Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 1 of 23
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`Pages 1-23
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware
`Corporation,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC., a
`Delaware Corporation,
`
`)
`
`))
`
`)
`Defendant.
`_____________________________)
`
`TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE THOMAS S. HIXSON
`UNITED STATES MAGISTRATE JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
`Transcription Service:
`
`YURIDIA CAIRE, ESQ.
`DANIEL D. WILLIAMS, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`REBECCA L. CARSON, ESQ.
`Irell & Manella, LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660
`(949) 760-0991
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Thursday, June 20, 2019
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`Pages 1-23
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware
`Corporation,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC., a
`Delaware Corporation,
`
`)
`
`))
`
`)
`Defendant.
`_____________________________)
`
`TRANSCRIPT OF TELEPHONIC DISCOVERY HEARING
`BEFORE THE HONORABLE THOMAS S. HIXSON
`UNITED STATES MAGISTRATE JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
`Transcription Service:
`
`YURIDIA CAIRE, ESQ.
`DANIEL D. WILLIAMS, ESQ.
`Kramer Levin Naftalis & Frankel, LLP
`990 Marsh Road
`Menlo Park, California 94025
`(650) 752-1700
`
`REBECCA L. CARSON, ESQ.
`Irell & Manella, LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660
`(949) 760-0991
`
`Peggy Schuerger
`Ad Hoc Reporting
`2220 Otay Lakes Road, Suite 502-85
`Chula Vista, California 91915
`(619) 236-9325
`
`Proceedings recorded by electronic sound recording; transcript
`produced by transcription service.
`
`) Case No. 17-cv-05659-WHA
`
`San Francisco, California
`Courtroom A, 15th Floor
`Thursday, June 20, 2019
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 2 of 23
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`2
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`SAN FRANCISCO, CALIFORNIA
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`THURSDAY, JUNE 20, 2019 10:52 A.M.
`
`(Call to order of the Court.)
`
`--oOo--
`
`THE CLERK:
`
`Hello, everyone.
`
`This is the Courtroom
`
`Deputy.
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`We’re moving on to the next case. Calling Civil Action
`
`17-5659, Finjan, Inc. v. Juniper Networks, Inc. Counsel, please
`
`state your appearances for the record.
`
`Let’s start with
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`Plaintiff.
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`MS. CAIRE: This is Yuridia Caire from Kramer Levin on
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`behalf of Finjan.
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`MR. WILLIAMS: This is Daniel Williams from Kramer Levin
`
`on behalf of Plaintiff Finjan.
`
`MS. CARSON:
`
`And this is Rebecca Carson of Irell &
`
`Manella on behalf of Juniper Networks, Inc.
`
`THE COURT: Good morning, Counsel. We are here on two
`
`letter briefs, ECF Numbers 530 and 532.
`
`Let’s start with ECF
`
`Number 530, and the first issue there is the sales and revenue
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`information for the SRX devices.
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`One question I have -- and I
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`guess this is directed at Finjan -- is that Juniper makes the
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`argument based on ECF Number 516 that only the stand-alone SRX
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`remains an accused product. And so SRX devices that are used as
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`Sky ATP are no longer relevant.
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`I didn’t see a response to that from Finjan. Can you please
`
`address that point?
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`MS. CAIRE:
`
`Yes, Your Honor.
`
`Thank you.
`
`So, one, we
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 3 of 23
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`3
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`think that that’s incorrect for several reasons.
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`One, we think
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`the Court -- the Court has not ruled on the ’154 patent yet. So
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`that’s the first issue.
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`The second issue, even should the Court rule that, based on
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`the order to show cause, that the ’154 is no longer in the case of
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`the SRX client or device, the SRX alone would still be at issue
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`because they would fall under a convoyed sale.
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`And all of the
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`datasheets for the SRX and the Sky ATP product say that they’re
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`integrated together.
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`And so we don’t believe it’s correct that
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`this would not be an issue in the case anymore.
`
`THE COURT:
`
`I think you’re answering a somewhat
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`different question. Let’s assume that the ’154 patent remains in
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`the case, so it survives the order to show cause.
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`Juniper has made the argument that your infringement
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`contentions for the upcoming trial only include the stand-alone
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`SRX.
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`Leave aside the convoyed product for the moment -- only
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`include the stand-alone SRX and not the SRX used for the Sky ATP.
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`Is that correct?
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`MS. CAIRE: No, Your Honor.
