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`Case 4:18-cv-07229—YGR Document 100-12 Filed 09/04/20 Page 1 of 15
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`EXHIBIT C
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`EXHIBIT C
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`Case 5:13-cv-03999-BLF Document 109-3 Filed 10/09/14 Page 1 of 14Case 4:18-cv-07229-YGR Document 100-12 Filed 09/04/20 Page 2 of 15
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`PAUL J. ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC., a Delaware Corporation,
`
`
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`
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`Plaintiff,
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`
`
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`
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`___________________________________________________________________________________
`PLAINTIFF FINJAN’S NOTICE OF MOTION AND
` Case No.: 13-cv-03999-BLF
`SECOND MOTION TO COMPEL DISCOVERY
`
`
`SAN JOSE DIVISION
`
`
`Case No.: 13-cv-03999-BLF-PSG
`
`PLAINTIFF FINJAN, INC.’S NOTICE OF
`MOTION AND SECOND MOTION TO
`COMPEL DISCOVERY
`
`October 29, 2014
`Date:
`10 A.M.
`Time:
`Place: Courtroom 5, 4th Floor
`Before: Hon. Paul S. Grewal
`
`
`
`v.
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`BLUE COAT SYSTEMS, INC., a Delaware
`Corporation,
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`Defendant.
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`
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`TABLE OF CONTENTS
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`Page
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`Blue Coat Has Delayed And Refused To Provide Witnesses In Response To
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`Blue Coat Has Refused To Produce Discovery Regarding The Location Of
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`Blue Coat Should Be Compelled To Make Blue Coat’s Employees Available
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`Blue Coat’s Refusal To Provide The Eight Witnesses For Deposition Is
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`The Eight Witnesses Have Highly Relevant And Non-Duplicative
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`Blue Coat’s Failure To Provide The Eight Witnesses Is Prejudicial To
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`Blue Coat Should Be Compelled To Provide Infringement and Damages-Related
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`
`
`TABLE OF AUTHORITIES .................................................................. Error! Bookmark not defined.
`NOTICE OF MOTION AND MOTION .................................................................................................. 1
`RELIEF REQUESTED ............................................................................................................................. 1
`MEMORANDUM OF POINTS AND AUTHORITIES .......................................................................... 1
`I.
`INTRODUCTION ........................................................................................................................ 1
`II.
`FACTUAL BACKGROUND ....................................................................................................... 2
`A.
`Finjan’s Deposition Notices .............................................................................................. 3
`B.
`Infringing Activity ............................................................................................................ 4
`ARGUMENT ................................................................................................................................ 5
`A.
`For Deposition .................................................................................................................. 5
`1.
`Improper ................................................................................................................ 5
`2.
`Knowledge. ........................................................................................................... 6
`3.
`Finjan .................................................................................................................... 7
`B.
`Documents And Interrogatory Responses ........................................................................ 9
`CONCLUSION ........................................................................................................................... 10
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`III.
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`IV.
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`
`
`
`i
`___________________________________________________________________________________
`PLAINTIFF FINJAN’S NOTICE OF MOTION AND
` Case No.: 13-cv-03999-BLF
`SECOND MOTION TO COMPEL DISCOVERY
`
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`

`

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`
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`
`
`Cases
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`Blankenship v. Hearst Corp.,
`519 F.2d 418 (9th Cir. 1975) .............................................................................................................. 5
`
`Finjan v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)........................................................................................................... 9
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`Other Authorities
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`Fed. R. Civ. P. 26(b)(1)............................................................................................................................. 5
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`Fed. R. Civ. P. 37(a) ................................................................................................................................. 1
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`Fed. R. Civ. P. 37(a)(3)(B) ....................................................................................................................... 5
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`
`
`ii
`___________________________________________________________________________________
`PLAINTIFF FINJAN’S NOTICE OF MOTION AND
` Case No.: 13-cv-03999-BLF
`SECOND MOTION TO COMPEL DISCOVERY
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`NOTICE OF MOTION AND MOTION
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`PLEASE TAKE NOTICE that on October 29, 2014 at 10:00 AM, or as soon thereafter as the
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`matter may be heard by the Honorable Paul S. Grewal in Courtroom 5, 4th Floor, United States District
`Court for the Northern District of California, 280 South 1st Street, San Jose, CA 95113, Plaintiff
`Finjan, Inc. (“Finjan”) shall and hereby does move the Court for an order granting Finjan’s Second
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`Motion to Compel Blue Coat to provide discovery. The motion is based on this notice of motion and
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`supporting memorandum of points and authorities; the Declaration of Benu Wells in Support of
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`Plaintiff Finjan, Inc.’s Second Motion to Compel Discovery (“Wells Decl.”) and exhibits attached
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`thereto; and such other written or oral argument as may be presented at or before the time this motion
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`is deemed submitted by the Court.
