Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 1 of 12
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`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 ADMINISTRATIVE
`MOTIONS TO FILE UNDER SEAL
`
`Both parties have filed administrative motions to file under seal various briefs,
`declarations, exhibits, and portions thereof submitted in connection with the second motion for
`early summary judgment (Dkt. Nos. 368, 370, 389, 392, 396, 407, 414, 416). In our circuit,
`courts start with a “strong presumption in favor of access” when deciding whether to seal
`records. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation
`omitted). To seal records in connection with a “dispositive” motion, or one “more than
`tangentially related to the merits of a case,” requires “compelling reasons supported by specific
`factual findings that outweigh the general history of access and the public policies favoring
`disclosure.” See id. at 1178–79 (quotations and citations omitted); see also Ctr. for Auto Safety
`v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016).
`Civil Local Rule 79-5 requires that administrative motions to file under seal be
`accompanied by “[a] declaration establishing that the document sought to be filed under seal,
`or portions thereof, are sealable.” For example, “[t]he publication of materials that could result
`in infringement upon trade secrets has long been considered a factor that would overcome [the]
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 2 of 12
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`strong presumption” in favor of access and provide compelling reasons for sealing. Apple Inc.
`v. Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). Compelling reasons may also warrant
`sealing for “sources of business information that might harm a litigant’s competitive standing,”
`especially where the public has “minimal interest” in the information because it “is not
`necessary to the public’s understanding of the case.” See Nixon v. Warner Commc’ns, Inc.,
`435 U.S. 589, 598 (1978); Apple Inc. v. Samsung Elecs. Co., Ltd., 727 F.3d 1214, 1221–22
`(Fed. Cir. 2013) (applying the law of our circuit). Furthermore, Civil Local Rule 79-5(b)
`requires administrative motions to file under seal to “be narrowly tailored to seek sealing only
`of sealable material.”
`With the foregoing principles in mind, the Court rules as follows. The parties shall file
`unredacted versions of the relevant documents in comport with this order by JUNE 7.
`* * *
`FINJAN’S MOTION FOR SUMMARY JUDGMENT RE CLAIM 1 OF
`THE ’154 PATENT (DKT. NO. 368).
`
`1.
`
`RULING
`
`REQUESTED
`PORTION TO BE
`SEALED
`Highlighted portions DENIED
`WITHOUT
`PREJUDICE.
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`Finjan, Inc.’s
`Second Motion
`for Early
`Summary
`Judgment Re
`Claim 1 of the
`’154 patent
`
`REASONING
`
`Juniper states that the
`highlighted portions at pages
`4–6 and 9–25 “reflect the
`technical underpinnings and
`development of Juniper’s
`highly proprietary software
`and contain much information
`that Juniper maintains as trade
`secrets” (Dkt. No. 373 ¶ 4).
`But the portions Juniper seeks
`to seal (which amount to at
`least half the brief) are clearly
`overbroad, particularly in light
`of the rulings below (where
`Juniper does not seek to seal
`similar information (see, e.g.,
`Dkt. No. 389)). Juniper has
`until MAY 31 to file a
`narrowly tailored motion to
`seal, failing which Finjan shall
`file the unredacted version of
`this document by June 7.
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 3 of 12
`
`Exhibits 2–6,
`9–12, 14, 16,
`18–20
`
`Entirety
`
`GRANTED.
`
`Mitzenmacher
`Declaration
`
`Highlighted portions DENIED
`WITHOUT
`PREJUDICE.
`
`Juniper states that these
`exhibits contain “highly
`confidential documents or
`source code” and that these
`documents “have never been
`made public and contain
`information related to the
`technical underpinnings and
`development of Juniper’s
`highly proprietary software —
`which includes much
`information that
`Juniper maintains as trade
`secrets” (Dkt. No. 373 ¶ 3)
`Juniper states that the
`highlighted portions at pages
`4–33 of the Mitzenmacher
`declaration “reflect the
`technical underpinnings and
`development of Juniper’s
`highly proprietary software
`and contain much information
`that Juniper maintains as trade
`secrets” (Dkt. No. 373 ¶ 4).
