Case 4:18-cv-07229-YGR Document 81-1 Filed 07/23/20 Page 1 of 6
`Case 4:18-cv-07229—YGR Document 81-1 Filed 07/23/20 Page 1 of 6
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`QUALYS EXHIBIT A
`QUALYS EXHIBIT A
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`Case 4:18-cv-07229-YGR Document 81-1 Filed 07/23/20 Page 2 of 6
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`Gordnia, Talin
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`From:
`Sent:
`To:
`Cc:
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`Subject:
`
`Kastens, Kris <KKastens@KRAMERLEVIN.com>
`Thursday, July 2, 2020 12:05 PM
`Gordnia, Talin; Smith, Ryan; Frankel, Aaron
`Mays, Christopher; Kim, Olivia; Poplawski, Edward; Cheng, Stephanie; Andre, Paul;
`Kobialka, Lisa; Hannah, James; Williams, Daniel
`RE: Finjan/Qualys: Finjan's Letter Brief on Discovery Disputes
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`[External]
`Talin,
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`We object to Qualys dragging out this process. Provide your half of the letter no later than noon on Monday. Qualys
`has had the draft joint letter for a week, but failed to provide a responsive statement.
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`Regarding Finjan’s production. We are working on completing it and we expect to supplement our production in the
`next week or two. As an initial matter, Qualys’ definition of what constitutes a “litigation document” appears to be keep
`changing. Provide a complete list of the types of documents that you seek (being specific as possible) and will consider
`them. However, in the interest of time we address the specific documents you have identified.
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`First, regarding the depositions, the majority of the cases/disputes you cited had no depositions taken in them. We have
`also agreed to produce the deposition transcripts of Finjan’s fact witnesses, and despite your claims, the majority were
`produced months ago. The remaining deposition transcripts are from more recent cases and will be produced
`soon. Regarding any deposition exhibits you believe are missing, identify them and we will look into them. Therefore,
`we do not believe there is a dispute on deposition transcripts.
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`Second, Finjan does not object to producing its expert reports in prior cases on tutorials, validity, and damages. We will
`look into any remaining reports in these categories and see if the process can be moved along. Finjan does not agree to
`produce infringement reports from prior cases, given the lack of relevance, the burden to produce the reports, and the
`third-party confidentiality issues (which includes descriptions of source code). If you believe there is a dispute, then add
`it to the letter.
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`Third, regarding Finjan’s interrogatories, we do not agree that the issue is resolved if Qualys is still maintaining that
`Finjan is over the 25 interrogatory limit. Confirm that Qualys agrees that Finjan’s first 11 interrogatories count as 11
`interrogatories for the discovery limit. We do not agree that Qualys can maintain an objection to Finjan being over the
`limit and then arbitrarily decide which interrogatories to answer going forward.
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`Separately, provide an update on the status of the summary financial document Qualys promised during the meet and
`confer in February. We understood that the purpose of this document was to remedy Qualys’ discovery deficiencies
`regarding damages-related information sought by Finjan’s written discovery requests. Qualys has subsequently
`confirmed its commitment to produce this document but has still not done so.
`
`Sincerely,
`Kris
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`
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`Kris Kastens
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`1
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`Case 4:18-cv-07229-YGR Document 81-1 Filed 07/23/20 Page 3 of 6
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`Partner
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1715 F 650.752.1815
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Gordnia, Talin <tgordnia@wsgr.com>
`Sent: Tuesday, June 30, 2020 8:20 PM
`To: Kastens, Kris <KKastens@KRAMERLEVIN.com>; Smith, Ryan <rsmith@wsgr.com>; Frankel, Aaron
`<AFrankel@KRAMERLEVIN.com>
`Cc: Mays, Christopher <cmays@wsgr.com>; Kim, Olivia <okim@wsgr.com>; Poplawski, Edward
`<epoplawski@wsgr.com>; Cheng, Stephanie <stephanie.cheng@wsgr.com>; Andre, Paul
`<PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Subject: [EXTERNAL] RE: Finjan/Qualys: Finjan's Letter Brief on Discovery Disputes
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`Kris,
`
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`Based on your representation that Finjan will supplement its response to Interrogatory No. 7 within a week of this
`week’s source code review, we will consider this issue resolved for the time being and revisit as needed.