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`RELIEF REQUESTED
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`
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`Finjan seeks an order pursuant to Fed. R. Civ. P. 37(a) compelling Defendant Blue Coat
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`Systems, Inc. (“Blue Coat”) to: (1) provide dates and make available for deposition the following Blue
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`Coat employees: James Whitchurch, Janet Matsuda, Charles Tucker, Mark Urban, Sasi Murthy,
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`Timothy Chiu, Marc Andrews, and Philip Langer; and (2) provide discovery responsive to Finjan’s
`Request for Production No. 74 and Interrogatory No. 12. 1
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`I.
`
`INTRODUCTION
`
`Blue Coat is yet again engaging in improper litigation tactics obstructing Finjan from taking
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`needed discovery. Specifically, Blue Coat refuses to make available eight highly relevant Blue Coat
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`1 Blue Coat is also improperly withholding damages-related discovery related to foreign sales in
`response to Finjan’s RFP Nos. 69, 72-73, 75-77, and 78-81, Interrogatory No. 4 and Finjan’s Second
`Notice of Depositions Pursuant to Fed. R. Civ. P. 30(b)(6) Topics 1-6, 11-14, 20, 22, 27-29, and 31-35.
`Blue Coat is withholding this discovery on the mistaken belief that foreign sales information is not
`relevant to this case. As Finjan explained to the Court during the September 26, 2014 hearing of
`Finjan’s First Motion to Compel, this discovery is directly relevant to Finjan’s damages claims because
`certain infringing activity occurs entirely in the United States, but may be classified as a foreign sale.
`Finjan believes that the Court will address the issue in its forthcoming order on Finjan’s First Motion
`to Compel. To the extent that Blue Coat continues to withhold relevant discovery after the Court’s
`order, Finjan will seek appropriate relief.
`
`1
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
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`employees who Finjan has noticed for deposition. Instead, Blue Coat seeks to force Finjan to first take
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`the depositions of other witnesses who Blue Coat has handpicked as its Rule 30(b)(6) designees, before
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`Blue Coat will even consider whether to allow Finjan to depose these eight individuals. Blue Coat’s
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`attempts to choose who Finjan may depose in this action are wholly improper. Finjan has specifically
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`selected these eight individuals due to the unique information they possess based on Blue Coat’s
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`documents. Indeed, Blue Coat has not denied that these individuals have relevant knowledge, nor has
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`Blue Coat denied that Finjan is well within the discovery limits set in this action in requesting these
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`depositions. Thus, Blue Coat has no basis for refusing these depositions.
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`Blue Coat’s tactics are severely prejudicing Finjan’s ability to obtain timely discovery in this
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`action. Blue Coat has already greatly delayed in providing its Rule 30(b)(6) designees and deposition
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`dates, only recently providing this information over five months after Finjan served the notice. Due to
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`Blue Coat’s continuing strategy of delay, and despite Finjan’s diligent efforts to schedule these
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`depositions since May 12, 2014, Finjan has been precluded from taking even a single Blue Coat fact
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`deposition in this action. Now, with only two months remaining in fact discovery, Blue Coat attempts
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`to delay even discussing or considering providing eight individuals for deposition until just weeks
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`before the close of fact discovery. These obstructionist tactics are highly prejudicial to Finjan, and
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`thus Finjan seeks an order to compel Blue Coat to provide dates for these witnesses immediately.
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`Equally prejudicial and unfair to Finjan, Blue Coat is also improperly refusing to provide
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`highly relevant discovery related to the locations where it makes some of the accused products. Thus,
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`Finjan also seeks an order compelling Blue Coat to provide responses to a set of narrowly tailored
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`discovery requests directed to where Blue Coat performs activities related to making the accused
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`infringing products. Blue Coat has no basis to refuse to answer this discovery.