`
`That’s not true.
`
`THE COURT: Well, --
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`MS. CAIRE: I have both in the infringement brief.
`
`THE COURT:
`
`Why is that not -- I looked at ECF Number
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`516 and that seemed like it was your claim.
`
`MS. CAIRE:
`
`You know, Your Honor, I don’t have 516 in
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`front of me.
`
`Could you direct me to what --
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 4 of 23
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`4
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`THE COURT:
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`You had to --
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`MS. CAIRE:
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`The way I --
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`THE COURT:
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`-- give notice to Judge Alsup about what
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`claims you’re asserting at the upcoming trial. And it looked like
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`it was just the SRX stand-alone.
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`Maybe I’m misreading that
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`document.
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`MS. CAIRE: Well, that might be just for the ’154, but
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`we have an issue with the SRX with Sky ATP. We also have the ATP
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`Appliance at issue in this case.
`
`THE COURT:
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`Okay. So your --
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`MS. CAIRE:
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`And I --
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`THE COURT: So your assertion is that SRX devices used
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`for Sky ATP are still part of your infringement contentions?
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`MS. CAIRE:
`
`Correct.
`
`Yes.
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`THE COURT: Okay. Juniper, can you speak to that issue?
`
`MS. CARSON:
`
`Sure, Your Honor.
`
`Rebecca Carson.
`
`Just
`
`as a point of clarification, because I think there might be some
`
`confusion, Juniper’s contention is that if the ’154 patent is no
`
`longer a part of the case, then the SRX alone is no longer part of
`
`the case.
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`So, in other words, the only patent where Finjan is
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`still maintained in the allegations related to the SRX alone is
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`the ’154 patent.
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`Now, we recognize that the other patents where Finjan is
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`still asserting their contentions against the Sky ATP -- just by
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`way of background, Sky ATP is a service -- a cloud-based service
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 5 of 23
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`5
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`that is an add-on to SRX devices.
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`So in those cases, we
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`acknowledge that the SRX used in combination with Sky ATP would
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`still be relevant.
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`And, in fact, we have already updated our
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`revenue data.
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`So in terms of the revenue data that we updated,
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`that includes the revenue data for ATP Appliance, which is one of
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`the case products, the revenue for Sky ATP, which is the service-
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`based license.
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`And then we’ve also recently updated the revenue
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`data for SRX devices that were used in combination with Sky ATP
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`during the (indiscernible) period.
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`Now, one thing is that there are lots of SRX models and not
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`all SRXs are used in combination with Sky ATP.
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`In order to do
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`that, a customer has to activate a free license or sign up for a
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`paid license.
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`And so because of that, our contention is that
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`assuming the ’154 patent drops out of the case, SRX alone is no
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`longer relevant, and that is what Finjan is requesting as to
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`updates.
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`We acknowledge that if the Court does not disburse of
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`the ’154 patent, that we will need to produce that data.
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`But
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`we’re simply saying that it doesn’t make sense for Juniper to
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`undergo that burden until we have a decision on that.
`
`THE COURT:
`
`Okay.
`
`Thank you for the clarification.
`
`Just to make sure I understand, if the ’154 patent remains in the
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`case, then you would agree that both the stand-alone SRX and the
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`SRX used with Sky ATP, those are both still at issue; is that
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`right?
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`MS. CAIRE:
`
`We certainly would acknowledge that that
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 6 of 23
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`6
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`data would be relevant.
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`However, it’s important to understand
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`that Finjan’s contentions, even for the ’154 patent, are dependent
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`upon SRX -- the bases that were connected to Sky ATP because one
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`of the elements requires a security computer and they have pointed
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`to other Sky ATP or ATP Appliance. However, we would acknowledge
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`that every (indiscernible) contention is a disputed issue and,
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`therefore, we’d be willing to produce the revenue data in that
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`instance.
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`THE COURT:
`
`Okay.
`
`Thank you.
`
`With respect to
`
`Interrogatory Number 16, I think Finjan’s -- can I just say if I
`
`order you to produce updated revenue information for the stand-
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`alone SRX and the SRX used for Sky ATP, can I just tell you to
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`produce the categories of information that are requested in
`
`Interrog. 16, which don’t include customer ID numbers or invoice
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`purchase order numbers, or do you contend that’s not clear enough?
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`MS. CAIRE:
`
`Is that a question for Juniper or for
`
`Finjan?
`
`THE COURT: Yes. It’s a question for Juniper. Sorry.
