Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 1 of 21
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`
`
`PAUL 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
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`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,
`
`
`Defendant.
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`
`
`
`
`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S NOTICE OF
`MOTION AND MOTION FOR RELIEF
`FROM JUDGMENT PURSUANT TO FED. R.
`CIV. P. 60(B); MEMORANDUM OF POINTS
`AND AUTHORITIES
`
`Date:
`Time:
`Courtroom:
`Before:
`
`
`May 9, 2019
`8:00 a.m.
`12, 19th Floor
`Hon. William H. Alsup
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`REDACTED VERSION OF DOCUMENTS FILED UNDER SEAL
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`__________________________________________________________________________________
`FINJAN’S MOTION FOR RELIEF FROM JUDGMENT
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 2 of 21
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`TABLE OF CONTENTS
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`Page
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`NOTICE OF MOTION AND MOTION .................................................................................................. 1
`RELIEF REQUESTED ............................................................................................................................. 1
`MEMORANDUM OF POINTS AND AUTHORITIES .......................................................................... 2
`I.
`INTRODUCTION ........................................................................................................................ 2
`II.
`FACTUAL BACKGROUND ....................................................................................................... 3
`A.
`Juniper Concealed Key Documents From the December 2018 Trial ............................... 3
`B.
`Juniper Made A Belated Production of Technical Documents About Joe
`Sandbox............................................................................................................................. 5
`Juniper Misrepresented to the Court and Jury That No Database Like the Joe
`Sandbox File Database Existed. ........................................................................................ 7
`Juniper Has Not Offered Any Colorable Excuse for Its Misconduct. .............................. 8
`D.
`This Is Not Juniper’s First Offense with Respect to Discovery Misconduct. ................... 9
`E.
`ARGUMENT ................................................................................................................................ 9
`A.
`Juniper’s Withholding of Relevant Documents Responsive to Finjan’s 2018
`Document Requests Is Newly Discovered Evidence. ....................................................... 9
`1.
`Juniper Concealed Relevant Documents Containing New Evidence in
`Spite of Finjan’s Diligence. ................................................................................ 10
`Juniper’s Concealed Discovery Is Sufficiently Material That It Would
`Change the Outcome of This Case. ..................................................................... 13
`Juniper’s Concealment of the Joe Sandbox Documentation Constitutes
`Discovery Misconduct Warranting Relief from Judgment. ............................................ 15
`Finjan Suffered Substantial Prejudice as a Result of Juniper’s Gamesmanship. ............ 17
`C.
`CONCLUSION ........................................................................................................................... 18
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`III.
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`IV.
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`
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`C.
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`2.
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`B.
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 3 of 21
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`
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
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`
`
`Cases
`
`Beckway v. DeShong,
`No. C07-5072 TEH, 2012 WL 1355744 (N.D. Cal. Apr. 18, 2012) ................................................ 10
`
`Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc.,
`833 F.2d 208 (9th Cir. 1987) .............................................................................................................. 9
`
`Feature Realty, Inc., v. City of Spokane,
`331 F.3d 1082 (9th Cir. 2003) ............................................................................................................ 9
`
`Immersion Corp. v. Sony Computer Entm’t Am., Inc.,
`No. C 02-0710 CW, 2006 WL 618599 (N.D. Cal. Mar. 8, 2006) .................................................... 15
`
`Jones v. Aero/Chem Corp.,
`921 F.2d 875 (9th Cir. 1990) ............................................................................................................ 15
`
`Nehara v. California Dep’t of Corr. & Rehab.,
`650 F. App’x 495 (9th Cir. 2016) ..................................................................................................... 10
`
`Presidio Components, Inc. v. Am. Tech. Ceramics Corp.,
`No. 08CV335-IEG NLS, 2010 WL 4314271 (S.D. Cal. Oct. 26, 2010) .......................................... 13
`
`Robinson v. Delgado,
`No. CV 02-1538 NJV, 2010 WL 3448558 (N.D. Cal. Aug. 31, 2010), aff’d sub nom.