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`Accordingly, for the reasons discussed further below, Finjan respectfully requests the Court’s
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`Order compelling Blue Coat to cooperate and produce Finjan’s requested discovery forthwith.
`II.
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`FACTUAL BACKGROUND
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`Finjan filed its Complaint in this action on August 28, 2013 (the “Complaint”), alleging
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`infringement of six Finjan patents. Dkt. No. 1. Fact discovery in this action began 10 months ago
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`2
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
`
`

`

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`November 18, 2013 and closes on December 12, 2014. Dkt. No. 98 (Order Granting Stipulated Case
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`Schedule, at 2); Wells Decl., ¶ 2. A claim construction hearing was held on August 22, 2014, and trial
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`is scheduled to begin on July 20, 2015. Dkt No. 98 (Order Granting Stipulated Case Schedule, at 2-3).
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`A.
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`Blue Coat Has Delayed And Refused To Provide Witnesses In Response To
`Finjan’s Deposition Notices
`So far, Finjan has been unable to take a single deposition of a Blue Coat witness in this action,
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`despite actively pursuing these depositions for over five months. Wells Decl., ¶ 27, Ex. M (E-mails
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`exchanged by Benu Wells of Kramer Levin and Olivia Kim of WSGR, between May 12, 2014 and
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`May 19, 2014.). Finjan first sought to depose Blue Coat over five months ago on April 28, 2014 when
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`it served its first Notice of Deposition Pursuant to 30(b)(6) on Blue Coat. Wells Decl., ¶ 3. For over
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`four months, Blue Coat delayed providing any designees or dates in response to this notice despite
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`Finjan’s repeated requests, based on alleged disputes over the scope of particular noticed deposition
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`topics. On July 9, 2014, Finjan served notices of depositions of four Blue Coat employees likely to
`have relevant technical information regarding the accused instrumentalities.2 Id., ¶ 4. Over the next
`two months, Finjan requested deposition dates for these individuals several times to no avail. Id., ¶ 5.
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`On August 25, 2014, Finjan served a second Notice of Deposition Pursuant to 30(b)(6). Id., ¶ 6. On
`September 3, 2014, Finjan noticed another Blue Coat employee.3 Id., ¶ 7. On September 16, 2014,
`Finjan served notices for seven additional Blue Coat employees who are likely to have relevant
`technical and damages-related information.4 Id., ¶ 8.
`In September 2014, Blue Coat finally began providing designees and dates for topics in
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`2 Chris Larsen (Senior Malware Researcher), Roger Harrison (Senior Director of Research and
`Development), Todd Miller (Software Engineering Manager), and Tyler Anderson (Software
`Engineer).
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`3 Charles Tucker (Marketing Communications Director).
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`4 James Whitchurch (Vice President Engineering), Janet Matsuda (Senior Vice President of
`Marketing), Mark Urban (Senior Director Product Marketing), Sasi Murthy (Senior Director of
`Product Marketing), Timothy Chiu (Director of Product Marketing), Marc Andrews (Senior Vice
`President of World Wide Sales), and Philip Langer (World Wide Services Sales).
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`3
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
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`Finjan’s April 28, 2014 Rule 30(b)(6) notice. By October 2014, Blue Coat designated seven different
`Blue Coat employees5 selected by Blue Coat’s counsel to testify about these Rule 30(b)(6) topics. For
`the four individuals that Finjan noticed on July 9, 2014, Blue Coat finally provided dates for these
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`individuals in September and October 2014. Blue Coat provided no reason for its delay of two to three
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`months for providing these dates, and Blue Coat pushed all but one of the dates for these depositions
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`out until mid and late November. Wells Decl., ¶ 22, Ex. H. Blue Coat has refused to provide any
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`dates for the remaining eight witnesses who Finjan noticed individually on September 3 and September
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`16, 2014—i.e., James Whitchurch, Janet Matsuda, Charles Tucker, Mark Urban, Sasi Murthy, Timothy
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`Chiu, Marc Andrews, and Philip Langer. Id. The parties met and conferred on September 29, 2014
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`regarding Blue Coat’s refusal to provide these witnesses but were unable to reach any resolution.
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`Wells Decl., ¶ 9.
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`B.