`
`MS. CARSON: So we have -- yes. To the extent that you
`
`ordered us to produce, I think the relevant interrogatories are
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`Number 4 and 16.
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`And we have produced the requested informa- --
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`that information does not include customer invoice numbers or
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`customers -- specific names of customers.
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`THE COURT: So -- okay. In the briefing, I saw Rog. 16.
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`I didn’t see Rog. 4 mentioned.
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`Finjan, is that also at issue
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 7 of 23
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`7
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`here?
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`MS. CAIRE: It’s related, Your Honor, just because that
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`one is asking for identification of the number of units and
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`revenue.
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`But as far as the -- and so it is related.
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`I believe Number 16 sort of overlaps in some respects with
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`Number 4. Number 4 just asks for unit information, where 16 asks
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`for revenue and cost information as well.
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`We provided both of
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`those for the products that we supplemented -- the ATP Appliance,
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`Sky ATP, and others used in combination with Sky ATP.
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`THE COURT:
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`I’m looking at the exhibits.
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`I don’t see
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`Rog. 4 in front of me.
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`I’ve got 15 and I’ve got 16.
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`MS. CAIRE:
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`You’re right, Your Honor.
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`I think we
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`removed that as an exhibit because we felt that Rog. 16 kind of
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`covered all of the issues that we were raising.
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`THE COURT: Oh, okay. So I can just deal with Rog. 16.
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`But for Finjan, you do ask for customer ID numbers or invoice
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`purchase numbers.
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`I didn’t see that requested in the rog.
`
`Was
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`that asked for?
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`MS. CAIRE: Your Honor, the reason we asked for that is
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`because the way that Juniper has provided the information, they’ve
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`said, If you want to figure out which SRX devices are activated
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`for our site, either free version or applied to a premium license,
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`then you need to match up these serial numbers in this one
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`spreadsheet, which has about 3,000 rows, to another spreadsheet
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`that has about -- almost, you know, 2500 rows and determine when
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 8 of 23
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`8
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`things were activated, when they were purchased.
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`And so just because they didn’t actually respond in the
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`interrogatory in a 33(d), we did ask for that in the letter
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`briefing so that we’re able to decipher what is going on and which
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`devices are actually at issue.
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`THE COURT: Oh, I see. But if I order them to give the
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`information requested by Rog. 16, they would again be free to
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`33(d) and they could do the same thing, but -- so they might end
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`up producing that information just as part of their 33(d)
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`response?
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`MS. CAIRE:
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`We’d just like to make sure that that
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`information, if they’re going to do a 33(d), includes all of the
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`information that we need to be able to try and track that
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`information.
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`THE COURT:
`
`Okay.
`
`Juniper, my inclination is just to
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`order you to provide the updated revenue information or the
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`categories of information that are requested in Rog. 16. And then
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`-- but I’m not going to tell you how to do it.
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`Do you need any more specific guidance than that?
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`MS. CARSON: No, Your Honor.
`
`THE COURT: Okay. All right. The convoyed/derivative
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`sales, a question for Juniper.
`
`When somebody wants to use the
`
`free version of Sky ATP, do they have to buy a customer support
`
`license for something so that they can use the Sky ATP?
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`MS. CARSON:
`
`So in most instances, the apparatus sort
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 9 of 23
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`9
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`of already comes with it. There is some situations where if for
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`some reason a customer had purchased an SRX where the SKU (ph)
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`didn’t already include a license or a customer support license,
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`they may be required to purchase that separately. The problem is
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`that Juniper’s financial data system doesn’t specifically track or
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`correlate with SRX devices signed up for a free license --
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`THE COURT: Wait.
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`Before we --
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`MS. CARSON: -- and --
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`THE COURT: -- get into that -- I appreciate that, but
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`before --
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`MS. CARSON: Sorry.
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`THE COURT: -- we get into that, if there is a situation
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`where somebody wants to use the free version of Sky ATP and they
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`have to buy a customer support license, would that be a support
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`license for a different product?
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`MS. CARSON:
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`Yes, Your Honor.
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`It would be a support
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`license for the SRX.
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`THE COURT: Okay, for the SRX. Okay.
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`MS. CARSON:
`
`Again, if you recall, as I clarified
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`earlier, Sky ATP is basically a license or an add-on to an SRX
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`device.
