Case 3:17-cv-05659-WHA Document 556 Filed 06/25/19 Page 1 of 5
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`PAUL J. ANDRE (SBN 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (SBN 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (SBN 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (SBN 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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`
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`
`
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`Defendant.
`
`Case No.: 3:17-cv-05659-WHA
`PLAINTIFF FINJAN, INC.’S RESPONSE
`TO DEFENDANT JUNIPER NETWORKS,
`INC.’S MOTION FOR RELIEF FROM
`NONDISPOSITIVE PRETRIAL ORDER
`OF MAGISTRATE JUDGE
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`PLAINTIFF’S RESPONSE TO CASE NO.: 3:17-cv-05659-WHA
`DEFENDANT’S MOT. FOR RELIEF
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`Case 3:17-cv-05659-WHA Document 556 Filed 06/25/19 Page 2 of 5
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`The Court should deny Juniper’s motion to modify or set aside Judge Hixson’s Order (Dkt. 510)
`because it is neither clearly erroneous according the standing order in this case nor contrary to law and is
`therefore, entitled to deference. Instead of articulating a standard and explaining why this Court must
`modify or set aside the order, Juniper’s motion sets forth illogical arguments and disingenuous concerns,
`and should therefore, be denied. Furthermore, Judge Hixson’s Order sets a reasonable standard for the
`number of depositions in this and other cases, and will not lead to any of the fears expressed by Juniper.
`I.
`The District Judge Should Defer to the Magistrate Judge’s Order
`Judge Alsup’s Standing Order (Supplemental Order to Order Setting Initial Case Management
`Conference in Civil Cases) is not ambiguous with respect to 30(b)(6) depositions, as Juniper proclaims.
`To the contrary, Paragraph 32 of the Standing Order articulates two very clear limitations through (a)
`limiting the number of topics, and (b) counting any deposition that meets a certain time threshold as a
`single deposition against the default set by the Federal Rules.1 In its discovery letter (Dkt. 504) Juniper
`argued, without any support, that depositions under a half day could be combined to meet the single day
`threshold. Specifically, Juniper tried to argue, without explaining why, that the 30(b)(6) depositions of
`Alex Icasiano and Khurram Islah, each designee covering completely different topics, could be
`combined, and thus, Finjan did not have a full deposition day remaining. However, the Court rejected
`this argument outright. Magistrate Judge Hixson determined that the Icasiano and Islah depositions were
`each under the half day threshold, and that neither counted as a single deposition under Judge Alsup’s
`Standing Order. Not only did Judge Hixson refuse to combine the depositions to count as a single
`deposition against Finjan, he further clarified that “Juniper’s concern that this could allow for large
`numbers of short 30(b)(6) depositions is not correct because the preceding paragraph of the Standing
`Order limits a party to ten subjects for the entire case.” Dkt. 518 at 2. Judge Hixson’s order is wholly
`consistent with Judge Alsup’s Standing Order.
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`1 Standing Order, ¶ 32(a) (“Without a prior order increasing the limit, a party may seek F.R.C.P.
`30(b)(6) depositions from another party on up to a total of ten subject matters (for the entire case)
`described with ‘reasonable particularity.’”) (emphasis added); Id. at ¶ 32(b) (“Each witness-designee
`deposed for one half-day or more in a FRCP 30(b)(6) deposition shall count as a single deposition
`for the purposes of the deposition limit under FRCP 26 or under any case management order setting a
`limit on the number of depositions.”) (emphasis added).
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`PLAINTIFF’S RESPONSE TO CASE NO.: 3:17-cv-05659-WHA
`DEFENDANT’S MOT. FOR RELIEF
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`Case 3:17-cv-05659-WHA Document 556 Filed 06/25/19 Page 3 of 5
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`This Court may only set aside or modify Judge Hixson’s discovery order upon a showing that it
`is either clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); see Perry v. Schwarzenegger, 268
`F.R.D. 344, 348 (N.D. Cal. 2010) (“The magistrate’s factual determinations are reviewed for clear error,
`and the magistrate’s legal conclusions are reviewed to determine whether they are contrary to law.”).
`Since Juniper has shown neither, this Court should deny Juniper’s motion and defer to Judge Hixson’s
`judgment on the matter.2 See Campbell v. City of Milpitas, No. 13-CV-03817-BLF, 2014 WL 5077135,
`at *1 (N.D. Cal. Oct. 9, 2014) (“This standard is highly deferential – the district judge may not simply
`substitute his or her judgment for that of the magistrate judge.”) (citing Grimes v. City and Cnty. of San
`Francisco, 951 F.2d 236, 241 (9th Cir. 1991)).
`II.
`Juniper’s Argument is Illogical and its Concerns are Disingenuous
`Juniper’s arbitrary summing of 30(b)(6) depositions is illogical and its concerns are not founded.
`Juniper does not explain exactly what language from the Standing Order permits parties to add 30(b)(6)
`depositions together to count it as a single deposition. 3 If that were the case then it seems more likely
`that the Standing Order would limit 30(b)(6) depositions by the total number of hours (for example, up to
`70 hours), rather than by topics. Juniper’s understanding cannot be correct because it would render the
`limitation on the number of topics superfluous. It would also be unfair to combine depositions of
`designees that do not have at least three and a half hours of information to give. Under Juniper’s flawed
`logic, it could exhaust Finjan’s depositions by continuously designating bad witnesses. These
`depositions should not be counted against the deposing party, and the Standing Order incentivizes
`Juniper to provide sufficient 30(b)(6) witnesses.