`Robinson v. Lamarque, 581 F. App’x 695 (9th Cir. 2014) ............................................................... 10
`
`Webster v. U.S.,
`93 Fed.Cl. 676 (Ct. Cl. 2010)............................................................................................................ 10
`
`Yesh Music v. Lakewood Church,
`727 F.3d 356 (5th Cir. 2013) ............................................................................................................ 10
`
`Other Authorities
`
`12 James Wm. Moore et al., Moore’s Federal Practice § 60.02[2] (3d ed.2004) ................................... 10
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`Fed. R. Civ. P. 60 ............................................................................................................................. passim
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`Fed. R. Civ. P. 34 .......................................................................................................................... 4, 11, 16
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`Fed. R. Civ. P. 50 .................................................................................................................................... 13
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`Fed. R. Civ. P. 59 .............................................................................................................................. 12, 13
`
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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`NOTICE OF MOTION AND MOTION
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`NOTICE IS HEREBY GIVEN that on May 9, 2019, at 8:00 a.m., or as soon thereafter as
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`counsel may be heard by the Honorable William Alsup in Courtroom 12, 19th Floor, located at 450
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`Golden Gate Avenue, San Francisco, California 94102, Plaintiff Finjan, Inc. (“Finjan”) will and hereby
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`does move the Court for an order granting its motion for relief from judgment pursuant to Federal Rule
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`of Procedure 60(b). This Motion is based on this Notice of Motion, the Memorandum of Points and
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`Authorities, the trial record, the pleadings and papers on file, and any evidence and argument presented
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`to the Court.
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`RELIEF REQUESTED
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`Pursuant to Federal Rule of Civil Procedure 60(b)(2)-(3), Finjan moves for relief from the jury
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`verdict entered in this action on December 14, 2018 and this Court’s subsequent denial of Finjan’s
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`Motion for Judgment as a Matter of Law on March 11, 2019 (Dkt. Nos. 333, 387, respectively), due to
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`Juniper’s concealment of key evidence that proved that Sky ATP had a “database” as recited in Claim
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`10 of U.S. Patent No. 8,677,494 (“the ‘494 Patent”), which was the pivotal issue at the December 2018
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`trial. Juniper had no reasonable grounds to delay production of such information. Given this newly
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`discovered evidence and Juniper’s discovery misconduct, a new trial should be ordered.
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 5 of 21
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`INTRODUCTION
`Finjan is entitled to relief from the jury verdict found on December 14, 2018 (Dkt. No. 333,
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`I.
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`“Verdict”) and this Court’s subsequent order denying Finjan’s Motion for Judgment as a Matter of
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`Law on March 11, 2019 (Dkt. No. 387, “Order”) because Juniper concealed key evidence during
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`discovery that proved that Sky ATP had a “database” as recited in Claim 10 of U.S. Patent No.
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`8,677,494 (“the ‘494 Patent”), which was the pivotal issue to be determined at the December 2018 trial
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`(“the December trial”). Juniper’s concealment prevented both the Court and the jury from evaluating
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`this key evidence of how and where Sky ATP satisfies the “database” element of Claim 10.
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`Specifically, Juniper withheld key, highly relevant and directly responsive technical documents
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`regarding Joe Sandbox, a component that Juniper licenses from Joe Security LLC (“Joe Security”), that
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`demonstrated that Joe Sandbox in Sky ATP uses a “database” to store the results of its analysis, as
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`recited in Claim 10 of the ‘494 Patent. These documents directly refuted Juniper’s only non-
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`infringement defense at the December trial and yet, Juniper has no explanation for why it produced
`these Joe Sandbox documents nearly two months after the December 2018 trial, knowing that such
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`documents were critically important to the infringement case presented in the December 2018 trial.