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`Blue Coat Has Refused To Produce Discovery Regarding The Location Of
`Infringing Activity
`On May 16, 2014, Finjan served its Second Set of Interrogatories to Blue Coat, which included
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`Interrogatory No. 12, seeking the geographical locations of manufacture for the accused
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`instrumentalities. Wells Decl., ¶15, Ex. A. After a meet and confer regarding Blue Coat’s deficient
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`response to Interrogatory No. 12, Blue Coat supplemented its response on August 8, 2014. Id., ¶ 17,
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`Ex. C. However, Blue Coat’s response to this interrogatory remained deficient. On October 3, 2014,
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`Finjan once again asked Blue Coat to supplement it response to Interrogatory No. 12, but Blue Coat
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`has refused. Id., ¶ 19, Ex. E.
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`On July 11, 2014, Finjan served its Fourth Set of Requests for Production (“RFP”) to Blue
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`Coat, which included RFP No. 74, seeking documents sufficient to identify where Blue Coat’s servers
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`host the source code for the accused instrumentalities. Wells Decl., ¶ 16, Ex. B. On August 27, 2014,
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`Finjan had a meet and confer on several discovery issues, including RFP No. 74. Id., ¶ 18, Ex. D. On
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`October 1, 2014, Blue Coat provided a supplemental response on RFP No. 74, refusing to produce
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`5 John Ahlander, Gary Tomic, Steven Schoenfeld, Patrik Runald, Roger Harrison, Michelle Reynaud,
`and Jim Dildine.
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`4
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
`
`

`

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`
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`
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`responsive documents. Id.
`III. ARGUMENT
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`A. Blue Coat Should Be Compelled To Make Blue Coat’s Employees Available For
`Deposition
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`1. Blue Coat’s Refusal To Provide The Eight Witnesses For Deposition Is
`Improper
`Blue Coat's refusal to provide the depositions of the eight remaining witnesses that Finjan has
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`noticed for deposition is baseless and improper. All are employees of Blue Coat who have relevant
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`technical or damages-related information, as evidenced by documents that Blue Coat has produced or
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`public records. Blue Coat has not disputed that these individuals have relevant information.
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`Moreover, as discussed further below, each deponent has unique first-hand, non-repetitive knowledge
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`of facts at issue in the case. Under the Federal Rules, Finjan is entitled to discover this non-privileged
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`information relevant to its claims in this action. See Fed. R. Civ. P. 26(b)(1). Thus, the Court should
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`compel Blue Coat to provide this information, particularly because Blue Coat’s refusal to schedule
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`depositions for these employees falls far short of the “heavy burden” it must carry to show why
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`relevant discovery should be denied. Fed. R. Civ. P. 37(a)(3)(B); Blankenship v. Hearst Corp., 519
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`F.2d 418, 429 (9th Cir. 1975).
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`Indeed, Finjan has been allotted 70 hours of fact deposition time in this action and should be
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`permitted to use those hours as it deems appropriate, not as Blue Coat dictates. Finjan has noticed
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`twelve Blue Coat individuals for depositions, a completely reasonable number, particularly given the
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`various accused products and technical and damages-related issues. Yet, of those 12 individuals, Blue
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`Coat has only agreed to provide four witnesses, one of whom Blue Coat had already selected as a Rule
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`30(b)(6) witness. Essentially, Blue Coat is only providing Finjan with three witnesses who were only
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`chosen by Finjan, and even for those, Blue Coat has done so reluctantly months after Finjan first
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`sought them. For the remaining eight witnesses, Blue Coat attempts to force Finjan to wait until
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`November, nearly two months after Finjan noticed them in September and one month before the close
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`of fact discovery, before Blue Coat will even consider whether to allow the depositions to proceed.
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`5
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
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`Case 5:13-cv-03999-BLF Document 109-3 Filed 10/09/14 Page 9 of 14Case 4:18-cv-07229-YGR Document 100-12 Filed 09/04/20 Page 10 of 15
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`Blue Coat's concerted attempt to withhold, or at a minimum delay until the final weeks of
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`discovery, these highly relevant depositions should not be permitted. Rather, because there is no valid
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`basis for withholding these depositions, Blue Coat should be compelled to provide dates immediately
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`and make these witnesses available.
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`2.
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`The Eight Witnesses Have Highly Relevant And Non-Duplicative
`Knowledge.
`Each of the eight witnesses that Blue Coat refuses to provide has highly relevant information,
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`which Blue Coat does not refute. As described below, this information is unique and not duplicative of
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`the knowledge of Blue Coat’s handpicked Rule 30(b)(6) witnesses.
