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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`April 13, 2018
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`
`Hon. William Alsup
`U.S. District Court
`Northern District of California
`
`Finjan, Inc. v. Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA
`Re:
`Dear Judge Alsup:
`Defendant Juniper Networks, Inc. (“Juniper”) respectfully submits this opposition to
`plaintiff Finjan, Inc.’s (“Finjan”) letter brief regarding Dr. Eric Cole (Dkt. No. 49), a former senior
`executive of a key Juniper competitor. Finjan has identified no less than three other experts in this
`case, and Juniper understands Finjan has used at least three other experts in cases against other
`parties involving the same patents. Juniper is not aware of any issues with any of Finjan’s other
`experts.
`
`I.
`
`Dr. Cole Cannot Qualify As An “Expert” Under The Model Protective Order.
`Dr. Cole is precluded from receiving Juniper’s confidential information because, as a
`former senior executive of a Juniper competitor, Dr. Cole does not satisfy the qualifications for an
`“expert” under the Model Protective Order. Dr. Cole served as Senior Vice President and Chief
`Technology Officer of the Americas for McAfee, positions he touts on his CV. See Dkt. No. 49
`at p. 8 (Cole CV). McAfee is a leading Juniper competitor. In fact, Finjan previously sued McAfee
`for infringing U.S. patent numbers 6,092,194 and 6,480,962, both of which are alleged parents of
`at least three patents asserted against Juniper (the ’494, ’926 and ’780 patents). See Finjan, Inc. v.
`McAfee, Inc., No. 1:10-cv-00593-GMS, Dkt. No. 69 at pp. 2-3 (D. Del. May 12, 2011).1
`Section 2.7 of the Model Protective Order—which Finjan agrees “governs” (Dkt. No. 49 at p. 1.)—
`expressly limits “expert[s]” to those who are “not a past or current employee of a Party or of a
`Party’s competitor.” Dr. Cole was a senior executive at a Juniper competitor and therefore does
`not qualify as an “expert” under the Model Protective Order.
`
`Despite this requirement in the Model Protective Order, Finjan claims that Juniper “bear[s]
`the burden of proving that the harm to Juniper of Dr. Cole reviewing [Juniper’s] confidential
`material substantially outweighs the prejudice to Finjan of disqualifying Dr. Cole.” Dkt. 49 at 1.
`Finjan has it backwards: Because Dr. Cole does not qualify as an expert under the existing Model
`Protective Order, Finjan must first make a motion to deviate from that Order, where Finjan, as
`“the party requesting to deviate from the Interim Model Protective Order[,] bears the burden of
`showing the specific harm and prejudice that will result if its request is not granted.” Verinata
`Health, Inc. v. Ariosa Diagnostics, Inc., C 12-05501 SI, 2013 WL 5663434, at *1 (N.D. Cal.
`
`
`1 Amended complaint by Finjan against McAfee asserting the ‘194 and ‘962 patents. See also,
`e.g., U.S. Patent No. 8,677,494 at Page 2 (Related U.S. Application Data) (‘494 patent asserted
`against Juniper claiming priority to ‘194 and ‘962 patents asserted by Finjan against McAfee).
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`Case 3:17-cv-05659-WHA Document 54 Filed 04/13/18 Page 2 of 3
`I R E L L & M A N E L L A L L P
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`INCLUDING PROFESSIONAL CORPORATIONS
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`Oct. 17, 2013); see also Dynetix Design Solutions, Inc. v. Synopsys, Inc., C-11-05973 PSG, 2012
`WL 1232105, at *2 (N.D. Cal. April 12, 2012).
`
`Finjan bears the burden to modify the Model Protective Order before Dr. Cole can qualify
`as an “expert” in the first place. The cases that Finjan cites do not support shifting the burden to
`Juniper because all of those cases involved individuals who were able to meet the requirements to
`qualify as an “expert” (unlike Dr. Cole). See Finisar Corp. v. Nistica, Inc., No. 5:13-cv-03345-
`BLF, Dkt. No. 244 at pp. 9-16 (N.D. Cal. July 21, 2015) (Finisar objecting to Nistica’s expert
`because Finisar’s counsel disclosed attorney work product to the expert on a phone call back when
`Finisar’s counsel was itself considering engaging the expert for litigation assistance); Hewlett-
`Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 190-92 (N.D. Cal. 2004) (EMC objecting to
`HP’s expert because he “previously served as a consultant for EMC, at which time he received
`confidential information on EMC's trial strategies”); Life Tech. Corp. v. Biosearch Techs., Inc.,
`C-12-00852 WHA (JCS), 2012 WL 1604710, at *1 (N.D. Cal. May 7, 2012) (Life Tech objecting
`to Biosearch’s expert because he had “acted as a consulting expert for Life Tech in another matter
`‘covering related technology’” and “discuss[ed] litigation strategy”).
