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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`JUNIPER NETWORK, INC., et al.,
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`Case No. 17-cv-05659-WHA (TSH)
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`DISCOVERY ORDER
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`Re: Dkt. Nos. 530, 532
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`Defendants.
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`Pending before the Court are two joint discovery letter briefs, ECF Nos. 530, 532. The
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`Court held a telephonic hearing on them this morning and now issues this order.
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`A.
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`ECF No. 530
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`1.
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`Sales and Revenue Information for the SRX Devices
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`Finjan contends that Juniper should provide updated revenue information for the SRX
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`devices used with Sky ATP, as well as revenue information for the SRX devices by themselves,
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`since both are accused products. Specifically, Finjan requests the dates, revenues, customer
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`identification numbers, and invoice/purchase order numbers for sales to customers that purchased
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`the accused products and services. In the letter brief, Juniper appeared to argue that Finjan’s
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`notice of claims to be tried, ECF No. 516, includes only the standalone SRX as an accused
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`product, so revenue information for the SRX devices used with Sky ATP is no longer relevant.
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`However, at oral argument Juniper clarified that if the ‘154 patent remains in the case, then SRX
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`devices used with Sky ATP would remain relevant. Juniper does argue that producing updated
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`Case 3:17-cv-05659-WHA Document 540 Filed 06/20/19 Page 2 of 5
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`revenue information for the SRX devices is premature because Judge Alsup has issued an order to
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`show cause why judgment should not be entered against Finjan on the ‘154 patent, which if
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`granted would remove the SRX as an accused product in the case. Further, Juniper contends that
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`customer identification numbers and invoice/purchase order numbers are not responsive to
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`interrogatory No. 16, which Finjan is moving to compel on.
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`If Judge Alsup enters judgment against Finjan on the ‘154 patent, that will end Juniper’s
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`discovery obligations with respect to that patent. However, until that event happens, the patent is
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`still in the case, and Juniper is obligated to produce relevant discovery on it. Further, the close of
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`fact discovery is less than a month away, ECF No. 536, so it is too late to call any fact discovery
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`“premature.”
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`However, the Court agrees with Juniper that Finjan is seeking in this motion some
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`information that is not requested by interrogatory No. 16.
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`Accordingly, the Court ORDERS Juniper to provide updated revenue information for the
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`standalone SRX device and the SRX device used with Sky ATP. Specifically, Juniper must
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`provide the categories of information specified in interrogatory No. 16, which do not include
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`customer identification numbers or invoice/purchase order numbers.
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`2.
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`Convoyed/Derivative Sales
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`Finjan moves to compel Juniper to produce revenue information concerning convoyed or
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`derivative sales, that is, sales of non-accused products such as power cords and other accessories
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`sold in bundles with the accused products, or customer support licenses for other products that
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`customers must purchase in order to use the free version of Sky ATP. However, the Court agrees
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`with Juniper that this information is not responsive to RFPs 31 or 122. RFP 31 asks for
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`documents sufficient to show what products or services are sold, offered for sale, marketed or
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`bundled with the accused products. It doesn’t ask for revenue information. And RFP 122 asks for
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`documents sufficient to identify the revenues for customer support licenses, fees or service “for
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`the Accused Products,” not for non-accused products bundled with them. Finjan’s motion to
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`compel with respect to convoyed or derivative sales is DENIED.
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`Case 3:17-cv-05659-WHA Document 540 Filed 06/20/19 Page 3 of 5
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`B.
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`ECF No. 532
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`Finjan requests an order compelling Juniper to install certain tools used for searching and
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`analyzing source code on its source code review computer. Specifically, Finjan wants Juniper to
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`install CLOC (which stands for “Count Lines of Code”) and certain functionality in the Cygwin
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`package (Find, Sort, Uniq, Join, Xargs, Cat, WC, SED and SHA1SUM). Finjan states that these
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`tools will allow it to analyze the source code more quickly and to provide a precise counting of
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`source code lines that relate to the accused technology. In addition to facilitating its experts’
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`review in general, Finjan argues that a more efficient way to count the lines of code associated
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`with the accused functionality is relevant to damages because it may be relevant to the cost of
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`developing the technology at issue. Finjan also asserts that this analysis may be relevant to
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`assessing Juniper’s arguments concerning ways it could design around the patents, as well as to
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`answering Juniper’s interrogatory asking why its proffered non-infringing alternatives are not
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`viable.