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`Particularly troubling is the fact that Juniper has no excuse for its belated production, as Finjan
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`sought this information over a year ago in discovery. In response to written discovery requests,
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`Juniper explicitly represented in 2018 that it had completed its production of any documents relevant
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`to Sky ATP, which is demonstrably false based on Juniper’s February 2019 production. Moreover,
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`Juniper’s Sky ATP engineers testified at deposition that they had no knowledge of how Joe Sandbox
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`worked and that it was a “black box” to them.
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`Juniper’s inexcusable belated production of these key documents is precisely the type of newly
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`discovered evidence contemplated by Rule 60, which warrants relief from judgment and an order for a
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`new trial. Without this evidence, Finjan was severely prejudiced at trial, as this key evidence
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`undermined Juniper’s sole non-infringement defense. Such conduct should not be tolerated.
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`II.
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 6 of 21
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`FACTUAL BACKGROUND
`A.
`Juniper Concealed Key Documents From the December 2018 Trial
`Despite its representation that its responses and production of documents was completed,
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`Juniper withheld twelve highly relevant documents regarding Joe Sandbox database (“the Joe Sandbox
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`documents”), a component of Sky ATP, such that Finjan could not present them at the December 2018
`trial.1 These documents, which included the Joe Sandbox User Guide (“User Guide”) and Joe Sandbox
`Interface Guide (“Interface Guide”), described the technical operations of the Joe Sandbox database
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`(incorporated in Sky ATP) which is an internal database for storing security profiles according to a
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`rigid directory schema. See Declaration of Kristopher Kastens in Support of Finjan’s Motion for
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`Relief from Judgment (“Kastens Decl.”), Ex. 1, at JNPR-FNJN_29043_01517143-44 (User Guide
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`regarding the “Joe Sandbox File Database”); Ex. 2, at JNPR-FNJN_29043_01517207-08 (Interface
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`Guide describing storage of dynamic analysis results). Significantly, these belatedly produced
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`documents directly refuted Juniper’s sole non-infringement argument at the December 2018 trial
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`regarding whether Sky ATP had a “database” of Claim 10 of U.S. Patent No. 8,677,494 (“the ‘494
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`Patent”) that had a schema. Dkt. No. 189 (Order Granting in Part Early Motion for Summary
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`Judgment) at 16 (defining “database” as “a collection of interrelated data organized according to a
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`database schema to serve one or more applications”); id. at 20 (identifying issues for trial).
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`Juniper’s production of these documents in February 2019 is inexcusable because they were
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`responsive to numerous discovery requests that Finjan served over a year earlier. For example, on
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`February 23, 2018, Finjan requested production of all documents relating to any database or database
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`schema in Juniper’s accused products, which included Sky ATP, and all technical documentation
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`relating to how dynamic analysis was performed in Sky ATP. Kastens Decl., Ex. 3 at 7, 10 (Request
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`for Production Nos. 13, 38). Juniper agreed to produce documents in response to these Requests. Id.,
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`Ex. 4 at 30-32, 78-80. Finjan also served specific document requests for information regarding
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`operation of Joe Sandbox. Specifically, Finjan served Requests for Production Nos. 87 through 89 on
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`1 Joe Sandbox is a dynamic analysis system that is licensed and sold by Joe Security LLC (“Joe
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`Security”), a Swiss company,
` See, e.g., Kastens Decl., Ex. 8 (5/9/18 Tenorio Dep. Tr.) at 126:12-21 (testifying that
`the primary features of Sky ATP
`).
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 7 of 21
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`July 11, 2018, seeking all documents, communications, and things relating to “the use or
`incorporation of Joe Sandbox or Joe Security into Sky ATP,” “any product exchanged or service
`provided between Juniper and Joe Security,” and “[a]ll Documents, manuals, guides, or other
`documents provided by Joe Security to Juniper, including documents descri[bing] the operation, use,
`or API of any Joe Security product, including its Joe Sandbox …” Kastens Decl., Ex. 5 at 6
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`(emphasis added). Juniper’s response to these requests was the false assertion that Juniper had
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`completed its Sky ATP production and there was nothing further that was responsive to produce.
