Case 3:17-cv-05659-WHA Document 661-5 Filed 06/10/21 Page 1 of 6
`Case 3:17-cv-05659—WHA Document 661-5 Filed 06/10/21 Page 1 of 6
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`EXHIBIT 4
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`EXHIBIT 4
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`Case 3:17-cv-05659-WHA Document 661-5 Filed 06/10/21 Page 2 of 6
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
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`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
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`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`Case No. 3:17-cv-05659-WHA
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`JUNIPER NETWORKS, INC.’S REPLY
`TO OUTSTANDING ISSUES IN FINJAN’S
`BRIEF REGARDING FEES
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`Submitted to the Special Master
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`vs.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`Case 3:17-cv-05659-WHA Document 661-5 Filed 06/10/21 Page 3 of 6
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`INTRODUCTION
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`As discussed during the hearing on May 14, Juniper is submitting this brief to address the
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`outstanding issues Finjan raised in its April 12, 2021, response to the declaration on fees and
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`expenses Juniper submitted on March 22, 2021 (“Finjan’s Response”).
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`Juniper believes that the majority of Finjan’s objections have already been addressed in
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`submissions and hearings before the Special Master. Specifically, while the thesis of Finjan’s
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`Response is that “Juniper spent excessive hours, by its highest-billing rate lawyers, on issues that
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`could have been addressed in fewer hours by lawyers with lower rates,” the series of submissions
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`by the parties paints a very different picture. In fact, almost uniformly Juniper made greater use
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`of junior associates than Finjan did, and, when Juniper used its most senior attorneys, those
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`attorneys were highly efficient. These facts may explain why, though Finjan’s (now admittedly
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`incomplete) billing records demonstrate that it incurred over 7,800 hours for the relevant projects
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`(Finjan’s Response, Ex. 2), Juniper is seeking recovery for well under 7,500 hours. Finjan’s
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`statement that it “invested fewer attorney-hours” overall (Finjan’s Response at 2) is simply false.
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`Given the extensive information already provided to the Special Master, Juniper believes
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`the only issues that require further briefing by Juniper are: (1) certain outstanding “allocation”
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`issues; and (2) Finjan’s objections to expert fees and expenses.
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`1.
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`Outstanding Allocation Issues
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`The Special Master provided some guidance to the parties on certain allocation issues
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`(those identified in Section B of Juniper’s April 27, 2021, response to allocation arguments), and
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`asked the parties to attempt to agree on a methodology for the remaining “Section B” items.
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`Juniper provided a revised allocation schedule to Finjan last week, but the parties have not yet
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`come to agreement on these issues, nor have they reached an impasse. The parties will advise the
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`Special Master—one way or the other—about the outcome of this issue.
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`Case 3:17-cv-05659-WHA Document 661-5 Filed 06/10/21 Page 4 of 6
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`The primary sticking point between the parties appears to be how to account for discovery
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`that Juniper undertook in connection with the ’494 and ’780 Patents that could have been used—
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`had the litigation continued—with other patents. This discovery generally occurred before the
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`’494 Patent trial. In general, Juniper discounted this time by roughly 10-15% to account for the
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`(relatively low) use of this discovery with other patents and the possibility of further use, had the
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`litigation continued. (For discovery projects after trial, Juniper either sought no recovery or
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`allocated 10-15% if the discovery involved outstanding issues relating to the ’494 Patent, except
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`for a few specific projects that dealt with ’494 or ’780-specific issues).
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`Juniper believes that its 10-15% discount is conservative both in fact (as little of the pre-
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`trial discovery was ever used with other patents), but also in light of Judge Alsup’s Fees Order.
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`Judge Alsup’s January 9, 2021 Order Re Attorney’s Fees And Costs And Appointment Of Special
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`Master (“Referral Order”) recognizes that within each project there could be time allocated both
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`to the recoverable patents and to other patents. (Referral Order at ¶ 4) But Judge Alsup did not
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`order that all billing entries that could potentially relate to both recoverable and non-recoverable
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`patents should be excluded. Rather, he only asked the Special Master to identify “each requested
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`item that bears little or no relation to the conduct found exceptional herein, that being the assertion
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`of the ’494 and ’780 patents.” (Referral Order at ¶ 11). Under this standard, as virtually all of the
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`pre-trial discovery (and much of the post-trial discovery) bears at least some relation to the ’494
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`or ’780 patents. Juniper’s allocations are thus highly conservative when evaluated under the only
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`standard set forth by Judge Alsup.
