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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. No. 560
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`Defendants.
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`The Court held a telephonic hearing this morning on the parties’ joint discovery letter brief
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`at ECF No. 560. This order now follows.
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`A.
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`Finjan’s Interrogatory No. 4
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`This interrogatory asks Juniper to identify the number of units of the accused
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`instrumentalities sold, and the number of users each year for each of the accused instrumentalities,
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`including the number of users for any specific component and/or technology. Juniper does not
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`dispute the relevance or proportionality of the requested information but contends that its Federal
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`Rule of Civil Procedure 33(d) references to certain spreadsheets provide the answer. Finjan says
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`the spreadsheets are indecipherable.
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`Federal Rule of Civil Procedure 33(d) states in relevant part that “if the burden of deriving
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`or ascertaining the answer will be substantially the same for either party, the responding party may
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`answer by . . . specifying the records that must be reviewed, in sufficient detail to enable the
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`interrogating party to locate and identify them as readily as the responding party could . . .”
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`During the hearing, the Court had an extensive discussion with the parties concerning how
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`the requested information could be ascertained from the referenced spreadsheets. Finjan raised a
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`number of questions concerning what is depicted on the spreadsheets and how they relate to each
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`Case 3:17-cv-05659-WHA Document 577 Filed 07/03/19 Page 2 of 5
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`other. Juniper had some answers to these questions, but indicated uncertainty as to other
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`questions. During the course of the hearing it became clear that the parties need to meet and
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`confer further about what specific questions Finjan has and how the answers can be derived from
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`the spreadsheets, including whether additional explanation may need to be provided in the
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`narrative portion of the interrogatory response. Accordingly, the Court ORDERS the parties to
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`meet and confer further with respect to this interrogatory. If they are not able to resolve their
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`dispute, they may file an additional letter brief following this further meet and confer.
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`B.
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`Finjan’s Requests for Production Nos. 119-21
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`Finjan’s RFPs 119-21 ask for documents sufficient to identify the total number of files
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`submitted to or processed by Sky ATP, or processed using each adapter in Sky ATP, from October
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`2015 to the present. Juniper says it does not have any documents that contain this information.1
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`What it does have is access to the raw data that could be used to generate reports of this type.
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`Accordingly, Juniper extracted this raw data from its active Sky ATP deployment identifying each
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`file submitted to and processed by Sky ATP, as well as the analysis results (that show which
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`adapters processed each file), so Finjan can do its own reports. Juniper says it should not have to
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`do anything more than this, at least as to the RFPs, because “[a] party . . . is not required to create
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`a document where none exists.” Ujhelyi v. Vilsack, 2014 WL 4983550, *4 (N.D. Cal. Oct. 6,
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`2014) (citations and quotation marks omitted). Finjan makes no argument that any responsive
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`documents exist that Juniper has failed to produce and does not respond to the argument that a
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`party is not required to create new documents in response to an RFP. Accordingly, the Court
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`DENIES Finjan’s motion to compel as to RFPs 119-21.
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`C.
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`Finjan’s Interrogatory No. 5
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`This interrogatory requests: “For each of the Accused Instrumentalities, since the time of
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`the first sale of the instrumentalities, identify the number of files scanned by the Accused
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`Instrumentalities, the number of files that are classified by the Accused Instrumentalities, the
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`number of threats received by the Accused Instrumentalities, and identify any valuations or pricing
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`1 At the hearing Juniper added that on July 1 it produced some additional analysis that it
`performed using this raw data.
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`Case 3:17-cv-05659-WHA Document 577 Filed 07/03/19 Page 3 of 5
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`options that exist from Juniper or a third party based on the number of files scanned, the number
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`of files that are classified or the number of threats or malware received or detected by the accused
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`instrumentalities.”
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`Juniper’s response is a Rule 33(d) reference to the raw data discussed above, plus a
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`narrative statement concerning the number of samples the Sky ATP deployments analyzed and
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`how many of those had a verdict score of 7 or greater. (Sky ATP does not make a yes/no threat
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`determination but ranks a file from 1 to 10 in terms of risk.) Finjan says the raw data is
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`indecipherable and that the narrative response does not answer the interrogatory. (The portion of
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`the interrogatory that asks about pricing options is not at issue.)