`Again, the portions Juniper
`seeks to seal (nearly the whole
`declaration) is clearly
`overbroad, particularly in light
`of the rulings below (where
`Juniper does not seek to seal
`similar information (see, e.g.,
`Dkt. No. 389)). Juniper has
`until MAY 31 to file a
`narrowly tailored motion to
`seal, failing which Finjan shall
`file the unredacted version of
`this document by June 7.
`
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 4 of 12
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`2.
`
`JUNIPER’S MOTION FOR SUMMARY JUDGMENT RE CLAIM 9 OF
`THE ’780 PATENT (DKT. NO. 370).
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`Juniper’s Motion
`for Summary
`Judgment
`
`RULING
`
`REQUESTED
`PORTION TO BE
`SEALED
`Highlighted portions DENIED.
`
`Exhibit 6
`
`Highlighted portions DENIED.
`
`Exhibit 8
`
`Highlighted portions DENIED.
`
`Exhibit 9
`
`Highlighted portions DENIED.
`
`4
`
`REASONING
`
`Finjan claims that this
`highlighted portion at p. 24, ll.
`15–16, contains “confidential
`business and licensing
`practices — specifically the
`identification of Finjan’s
`licensing practices and
`negotiations”; that if “such
`provisions were made public,
`it could negatively impact
`Finjan’s bargaining positions
`in future licensing negotiations
`with competitors”; and “no
`public interest will be served
`by disclosing this information
`publicly” (Dkt. No. 375 ¶¶
`3–4). To the contrary, this
`portion goes directly to the
`issue of constructive notice,
`which is of strong public
`interest. Finjan’s general
`assertion of potential public
`harm is insufficient to state
`compelling reason to seal this
`information.
`Finjan claims that this
`highlighted portions at p. 48 ll.
`2–25 and p. 49 ll. 1–19,
`contain confidential business
`and licensing practices (Dkt.
`No. 375 ¶¶ 3, 5). Denied for
`the same reasons stated above.
`No supporting declaration
`filed as required under Civil
`Local Rule 79-5(e) (see Dkt.
`No. 375 ¶ 3).
`Finjan claims that this
`highlighted portions at p. 88 ll.
`3–4, contain confidential
`business and licensing
`practices(Dkt. No. 375 ¶¶ 3,6).
`Denied for the same reasons
`stated above.
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 5 of 12
`
`Rubin
`Declaration
`
`Highlighted portions GRANTED.
`
`Juniper states that the
`highlighted portions contain
`“confidential information that
`relate to the technical
`underpinnings and
`development of Juniper’s
`highly proprietary software —
`which includes much
`information that Juniper
`maintains as trade
`secrets” (Dkt. No. 370-1 ¶ 9).
`
`3.
`
`JUNIPER’S OPPOSITION TO FINJAN’S MOTION FOR SUMMARY
`JUDGMENT RE CLAIM 1 OF THE ’154 PATENT (DKT. NO. 389).
`
`RULING
`
`REASONING
`
`Juniper states that the
`highlighted portions contains
`confidential source code,
`which are Juniper’s trade
`secrets (Dkt. No. 389-1 ¶¶
`8–12).
`Juniper states that the
`highlighted portions contains
`confidential source code,
`which are Juniper’s trade
`secrets (Dkt. No. 389-1 ¶¶
`8–12).
`Juniper states that the
`document contains
`confidential source code,
`which are Juniper’s trade
`secrets (Dkt. No. 389-1 ¶¶
`8–12).
`Juniper states that the
`highlighted portions contains
`confidential source code,
`which are Juniper’s trade
`secrets (Dkt. No. 389-1 ¶¶
`8–12).
`Juniper states that the
`highlighted portions contains
`confidential source code,
`which are Juniper’s trade
`secrets (Dkt. No. 389-1 ¶¶
`8–12).
