Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 1 of 6
`Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 1 of 6
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`EXHIBIT 1
`EXHIBIT 1
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`Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 2 of 6
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`Glucoft, Josh
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Glucoft, Josh
`Thursday, March 15, 2018 5:49 PM
`~Kastens, Kristopher
`~Andre, Paul; ~Kobialka, Lisa; ~Hannah, James; Kagan, Jonathan; Carson, Rebecca;
`Wang, Kevin; Holland, Eileen; ~Manes, Austin; Curran, Casey; ~Manes, Austin; ~Lee,
`Michael
`RE: Finjan v. Juniper - Discovery
`
`Kris,
`
`
`Thank you for confirming that you will abide by the terms of the Interim Model Protective Order.
`
`
`With respect to the source code, we will produce it organized by directory and sub-directory so that you can easily
`navigate between different products and files. We will not make any modifications to the code relative to how it has been
`kept in the ordinary course of business, although the code will of course be read-only to prevent modification. We also
`will not create any additional files, including any dummy files or additional index, that are not part of the existing
`codebase.
`
`
`As for review tools, we will provide NotePad++, Vim, Emacs, and Grep, as you have requested. We will also provide
`UltraEdit, which includes substantial searching capabilities. These tools will allow you to reasonably review and search
`the entire codebase. We are not, however, going to provide tools that could compromise the integrity of the code by
`facilitating writing to the code, changing file permissions, or connecting the secured computer to a network. For that
`reason, we are not going to provide Cygwin or Coreutils or enable the Windows CLI.
`
`
`We will provide Microsoft’s read-only viewers for Word, Excel, and PowerPoint, and you may take notes on the review
`tools that we have provided, such as Notepadd++. We are not, however, going to provide the versions of Microsoft Office
`that allow macros, as those versions present a security concern. Please remember that per the terms of the Interim Model
`Protective Order, you many not copy, remove, or otherwise transfer any portion of the source code, which precludes
`copying the source code into a note-taking application. If you would like us to print out any electronic notes that you
`take, we would be happy to do so provided that we determine the notes do not contain any embedded copies of the source
`code.
`
`
`Best,
`Josh
`
`
`From: Kastens, Kris [mailto:KKastens@KRAMERLEVIN.com]
`Sent: Wednesday, March 14, 2018 2:11 PM
`To: Glucoft, Josh
`Cc: ~Andre, Paul; ~Kobialka, Lisa; ~Hannah, James; Kagan, Jonathan; Carson, Rebecca; Wang, Kevin; Holland, Eileen;
`~Manes, Austin; Curran, Casey; ~Manes, Austin; ~Lee, Michael
`Subject: RE: Finjan v. Juniper - Discovery
`
`Josh,
`Finjan agrees that the Interim Model Protective Order is in place for this case until the parties finalize a protective
`order. Please let us know who to ask for at the front desk when we arrive.
`
`We also request that the source code be indexed for searching, that the Windows command line be enabled, and
`MSOffice or OpenOffice installed. In addition, we request the appropriate tools be installed to review the source
`code. The links to download these tools can be found here:
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`1
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`Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 3 of 6
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`• https://notepad-plus-plus.org/download/
`• http://www.cygwin.com/
`• http://www.gnu.org/software/emacs/
`• http://www.vim.org/
`• http://www.gnu.org/software/grep/
`• http://www.gnu.org/software/coreutils/
`
`
`Sincerely,
`Kris
`
`
`
`
`Kris Kastens
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1715 F 650.752.1815
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Glucoft, Josh [mailto:JGlucoft@irell.com]
`Sent: Tuesday, March 13, 2018 2:58 PM
`To: Kastens, Kris
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Kagan, Jonathan; Carson, Rebecca; Wang, Kevin; Holland, Eileen;
`Manes, Austin; Curran, Casey; Manes, Austin; Lee, Michael H.; #Juniper/Finjan [Int]
`Subject: [EXTERNAL] RE: Finjan v. Juniper - Discovery
`
`Kris,
`
`Finjan chose to serve its infringement contentions on the last day possible, March 8. Until Finjan chose to serve its
`infringement contentions (and even still), Juniper was left largely guessing as to what functionality in the accused
`products is actually at issue. Nonetheless, we have offered to make the source code available for review just 11 days after
`Finjan served its infringement contentions, which demonstrates Juniper’s diligence. Please confirm that for the review
`starting this Monday, March 19, Finjan agrees to abide by the terms of the Interim Model Protective Order pending
`finalization of the parties’ stipulated protective order. Assuming Finjan agrees, the review may begin each day next week
`at 9:00 a.m. and continue until 5:00 p.m., with a break for lunch to accommodate our proctor.
`
`We will respond to the remainder of the issues in your email in due course.
`
`Thanks,
`Josh
`
`
`From: Kastens, Kris [mailto:KKastens@KRAMERLEVIN.com]
`Sent: Monday, March 12, 2018 3:42 PM
`To: Glucoft, Josh
`Cc: ~Andre, Paul; ~Kobialka, Lisa; ~Hannah, James; Kagan, Jonathan; Carson, Rebecca; Wang, Kevin; Holland, Eileen;
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`Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 4 of 6
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`~Manes, Austin; Curran, Casey; ~Manes, Austin; ~Lee, Michael
`Subject: RE: Finjan v. Juniper - Discovery
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`Josh,
`
`Thank you for confirming that the source code is available for inspection on March 19th. While this leaves little time for
`Finjan to review the code before claim selection, Finjan identifies Michael Lee and Kris Kastens as reviewing the code on
`March 19th-20th. Furthermore, we disagree that Juniper can make this production contingent on Finjan’s production of
`certain unrelated material by March 19th. Finjan requested production of Juniper’s source code, which is relevant, since
`the day after Judge Alsup ordered that the “shootout” procedure for this case. As such, Finjan will proceed with a
`review on March 19th as indicated.