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`James Whitchurch is Vice President of Engineering at Blue Coat and has knowledge of Blue
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`Coat’s WebPulse and Security Cloud Service. According to publicly available documents, he is
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`responsible for “site management, engineering, staffing, and budgetary control and product leadership”
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`at Blue Coat. Wells Decl., ¶ 20, Ex. F (LinkedIn Profile); see also id., ¶ 21, Ex. G (BC0067950-982).
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`At the level of Vice President, Mr. Whitchurch should be aware of how various Blue Coat products
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`interact with each other, which relates to Finjan’s infringement theories. Thus, he is likely to have key
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`information relevant to the operation and functionality of accused infringing technologies.
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`Several of the individuals noticed by Finjan that Blue Coat refuses to provide are involved in
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`marketing at various levels at Blue Coat. Janet Matsuda is currently Blue Coat’s Senior Vice President
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`for Marketing. As Vice President, she should have unique knowledge regarding the value of the
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`accused instrumentalities to customers. Thus she is likely to have information relevant to Finjan’s
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`damages theories. Charles Tucker, Marketing Communications Director,
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` Wells Decl., ¶ 10. This information shows awareness of Finjan’s products prior
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`to the filing of the suit. Thus, he is likely to have information relevant to Finjan’s infringement and
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`damages theories.
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`Additionally, Finjan seeks discovery from several individuals who fall within Blue Coat’s
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`Research and Development group but are responsible for product organization and management. For
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`6
`__________________________________________________________________________________
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`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
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`example, Mark Urban is the Senior Director of Product Marketing. Blue Coat has produced several
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`documents that identify Mark Urban as the author that show that Mr. Urban has knowledge directly
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`relevant to Finjan’s damages theories. Wells Decl., ¶ 11. Sasi Murthy is Vice President of Product
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`Marketing. Blue Coat has also produced several different documents that identify Sasi Murthy as the
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`author that show that Ms. Murthy also has knowledge directly relevant to Finjan’s damages theories.
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`Id., ¶ 12. Timothy Chiu is currently a Product Marketing Engineer. He is likely to have direct
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`knowledge of sales and competition for sales, and has authored documents related to these issues.
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`Wells Decl., ¶ 28. Thus, he is also likely to have information relevant to Finjan’s damages theories.
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`Messrs. Urban and Chiu and Ms. Murthy have been with Blue Coat for at least 6 years and thus are
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`likely to have key historic information relevant to the present case.
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`Finjan is also seeking discovery of sales of the accused products, including relevant worldwide
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`sales related to infringing activity in the United States. Marc Andrews is currently Blue Coat’s Senior
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`Vice President for Worldwide Sales. He should have knowledge regarding where contracts are signed
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`and where sales are originated. Thus, he is likely to have information relevant to Finjan’s damages
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`theories. Similarly Philip Langer is currently the Vice President of Worldwide Sales and Services.
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`Thus he is also likely to have information relevant to Finjan’s damages theories. Notably, both
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`Messrs. Andrews and Langer are located in the United States, indicating that at least a portion of Blue
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`Coat’s infringing worldwide sales originates are tied to the United States. Wells Decl., ¶¶ 13-14.
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`Based on the substantial, unique connections between the eight witnesses and information
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`directly relevant to Finjan’s claims, there is no valid basis to Blue Coat’s claims that the eight
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`depositions may be unnecessary or duplicative.
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`3.
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`Blue Coat’s Failure To Provide The Eight Witnesses Is Prejudicial To
`Finjan
`Blue Coat’s attempt to withhold the depositions of these eight witnesses is highly prejudicial to
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`Finjan. Finjan has already been prejudiced by Blue Coat’s months of delay in providing dates and
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`designees for Rule 30(b)(6) and other fact depositions. Now, Blue Coat seeks to compound that
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`prejudice by refusing to provide depositions of these eight witnesses until after the current schedule of
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`7
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
`
`

`

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`Case 5:13-cv-03999-BLF Document 109-3 Filed 10/09/14 Page 11 of 14Case 4:18-cv-07229-YGR Document 100-12 Filed 09/04/20 Page 12 of 15
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`depositions is finished, and then only after the parties “discuss” and “consider” the issue and Blue Coat
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`deems the depositions necessary. Under Blue Coat’s plan, for James Whitchurch, Mark Andrews and
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`Philip Langer, negotiations for deposition dates would not even begin until one month before the end of
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`fact discovery and shortly before the Thanksgiving holiday. See Wells Decl., ¶ 22, Ex. H (October 3,
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`2014 E-mail) (“We are, however, willing to discuss this issue with you further after Roger Harrison’s
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`deposition [on November 6, 2014] to consider Finjan’s need, if any, to take Mr. Whitchurch’s
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`deposition…We are, however, willing to discuss this issue with you further after Ms. Reynaud’s
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`deposition [on November 13, 2014] to consider Finjan’s need, if any, to take [Messr. Andrews and
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`Langer] depositions.”).