`
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`Regarding prior litigation documents, we understand Finjan has requested permission from the following third parties to
`produce documents that may contain their confidential materials: Barracuda; Blue Coat; Bullguard; Carbon Black; F5;
`FireEye; F-Secure; Hillstone; HP; McAfee; Proofpoint; Secure Computing; Sophos; Symantec; Watchguard;
`Websense. While Finjan is in the best position to confirm this, based on the emails we have been copied on, it has been
`at least two months since these third parties either expressly agreed to the production of the documents in question or
`did not respond by the deadline to object. In some instances, counsel for the third parties had questions for Qualys,
`which we responded to and resolved. Yet, Finjan has not produced all prior litigation documents from cases involving
`these parties. In fact, the only expert reports that have been produced are damages reports from the McAfee and
`Websense cases and it is unclear whether there are other expert reports from those cases that have not been
`produced. For example, we have not received infringement expert reports, which we maintain should be
`produced. Based on our records, it appears Finjan was not able to contact counsel for Avast, and counsel for Lavasoft
`requested to see the documents Finjan plans to produce. Has Finjan resolved these issues? In addition, based on the
`emails we have been copied on, Finjan has not yet requested permission from at least the following third parties:
`Aladdin; Bitdefender; Checkpoint; Cisco; ESET; Fortinet; Juniper; PAN; Rapid7; SonicWall; Trustwave; Zscaler. Has Finjan
`received permission from these parties to produce documents that may contain their confidential materials?
`
`
`Regarding transcripts from the prior litigations, we have received some deposition transcripts, specifically from cases
`involving the following: Bitdefender; Blue Coat; Cisco; ESET; Juniper; McAfee; Proofpoint; Secure Computing; Sophos;
`Symantec; Websense. We cannot determine whether we have received all deposition transcripts for these cases and in
`some instances, we are missing exhibits; please confirm whether all deposition transcripts have been produced from
`these cases and produce any deposition exhibits that have not yet been produced. Further, there are a number of cases
`for which we have not received deposition transcripts (e.g., cases involving Aladdin; Avast; Barracuda; Bullguard; Carbon
`Black; Checkpoint; F5; FireEye; Fortinet; F-Secure; Hillstone; HP; Lavasoft; PAN; Rapid7; SonicWall; Trustwave;
`Watchguard; Zscaler). Based on this, it appears that Finjan’s representation that a “majority” of the deposition
`transcripts have been produced is inaccurate. Also, please confirm whether there are trial transcripts and trial exhibits
`that are not yet produced. For example, we have not received the transcripts from the first few days of the ESET trial
`before it concluded in a mistrial.
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`Case 4:18-cv-07229-YGR Document 81-1 Filed 07/23/20 Page 4 of 6
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`Again, it is Finjan (not Qualys) who is in the best position to know what prior litigation documents exist and have not
`been produced. That said, based on our records, the production of prior litigation documents is incomplete and Finjan
`appears to be holding back the production of documents that it has been able to produce for over two months. The
`parties have met and conferred about these prior litigation documents multiple times since February 2020. The fact that
`we still do not have all of these documents implies that we are at an impasse. If Finjan disagrees, please explain your
`position.
`
`Regarding Finjan’s interrogatory nos. 9-11, Qualys agrees to supplement and respond to these interrogatories, thereby
`mooting the second issue in Finjan’s discovery letter. Qualys, however, reserves the right to object to Finjan’s later
`served interrogatories on the basis that Finjan has exceeded the twenty-five interrogatory limit.
`
`Regards,
`Talin
`
`
`Talin Gordnia | Wilson Sonsini Goodrich & Rosati
`633 West Fifth Street, Suite 1550 | Los Angeles, CA 90071-2027 | direct: 323.210.2925 | tgordnia@wsgr.com
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`From: Kastens, Kris <KKastens@KRAMERLEVIN.com>
`Sent: Monday, June 29, 2020 2:46 PM
`To: Gordnia, Talin <tgordnia@wsgr.com>; Smith, Ryan <rsmith@wsgr.com>; Frankel, Aaron
`<AFrankel@KRAMERLEVIN.com>
`Cc: Mays, Christopher <cmays@wsgr.com>; Kim, Olivia <okim@wsgr.com>; Poplawski, Edward
`<epoplawski@wsgr.com>; Cheng, Stephanie <stephanie.cheng@wsgr.com>; Andre, Paul
`<PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Subject: RE: Finjan/Qualys: Finjan's Letter Brief on Discovery Disputes
`
`[External]
`Talin,
`
`With regards to Finjan’s response to Interrogatory No. 7, Finjan already agreed to provide a supplemental
`response, and will do so within a week of its requested source code review. Therefore, the parties are not at
`an impasse on this issue.
