 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
`
`So if you look on page 5 of our brief, it says, for the
`
`Joe Sandbox:
`
`"This software contains unmodified binary
`
`redistributions for H2 Database engine.
`
`(Http://www.H2database.com/)."
`
`So they are aware that there is a database within the Joe
`
`Sandbox software as of July of 2018. They are further aware,
`
`even before this, in May of 2018, that Juniper does not have
`
`the source code for this product and does not know how it
`
`operates.
`
`Rule 60 requires reasonable diligence.
`
`THE COURT: Is this where the source code is, at that
`
`l
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