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`Juniper expresses doubt about Finjan’s relevance arguments, but that’s not the primary
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`basis for its opposition. It argues, first, that the Stipulated Protective Order in this action, ECF No.
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`149, was a highly negotiated and final agreement concerning Finjan’s access to Juniper’s source
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`code. Juniper says the Protective Order itself specifies what review tools will be provided and that
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`Finjan is not free to revisit this agreement. Second, Juniper contends that the tools Finjan seeks to
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`use could potentially raise security concerns.
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`The Court finds that Finjan has provided a satisfactory explanation for why the addition of
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`these tools is relevant. The assertion that the tools would help its experts analyze the source code
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`is itself a reasonable justification for the request. Further, counting of lines of code may also be
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`relevant to damages and the viability of design-arounds.
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`Juniper’s argument that the tools specified in the Protective Order were intended as a final
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`list that cannot be revisited later does not pass muster. Paragraph 14.1 of the Protective Order
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`states: “Nothing in this Order abridges the right of any person to seek its modification by the
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`court in the future.” ECF No. 149 at 18. That is what Finjan is seeking now.
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`At the oral argument the Court discussed with the parties Juniper’s security concerns,
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`Case 3:17-cv-05659-WHA Document 540 Filed 06/20/19 Page 4 of 5
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`which need to be taken seriously. Juniper has started analyzing CLOC and represented that it
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`could complete its security analysis within a week. Accordingly, the Court ORDERS Juniper to
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`analyze CLOC for potential security concerns, including if they could be mitigated (for example,
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`because the source code review computer is not connected to another computer or to the internet)
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`within one week. If Juniper determines that the installation of CLOC does not pose security
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`concerns that cannot be mitigated, it must install the tool on the source code review computer for
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`Finjan’s use. If Juniper determines there are security concerns that cannot be appropriately
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`mitigated, then within one week it must identify them to Finjan with as much specificity as
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`possible. If Finjan disputes those concerns, the parties should promptly file a joint letter brief. At
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`the oral argument, Finjan complained that this process introduces delay, which is of concern given
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`that fact discovery closes in less than a month. However, the reason for this is that Finjan waited
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`until May 29, 2019 to ask Juniper to install CLOC, so Finjan is primarily responsible for this
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`delay.
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`With respect to Cygwin, the Court agrees with Juniper that Finjan’s request is vague. The
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`nine Cygwin functionalities that Finjan refers to in the letter brief do not correspond to any of the
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`named Cygwin packages. Juniper is entitled to analyze any of the tools that Finjan requests to be
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`put on the source code review computer to determine if they present security risks, but it cannot do
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`that without a precise identification of what Finjan wants installed. At oral argument, Finjan
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`stated it could identify the specific packages it wants installed in a day or two. Juniper was unsure
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`how long it would for it to analyze those packages for security concerns, but thought it could
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`likely do it in a week if the packages were not unduly complex. Accordingly, the Court ORDERS
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`Finjan to specify to Juniper which Cygwin packages it wants installed within two days, and
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`Juniper shall use best efforts to determine within one week if they present security concerns that
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`cannot be mitigated, and so inform Finjan. If Juniper determines that some or all of the requested
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`Cygwin packages do not pose security concerns that cannot be mitigated, it must install the non-
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`problematic ones on the source code review computer for Finjan’s use. For any that Juniper
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`determines do pose security concerns that cannot be appropriately mitigated, it must identify the
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`concerns to Finjan with as much specificity as possible. If Finjan disputes those concerns, the
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`Case 3:17-cv-05659-WHA Document 540 Filed 06/20/19 Page 5 of 5
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`parties should promptly file a joint letter brief. While the timing of this is getting close to the end
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`of fact discovery, even as of the hearing this morning, Finjan had never specifically told Juniper
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`which Cygwin packages it wants installed.
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`IT IS SO ORDERED.
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`Dated: June 20, 2019
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`THOMAS S. HIXSON
`United States Magistrate Judge
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