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`For the most part the Court agrees with Finjan. The interrogatory asks about the number of
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`“files” “scanned” and “classified,” whereas the response states how many “samples” were
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`“analyzed,” without explaining if a sample is the same as or different from a file, and how
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`scanning or classifying are similar to or different from analyzing. Juniper is not obligated to use
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`the exact words in its interrogatory response that are in the interrogatory because, for example,
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`they might not be accurate. However, if it uses different words, it must explain how those words
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`answer the interrogatory. For example, interrogatory No. 5 asked how many threats the Sky ATP
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`received, and in the letter brief Juniper explained that it does not make the ultimate conclusion that
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`something is a threat. But then it also went on to identify how many samples had a verdict score
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`of 7 or greater (meaning they were high risk), in other words, giving Finjan the thrust of what it
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`asked for, even if Finjan did not use the exact right words. Juniper failed to do that for the number
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`of files scanned or classified, giving a response that used different vocabulary and that left it
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`unclear what the answer to Finjan’s question is. There is also no indication that Finjan can find it
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`in the Rule 33(d) reference. Accordingly, the Court ORDERS Juniper to state how many files
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`Sky ATP scanned or classified, using words that make clear what the answer is to the thrust of
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`Finjan’s question. The Court DENIES Finjan’s request that Juniper be ordered to state how many
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`files were scanned or classified by different scanners because the interrogatory does not ask for
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`that information.
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`Case 3:17-cv-05659-WHA Document 577 Filed 07/03/19 Page 4 of 5
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`D.
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`Finjan’s Requests for Production Nos. 107-110, 112-13 and 125
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`These RFPs ask for: Documents sufficient to show the in-licensing or out-licensing of
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`patents or technology related to the Accused Instrumentalities (RFP 107); all licenses Juniper has
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`with any third-party regarding patents, technology or know-how related to or comparable to the
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`technology disclosed in the Asserted Patents (RFP 108); all communications between Juniper and
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`Palo Alto Networks regarding patents, technology, or know-how related to or comparable to the
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`technology disclosed in the Asserted Patents (RFP 109); all agreements between Juniper and Palo
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`Alto Networks regarding patents, technology or know-how related to or comparable to the
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`technology disclosed in the Asserted Patents (RFP 110); all agreements between Juniper and Palo
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`Alto Networks relating to patents, technology or know-how related to firewalls, secure routers, or
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`malware identification (RFP 112); all agreements between Juniper and Palo Alto Networks
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`relating to patents, technology or know-how related to Netscreen technology (RFP 113); and
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`documents sufficient to identify all licenses, royalties and fees from any third party for cloud fees
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`services (RFP 125).
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`Finjan says these documents are relevant to damages, including the costs that Juniper
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`incurs and amounts it is willing to pay for use of similar technology. Juniper says it has produced
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`all comparable licenses involving the technologies incorporated into the accused products. Juniper
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`also says that Finjan’s requests for communications with third parties violates the Stipulated ESI
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`Order because Finjan has exhausted the number permissible custodians, and any responsive
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`communications would be custodial in nature.
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`Finjan’s request is GRANTED IN PART and DENIED IN PART. The Court ORDERS
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`Juniper to provide documents in response to RFPs 107, 108, and 110. These RFPs are related to
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`the accused products or the patents-in-suit. They are not burdensome because they are limited to
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`the production of licenses and agreements. The Court ORDERS Juniper to produce documents
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`responsive to RFP 109 EXCEPT to the extent that doing so would exceed Juniper’s obligations
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`under the Stipulated ESI Order. These documents are relevant because they relate to the patents at
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`issue. The production is not burdensome because it seeks the communications between two
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`specific companies, not between Juniper and any third party. However, the Court will not impose
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`Case 3:17-cv-05659-WHA Document 577 Filed 07/03/19 Page 5 of 5
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`any ESI obligations on Juniper that exceed what is contemplated by the Stipulated ESI Order.
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`RFPs 112, 113 and 125 are overbroad because they are in no way limited to the accused products
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`or patents at issue. Further, if the Court narrowed these RFPs to a relevant scope, they would just
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`duplicate RFPs 107, 108 and 110. Accordingly, the Court ORDERS that Juniper need not
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`produce documents in response to RFPs 112, 113 and 125.
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`IT IS SO ORDERED.
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`Dated: July 3, 2019
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`THOMAS S. HIXSON
`United States Magistrate Judge
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`United States District Court
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