Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 1 of 8
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`Plaintiff,
`
` v.
`JUNIPER NETWORKS, INC.,
`Defendant.
` /
`
`No. C 17-05659 WHA
`
`ORDER ON MOTION TO SET
`ASIDE VERDICT AND MOTION
`FOR SANCTIONS
`
`INTRODUCTION
`In this patent infringement action, patent owner moves to set aside the verdict in
`connection with the first round of motions for summary judgment. Accused infringer moves
`for sanctions. For the reasons stated below, patent owner’s motion is DENIED and accused
`infringer’s motion is HELD IN ABEYANCE.
`STATEMENT
`The instant motions are related to both parties’ conduct during the first round of
`motions for summary judgment. In August 2018, the Court granted defendant Juniper
`Networks, Inc.’s first motion for summary judgment on non-infringement of Claim 1 of the
`United States Patent No. 6,804,780 (“the ’780 patent”) after construing one of the disputed
`terms (Dkt. No. 180).
`The Court also granted in part plaintiff Finjan, Inc.’s first motion for summary
`judgment on infringement of Claim 10 of the United States Patent No. 8,677,494 (“the ’494
`patent”) (Dkt. No. 189). In December 2018, trial was held to resolve the remaining factual
`
`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
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 2 of 8
`
`issue at play — namely, whether Juniper’s accused product Sky Advanced Threat Prevention
`(“Sky ATP”) met the “database” limitation in Claim 10 of the ’494 patent. A jury found in
`favor in Juniper, i.e., Sky ATP did not have the “database” as recited in Claim 10 (Dkt. No.
`333). A subsequent order denied Finjan’s renewed motion for judgment as a matter of law
`(Dkt. No. 387).
`Finjan now moves for relief from the jury verdict and subsequent denial of Finjan’s
`motion for judgment as a matter of law. It asserts that Juniper “concealed key evidence during
`discovery that proved that Sky ATP had a ‘database’ as recited” in Claim 10 of the ’494 patent
`(Dkt. No. 412 at 2). Specifically, Finjan argues that Juniper failed to disclose the Joe Sandbox
`database despite Finjan’s requests for such information.1 This “concealment,” Finjan contends,
`“prevented both the Court and the jury from evaluating this key evidence of how and where
`Sky ATP satisfies the ‘database’ element of Claim 10” (ibid.).
`For its part, Juniper moves for sanctions (Dkt. No. 409). It argues that, inter alia,
`Finjan pursued unsupported damages theories in bad faith, waffled on the issue of constructive
`notice in bad faith, claimed actual notice based on false statements, and asserted without merit
`Claim 1 of the ’780 patent against SRX (id. at 1–2).
`ANALYSIS
`FINJAN’S MOTION TO SET ASIDE VERDICT.
`1.
`According to Finjan, Juniper produced twelve new documents that disclosed a database
`used by Joe Sandbox in February 2019 — two months after the jury rendered a verdict of non-
`infringement (Dkt. No. 412 at 2–3). The newly produced documents included, inter alia, Joe
`Sandbox User Guide and Joe Sandbox Interface Guide, which discussed the technical
`operations of the Joe Sandbox database (that was in turn allegedly incorporated in Sky ATP)
`(id. at 3). These new documents are significant, Finjan contends, because they show that the
`Joe Sandbox database was “an internal database for storing security profiles according a rigid
`
`1 Juniper licenses from Joe Security (a Switzerland-based third party) technology called “Joe Sandbox” to perform
`Sky ATP’s dynamic analysis (Dkt. No. 435-2 ¶ 3).
`
`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
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 3 of 8
`
`directory schema” — a database that would have fit within Juniper’s own interpretation during
`trial (ibid.).
`Finjan argues that Juniper withheld these “relevant documents” relating to the Joe
`Sandbox database that were responsive to requests for documents served before trial and that
`Juniper had no reasonable grounds to delay production (ibid.). It thus moves to set aside the
`verdict under Rules 60(b)(2) and (3) (id. at 1). Specifically, Rule 60(b) provides the following
`grounds upon which a district court “may relieve a party or its legal representative from a final
`judgment, order, or proceeding”:
`(2) newly discovered evidence that, with reasonable diligence,
`could not have been discovered in time to move for a new trial
`under Rule 59(b);
`(3) fraud (whether previously intrinsic or extrinsic),
`misrepresentation, or misconduct by an opposing party[.]
`Under Rule 60(b)(2), the movant “must show the evidence (1) existed at the time of the
`trial, (2) could not have been discovered through due diligence, and (3) was of such magnitude
`that production of it earlier would have been likely to change the disposition of the case.”
`Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990) (internal quotation marks and
`citation omitted).
`Under Rule 60(b)(3), the movant must “(1) prove by clear and convincing evidence that
`the verdict was obtained through fraud, misrepresentation, or other misconduct [and] (2)
`establish that the conduct complained of prevented the losing party from fully and fairly
`presenting his case or defense. Although when the case involves the withholding of
`information called for by discovery, the party need not establish that the result in the case
`would be altered.” Ibid. at 878–79 (quoting Bunch v. United States, 680 F.2d 1271, 1283 (9th
`Cir. 1982)).