`
`In regards to the documents that Juniper is requesting, Finjan will serve its objections and responses to Juniper’s
`Requests for Production in due course. However, as a showing of good faith, Finjan can agree to start producing the
`following on a rolling basis beginning on March 19th:
`
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`• Documents showing marking;
`• Non-confidential invalidity contentions addressed to asserted patents;
`• Non-confidential expert reports; and
`• Deposition transcripts of Finjan employees that do not include third party confidential information.
`
`
`We note that some of this was already produced, as some of it is part of the file history of the asserted patents. In
`regards to the other material requested, production by March 19th is impossible, as much the majority of these
`documents were marked confidential by a third party. Let us know when you are available to meet and confer on the
`scope of these requests.
`
`To the extent that Juniper is alleging that Finjan’s production has been deficient, Finjan has already produced tens of
`thousands of pages of its highly confidential documents (including documents showing marking with the patents), first
`with its initial disclosures and then more with its infringement contentions. Finjan has also already made its source code
`available for inspection under the interim protective order.
`
`Sincerely,
`Kris
`
`
`
`Kris Kastens
`Associate
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1715 F 650.752.1815
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Glucoft, Josh [mailto:JGlucoft@irell.com]
`Sent: Monday, March 12, 2018 12:48 PM
`To: Kastens, Kris
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Kagan, Jonathan; Carson, Rebecca; Wang, Kevin; Holland, Eileen;
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`Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 5 of 6
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`Manes, Austin; Curran, Casey; Manes, Austin; #Juniper/Finjan [Int]
`Subject: [EXTERNAL] RE: Finjan v. Juniper - Discovery
`
`Kris,
`
`It appears our emails have crossed. Last week we offered to make the source code of the products identified in the
`Complaint available for review by Monday, March 19 provided that, while the parties negotiate a stipulated protective
`order, Finjan agree to abide by the terms of the Interim Model Protective Order and to produce the limited categories of
`documents listed in my email. Please confirm.
`
`We will respond to the remainder of the issues in your email in due course.
`
`Thanks,
`Josh
`
`
`From: Kastens, Kris [mailto:KKastens@KRAMERLEVIN.com]
`Sent: Monday, March 12, 2018 11:43 AM
`To: Glucoft, Josh <JGlucoft@irell.com>
`Cc: ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah, James
`<jhannah@kramerlevin.com>; Kagan, Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Wang,
`Kevin <kwang@irell.com>; Holland, Eileen <EHolland@irell.com>; ~Manes, Austin <amanes@kramerlevin.com>; Curran,
`Casey <ccurran@irell.com>; ~Manes, Austin <amanes@kramerlevin.com>
`Subject: Finjan v. Juniper - Discovery
`
`Josh,
`
`We write on a number of outstanding discovery issues.
`
`First, Finjan intends to identify a claim for summary judgment briefing on March 22. However, we note that Juniper has
`still not identified when its source code is available for inspection, despite the Court’s order for expedited
`discovery. Further, as we’ve stated on several occasions, that the parties are still negotiating a protective order for the
`case cannot be the basis for withholding the source code. Patent L.R. 2-2. If Juniper does not agree to make the code
`available by this Wednesday, March 14, let us know today so we can raise this with the Court. Juniper has had more
`than two weeks to collect this information and has no basis to continue stonewalling. We have also reviewed Juniper’s
`recent document production, and it does not appear to include any internal design documents. Confirm that Juniper
`will produce its internal design documents by this Wednesday as well.
`
`Second, Juniper’s initial disclosures include four individuals having the same description: “May have technical
`information about accused Juniper products.” Confirm that you will provide information on which Juniper products
`each individual has information on by this Wednesday.
`
`Third, we’ve attached a draft of the ESI order with Finjan’s revisions. When can we expect Juniper’s edits to the draft
`protective order we sent on March 7th?
`
`Sincerely,
`Kris
`
`
`
`
`Kris Kastens
`Associate
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`Case 3:17-cv-05659-WHA Document 532-3 Filed 06/14/19 Page 6 of 6
`
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1715 F 650.752.1815
`kkastens@kramerlevin.com
`
`
`Bio
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`From: Glucoft, Josh [mailto:JGlucoft@irell.com]
`Sent: Friday, March 09, 2018 11:16 AM
`To: Andre, Paul; Kobialka, Lisa; Kastens, Kris; Hannah, James; Manes, Austin
`Cc: #Juniper/Finjan [Int]
`Subject: [EXTERNAL] March 22
`
`Counsel,
`
`
`Although not expressly reflected in the Court’s Case Management Order, the Court ordered the parties at the Case
`Management Conference to provide notice by March 22 as to which claim each party will move on for the upcoming
`summary judgment briefing. See CMC Transcript at 7:11-18. Please confirm that Finjan will provide notice of its elected
`claim on or before March 22.
`
`
`Thanks,
`Josh
`
`
`__________________________________________________________________
`Joshua P. Glucoft | Irell & Manella LLP | 310.203.7189 | www.irell.com
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`PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside
`information. Any distribution or use of this communication by anyone other than the intended recipient(s) is
`strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by
`replying to this message and then delete it from your system. Thank you.
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