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`Finjan simply cannot wait that long. Finjan originally noticed these depositions in mid-
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`September to occur in late September and early October, in order to allow sufficient time to take these
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`depositions and conduct any necessary follow-up discovery before the close of fact discovery. Rather
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`than complying with this schedule, Blue Coat attempts to delay and cram these eight depositions into the
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`very tail-end of fact discovery, i.e., the final month of a ten-month fact discovery period. Alternatively,
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`Blue Coat seeks to force Finjan to have to forego the depositions altogether, because Blue Coat will not
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`deem them necessary or will not provide dates before the close of fact discovery. Given Blue Coat’s
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`track record of delaying depositions, Finjan cannot trust Blue Coat to act expeditiously in providing
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`these depositions at that late stage. Indeed, Blue Coat has recently scheduled depositions a week before
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`Thanksgiving despite Finjan’s notice of these depositions over three months ago. Blue Coat’s tactics are
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`transparent—delaying discovery and then later claiming it cannot schedule depositions because of the
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`holidays and the end of fact discovery.
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`Blue Coat’s gamesmanship and delay severely prejudices Finjan’s ability to obtain timely
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`discovery in this action. Despite ten months of fact discovery, and Finjan serving its first Rule 30(b)(6)
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`notice in April, no fact depositions have taken place to date. Thus, Blue Coat should be required to
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`provide dates and make available for deposition the eight noticed Blue Coat employees with no further
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`delay.
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`8
`__________________________________________________________________________________
`
`PLAINTIFF FINJAN’S NOTICE OF MOTION
` Case No.: 13-cv-03999-BLF
`AND MOTION TO COMPEL DISCOVERY
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`Case 5:13-cv-03999-BLF Document 109-3 Filed 10/09/14 Page 12 of 14Case 4:18-cv-07229-YGR Document 100-12 Filed 09/04/20 Page 13 of 15
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`B.
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`Blue Coat Should Be Compelled To Provide Infringement and Damages-
`Related Documents And Interrogatory Responses
`Finjan served RFP No. 74 on July 11, 2014, seeking “[d]ocuments sufficient to identify the
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`geographic location(s) where Blue Coat’s servers host the source code for the accused
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`instrumentalities, including any components, parts, and/or features of such instrumentalities.” Wells
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`Decl., ¶ 16, Ex. B. In its supplemental response, Blue Coat states: “Subject to and without waiver of
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`the general and specific objections set forth in Blue Coat’s Responses, Blue Coat responds as follows:
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`Blue Coat will not produce documents responsive to this request.” Id., ¶ 18, Ex. D (October 1, 2014
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`email).
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`As explained in meet and confer sessions between Blue Coat and Finjan, this RFP is relevant in
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`determining where infringement is occurring and whether Finjan is entitled to a portion of Blue Coat’s
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`foreign sales if it is determined that infringement is occurring in the United States. For example, if
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`source code for an accused product is only available in the United States and not available via other
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`means, it shows that Blue Coat makes or uses each product in the United States before exporting the
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`product, and therefore Finjan is entitled to foreign sales. Further, Finjan has asserted claims where the
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`source code does not have to be active to be infringing. See Finjan v. Secure Computing Corp., 626
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`F.3d 1197, 1204-05 (Fed. Cir. 2010). In other words, wherever the source code is stored in the United
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`States, it would be infringing. Thus the information requested in RFP No. 74 is directly relevant to
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`Finjan’s infringement and damages claims. Blue Coat has no credible argument in refusing to provide
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`this information. This RFP is also narrowly tailored because it only seeks “documents sufficient to
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`identify the geographic location(s)” and could be met with a single document showing the locations of
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`Blue Coats source code ser