Case 3:17-cv-05659-WHA Document 48 Filed 04/06/18 Page 1 of 5
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`PAUL J. 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
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`Attorneys for Plaintiff
`FINJAN, INC.
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S LETTER
`BRIEF REGARDING MOTION TO
`COMPEL
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`CASE NO.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S LETTER BRIEF
`REGARDING MOTION TO COMPEL
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`Case 3:17-cv-05659-WHA Document 48 Filed 04/06/18 Page 2 of 5
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`Dear Judge William Alsup,
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`Plaintiff Finjan, Inc. (“Finjan”) submits the following motion to compel Juniper Networks, Inc.
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`(“Juniper”) to provide focused discovery responsive to Finjan’s Requests for Production (“RFPs”)
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`regarding the Accused Products: Sky Advanced Threat Protection (“Sky ATP”) and the Advanced
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`Threat Prevention Appliance (“ATP Appliance”). On April 3, 2018, the parties met and conferred by
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`telephone over the issues identified in this motion to compel.
`I.
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`INTRODUCTION
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`The Court should compel Juniper to produce a tailored set of confidential, technical documents
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`for Sky ATP and the ATP Appliance by April 13, 2018, which Finjan needs for its Motion for
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`Summary Judgment to be filed on June 7, 2018, under the Court’s expedited schedule. Dkt. No. 35 at
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`4. To date, Juniper has not produced a single internal technical document for any accused product and
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`did not produce any documents with its February 28, 2018, Initial Disclosures. While Juniper refuses
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`to produce any internal design and development documents for the Sky ATP for another month, it is
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`entirely refusing to provide any discovery into the ATP Appliance. Given the expedited schedule,
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`Juniper should be compelled to produce these technical documents by April 13, 2018, so that Finjan
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`has adequate time to prepare its case.
`II.
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`DOCUMENTS RELATING TO SKY ATP
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`Finjan is seeking confidential, internal design documents, such as design specifications, wiki
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`pages, API guides, and flow charts, regarding the malware inspection pipeline, dynamic analysis, and
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`static analysis for Sky ATP. See Ex. 1 (2/23/18 RFPs), RFP No. 37 (malware inspection pipeline); No.
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`38 (dynamic analysis); No. 39 (static analysis). Such confidential, technical documentation regarding
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`the design, development, and operation of Sky ATP is relevant and time sensitive as Sky ATP is one of
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`the accused products under the Court’s expedited schedule. Dkt. No. 35 at 4. Finjan diligently sought
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`this discovery since it served these document requests on February 23, 2018. See Ex. 1 (2/23/18
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`RFPs).
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`Despite its relevance, Juniper is seeking to further delay its production, representing during the
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`April 3rd meet and confer that it would provide a “substantial” production of technical documents by
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`PLAINTIFF FINJAN, INC.’S LETTER BRIEF
`REGARDING MOTION TO COMPEL
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`1
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 48 Filed 04/06/18 Page 3 of 5
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`April 13th, but this production would not include any documents related to Sky ATP. Such production
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`would take another “few weeks” after that with no specific deadline. Finjan cannot wait this long for
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`Juniper’s technical documents on Sky ATP, which has been at issue from the outset of the case. Under
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`Juniper’s proposed production schedule, Finjan will not have sufficient time to: (1) follow up on the
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`confidential information produced, including new information that these documents will certainly
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`provide, (2) seek and take depositions with all the appropriate Sky ATP documents, and (3) prepare its
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`summary judgment motion with such discovery. Thus, Juniper should be compelled to produce
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`responsive documents by April 13th.
`III. DOCUMENTS RELATING TO THE ATP APPLIANCE
`Juniper is refusing to provide any discovery into the ATP Appliance, claiming it is not at issue
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`in the case because the words “ATP Appliance” were not used in the complaint. However, Juniper
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`acknowledges that Finjan sought discovery of the ATP Appliance in its February 23rd RFPs and
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`provided infringement charts for the ATP Appliance in its infringement contentions, which were
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`served on March 8, 2018. See Ex. 1, Definitions at ¶6 (defining “Accused Instrumentalities” to include
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`ATP Appliance); id. at RFP Nos. 11–17. Finjan is seeking confidential technical documents regarding
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`the dynamic (also called sandboxing) and static analysis for the ATP Appliance and all source code for
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`the ATP Appliance by April 13th. Again, this material is time sensitive because the ATP Appliance is
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`accused of infringing both claims that are part of the expedited summary judgment procedure
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`beginning in two months.