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`Kastens Decl., Ex. 6 at 7-11. There is no dispute that the belatedly produced Joe Sandbox documents
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`were responsive to these requests and that Juniper never asserted that it was withholding documents
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`responsive to either of these Requests, as is explicitly required pursuant to Rule 34(b)(2)(C) of the
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`Federal Rules of Civil Procedure. See Fed. R. Civ. P. 34(b)(2)(C) (“An objection must state whether
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`any responsive materials are being withheld on the basis of that objection. An objection to part of a
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`request must specify the part and permit inspection of the rest.”) The documents that Juniper did
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`produce prior to the December 2018 trial regarding Joe Sandbox were its agreements with Joe Security
`for use of Joe Sandbox.2 See, e.g., Kastens Decl., Ex. 7 (Joe Security License Agreement).
`In addition to document requests, Finjan also served, on April 27, 2018, an interrogatory on
`Juniper to “identify and describe all Databases that are incorporated or used, either directly or
`indirectly, by the Accused Instrumentalities.” Kastens Decl., Ex. 9 at 6 (Interrogatory No. 12)
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`(emphasis added). Juniper identified databases in its response, including DynamoDB and Amazon
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`RDS, and acknowledged that these databases which stored the results of the analysis of Sky ATP are
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`relevant to the claims at issue, even though Juniper later asserted they did not satisfy the “database”
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`element. Kastens Decl., Ex. 10 at 13-14. Juniper omitted the Joe Sandbox database from its response,
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`compare Ex. 1 at JNPR-FNJN_29043_01517143-44 with Ex. 2 at JNPR-FNJN_29043_01517207-08
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`. See id.;
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`(describing database for dynamic analysis results).
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`2
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`. Kastens Decl., Ex. 7 at § 16 (
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 8 of 21
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`Finjan also pursued deposition testimony regarding the Joe Sandbox database. For example,
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`during the first deposition in this case, Juniper’s senior engineer generally testified that
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`. See, e.g., Kastens Decl., Ex. 8 (5/9/18 Tenorio Dep. Tr.) at 73:14-15; 76:20-77:2; 261:18-269:1
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`(testifying generally about
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`, but without
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`knowledge of the content of its reports or its operations). In subsequent depositions, however,
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`Juniper’s key engineers testified that Juniper had little understanding of Joe Sandbox’s inner workings
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`and that it was like a “black box”—a story that appears designed to convince Finjan that Juniper had
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`no Joe Sandbox technical documents or basic understanding of how Joe Sandbox worked. Id. (5/9/18
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`Tenorio Dep. Tr.) at 155:16-156:2; 157:4-7; 163:4-16; 73:14-15; 76:20-77:2; 261:18-269:1 (engineer
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`for Sky ATP describing the workings of Joe Sandbox as a “black box” and claiming she did not know
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`how it worked or what reports looked like); see also id., Ex. 11 (5/31/18 Nagarajan Dep. Tr.) at 33:18-
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`34:3 (head of Sky ATP development stating that he is not fully aware of how Joe Sandbox works); id.,
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`Ex. 12 (5/30/18 Manthena Dep. Tr.) at 201:9-23 (engineer for SRX Gateway stating that
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`).
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`Finjan had also conducted a diligent independent search to find Joe Sandbox technical
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`documents after learning that Juniper used Joe Sandbox. Finjan could not locate any publicly available
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`Joe Security documents or guides from Joe Security’s website or through an extensive search of the
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`Internet. Kastens Decl. ¶ 2. Thus, Finjan had no reason to believe that Juniper was withholding
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`highly relevant documents.
`B.
`Juniper Made A Belated Production of Technical Documents About Joe Sandbox.