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`The SRX is a hardware device that’s on premise and Sky
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`ATP is a cloud-based service. So in order for SRX to be able to
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`support Sky ATP, in some instances it has to have, for example,
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`certain software requirements that are in some instances already
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`part of the device or it needs to be updated to that particular
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 10 of 23
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`10
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`version. And then there are some additional requirements for some
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`models, not all SRX models. But on the website, it does lay out
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`that for some SRX models, some of the lower-end models in
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`particular, they need to, for example, purchase a license to a
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`product called AppSecure.
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`THE COURT: Okay.
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`MS. CARSON:
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`That hasn’t already been included in the
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`package that they bought for the SRX device.
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`THE COURT:
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`Got it.
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`Okay.
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`So question for Finjan is
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`for the convoyed and derivative sales, you’re asking for revenue
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`information concerning the convoyed products.
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`How is that
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`responsive to RFP 31 or RFP 122?
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`MS. CAIRE:
`
`So there’s two kind of categories for the
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`convoyed field, Your Honor.
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`The first one is products that are
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`sold with Sky ATP or at least advertised with Sky ATP. There are
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`several datasheets -- and I have a list here that I was able to --
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`you know, we obviously thought that Juniper was, you know -- it’s
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`our position -- to identify which products they market with Sky
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`ATP.
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`But I went onto their website and found several of the
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`issues that they -- you want to buy this product and, guess what
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`-- it has this great feature with Sky ATP and -- so that’s kind of
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`one bucket -- all products that either advertise or highlight Sky
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`ATP.
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`And then the second one is the customer support contracts.
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`And so our position is if you need to purchase these customer
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 11 of 23
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`11
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`support contracts to use the free Sky ATP version, that is
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`relevant to either, one, a convoyed sale and also to the
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`infringement and damages issue with respect to the specific
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`accused product. On their website, they also have all of the data
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`sheets for customer support, that if you don’t have a valid
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`support contract, you can’t use Sky ATP and you also -- your SRX
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`product may also not work properly if don’t have a valid support
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`contract.
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`THE COURT:
`
`I understand your argument about why this
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`information is relevant. The issue I’m struggling with is whether
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`you asked for it.
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`RFP 31 seems to ask for document servers
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`sufficient to show the products and services that are sold or
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`bundled with the accused products.
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`It doesn’t ask for revenue
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`information.
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`And RFP 122 asks for revenue information but only
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`for the accused products, not for non-accused products that are
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`bundled with them.
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`So where did you ask for that?
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`MS. CAIRE: Okay. Sorry, Your Honor. I misunderstood
`
`your question.
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`So from 122, that asks specifically for the
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`customer support information.
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`THE COURT: Well, sure, but --
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`MS. CAIRE: That is Exhibit 4.
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`THE COURT: But all of those things lead up to "for the
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`accused products."
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`And as I understand your convoyed or
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`derivative sales argument, you want to reach past that to things
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 12 of 23
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`that are bundled or sold with the accused products.
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`MS. CAIRE:
`
`Well, Your Honor, RFP 31 is the one that
`
`deals with the bundles with the accused products. And if you look
`
`at their response, Juniper understood that that’s what we were
`
`asking for.
`
`You know, we’ve had several issues, issues where we
`
`have met and conferred after we served these requests for
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`production.
`
`If you look at Juniper’s actual response to RFP 31,
`
`they said they were going to produce sales and revenue information
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`for certain products.
`
`So I don’t think there’s an issue that they do not understand
`
`that that’s what that request was asking for.
`
`THE COURT:
`
`Okay.
`
`Juniper, what’s your response?
`
`Is
`
`this information responsive?
`
`MS. CARSON: No, Your Honor. As you noted, the request
`
`seeks "documents, communications, or things sufficient to show any
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`products or services sold, offered for sale, marketed, or bundled
`
`with each of the accused instrumentalities for the year 2012 to
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`the present."
`
`And as we noted in our letter, we did produce documents
`
`sufficient
`
`to
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`show
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`that;
`
`in
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`particular,
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`the
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`various
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`(indiscernible) marketing literature.
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`In contrast, there are other requests that have been
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`propounded, like specifically (indiscernible) revenue data, and
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`this one does not encompass revenue data.
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`And, therefore, they
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`haven’t sought the information or power cords or accessories which
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 13 of 23
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`are indisputably not a safe product.
`
`THE COURT:
`
`Okay.
`
`All right.
`
`Thank you.
`
`I think I
`
`understand the issues with respect to ECF 530.