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`Case 3:17-cv-05659-WHA Document 661-5 Filed 06/10/21 Page 5 of 6
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`2. Juniper Is Entitled To Recover Its Expert Fees and Expenses
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`Finjan argues that Juniper is not entitled to “expert fees and other expenses,” claiming that (1)
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`there is no “legal justification” for Juniper’s request, and (2) Juniper purportedly failed to seek
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`such fees. Finjan Opp. at 4, 21–22. Finjan’s arguments are baseless.
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`First, Finjan’s argument ignores that the District Court already held that Juniper could
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`recover expert fees and expenses, stating in its Referral Order that Juniper “shall provide the
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`special master with an itemized accounting for unreimbursed expenses listed as ‘Travel’ and
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`‘Expert Witness Fees.’” (Referral Order ¶ 2). The Order also states that Juniper “may include
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`additional categories” of costs, and that Juniper could include “professional fees . . . such as the
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`fee paid to an expert to produce an expert report.” Id. To the extent Finjan now argues that the
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`District Court’s express reference to expert fees and expenses did not actually award such
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`expenses, that challenge can only be resolved by the District Court. The Special Master should
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`follow the Court’s instruction to determine a “reasonable amount” of expert fees and expenses,
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`and then leave it to Judge Alsup to resolve any dispute about whether his orders encompass such
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`fees.
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`Second, Finjan is incorrect that there is no “legal justification” for awarding expert fees
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`and expenses. As Finjan concedes, a district court “may invoke its inherent power to impose
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`sanctions in the form of reasonable expert fees” where “the non-prevailing party acted in bad faith
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`or fraudulently.” Thermolife Int’l, LLC v. Myogenix Corp., 2018 WL 325025, at *13 (S.D. Cal.
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`Jan. 8, 2018); see also In re Personalweb Techs., LLC Patent Litig., 2021 WL 796356, at *14
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`(N.D. Cal. Mar. 2, 2021) (awarding expert fees related to “fraud or bad faith”); Qualcomm Inc. v.
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`Broadcom Corp., 2007 WL 9677112, at *7 (S.D. Cal. Oct. 29, 2007) (“it is within the Court’s
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`inherent authority to award expert witness fees as sanctions upon a finding of fraud or abuse of the
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`Case 3:17-cv-05659-WHA Document 661-5 Filed 06/10/21 Page 6 of 6
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`judicial process”). Here, there is ample basis in Judge Alsup’s order supporting his award of expert
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`fees and expenses. For example, Judge Alsup found that Finjan acted in bad faith by (1) attempting
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`to “sneak” an improper damages theory into the case, (2) presenting improper damages testimony
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`at trial, (3) “shirk[ing]” its duty to “reevaluate the viability of its claims,” thus wasting “everyone’s
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`time and energy,” (4) attempting to “relitigate concessions it had already made to the Court,” and
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`(5) misrepresenting legal authority to the Court. Dkt. 648 at 2–4.
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`Third, Finjan is wrong that Juniper “never sought” expert fees and expenses. Juniper’s fee
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`motion also incorporated Juniper’s earlier-filed and pending motion for sanctions. See Dkt. 634
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`at 2 (“Juniper also requests that the Court rule on Juniper’s previously filed motion for sanctions,
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`Dkt. 409”). Juniper’s prior sanctions motion expressly requested the Court award sanctions under
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`its inherent powers “commensurate with the amount of resources Juniper and the Court were
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`required to waste defending against improper infringement, validity, and damages positions.” Dkt.
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`409 at 2-3, 12, 19-20. This request encompassed resources Juniper expended on expert fees and
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`expenses, and expressly invoked the Court’s inherent power to award such fees and expenses
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`(which the Court exercised).
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`Dated: May 17, 2021
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`10933522
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`Respectfully submitted,
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`IRELL & MANELLA LLP
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`By: /s/ Jonathan Kagan
`Jonathan Kagan
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`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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