`That Juniper had such important technical documents and did not produce them despite
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`repeated requests by Finjan came as a surprise. In fact, Juniper only made this production, however,
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`after Finjan pointed to a document produced just before trial that suggested that Juniper had been
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`withholding responsive documents to its previous requests. Specifically, on November 6, 2018, in the
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`midst of preparations for the December trial and well after expert reports were served and depositions
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`were taken, Juniper belatedly produced an email in which its employee had attached a document that
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`referenced the installation of Joe Sandbox. See, e.g., Kastens Decl., Ex. 13. Immediately after the
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`December trial concluded, Finjan inquired whether Juniper had failed to produce technical documents
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`relating to Joe Sandbox given this email. Kastens Decl., Ex. 14 at 2-3. Juniper thereafter produced the
`Joe Sandbox documents in February 2019, which was well after the December 2018 trial and after the
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`conclusion of post-trial briefing on the parties’ competing motions for judgment as a matter of law.
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`Dkt. Nos. 352, 353; Kastens Decl., Ex. 15.
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`These technical documents written by Joe Security (that Finjan had been requesting since
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`February 2018) provided detailed information on how Joe Sandbox performed dynamic analysis. The
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`most compelling document is the User Guide, which described the presence of a “File Database” in Joe
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`Sandbox, along with the “Joe Sandbox Web API Guide,” “Joe Sandbox IDA Guide,” “Joe Sandbox
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`Cookbook Guide,” “Joe Sandbox Update Guide,” “Joe Sandbox Signature Guide,” “Joe Sandbox
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`Scaling Guide,” and “Joe Sandbox Interface Guide” (together, “Joe Security documents”). Critically,
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`the User Guide showed that Joe Sandbox,
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`,
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`has its own internal database that it uses to store the results of its dynamic analysis. Kastens Decl., Ex.
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`1 at JNPR-FNJN_29043_01517143-44. The document shows that it stores the results of the analysis in
`a rigid directory schema that is referred to as the “File Database Format” and that includes storing all
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`of the “analysis” data for the dynamic analysis, including “generated behaviors reports.” Id.
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`Also notable is the Joe Sandbox Interface Guide, which further describes that for any malware
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`that is involved in an incident during dynamic analysis, “the analysis report and other behavior data [is
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`stored] in its own database.” Kastens Decl., Ex. 2 at JNPR-FNJN_29043_01517208. Then, in order to
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`relate the analysis report to the recorded incident, the report is uploaded using its unique identifier to a
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`database. Id. Further, the Joe Sandbox stores the behavior information that is generated during the
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`dynamic analysis in the Joe Security Database so that the information is accessible in a predefined
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`location. Id. The Interface Guide refers the reader back to the User Guide for additional information
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`relating to the File Database. Id.
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`Case 3:17-cv-05659-WHA Document 499 Filed 05/30/19 Page 10 of 21
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`C.
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`Juniper Misrepresented to the Court and Jury That No Database Like the Joe
`Sandbox File Database Existed.
`The User Guide and Interface Guide’s descriptions of the Joe Sandbox database directly
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`addressed a key issue in the December 2018 trial, namely that Sky ATP had a database with a schema.
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`Juniper’s failure to produce these documents prevented the Court and jury from evaluating all the
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`evidence of how and where Sky ATP stores its analysis data. The construction of “database” in this
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`case is “a collection of interrelated data organized according to a database schema to serve one or more
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`applications.” Dkt. No. 189 at 16. During the trial, Juniper’s expert, Dr. Rubin, testified that “[s]o a
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`database schema is a very specific thing . . . If you're going to have a schema in a database, you have to
`figure out what all those fields are in advance … That’s a very strict structure for that database ….”
