Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 1 of 7
`
`EXHIBIT 1
`
`Wang, Kevin
`Thursday, April 12, 2018 3:45 PM
`~Manes, Austin
`~Andre, Paul; ~Kobialka, Lisa; ~Hannah, James; ~Kastens, Kristopher; Kagan, Jonathan;
`Carson, Rebecca; Glucoft, Josh; Holland, Eileen; Curran, Casey
`RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Glucoft, Josh
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Austin,
`
`Juniper does have a specific concern regarding Dr. Cole and the ethical rules, specifically regarding the prohibitions
`against contacting represented parties. Juniper does not have detailed knowledge of all of Dr. Cole’s prior work with
`Finjan so it is imperative that Finjan confirms this. I would think this request is non-controversial and it is unclear why
`Finjan continues to evade the question. If you can represent that Dr. Cole has abided by all ethical rules in his prior work
`for Finjan, including prohibitions against contacting represented parties, please do so by 5:00pm today. If you cannot
`make that representation, then please let us know.
`
`Thanks,
`Kevin
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Thursday, April 12, 2018 2:59 PM
`To: Wang, Kevin <kwang@irell.com>
`Cc: ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah, James
`<jhannah@kramerlevin.com>; ~Kastens, Kristopher <kkastens@kramerlevin.com>; Kagan, Jonathan
`<JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh <JGlucoft@irell.com>; Holland, Eileen
`<EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Kevin,
`
`If you have a specific concern regarding Dr. Cole and the ethical rules, or some particular incident in mind, let
`me know and I’m happy to discuss it with you. Otherwise, I don’t think asking a baseless, open-ended question
`is productive as we can ask the same for every member of your team.
`
`Austin
`
`Austin Manes
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`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
`
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`

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`Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 2 of 7
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`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: Wang, Kevin <kwang@irell.com>
`Sent: Wednesday, April 11, 2018 2:54 PM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>
`Cc: Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Kagan, Jonathan <JKagan@irell.com>;
`Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh <JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>;
`Curran, Casey <ccurran@irell.com>
`Subject: [EXTERNAL] RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Austin,
`
`The reason for asking is to simply confirm whether Dr. Cole has abided by all applicable ethical rules in his prior work for
`Finjan.
`
`As we’ve stated, Dr. Cole is not permitted to review Juniper’s Protected Material under section 2.7 of the Model
`Protective Order. Finjan insists on deviating from the governing Protective Order, claiming that Dr. Cole has some level
`of trustworthiness that somehow exempts him from the established rules in this district. The issue of whether he has
`complied with all ethical rules in his past work is relevant to the issue of his trustworthiness. As such, please confirm
`whether Dr. Cole has abided by all applicable ethical rules in his prior work for Finjan, including prohibitions against
`contacting represented parties.
`
`Thanks,
`Kevin
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Tuesday, April 10, 2018 5:35 PM
`To: Wang, Kevin
`Cc: ~Andre, Paul; ~Kobialka, Lisa; ~Hannah, James; ~Kastens, Kristopher; Kagan, Jonathan; Carson, Rebecca; Glucoft,
`Josh; Holland, Eileen; Curran, Casey
`Subject: RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Kevin,
`
`What is your reason for asking this question? Is this the basis for Juniper’s objection to Dr. Cole? Or is it his work
`for McAfee 8 years ago?
`
`Austin
`
`Austin Manes
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`2
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`Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 3 of 7
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`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: Wang, Kevin <kwang@irell.com>
`Sent: Tuesday, April 10, 2018 5:03 PM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>
`Cc: Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Kagan, Jonathan <JKagan@irell.com>;
`Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh <JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>;
`Curran, Casey <ccurran@irell.com>
`Subject: [EXTERNAL] Re: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Austin,
`
`Finjan has not responded regarding whether Dr. Cole has abided by all applicable ethical rules in his prior work for
`Finjan, including prohibitions against contacting represented parties. Please confirm whether Finjan contends that Dr.
`Cole has abided by all applicable ethical rules.