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`Juniper’s
`Opposition to
`Finjan’s Motion
`for Summary
`Judgment
`
`Exhibit B
`
`REQUESTED
`PORTION TO BE
`SEALED
`Portions of 20:11,
`14; 28:10–15, 20;
`30:22–28; 31:9,
`32:16–17; 34:3–5, 6,
`8–9; 35:1–6;
`39:6–10, 13
`Portions of 65:10;
`66:1; 69:23; 78:5;
`112:10, 24; 113:1,
`11; 158:21; 159:3–4
`
`GRANTED.
`
`GRANTED.
`
`Exhibit J
`
`Entirety
`
`GRANTED.
`
`Rubin
`Declaration
`
`Jas Declaration
`
`Portions of ¶¶ 29,
`31, 34–36, 54–56,
`60–61, 73, 78, 85,
`92–93, 98,
`102–03, 116;
`footnote 2
`Portions of ¶¶ 7–9
`
`GRANTED.
`
`GRANTED.
`
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 6 of 12
`
`4.
`
`FINJAN’S OPPOSITION TO JUNIPER’S MOTION FOR SUMMARY
`JUDGMENT RE CLAIM 9 OF THE ’780 PATENT (DKT. NOS. 392, 396).
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`Finjan’s
`Opposition to
`Juniper’s Motion
`for Summary
`Judgment
`
`REQUESTED
`PORTION TO BE
`SEALED
`Highlighted portions
`at p. 1, lines 10–11;
`p. 4, lines 7–8; p.
`11, lines 6–26; p.
`13, lines 3–6, 20,
`22–26; p. 15, lines
`10–17, 25-26; p. 16,
`lines 25–27; p. 17,
`lines 1, 5–6; p. 19,
`lines 7–28; p. 32,
`lines 12–24; p. 33,
`line 1; p. 36, lines
`10–12
`
`RULING
`
`REASONING
`
`GRANTED IN
`PART AND
`DENIED IN
`PART.
`
`Juniper states that the
`highlighted portions at p. 17,
`lines 5–6; p. 19, lines 20–23,
`contain confidential source
`code, which it maintains as
`highly proprietary
`information and that
`disclosure would harm its
`business positioning and
`present a security risk (Dkt.
`No. 397 ¶¶ 3, 6–9). The
`motion to seal these portions
`is GRANTED.
`As to the other portions
`Finjan seeks to seal in its
`opposition, Finjan merely
`states at a general level that
`the information pertains to
`settlement discussions
`protected under Rule 408
`(Dkt. No. 392-1 ¶¶ 2–3). It
`does not give any specific
`citation for this general
`assertion. Nor does Finjan
`identify a specific harm that
`would arise from disclosure
`other than the boilerplate
`assertion that third parties
`may try to wrongfully use the
`information in future
`negotiations (Dkt. No. 392 at
`3). Finjan has not shown a
`compelling reason to seal this
`information. Accordingly, to
`the motion to seal is
`otherwise DENIED except to
`the extent stated above.
`
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 7 of 12
`
`Mitzenmacher
`Declaration
`
`GRANTED IN
`PART AND
`DENIED IN
`PART.
`
`Highlighted portions
`at p. 14, lines 7–17;
`p. 15, lines 7–9,
`17–18, 28; p. 16,
`lines 1–19; p. 17,
`line 18 to p. 18, line
`6; p. 18, line 13 to p.
`19, line 26; and p.
`20, lines 9–22
`
`Exhibit 1
`
`Entirety
`
`GRANTED IN
`PART AND
`DENIED IN
`PART.
`
`Exhibit 2
`
`Entirety
`
`DENIED.
`
`Juniper states that the
`highlighted portions at p. 14,
`lines 10–17; p. 16, lines 7–8;
`p. 18, lines 4, 15–21; p. 19,
`lines 1, 23, contain
`confidential source code,
`which it maintains as highly
`proprietary information and
`that disclosure would harm its
`business positioning and
`present a security risk (Dkt.
`No. 397 ¶¶ 3, 6–9). The
`motion to seal these portions
`is GRANTED. The motion to
`seal is otherwise DENIED.