`Juniper’s concerns that Finjan will take an excessive number of additional small 30(b)(6)
`depositions is disingenuous for several practical reasons. For one thing, it assumes both that each
`witness will be designated on a single topic and that each deposition will be less than half a day. Indeed,
`Juniper has already designated multiple topics for its employee, Frank Jas. See Ex. 1. When Finjan
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`2 Juniper does not acknowledge or apply any legal standard for the Court to consider its motion.
`3 The only depositions that can be combined under the Standing Order is when the same witness is
`deposed as a 30(b)(6) witness and then subsequently deposed in a personal capacity. In that situation,
`both sessions together count as a single deposition. See Standing Order, ¶ 32(b).  
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`PLAINTIFF’S RESPONSE TO CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 556 Filed 06/25/19 Page 4 of 5
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`requested to take a 30(b)(1) deposition of Frank Jas, Juniper took that as an opportunity to designate him
`on five 30(b)(6) topics as well.4 As such, Finjan will have 7 hours to depose Mr. Jas in his personal
`capacity and also on these five 30(b)(6) topics. Therefore, in one stroke, Juniper consolidated half of the
`topics permitted under the Standing Order into a single deposition, which, in turn, will likely cut into Mr.
`Jas’s time in his personal capacity. This would be the same in all cases, where a single witness would be
`put up for multiple topics. Furthermore, Juniper’s interpretation is the one that is ripe for abuse, because
`if a party puts numerous people on their initial disclosures, thereby requiring the other party to depose
`them as fact witness, there will be no depositions left over for 30(b)(6) witnesses. That is exactly what
`happened here, where Juniper put ten people on their initial disclosures, which under Juniper’s
`interpretation would leave Finjan no chance to take 30(b)(6) depositions. In fact, Juniper’s motion
`appears to be no more than a tactic concocted to waste time and run out the discovery clock in order to
`stymie Finjan’s discovery efforts as we come down the home stretch.
`As a practical matter in this case, the discovery deadline is quickly approaching and Juniper’s
`concern that Finjan will attempt to take an excessive number of small 30(b)(6) depositions is not
`realistic, especially given Juniper’s refusal to designate a witness for an important damages related topic
`that was requested by Finjan back in February. 5 In particular, Juniper agreed to provide a designee and a
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`4 See Ex. 1, Juniper’s designation of Frank Jas on the following 30(b)(6) topics: (1) Juniper’s acquisition
`of Cyphort Inc., including reasoning for the acquisition and the terms of the acquisition; (2) the nature of
`any alleged non-infringing alternatives or design-arounds to the inventions of the Asserted Patents,
`including the cost of implementing such alternatives or design-arounds and how such costs were
`calculated; (3) any technology license agreements (including hardware or software) or patent license
`agreements Juniper is aware of related to any component or technology of the Accused
`Instrumentalities, including the dates of such agreements, the length of the negotiations of the
`agreements, the terms of the agreements, the subject product(s) or technolog(ies) of the agreements, how
`any license fee or royalties were determined or calculated, whether alternate license fee or payment
`structures were considered during negotiations, and names and titles of the individuals who were
`involved in negotiating the agreements;
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`5 See Ex. 2 (Finjan’s February 11, 2019 email to Juniper requesting a meet and confer regarding a
`deposition for the following 30(b)(6) topic: Identification of the quantity and any associated revenues for
`all Accused Instrumentalities sold, made, used or offered for sale, including an identification of the
`number users associated with each Sky ATP service level (free, basic or premium), identification of any
`SRX units used in connection with each such service level, the source(s) and method(s) Juniper used to
`3
`PLAINTIFF’S RESPONSE TO CASE NO.: 3:17-cv-05659-WHA
`DEFENDANT’S MOT. FOR RELIEF
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`Case 3:17-cv-05659-WHA Document 556 Filed 06/25/19 Page 5 of 5
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`date for this 30(b)(6) deposition right before it abruptly changed its position. See Ex. 3 (May 15, 2019
`email from Juniper’s counsel: “Additionally, we are looking into deposition dates in June for Mr. Jas and
`the Rule 30(b)(6) deposition that Finjan requested, and should be able to provide those shortly.”).
`Juniper’s current positions, which is a change from what it previously stated throughout discovery,
`appears to be a tactic to deny Finjan from taking this long requested deposition after it had repeatedly
`stated it would provide a witness on this topic.
`For these reasons, Juniper’s motion should be denied.
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`Dated: June 25, 2019
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`Respectfully submitted,
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`By: /s/ Kristopher Kastens
`Paul J. Andre (State Bar No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`Kristopher Kastens (State Bar No. 254797)
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
`Attorneys for Plaintiff
`FINJAN, INC.
`
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`create the summary financials, and an identification of the stock keeping units (SKU’s) associated with
`each Accused Instrumentality.
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`PLAINTIFF’S RESPONSE TO CASE NO.: 3:17-cv-05659-WHA
`DEFENDANT’S MOT. FOR RELIEF
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