`
`Thanks,
`
`Kevin
`
`On Apr 5, 2018, at 6:40 PM, Wang, Kevin <kwang@irell.com> wrote:
`
`Austin,
`
`Thank you for conferring today regarding Dr. Cole.
`
`Please also confirm that Dr. Cole has abided by all applicable ethical rules in his prior work for Finjan,
`including prohibitions against contacting represented parties.
`
`Thanks,
`Kevin
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Wednesday, April 4, 2018 3:29 PM
`To: Wang, Kevin <kwang@irell.com>
`Cc: ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah,
`James <jhannah@kramerlevin.com>; ~Kastens, Kristopher <kkastens@kramerlevin.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Kevin,
`
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`Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 4 of 7
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`I’ll call you at noon tomorrow.
`
`Austin
`
`Austin Manes
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`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: Wang, Kevin <kwang@irell.com>
`Sent: Wednesday, April 4, 2018 3:25 PM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>
`Cc: Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>;
`Hannah, James <JHannah@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: [EXTERNAL] RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Austin,
`
`There are several outstanding issues we have not met and conferred on. Finjan has not directly
`addressed several issues brought up by Juniper, including why Finjan continues to insist on disclosing
`Protected Material to a former employee of a competitor when Finjan has already designated three
`other experts to which Juniper has not objected. Many of these experts have also worked with Finjan in
`the past. Moreover, Finjan now claims that Juniper is objecting as a pretext to drive up costs for Finjan.
`While this is simply not true, you have also not given us any information relating to these alleged costs.
`If you provide that information we can discuss it.
`
`Regardless, in an effort to compromise we propose that Dr. Cole agrees to not work for a Juniper
`competitor for the next 5 years, either directly or indirectly. This would alleviate some of Juniper’s
`concern by firmly showing Dr. Cole “is not anticipated to become an employee of a Party or a Party’s
`competitor” pursuant to section 2.7 of the governing Model Protective Order.
`
`We cannot meet and confer today, but you would presumably need time to consider and discuss this
`with Dr. Cole. I can confer with you either tomorrow at noon or early next week. Please let me know,
`thank you.
`
`Kevin
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Wednesday, April 4, 2018 8:34 AM
`To: Wang, Kevin <kwang@irell.com>
`Cc: ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah,
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`Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 5 of 7
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`James <jhannah@kramerlevin.com>; ~Kastens, Kristopher <kkastens@kramerlevin.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Kevin,
`
`We met and conferred on this issue two weeks ago, during which I fully explained Finjan’s
`position. Juniper hasn’t raised any new arguments in multiple emails since. Given the
`accelerated schedule, Finjan cannot wait until next week to further meet and confer.
`
`If you have something new to add, I am available all day today to discuss this again, except
`from 11:00 – 11:30. Otherwise, we will seek relief from the Court.
`
`Thanks,
`Austin
`
`Austin Manes
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`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: Wang, Kevin <kwang@irell.com>
`Sent: Tuesday, April 3, 2018 6:59 PM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>
`Cc: Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>;
`Hannah, James <JHannah@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: [EXTERNAL] RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Austin,
`
`Juniper disagrees with many of Finjan’s assertions, including that Juniper’s objection is a pretext to
`increase the cost of litigation for Finjan. But rather than speaking through e-mail, we believe it would be
`more productive at this point to simply meet and confer. Are you available to take a call next week?
`Please let me know, thank you.
`
`Kevin
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Monday, April 2, 2018 7:13 PM
`To: Wang, Kevin <kwang@irell.com>
`
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`Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 6 of 7
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`Cc: ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah,
`James <jhannah@kramerlevin.com>; ~Kastens, Kristopher <kkastens@kramerlevin.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Kevin,
`
`To answer your question: Finjan has a fundamental interest in using the expert of its choosing. Dr.
`Cole is one of the preeminent experts in this field. He has worked closely with Finjan in the past
`and he is already familiar with the asserted patents, their subject matter, and Juniper’s accused
`products. Finjan will be prejudiced in time, money, and its ability to effectively present its case if
`Dr. Cole is excluded from viewing confidential information.
