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`Case 3:17-cv-05659-WHA Document 62 Filed 04/18/18 Page 1 of 5
`
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`Paul Andre (SBN 196585)
`pandrea@kramerlevin.com
`Lisa Kobialka (SBN 191404)
`lkobialka@kramerlevin.com
`James Hannah (SBN 237978)
`jhannah@kramerlevin.com
`Kristopher B. Kastens (SBN 254797)
`kkastens@kramerlevin.com
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650)752-1700
`Facsimile: (650)752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua P. Glucoft (SBN 301249)
`jglucoft@irell.com
`Casey Curran (SBN 305210)
`ccurran@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca L. Carson (SBN 254105)
`rcarson@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`
`
`FINJAN, INC.,
`
`
`Plaintiff,
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`
`
`
`JUNIPER NETWORKS, INC.,
`
`
`v.
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`Defendant.
`
`
`
`
`
`
`
`Case No. 3:17-cv-05659-WHA
`
`JOINT RESPONSE REGARDING
`STIPULATED ESI DISCOVERY
`PROCESS
`
`
`Hon. William H. Alsup
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`JOINT RESPONSE REGARDING
`STIPULATED ESI DISCOVERY PROCESS
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 62 Filed 04/18/18 Page 2 of 5
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`Finjan, Inc. (“Finjan”) and Juniper Networks, Inc. (“Juniper”) hereby jointly submit this
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`response regarding their stipulated ESI discovery process. See Dkt. Nos. 51 and 56.
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`Paragraphs 6-8 of Dkt. No. 51
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`The parties agree that the stipulated process set forth in Dkt. No. 51 at ¶¶ 6-8 shall be the
`exclusive mode for responding to requests for production covering emails,1 superseding all
`obligations to manually search for additional relevant emails, except for the following:
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`Juniper’s Position: Juniper agrees with Finjan that emails that counsel for the parties
`already know or already should know exist shall be exempt from the exclusive application of the
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`process set forth in Dkt. No. 51 at ¶¶ 6-8, and will be produced subject to any applicable
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`objections (including privilege). Juniper disagrees with Finjan’s position that “principal
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`employees of each party that are responsible for or materially involved in managing this action”
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`shall be exempt from the exclusive application of the process set forth in Dkt. No. 51 at ¶¶ 6-8.
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`This exception would substantially increases the potential number of custodians, and much of the
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`parties’ negotiations concerned the total number of custodians each party is to designate.
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`Finjan’s Position: Finjan contends that emails that principal employees of each party, who
`are responsible for or materially involved in managing this action, already know or already should
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`know exist, should also be exempt from the process set forth in Dkt. No. 51 at ¶¶ 6-8, and those
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`emails should be produced subject to any applicable objections (including privilege). This
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`provision fosters full and complete disclosure from the parties. Contrary to Juniper’s contention,
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`it does not increase the number of custodians because no additional custodians are subject to email
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`search terms. Rather, it simply ensures that employees of a party who are heavily involved in this
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`litigation notify their counsel of any relevant emails that they are or should be aware of. Counsel
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`for the parties do not possess as much knowledge of relevant emails as the employees who are
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`managing the litigation for each party and often rely upon their clients for the production of
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`relevant email. If Juniper is aware of relevant emails, they should be produced. Juniper should not
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`
`1 To be clear, this paragraph applies only to emails or other forms of electronic correspondence. It
`does not include any other electronically stored information that is not stored as attachments to an
`email or as part of an email archiving system. See Dkt. 51 at ¶ 6.
`
`
`
`
`- 1 -
`
`JOINT RESPONSE REGARDING
`STIPULATED ESI DISCOVERY PROCESS
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 62 Filed 04/18/18 Page 3 of 5
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`be allowed to hide behind a loophole by not telling its outside counsel of the existence of relevant
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`email.
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`Paragraph 10 of Dkt. No. 51
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`The parties agree that the last sentence of Dkt. No. 51 at ¶ 10 (“No other remedies are
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`available.”) shall be stricken.
`
`Paragraph 18 of Dkt. No. 51 (Privilege Logs)
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`The parties agree that paragraph 18 of the Court’s Supplemental Order to Order Setting
`Initial Case Management Conference should apply to this case.2
`Paragraph 20 of Dkt. No. 51 (Document Production and Depositions)
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`Juniper’s Position: Juniper contends that paragraph 20 of the Supplemental Order should
`apply, subject to the following modifications:
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`• “If any objections to a request for materials isare overruled, and the information contained
`in such documents is material and not substantially reflected in other discovery responses,
`and if the disputed request was due and pending at the time of a deposition, the
`withholding party or counsel must, subject to the requirements and limitations of F.R.C.P.
`30 and L.R. 30-1 and at the request of any other party, re-produce all deponents under its
`control or represented by them for further deposition examination asrelated only to any
`new, materials information produced in response that areis germane to that deponent and
`must bear the expense of doing so. If a party chooses to proceed with a deposition without
`providing search terms for the deponent’s documents at least 3 weeks prior to the
`deposition, that party shall not have the opportunity to further depose any such deponents.”
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`Juniper believes this modification will help ensure that individuals are only subjected to
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`the burden of additional depositions when necessary in light of the significance of the new
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`information improperly withheld. Finjan’s actions in propounding discovery reveal its intent to
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`abuse paragraph 20. Specifically, Finjan has requested to depose Yuly Tenorio (a Juniper
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`employee) no later than May 9, 2018 but has refused to provide Juniper with requested search
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`terms in sufficient time to allow Juniper to complete email production prior to the deposition;
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`Finjan is engaging in such gamesmanship in hopes of securing an otherwise avoidable second
`
`
`2Finjan’s Position: Finjan agreed to Juniper’s request to exclude paragraph 18 of the Court’s
`standing order from this case, and already produced certain documents that were partially redacted
`for privilege pursuant to that agreement. Now that it appears paragraph 18 will apply, Finjan will
`work diligently to comply with paragraph 18 by producing a privilege log for the documents it
`already produced.
`
`
`
`
`- 2 -
`
`JOINT RESPONSE REGARDING
`STIPULATED ESI DISCOVERY PROCESS
`Case No. 3:17-cv-05659-WHA
`
`