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`Juniper’s refusal to provide documents is intended to delay discovery. First, the technology of
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`“ATP Appliance” was identified in the complaint as Sky ATP, which offers the same type of dynamic
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`analysis through sandboxing functionality as the ATP Appliance, and Sky ATP and the ATP
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`Appliance are the only products in Juniper’s ATP product line. Compare Dkt. No. 1 at ¶¶46, 49
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`(describing sandboxing functionality) with Ex. 2 (ATP Appliance Datasheet describing sandbox
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`functionality). Finjan could not have used the exact ATP Appliance name in its complaint because
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`Juniper acquired the product when it completed its purchase of another company, Cyphort, Inc., shortly
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`before Finjan served its complaint. Juniper did not advertise this product under its current name until
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`PLAINTIFF FINJAN, INC.’S LETTER BRIEF
`REGARDING MOTION TO COMPEL
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 48 Filed 04/06/18 Page 4 of 5
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`approximately mid-December 2017. Compare Ex. 3 (10/3/2017 Wayback Machine printout showing
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`only Sky ATP) with Ex. 4 (12/14/17 Wayback Machine printout showing Sky ATP and ATP
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`Appliance). Second, Juniper will agree to Finjan amending its complaint to add the words “ATP
`Appliance” and provide discovery on the product as long as Finjan agrees not to include the ATP
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`Appliance in the expedited summary judgment motion due in April. Third, to date, Juniper has not
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`produced a single internal technical document on any accused product. These facts highlight Juniper’s
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`attempts to delay discovery.
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`To the extent that Finjan needs to amend its complaint to specifically use the ATP Appliance
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`name, which it will do shortly if this does not get resolved, Finjan requests that Juniper provide
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`discovery into the ATP Appliance until Finjan’s motion to amend can be heard, as Finjan has good
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`cause to amend. Indeed, amendment of Finjan’s complaint to specifically name the ATP Appliance is
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`timely because Juniper did not list the ATP Appliance on its website until after Finjan filed its
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`complaint. Finjan, Inc. v. Proofpoint, Inc., No. 13-cv-05808-BLF, 2014 WL 6386727, at *1 (N.D.
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`Cal. Nov. 14, 2014) (granting leave to amend).
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`Further evidence of such good cause includes the fact that Finjan does not seek to amend its
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`pleadings in bad faith, and seeking to amend is not the result of undue delay, as Juniper just began
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`listing the product on its website a few months ago. Oracle Am., Inc. v. Hewlett Packard Enter. Co.,
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`No. 16-cv-01393-JST, 2017 WL 3149297, at *3-4 (N.D. Cal. Jul. 25, 2017) (granting motion to amend
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`despite a delay of over six months delay); see also Space Data Corp. v. X, No. 16-cv-03260-BLF, 2017
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`WL 3007078, at *3 (N.D. Cal. Jul. 14, 2017). Juniper is not prejudiced because this case is still in its
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`early stages, no depositions have been taken, and Juniper knew that Finjan was seeking discovery
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`specifically into the ATP Appliance, which utilizes the same technology as Sky ATP, since being
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`served with Finjan’s February 23rd RFPs which included the ATP Appliance as an accused product.
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`Juniper’s willingness to stipulate to an amendment to Finjan’s complaint further demonstrates no
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`prejudice. Finally, Finjan’s infringement contentions demonstrate that its claim of infringement
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`against the ATP Appliance is not futile. As such, Juniper should be compelled to provide discovery
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`into the ATP Appliance.
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`PLAINTIFF FINJAN, INC.’S LETTER BRIEF
`REGARDING MOTION TO COMPEL
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`Case 3:17-cv-05659-WHA Document 48 Filed 04/06/18 Page 5 of 5
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`Dated: April 6, 2018
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`Respectfully submitted,
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`By: /s/ Kristopher Kastens
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Kristopher Kastens
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
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`Counsel for Plaintiff
`FINJAN, INC.
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`PLAINTIFF FINJAN, INC.’S LETTER BRIEF
`REGARDING MOTION TO COMPEL
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`CASE NO.: 3:17-cv-05659-WHA
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