`
`Here, unlike in the cases cited by Finjan, Dr. Cole fails to satisfy one of the conditions of
`serving as an “expert” that can view Juniper’s confidential source code. Using him as an expert,
`therefore, would violate the Protective Order. See, e.g., Beam System, Inc. v. Checkpoint Systems,
`Inc., No. CV95-4068-RMT (AJWX), 1997 WL 364081, at *3-6 (C.D. Cal. Feb. 6, 1997) (selecting
`an expert who did not meet requirements of an “expert” under the Protective Order is a violation
`of the Protective Order). In situations such as this, the Court need simply determine whether or
`not Dr. Cole qualifies as an “expert” under the governing Model Protective Order and, if not,
`preclude him from viewing Juniper’s confidential source code. See TVIIM, LLC v. McAfee, Inc.,
`No. 13-cv-04545-VC (KAW), 2014 WL 2768641, at *1-2 (N.D. Cal. June 18, 2014). Dr. Cole
`does not qualify as an “expert” and he should therefore be excluded from viewing Juniper’s
`confidential source code.
`
`II.
`
`Finjan Cannot Meet Its Burden To Establish Specific Harm Or Prejudice.
`Under the appropriate standard, Finjan has not met its burden to establish the specific harm
`or prejudice required to deviate from the Model Protective Order. See Verinata Health, 2013 WL
`5663434, at *1. The only prejudice alleged by Finjan is that “Dr. Cole is already familiar with the
`’494 Patent and how it is applied to technology” and “Finjan will incur substantial time and costs
`to find and work with a new expert.” Dkt. No. 49 at p. 3. But this alleged prejudice is not supported
`by the record. To begin, an infringement analysis is unique for each product and Dr. Cole has not
`testified as to the operation of Juniper’s products in prior matters. More significantly, Finjan has
`already disclosed, and Juniper has not objected to, three other experts offered by Finjan, including
`Nenad Medvidovic, Michael Mitzenmacher, and Andy Jian. Ex. 1 at p. 7. Finjan has never
`explained why one of these other experts cannot handle the analysis, especially given that Mr. Jian
`has already viewed Juniper’s confidential source code, and Dr. Medvidovic has testified about the
`’494 Patent in multiple proceedings and is thus very familiar with the ’494 patent. See, e.g., Ex. 3;
`see also, e.g., IPR2015-01892, Ex. 2007 and IPR2016-00159, Ex. 2011 (declarations by
`Dr. Medvidovic regarding the ’494 Patent).
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`Case 3:17-cv-05659-WHA Document 54 Filed 04/13/18 Page 3 of 3
`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`III. Dr. Cole Presents A Substantial And Unjustifiable Risk To Juniper.
`Even if Juniper were required to establish that allowing Dr. Cole to view its confidential
`information presents a substantial and unjustifiable risk (which Juniper is not required to do), the
`record demonstrates that such a risk exists. The Model Protective Order in this District precludes
`past employees of a party’s competitor—such as Dr. Cole, who was a C-level employee at
`Juniper’s competitor McAfee—from viewing confidential information. See Patent Local Rule 2-2
`Interim Model Protective Order at Section 2.7. This provision was made the default because this
`District recognizes the substantial danger of disclosure of confidential information to parties with
`whom proposed “experts” have had significant financial relationships. That concern is precisely
`why, just weeks ago, another Court in this District denied Finjan the same relief it seeks here.
`Finjan, Inc. v. Bitdefender Inc., Case No. 4:17-cv-04790-HSG, Dkt. No. 65 at p. 1 (N.D. Cal.
`Mar. 5, 2018) (“Former employees of a party or competitor shall not serve as experts.”).
`
`Finjan claims that Juniper’s concerns about Dr. Cole’s relationship with McAfee are
`“unreasonable” because “Dr. Cole has no plans to work again at McAfee, or any other security
`company.” Dkt. No. 49 at p. 1. But this does not appear to be true. During the meet-and-confer
`process, Juniper offered to withdraw its objection to Dr. Cole if Dr. Cole agreed to not work for
`any of Juniper’s competitors for a limited period of time. Ex. 2 at pp. 1-2. Finjan and Dr. Cole
`flatly refused this offer. Id.
`
`Finjan further claims that “Dr. Cole’s trustworthiness is demonstrated by his previous
`positions and conduct” and that he “has viewed the source code and technical documents in other
`cases without incident.” Dkt. No. 49 at p. 3. Again, this does not appear to be true. Although
`Juniper has not been a party to any other cases with Finjan, Dr. Cole’s compliance with applicable
`ethical standards was called into question in at least one prior case in which he was working with
`Finjan. See Finjan, Inc. v. Blue Coat Systems, Inc., Case No. 5:15-cv-03295-BLF, Dkt. No. 447
`at pp. 687-692 (N.D. Cal. Nov. 28, 2017). Although Juniper has no personal knowledge of the
`truth or falsity of these allegations—and Juniper is not making any accusations against Dr. Cole—
`Juniper asked Finjan to confirm that Dr. Cole has complied with all applicable ethical rules in his
`prior work for Finjan. Ex. 1 at pp. 1-3. Rather than provide this simple assurance (a one-line
`response, at most), however, Finjan has sent a series of evasive emails. Id. Finjan’s evasiveness
`about Dr. Cole has only heightened Juniper’s concerns. Thus, despite Finjan’s assertions that
`Dr. Cole has “Top Secret security clearance” (not supported by any evidence) and that Dr. Cole
`“does not keep in contact with anyone from his time at McAfee” (Dkt. No. 49 at pp. 1-2), Finjan’s
`and Dr. Cole’s behavior strongly suggest a substantial risk to Juniper, including the potential for
`unauthorized disclosure of confidential information to Juniper’s competitors.
`
`Respectfully submitted,
`/s/ Joshua Glucoft
`Joshua Glucoft
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
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