`

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`Case 3:17-cv-05659-WHA Document 62 Filed 04/18/18 Page 4 of 5
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`deposition of Yuly Tenorio. Additionally, Juniper agreed to the stipulated ESI discovery process
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`based in part on its expectation that certain provisions would be adopted. Finjan’s reversal on the
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`issue now would result in a windfall to Finjan, as Juniper would have negotiated the ESI
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`stipulation differently with the knowledge that the Court was less amenable to certain
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`modifications. Finally, Finjan’s contention that it needs to conduct serial depositions of Juniper’s
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`witnesses because of the early summary judgment proceedings is meritless. To the extent Finjan
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`has questions for a witness about topics pertaining to claims that are not at issue in the early
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`summary judgment proceedings, there is no reason why it cannot ask those questions at the
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`upcoming depositions.
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`Finjan’s Position: Juniper is attempting to prevent the production of important discovery.
`Finjan sees no reason to, and does not, agree to Juniper’s request to deviate from paragraph 20 of
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`this Court’s standing order, which encourages timely and complete document production and
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`fosters meaningful depositions and full disclosure from both parties. By contrast, Juniper’s
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`proposal introduces ambiguity (and likely unnecessary motion practice) regarding what
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`information is deemed “material” or “not substantially reflected” in other discovery responses.
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`Juniper’s proposal also encourages delayed production of documents, and delayed depositions of
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`witnesses as a result, which is at odds with the early summary judgment schedule in this case.
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`Furthermore, Juniper introduces a loophole with regard to the production of email which may not
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`be subject to a motion to compel. Indeed, if Finjan is successful on a motion to compel any
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`documents, it should have the right to redepose relevant witnesses regardless of whether email
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`search terms were provided or not. Finjan is entitled to prompt and full discovery, and Juniper
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`should not be allowed to withhold such discovery with the introduction of a self-serving
`technicality.3
`
`
`3 Finjan’s position: With regard to currently noticed depositions, Juniper fails to inform the Court
`that it has refused to produce 2 of the 3 witnesses that Finjan has noticed. Thus, Juniper’s claim of
`gamesmanship rings hollow as Juniper continues to withhold relevant discovery from Finjan.
`Juniper’s position: One witness that Finjan attempted to notice (without conferring) is on
`paternity leave but Juniper is happy to produce him as a witness when he returns, and the other
`witness that Finjan attempted to notice (again without conferring) is a sales employee located in
`Europe and does not have any unique knowledge relevant to this case.
`JOINT RESPONSE REGARDING
`STIPULATED ESI DISCOVERY PROCESS
`Case No. 3:17-cv-05659-WHA
`
`- 3 -
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`
`

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`Case 3:17-cv-05659-WHA Document 62 Filed 04/18/18 Page 5 of 5
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`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`
`By: /s/ Paul J. Andre
`Paul Andre
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`
`
`IRELL & MANELLA LLP
`
`
`
`By: /s/ Joshua Glucoft
`Joshua Glucoft
`
`Attorneys for Defendant
`Juniper Networks, Inc.
`
`
`
`Dated: April 18, 2018
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`
`
`
`Dated: April 18, 2018
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`
`
`
`
`ATTESTATION
`In accordance with Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this
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`document has been obtained by any other signatory to this document.
`
`
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`
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`
`
`/s/ Paul J. Andre
`Paul J. Andre
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`- 4 -
`
`JOINT RESPONSE REGARDING
`STIPULATED ESI DISCOVERY PROCESS
`Case No. 3:17-cv-05659-WHA
`
`