`
`There is absolutely no basis to exclude Dr. Cole. He hasn’t worked for McAfee for nearly a
`decade. He is trusted by the highest levels of government, holds multiple Top-Secret security
`clearances, and served as a commissioner of cyber-security to President Obama. If the U.S.
`Government can trust Dr. Cole with state secrets, I fail to see any harm that can arise to Juniper
`from him serving as an expert in this case. Besides, Dr. Cole will be bound by Exhibit A to the
`protective order. In light of these assurances, Juniper’s objections seem like a pretext to exclude
`Finjan from using the expert of its choice and to increase the cost of litigation for Finjan.
`
`Please withdraw your objection to Dr. Cole by COB tomorrow. Otherwise we will be forced to
`file a motion and will consider seeking our fees.
`
`Austin
`
`Austin Manes
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`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: Wang, Kevin <kwang@irell.com>
`Sent: Thursday, March 29, 2018 3:46 PM
`To: Manes, Austin <AManes@KRAMERLEVIN.com>
`Cc: Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>;
`Hannah, James <JHannah@KRAMERLEVIN.com>; Kastens, Kris <KKastens@KRAMERLEVIN.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: [EXTERNAL] RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Austin,
`
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`Case 3:17-cv-05659-WHA Document 54-1 Filed 04/13/18 Page 7 of 7
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`Finjan’s offer is no real compromise given the result is the same: a former employee of Juniper’s
`competitor would still have access to Juniper’s Protected Material. Juniper expends significant effort in
`maintaining as a key trade secret its source code, including, for example, implementing strict screening
`procedures for visitors to its engineering campus. Providing access to individuals with relationships to
`Juniper’s competitors poses a substantial and unjustifiable risk to Juniper’s critical trade secrets. These
`precise concerns are reflected in section 2.7 of the default Model Protective Order.
`
`Since Finjan seeks to depart from the Interim Model Protective Order, Finjan “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., No. C 12-05501 SI, 2013 WL 5663434, at *1 (N.D. Cal. Oct. 17, 2013); see
`also Dynetix Design Solutions, Inc. v. Synopsys, Inc., No. C-11-05973 PSG, 2012 WL 1232105, at *2 (N.D.
`Cal. April 12, 2012). What does Finjan contend is the specific harm and prejudice that will result if your
`request to change the default terms of the Model Order is not granted? Finjan has already designated
`three other experts-- Nenad Medvidovic, Michael Mitzenmacher, and Andy Jian—to which Juniper has
`not objected; please clarify why these three experts are not capable of sufficiently reviewing Juniper’s
`code.
`
`I look forward to hearing from you to address these issues. Thank you.
`
`Kevin
`
`From: Manes, Austin [mailto:AManes@KRAMERLEVIN.com]
`Sent: Tuesday, March 27, 2018 11:50 AM
`To: Wang, Kevin <kwang@irell.com>
`Cc: ~Andre, Paul <pandre@kramerlevin.com>; ~Kobialka, Lisa <lkobialka@kramerlevin.com>; ~Hannah,
`James <jhannah@kramerlevin.com>; ~Kastens, Kristopher <kkastens@kramerlevin.com>; Kagan,
`Jonathan <JKagan@irell.com>; Carson, Rebecca <RCarson@irell.com>; Glucoft, Josh
`<JGlucoft@irell.com>; Holland, Eileen <EHolland@irell.com>; Curran, Casey <ccurran@irell.com>
`Subject: RE: Finjan v. Juniper - 3:17-cv-05659-WHA
`
`Josh and Kevin,
`
`Please confirm by this Friday, March 30, that Juniper agrees to withdraw its objections to Dr. Cole
`serving as an expert in this case, based on Dr. Cole’s multiple Top-Secret Security Clearances
`issued by the U.S. Government, the fact that he hasn’t worked for McAfee in nearly a decade,
`Finjan’s offer of a 5-year compromise on past-employees of a competitor in the P.O., and the
`other reasons I discussed with Kevin by phone.
`
`Thanks,
`Austin
`
`Austin Manes
`Associate
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1718
`
`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
`7
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