`Juniper states that the
`highlighted portions at p. 78,
`line 9; p. 86, line 6, contain
`confidential source code,
`which it maintains as highly
`proprietary information and
`that disclosure would harm its
`business positioning and
`present a security risk (Dkt.
`No. 397 ¶¶ 3, 6–9). The
`motion to seal these portions
`is GRANTED. The motion to
`seal is otherwise DENIED.
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 397
`¶ 3).
`Finjan generally states that
`this exhibit contains its
`“licensing/settlement
`negotiations that are within
`the ambit of Rule 408 . . . or
`subject to Non-Disclosure
`Agreement, and also
`deposition transcript covered
`by separate Protective
`Orders” (Dkt. No. 392-1 ¶ 7).
`This is nowhere near
`sufficient to show a
`compelling reason to seal the
`entire deposition transcript
`excerpt.
`
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 8 of 12
`
`Exhibits 4–11
`
`Entirety
`
`DENIED.
`
`Exhibit 14
`
`Entirety
`
`DENIED.
`
`Exhibit 15
`
`Entirety
`
`GRANTED IN
`PART AND
`DENIED IN
`PART.
`
`Exhibit 16
`
`Entirety
`
`GRANTED IN
`PART AND
`DENIED IN
`PART.
`
`8
`
`Finjan again generally states
`that these exhibits contain its
`“licensing/settlement
`negotiations that are within
`the ambit of Rule 408 . . . or
`subject to Non-Disclosure
`Agreement, and also
`deposition transcript covered
`by separate Protective
`Orders” (Dkt. No. 39May 28,
`20192-1 ¶ 7). No specific
`harm to Finjan is identified
`other than boilerplate
`assertions (see Dkt. No. 392
`at 3). Moreover, the public
`has a strong interest in
`accessing these documents, as
`they go to the issue of notice.
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 397
`¶ 3).
`Juniper states that the
`highlighted portions at bates
`no. JNPR-FNJN
`29018 00975675; JNPRFNJN
`29018 00975676;
`JNPR-FNJN 29018
`00975677; JNPR-FNJN
`29018 00975678; JNPRFNJN
`29018 00975679, contain
`confidential source code, the
`disclosure of which would
`cause “serious competitive
`consequences” and a security
`risk (Dkt. No. 396-1 ¶¶ 8,
`10–12). The motion to seal is
`GRANTED to the extent stated
`above. The motion is
`otherwise DENIED.
`Juniper seeks to seal the
`highlighted portions at bates
`no. JNPR-FNJN
`29018 00962784; JNPRFNJN
`29018 00962791, for the
`same reasons stated above
`(Dkt. No. 396-1 ¶¶ 8, 10–12).
`For the same reasons stated
`above, the motion to seal
`these portions is GRANTED.
`The motion to seal is
`otherwise DENIED.
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 9 of 12
`
`Exhibit 17
`
`Entirety
`
`DENIED.
`
`Exhibit 18
`
`Entirety
`
`DENIED.
`
`Exhibits 21,
`23–24
`
`Entirety
`
`DENIED.
`
`Exhibit 26
`
`Entirety
`
`DENIED.
`
`Exhibit 28
`
`Entirety
`
`DENIED.
`
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 397
`¶ 3).
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 397
`¶ 3).
`Finjan generally states that
`these exhibits “contain (1) the
`parties’ licensing/settlement
`negotiations that are within
`the ambit of Rule 408 of the
`Federal Rules of Evidence;
`(2) confidential terms in
`license/settlement agreements
`between Finjan and Finjan’s
`licensees” (Dkt. No. 392-1 ¶
`6). Again, Finjan identifies
`no specific harm that would
`outweigh the public’s strong
`interest in accessing the
`information.
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 397
`¶ 3).
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 397
`¶ 3).
`
`5.
`
`FINJAN’S OPPOSITION TO JUNIPER’S MOTION TO STRIKE (DKT. NO. 407).
`
`REQUESTED
`PORTION TO BE
`SEALED
`
`RULING
`
`REASONING
`
`Highlighted portions DENIED.