`
`Let’s turn to ECF 532.
`
`With respect to CLOC, has Juniper
`
`analyzed CLOC to see if that does present any security concerns?
`
`MS. CARSON: Your Honor, no. We have not yet done that.
`
`It’s not to our knowledge that has been requested to just put on
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`any code with Juniper’s source code, and so we haven’t yet
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`conducted that thorough analysis which requires a thorough
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`analysis from engineers to ensure, as we mention in our brief,
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`that there are no security issues either in the particular
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`(indiscernible) that are outlined or within the integrity of the
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`code.
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`THE COURT: How long would that take to do an analysis?
`
`MS. CARSON: I’m not certain, Your Honor. But it’s not
`
`a quick process because, given the representations that Juniper
`
`needs to make to its consumers, I know from prior experience that
`
`it does take some time to get approval for a particular tool.
`
`THE COURT: I guess I’m --
`
`MS. CARSON: And we have done that analysis for certain
`
`tools.
`
`Sometimes it depends on the complexity of a tool.
`
`THE COURT:
`
`I’m not understanding the reference to
`
`"representations to customers."
`
`What we’re talking about is a
`
`single stand-alone computer that’s provided to Finjan for them to
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`review source code, not connected to any other computer or not
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 14 of 23
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`14
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`connected to the Internet, and the issue is whether you can put
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`CLOC on it without raising concerns.
`
`What does that have to do with representations to customers?
`
`MS. CARSON: So given that the source code is used for
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`security purposes and some of the customers that Juniper has are,
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`you know, sort of dealing in highly-confidential and secure
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`situations, and the source code is, you know, sort of the core for
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`that, there are certain representations we have to make about the
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`access and about what kinds of things people who have had access
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`to have been able to do.
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`And so because of that, it’s sort of a
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`heightened concern as opposed to, say, a Docker product in a case
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`where it wasn’t dealing with network security or security issues.
`
`THE COURT: I think Finjan made the request on May 29th
`
`to have CLOC added to the computer. Why hasn’t Juniper done the
`
`security analysis since that time?
`
`MS. CARSON: So, Your Honor, we had understood that the
`
`parties had previously negotiated the tool and that that was set
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`in the protective order and that Finjan had been able to
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`successfully review the code using the tools that the parties
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`negotiated and put into the protective order for the past year.
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`So because of that, Juniper has not undertaken the burden to
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`sort of reopen those negotiations or re-analyze these new tools
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`that are just being raised very near to the end of discovery.
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`THE COURT:
`
`The problem for the Court is that you’re
`
`coming to this argument and you don’t know that CLOC presents any
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 15 of 23
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`15
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`security concerns. You’re saying maybe it potentially could, but
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`that’s kind of your own doing because Juniper hasn’t taken any
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`look into that.
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`It’s hard for me to know what to do with an
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`argument that maybe there could be a security concern. It seems
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`hard for me to envision that there is one if a stand-alone
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`computer isn’t connected to the Internet and is not connected to
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`another computer. I’m having trouble grasping why there would be
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`a security concern.
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`But it’s -- you know, what do I do with your argument that
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`there might be a security concern but you haven’t investigated to
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`figure that out?
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`MS. CARSON:
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`I think, Your Honor, the other important
`
`thing to keep in mind is that we have already provided them with
`
`numerous tools, and we have not heard from them an articulation of
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`why they need these tools or what they provide above and beyond
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`the tools that have been provided and that Juniper is comfortable
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`with and that we have agreed to put on the computer.
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`So it’s unclear to us why sort of at this late stage they all
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`the sudden have a need for these additional tools, one of which,
`
`the Cygwin, we have already analyzed and rejected because of a
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`security concern.
`
`THE COURT: No. I understand. You want to see that the
`
`other side has to jump through a bunch more hoops before you’re
`
`willing to do anything. But I’m getting a little hung up on your
`
`security argument when Juniper itself has done nothing to
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 16 of 23
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`16
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`determine whether CLOC presents a security problem.
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`And what would the problem be? That’s what I’m having a hard
`
`time figuring out.
`
`MS. CARSON: So I’m not highly technical, but I do know
`
`that sometimes there are integrity issues in the actual source
`
`code that is for this tool. And, you know, some tools are sort of
`
`more (indiscernible) than others with regard to that.
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`And I do want to -- I may have misspoke. I do believe that
`
`we have started the analysis, but it has not been completed. But
`
`we do have them in here that are sort of looking into the tools.