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`Kastens Decl., Ex. 16 (12/13/18 Trial Tr.) at 742:3-743:4. Dr. Rubin relied on this description of a
`“schema” for a database as the central reason why Sky ATP allegedly did not infringe the ‘494 Patent.3
`Juniper made misrepresentations to the Court and jury based on this testimony, arguing in its closing
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`that:
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`You saw this diagram when Dr. Rubin was testifying. This is the fundamental
`architecture of the Sky ATP. It shows where Juniper stores all of its data, including the
`security profiles. And there are three solutions that Juniper uses. They’re at the bottom
`right. One is the Amazon DynamoDB. Some security profiles are stored there. One is the
`Amazon S3. Some security profiles are stored there. The third storage solution is called
`MySQL. And that's a database that we agree that that has a schema. But no security
`profiles are stored there. So Finjan has sort of a mix and match problem. They can find
`a database within the meaning of the claim, the definition of the construction, but they
`can’t find any security profiles being stored in there. And they can find where the
`security profiles are being stored, which is DynamoDB and S3, but those don't have a
`schema and, therefore, don't qualify as databases under the Court’s construction. That’s
`why there can be no infringement in this case.
`Kastens Decl., Ex. 17 (12/14/18 Trial Tr.) at 931:13-932:6 (emphasis added to highlight false
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`statements contradicted by the User Guide). The Court cited this closing argument as the main reason
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`why the Court considered a finding of non-infringement justified at the hearing on the parties’ post-
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`3 Finjan disagrees with Juniper’s characterization that its other databases did not have a schema and
`fall within this Court’s construction of “database.” Regardless, as described, the Joe Sandbox database
`includes a “strict structure” that is set “in advance,” to use Dr. Rubin’s terminology, which would
`satisfy the database limitation at issue even under Juniper’s interpretation.
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`trial motions. Id., Ex. 18 (2/21/19 Hearing Tr.) at 3:21-4:8 (commenting that the Court found Juniper’s
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`counsel’s statements at closing, in particular, to be persuasive).
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`Juniper, however, did not present to the Court and jury a complete picture of where Juniper
`stores all of its security profile and analysis data. As it turns out, Juniper’s Sky ATP had another
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`solution, the Joe Sandbox database. And Juniper’s withholding of meaningful technical discovery
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`regarding Joe Sandbox in discovery leading up to the December 2018 trial, so precluded Finjan from
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`presenting such evidence at trial. Due to Juniper’s discovery misconduct, Finjan was unable to present
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`the fact that the Joe Sandbox database was a match for Juniper’s Dr. Rubin’s “description” of a
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`database with schema, because it stores analysis data and behavior reports according to predetermined
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`fields so that the information is easily accessible. Kastens Decl., Ex. 1 at JNPR-
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`FNJN_29043_01517143-44; Ex. 2 at JNPR-FNJN_29043_01517208. Given the newly discovered
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`evidence that Juniper finally produced nearly two months after trial, the Verdict and subsequent Order
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`on the parties’ competing motions for judgment as a matter of law were incomplete and tainted by
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`Juniper’s misconduct.
`D.
`Juniper Has Not Offered Any Colorable Excuse for Its Misconduct.
`Counsel for both parties met and conferred on March 8, 2019, in connection with this motion.
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`Kastens Decl., Ex. 19. Finjan specifically asked Juniper if it had produced the technical information in
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`these documents in another form. Kastens Decl., ¶ 3. Juniper had no response. Id. Finjan further
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`asked what was Juniper’s purported basis for withholding the documents until February 2019. Id.
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`Juniper responded that it had not located the documents during collection and made the excuse that
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`Finjan could have subpoenaed Joe Security for these documents. Id. Juniper did not (and could not)
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`represent that the Joe Security documents were outside its possession, custody, or control at any time.
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`Id. Juniper’s excuse falls flat, given that it had ten months between Finjan’s first requests and trial to
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`locate the documents. Moreover, the Joe Sandbox documents all contain simple keywords that can be
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`identified from Finjan’s discovery requests, such that any basic search within Juniper’s records for the
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`documents that Finjan requested would have revealed the documents (e.g., “Joe Sandbox,” “Joe
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`Security,” “dynamic analysis,” “guide,” “cookbook,” “database”). Certainly given Juniper’s written
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`discovery responses and deposition testimony, Finjan had no way of knowing that Juniper had
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`concealed these documents from Finjan and from the December 2018 trial.