`
`Highlighted portions DENIED.
`
`No supporting declaration
`filed as required under Civil
`Local Rule 79-5(e).
`
`No supporting declaration
`filed as required under Civil
`Local Rule 79-5(e).
`No supporting declaration
`filed as required under Civil
`Local Rule 79-5(e).
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`
`Finjan’s
`Opposition to
`Juniper’s Motion
`to Strike
`Kastens
`Declaration
`
`Exhibit B
`
`Highlighted portions DENIED.
`
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 10 of 12
`
`Exhibit D
`
`Highlighted portions DENIED.
`
`No supporting declaration
`filed as required under Civil
`Local Rule 79-5(e).
`
`6.
`
`FINJAN’S REPLY TO JUNIPER’S MOTION FOR SUMMARY
`JUDGMENT RE CLAIM 9 OF ’780 PATENT (DKT. NO. 414).
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`Finjan’s Reply
`
`RULING
`
`REQUESTED
`PORTION TO BE
`SEALED
`Highlighted portions GRANTED IN
`PART AND
`DENIED IN
`PART.
`
`Exhibit 1
`
`Entirety
`
`DENIED.
`
`REASONING
`
`Juniper states that the
`highlighted portions at 7:8,
`7:9, 7:15, 8:9, 8:10, 8:11,
`10:14, 10:16, contain
`Juniper’s confidential source
`code, the disclosure of which
`would “cause serious
`competitive consequences”
`and a “security risk” (Dkt.
`No. 419 ¶¶ 6–9). The motion
`to seal these portions is
`GRANTED. The motion to
`seal is otherwise DENIED.
`Juniper does not designate
`any portion of this exhibit
`to be under seal (Dkt. No. 419
`3).
`
`7.
`
`JUNIPER’S REPLY TO FINJAN’S MOTION FOR SUMMARY
`JUDGMENT RE CLAIM 1 OF ’154 PATENT (DKT. NO. 416).
`
`DOCUMENT
`SOUGHT TO BE
`SEALED
`Juniper’s Reply
`
`REQUESTED
`PORTION TO BE
`SEALED
`Highlighted portions
`at pages 8:6–13; 9:3.
`
`RULING
`
`REASONING
`
`GRANTED.
`
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 11 of 12
`
`Finjan states that this portion
`“contains references to
`confidential email
`communications between
`Finjan and Juniper (which
`acquired Cyphort) regarding
`licensing and negotiation
`information,” and that
`disclosure could harm
`Finjan’s business (Dkt. No.
`421 ¶ 4). This noncommittal
`assertion of harm is
`insufficient to show a
`compelling reason to seal.
`Nor do mere references to an
`NDA and Rule 408 by
`themselves provide a
`sufficiently compelling
`showing of confidentiality
`warranting sealing.
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`
`Juniper’s Reply
`
`Highlighted portions
`at pages 13:28;
`14:2–4.
`
`DENIED.
`
`Jas Declaration
`
`Highlighted portions
`of Paragraphs 3 and
`5
`
`GRANTED.
`
`Exhibit 1
`
`Highlighted portions
`at 82:20–21;
`83:14–18
`
`GRANTED.
`
`Exhibit 3
`
`Entirety
`
`GRANTED.
`
`Exhibit 4
`
`Entirety
`
`GRANTED.
`
`Exhibit 5
`
`Entirety
`
`GRANTED.
`
`11
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
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`25
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`28
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 492 Filed 05/29/19 Page 12 of 12
`
`Exhibit 6
`
`Entirety
`
`GRANTED.
`
`Exhibit 7
`
`Entirety
`
`GRANTED.
`
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`Juniper states that these
`portions contain Juniper’s
`confidential source code and
`thus seeks to seal for the same
`reasons stated above (Dkt.
`No. 416-2 ¶¶ 8–12).
`
`IT IS SO ORDERED.
`
`Dated: May 29, 2019.
`
`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
`
`1 2 3 4 5 6 7 8 9
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`10
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`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
`
`12
`
`