`
`We’ve already looked into Cygwin and, as I’ve noted in our brief,
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`that was done a while ago.
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`In terms of CLOC, that one was
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`recently noted and we’ve done some preliminary investigation, but
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`that’s not completed.
`
`THE COURT: See, I’d be willing to give you a reasonable
`
`amount of time to examine CLOC, but I’m not comfortable with an
`
`open-ended, you know, maybe one day we’ll get to it. What -- is
`
`there a reasonable time frame you could propose to conclude the
`
`security evaluation?
`
`MS. CARSON: So, Your Honor, I think we could probably
`
`complete it within a week.
`
`THE COURT:
`
`Within one week?
`
`Okay.
`
`Now, Finjan, if
`
`they do the security analysis within one week -- obviously you’ll
`
`have to see the outcome they arrive at -- is that -- can you work
`
`with that time frame for CLOC?
`
`Let’s start with CLOC and then
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 17 of 23
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`17
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`we’ll get to Cygwin later.
`
`MR. WILLIAMS:
`
`Hi, Your Honor.
`
`I guess it would be
`
`reasonable. I mean, we gave them notice of this on May 29th and,
`
`like you said previously, it’s kind of curious why they haven’t
`
`started the analysis sooner.
`
`But I think that a week would be
`
`reasonable.
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`But my concern is that, you know, we have the fact discovery
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`deadline coming up and expert report deadlines coming up and my
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`concern is that, you know, if they determine that there is
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`security risk, then, you know, what the next step would be for
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`that because, you know, the -- the CLOC program, you know, is
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`pretty important for some of our analysis that we would like to
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`do, and I’m just worried that giving them another week to assess
`
`the security concern, it will just cause more delay.
`
`THE COURT:
`
`That’s a fair point.
`
`I think a week is
`
`reasonable. Then you have the further point of what if at the end
`
`of that week they say, Yes, there’s a security problem and you
`
`don’t believe them. I think your remedy is to come in here with
`
`a letter brief. I understand that the other clock, the discovery
`
`cutoff clock, is always running.
`
`But you did wait a long time
`
`before you raised this issue with them. Didn’t you?
`
`MR. WILLIAMS: Well, based on our recent review of code
`
`and the code that we’ve been reviewing, it’s become more apparent
`
`that, you know, there’s just more code that we do need to review
`
`and we would do it very efficiently, as efficiently as possible
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 18 of 23
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`18
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`and, you know, probably one of the tools that would enable us to
`
`do that.
`
`THE COURT:
`
`Okay.
`
`I understand.
`
`With respect to
`
`Cygwin, one of the arguments Juniper makes is they don’t
`
`understand which particular packages you want them to install.
`
`They do -- they did direct me to the website, the Cygwin website,
`
`that has a list of packages, and they don’t seem to correspond
`
`exactly with the names of the things you wanted installed.
`
`So
`
`they said they actually don’t know what you want them to put on
`
`the computer.
`
`Can you speak to that?
`
`MR. WILLIAMS:
`
`Yeah.
`
`So I think that list provides a
`
`variety of Cygwin packages and the tools -- the specific tools
`
`that we are requesting are functionalities that exist within a
`
`variety of those packages.
`
`THE COURT: So can you -- how much effort would it take
`
`you to tell Juniper exactly what you want them to install with
`
`Cygwin
`
`rather
`
`than
`
`just
`
`saying
`
`functionality
`
`--
`
`various
`
`functionalities have existed in parts of that, but just say
`
`install these things.
`
`MR. WILLIAMS: I’m not exactly sure how much effort that
`
`would take. I think we could probably provide that fairly quickly
`
`But, again, you know, there may be an issue where we pick a
`
`package and then Juniper comes back and says, you know, Oh, this
`
`package has X functionality as well and, you know, that causes a
`
`security concern. We’re going to have to do more analysis. And
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 19 of 23
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`19
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`that just causes further delay.
`
`So, you know, from Finjan’s perspective, it may make more
`
`sense for Juniper to find a package that contains functionality
`
`and then address the security concern or pick one that they deem
`
`safe.
`
`THE COURT: I don’t know. If you want something put on
`
`that computer, you’re trying to hoist a bunch of work onto them.
`
`You know what functionality you want. And how -- when could you
`
`give them a list of packages? -- within one week?
`
`MR. WILLIAMS: I believe -- I believe we could probably
`
`do that.