`This order finds that Finjan has not sufficiently shown by clear and convincing
`evidence that Juniper’s handling of discovery amounted to “misconduct” under the meaning of
`Rule 60(b)(3). Nor has it sufficiently shown that the newly produced documents could not
`have been discovered through due diligence under Rule 60(b)(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
`26
`27
`28
`
`3
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 4 of 8
`
`Because Finjan’s accusation of concealment by Juniper and claimed inability to
`exercise due diligence significantly overlap, this order addresses both grounds for relief
`together. Finjan contends that Juniper concealed those documents by omitting the existence of
`the Joe Sandbox database in its response to Finjan’s interrogatory asking for “all Databases
`that are incorporated or used, either directly or indirectly, by the Accused Instrumentalities,”
`despite the fact that Juniper had named other databases it argued did not meet the claimed
`“database” (Dkt. Nos. 411-10 at 13–14; 442 at 9). Finjan further asserts that Juniper seemingly
`stonewalled in producing the relevant documents, arguing that Juniper “cannot eliminate its
`discovery obligations and shift them onto Finjan, or expect Finjan to know what is in Juniper’s
`possession when Juniper represented the production was complete” (Dkt. No. 442 at 9). It
`points out that Juniper’s engineers could have contacted a Joe Security representative for
`troubleshooting purposes and that they had access to a server for documents and code received
`from Joe Security (id. at 14–15). Yet Juniper, Finjan complains, claimed that Joe Sandbox is a
`“black box” to them (id. at 14). Because Juniper had reasonable access to these documents,
`Finjan asserts, Juniper “intentionally omitted them from its production and its discovery
`responses in bad faith” (ibid.). As such, Finjan blames Juniper’s alleged discovery misconduct
`for its inability to diligently follow up on discovery of the Joe Sandbox documents at issue in
`time for the December 2018 trial.
`Finjan points to Juniper’s “misleading and untruthful discovery responses” as the
`reason Finjan did not seek court intervention in obtaining the relevant documents and
`accordingly asserts that it exercised due diligence (id. at 15). Specifically, Finjan points to its
`third set of requests for production served in July 2018, which stated in relevant part (Dkt. Nos.
`412-7 at 6):
`
`REQUEST FOR PRODUCTION NO. 89: All Documents,
`manuals, guides, or other documents provided by Joe Security to
`Juniper, including documents description the operation, use, or
`API of any Joe Security product, including its Joe Sandbox and Joe
`Static product(s).
`In August 2018, Juniper responded that it had “completed its technical production detailing the
`operation of Sky ATP, which includes both the complete Sky ATP source code as well as
`
`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
`26
`27
`28
`
`4
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 5 of 8
`
`many thousands of pages of technical specifications, design and development documents, and
`administration guides” (Dkt. No. 412-8 at 11). Juniper further stated that it “ha[d] already
`produced licenses with Joe Security for products used by Sky ATP” and that “[i]f Finjan
`believe[d] that additional discovery [was] somehow proportional to the needs of the case,
`Juniper [was] willing to meet and confer with Finjan to understand exactly what other types of
`documents Finjan believe[d were] relevant and proportional to the needs of the case” (ibid.).
`Finjan argues that Juniper falsely represented that it had completed its production in its
`entirety. This order disagrees. Juniper’s response, though cleverly worded, did not amount to
`a “the false assertion that Juniper had completed its Sky ATP production and there was nothing
`further that was responsive to produce,” as Finjan contends (Dkt. No. 412 at 4). As Juniper
`points out, it had stated that its production related to Sky ATP was complete and that it had
`already produced the Joe Security licenses. By noting the production relating to the two
`products separately in its response, Juniper put Finjan on notice that Juniper treated Sky ATP
`and Joe Security as distinct products. And, as such, Juniper did not necessarily represent that it
`had completed production as to Joe Security. Though Finjan complains that Juniper did not
`“indicate that it [was] withholding documents or that it [was] refusing to search for them,”
`Juniper’s response was not clearly a false statement or an affirmative misrepresentation (Dkt.
`No. 442 at 5).
`Moreover, Juniper objected in its response, stating that it “w[ould] not search through
`non-network drives” (Dkt. No. 412-8 at 10). As relevant here, Joe Security delivered Joe
`Sandbox in binary code, which Juniper’s engineers downloaded as a .zip file onto the third-
`party server iWeb (which Juniper may access remotely) used to deploy Joe Sandbox (Dkt. No.
`435-2 ¶ 4). One of these .zip files also contained the twelve documents produced in February
`2019 (id. ¶ 5). Juniper did not typically use the iWeb server to store technical documents
`related to Sky ATP and because no search tool on the Juniper network would have enabled a
`search on third-party iWeb server for documents, its engineer “specifically navigated to the
`.zip files [manually] to look for them” (id. ¶¶ 6, 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
`26
`27
`28
`
`5
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 6 of 8
`
`Under these circumstances, Finjan has not shown by clear and convincing evidence that
`Juniper made any false statements or withheld documents in a manner amounting to
`misconduct warranting a new trial. See Immersion Corp. v. Sony Computer Entm’t Am., Inc.,
`No. C 02-0710 CW, 2006 WL 618599, at *21 (N.D. Cal. Mar. 8, 2006) (Judge Claudia
`Wilken) (“Sony has not identified a particular false statement by Immersion, but instead relies
`on Immersion’s omission of the offer and agreements as evidence of misconduct. . . .