`E.
`This Is Not Juniper’s First Offense with Respect to Discovery Misconduct.
`Juniper employed similar gamesmanship earlier in this case. Juniper belatedly produced
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`expansive spreadsheets regarding purported revenues which was highly relevant to Finjan’s damages
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`case. See Kastens Decl., Ex. 20 (12/4/18 Pretrial Hearing Tr.) at 76:1-17 (noting without ruling that
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`the late production of a 17,000 page document relating to damages was troubling and Finjan could
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`request a deposition at Juniper’s expense before trial if the defense intended to use the document).
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`Withholding discovery or belatedly producing highly relevant discovery that one uses to its advantage
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`in its case violates the basic principles of discovery and fairness.
`III. ARGUMENT
`A.
`Juniper’s Withholding of Relevant Documents Responsive to Finjan’s 2018
`Document Requests Is Newly Discovered Evidence.
`Pursuant to Federal Rule of Civil Procedure 60(b)(2), the Court may grant Finjan relief from
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`the Verdict and post-trial Order of non-infringement entered in this action because Finjan has newly
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`discovered evidence from Juniper that it could not have reasonably discovered before the deadline to
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`move for a new trial, which was January 10, 2019. Fed. R. Civ. P. 60(b)(2) (“On motion and just
`terms, the court may relieve a party or its legal representative from a final judgment, order, or
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`proceeding for the following reasons: … (2) newly discovered evidence that, with reasonable
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`diligence, could not have been discovered in time to move for a new trial”); see Dkt. No. 348 (setting
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`deadline for post-trial motions). Relief should be granted because: (1) the User Guide, Interface
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`Guide, and other Joe Sandbox documents are “newly discovered evidence”; (2) Finjan “exercised due
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`diligence to discover this evidence”; and (3) the User Guide, Interface Guide, and other Joe Sandbox
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`documents are of “such magnitude that production of it earlier would have been likely to change the
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`disposition of the case.” See Feature Realty, Inc., v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir.
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`2003) (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir.
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`1987)). By its plain language, Rule 60(b) encompasses many types of final proceedings other than
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`final judicial entries of judgment.4 See Fed. R. Civ. P. 60(b); see also Webster v. U.S., 93 Fed.Cl. 676,
`678-79, n.2 (Ct. Cl. 2010) (“The entry of a formal judgment ... is not a prerequisite to the availability
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`of relief under Rule 60(b). By its terms, Rule 60(b) applies to final orders and final proceedings as well
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`as to judgments.”) (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 60.02[2] (3d
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`ed.2004)) (ellipse in original). Juniper’s withholding of key Joe Security documents until after the
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`completion of trial and post-trial briefing meets all of these elements.
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`1.
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`Juniper Concealed Relevant Documents Containing New Evidence in Spite
`of Finjan’s Diligence.
`Finjan worked diligently from February 2018 to obtain discovery of any database used by Sky
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`ATP, serving several documents requests and an interrogatory specifically seeking such information.
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`Juniper’s discovery responses, however, intentionally concealed the fact that it was refusing to produce
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`responsive documents, like the Joe Sandbox User Guide and Interface Guide. For example, Juniper
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`omitted
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` in its interrogatory response identifying
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`databases, despite naming other databases that Juniper contended did not meet the construction of a
`“database.” 5 See Kastens Decl., Ex. 10 at 13-14 (Response to Interrogatory No. 12). Juniper also did
`not produce Joe Sandbox documents, other than its agreements with Joe Security, thereby
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`4 Courts in the Ninth Circuit have considered the impact of misconduct or misrepresentation on jury
`verdicts and have considered verdicts together with final judgments in their analyses. See, e.g.,
`Robinson v. Delgado, No. CV 02-1538 NJV, 2010 WL 3448558