`
`THE COURT: Okay. And then for Juniper, say in a week
`
`-- is it correct that just looking at the functionalities they’ve
`
`identified, you don’t know exactly what they want you to install?
`
`MS. CARSON: Yes, Your Honor. So originally they just
`
`said Cygwin, which is sort of a collection of lots of different
`
`packages.
`
`And we’ve objected to that in the past based on the
`
`fact that many of those packages -- I’m not sure of all of them --
`
`but Cygwin is sort of known to include compiling functionalities,
`
`which is a huge issue for us.
`
`And it wasn’t until they submitted the letter brief, of
`
`redacting the letter brief, that they then sort of said, No, we
`
`just sort of want these specific tools.
`
`But as noted in our
`
`letter, we don’t know sort of which of these hundreds of packages
`
`contain the tools that they propose that they want.
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 20 of 23
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`20
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`So given that their packages contain other tools, we can’t
`
`evaluate their request without having that additional information.
`
`THE COURT: Okay. So say in one week they come back and
`
`they say, Please install these things.
`
`How long will it take
`
`Juniper to say -- to look at them and say yes or no, depending on
`
`security concerns?
`
`MS. CARSON: So I think, Your Honor, it depends on the
`
`complexity of the package. So if the package only contains one or
`
`two tools and it’s fairly simple, then that’s a much easier
`
`exercise than, say, if they come back with a package that is very
`
`large and contains lots of tools in addition to the tool that they
`
`want. So it’s difficult for me to respond to that without knowing
`
`how large the package is and how many tools. Because the packages
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`that Cygwin offered were part of -- they varied in terms of their
`
`complexity.
`
`THE COURT:
`
`Oh, I see.
`
`Well, fair enough.
`
`What if I
`
`tell you --
`
`MS. CAIRE:
`
`Your Honor, I’m sorry.
`
`THE COURT:
`
`Go ahead.
`
`MS. CAIRE: This is Yuridia Caire. I was just going to
`
`say that I think we can get them the tools that we want and those
`
`packages within a day or two.
`
`THE COURT:
`
`Okay. So within one or two days.
`
`MS. CAIRE:
`
`Uh-huh.
`
`THE COURT:
`
`Do you think it’s going to be a big list?
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 21 of 23
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`21
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`Like Juniper’s expressed a concern what if you -- these really are
`
`large packages.
`
`It might take longer to analyze.
`
`Do you think
`
`it’s likely to be something like that?
`
`MS. CAIRE: I don’t -- I can’t speak to the amount, Your
`
`Honor, but given that, you know, Juniper represented that they’ve
`
`already investigated, then I think it should be very quickly for
`
`them to be able to say what would or would not be of concern.
`
`THE COURT:
`
`Well, what they say -- at least as I
`
`understand what they’re saying is before, when you asked for
`
`Cygwin, they’ve looked at Cygwin, realized it’s a big ol’ thing
`
`and it has some components in it that they would find problematic,
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`that sounds like the extent of their investigation. It’s not like
`
`they went through each and every package to see where’s the
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`problem.
`
`Juniper, how about this?
`
`What if I say you shall use best
`
`efforts to determine if there’s a security problem within one week
`
`of getting Finjan’s list -- "best efforts" gives you some wiggle
`
`room. You’re not in contempt of court if it takes you longer, but
`
`it does mean you should try your best to do it in seven days. Can
`
`you live with that?
`
`MS. CARSON:
`
`I believe we can work within that, Your
`
`Honor.
`
`THE COURT: Okay. Great. And then, again, if you come
`
`back and you say there’s a security concern and Finjan says, No,
`
`there isn’t, or Finjan says, Well, there is but it can be managed
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`Case 3:17-cv-05659-WHA Document 619 Filed 09/30/19 Page 22 of 23
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`22
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`because of other provisions in the protective order, then the
`
`parties should come back to me with a joint letter brief. Please
`
`do that quickly because you are getting to the close of fact
`
`discovery.
`
`And, Finjan, I know that this is introducing some delay from
`
`your perspective. This, though, is attributable to the fact that
`
`you waited until this point or until May 29th to ask for the
`
`installation of these tools. So I’m trying to address this issue
`
`as soon as possible.
`
`But I think a fair amount of this delay is
`
`just kind of self-inflicted. But, nonetheless, I want the parties
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`to act as quickly as possible.
`
`And then if there is a further
`
`dispute, bring
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