`[H]owever, such discovery violations do not rise to the level of misconduct justifying relief
`from final judgment.”).
`Finjan further claims it could not have moved to compel because its “first inkling” that
`Juniper possessed the newly produced documents “were the documents in the voluminous
`November 2018 production, and even then it did not know what was in them” (Dkt. No. 442 at
`9). But the fact remains that Juniper had produced eight documents in July and November
`2018, which indicated that Joe Sandbox used a database (see, e.g., Dkt. Nos. 434-5 at 20; 434-
`6 at 977). Significantly, in response to Finjan’s document production request in July 2018,
`Juniper produced a Joe Security license that disclosed Joe Sandbox’s use of an H2 database
`(Dkt. Nos. 434-4 at 5; 434-5 at 490). That license further provided a link to a website that
`described the characteristics of that database — noting, for example, that it was a “Java SQL”
`database (see Dkt. No. 434-5 at 490). Though the Joe Sandbox database at issue related to a
`“file database,” Juniper’s production disclosing the H2 database was sufficient to put Finjan on
`notice as of July 2018 that Joe Sandbox databases existed and that there were more documents
`to be had. Moreover, other documents produced by Juniper in November 2018 referenced the
`Joe Sandbox “file database” (see, e.g., Dkt. No. 434-6 at 977). Those documents also included
`a “Joe Sandbox Installation Guide,” which referenced other later-produced documents such as
`“Joe Sandbox User Guide” and “Joe Sandbox Interface Guide” (Dkt. No. 411-16 at 115–43).
`Had Finjan diligently followed up on these disclosures with more targeted requests, it would
`have likely led to the production of the newly discovered documents at issue before the
`December 2018 trial (or at least given Finjan grounds to request a continuance of trial) or
`before the Court ruled on Finjan’s Rule 59 motion in February 2019.
`
`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
`26
`27
`28
`
`6
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 7 of 8
`
`Finjan counters that those “handful of citations” did not disclose any technical
`information about Joe Sandbox such as how it stored the results of the dynamic analysis or
`used a data a database with a clear schema (Dkt. No. 442 at 1). It further complains that
`Juniper produced the majority of the aforementioned documents “on November 6, 2018, buried
`among over 460,000 pages of documents produced that day” and that Finjan “timely followed
`up in December 2018” (ibid.). To repeat, the fact remains that those documents did reference a
`database used by Joe Sandbox. Finjan knew or should have known that Sky ATP relied on the
`Joe Sandbox technology. Finjan further knew or should have known the full scope of what had
`been produced regarding how Joe Sandbox operated and was in a position to evaluate whether
`that production adequately explained the details of the Joe Sandbox step. If that production
`inadequately illuminated the step, Finjan was in a position to ask for more — particularly
`where Juniper’s documents produced before trial should have put Finjan on notice of Joe
`Sandbox databases, as discussed above. So, this is not a case where the complaining litigant
`had no way of realizing there was a gap in the production. In our case, the Court is convinced
`that Finjan was aware of what it had and did not have on Joe Security (or should have been
`aware) and let Joe Security slide because Finjan believed it already held a winning hand based
`on its ResultsDB infringement theory, on which Finjan was fully informed. As the case moves
`along, counsel have a responsibility to stay on top of the status of discovery and to bring
`stubborn problems to the Court’s attention. Counsel should not postpone that chore until after
`the verdict and then scour the discovery record for shortfalls by the other side.
`
`In light of the foregoing, this order finds that Finjan failed to meet its burden to prove
`by clear and convincing evidence that Juniper engaged in misconduct and failed to show that it
`diligently sought the documents at issue. It thus holds that Finjan is not entitled to relief under
`either Rule 60(b)(2) or (3).
`2.
`JUNIPER’S MOTION FOR SANCTIONS.
`Juniper also moves for sanctions, arguing, inter alia, Finjan pursued unsupported
`damages theories in bad faith, waffled on the issue of constructive notice in bad faith, claimed
`
`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
`26
`27
`28
`
`7
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 486 Filed 05/22/19 Page 8 of 8
`
`actual notice based on false statements, and asserted without merit Claim 1 of the ’780 patent
`against SRX.
`We have a long way to go before this case is over and each side is regularly accusing
`each other of misconduct. As such, the Court will DEFER RULING on this motion until the end
`of trial so that both sides’ alleged wrongs can be viewed in light of each other.
`CONCLUSION
`For the foregoing reasons, Finjan’s motion to set aside the verdict is DENIED. Juniper’s
`motion for sanctions is HELD IN ABEYANCE.
`
`IT IS SO ORDERED.
`
`Dated: May 22, 2019.
`
`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
`
`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
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`8
`
`