`
`Regarding prior litigation documents, Finjan has already produced the majority of the deposition transcripts of
`its fact witnesses and is working on preparing the transcripts from the more recent cases. If you have reason
`to believe that certain specific transcripts are missing, please let us know and we will look into
`them. Therefore, the parties are not at an impasse on this issue.
`
`For expert reports in other litigations involving the same patents, Finjan has not objected to the production of
`any tutorial, damages, or invalidity reports. In fact, we have reached out to a number of parties where
`depositions have concluded for permission to produce this material. You are well aware of this, as we have
`copied you on these emails and invited you to take part in this process of obtaining permission to produce the
`documents from the third parties. What is the status of your negotiations with these third
`parties? Accordingly, the parties are not at an impasse on this issue either. However, we welcome
`clarification from Qualys on what it is still seeking and believes to be still missing.
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`Case 4:18-cv-07229-YGR Document 81-1 Filed 07/23/20 Page 5 of 6
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`Sincerely,
`Kris
`
`
`
`
`Kris Kastens
`Partner
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1715 F 650.752.1815
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`From: Gordnia, Talin <tgordnia@wsgr.com>
`Sent: Friday, June 26, 2020 4:23 PM
`To: Kastens, Kris <KKastens@KRAMERLEVIN.com>; Smith, Ryan <rsmith@wsgr.com>; Frankel, Aaron
`<AFrankel@KRAMERLEVIN.com>
`Cc: Mays, Christopher <cmays@wsgr.com>; Kim, Olivia <okim@wsgr.com>; Poplawski, Edward
`<epoplawski@wsgr.com>; Cheng, Stephanie <stephanie.cheng@wsgr.com>; Andre, Paul
`<PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Subject: [EXTERNAL] RE: Finjan/Qualys: Finjan's Letter Brief on Discovery Disputes
`
`Dear Counsel,
`
`
`We are in receipt of Finjan’s draft joint discovery letter and will provide Qualys’s additions to the letter as soon as
`feasible. Pursuant to Judge Gonzalez Rogers’s Standing Order in Civil Cases, the parties may not file multiple joint letters
`on the disputes currently at issue. Accordingly, Qualys’s additions to the joint discovery letter will address the parties’
`disputes regarding Qualys’s discovery requests. For example, Finjan has not produced documents from its other
`litigations involving the patents-in-suit (e.g., expert reports, deposition transcripts and exhibits, etc.) and has not
`supplemented Interrogatory No. 7. See, e.g., February 14, 2020 T. Gordnia email to D. Williams; March 11, 2020 T.
`Gordnia email to D. Williams; March 25, 2020 T. Gordnia email to D. Williams. The parties met and conferred regarding
`these issues on February 26, 2020 and March 18, 2020. To date, Finjan has not produced the discovery sought by Qualys
`and we understand the parties to be at impasse. Please confirm that the parties are at impasse or alternatively produce
`the requested discovery so that we may avoid burdening the Court with this issue; we would appreciate your response
`by COB on June 29, 2020.
`
`
`Regards,
`Talin
`
`
`Talin Gordnia | Wilson Sonsini Goodrich & Rosati
`633 West Fifth Street, Suite 1550 | Los Angeles, CA 90071-2027 | direct: 323.210.2925 | tgordnia@wsgr.com
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`From: Kastens, Kris <KKastens@KRAMERLEVIN.com>
`Sent: Thursday, June 25, 2020 4:11 PM
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`4
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`Case 4:18-cv-07229-YGR Document 81-1 Filed 07/23/20 Page 6 of 6
`
`To: Smith, Ryan <rsmith@wsgr.com>; Frankel, Aaron <AFrankel@KRAMERLEVIN.com>
`Cc: Mays, Christopher <cmays@wsgr.com>; Kim, Olivia <okim@wsgr.com>; Poplawski, Edward
`<epoplawski@wsgr.com>; Cheng, Stephanie <stephanie.cheng@wsgr.com>; Gordnia, Talin <tgordnia@wsgr.com>;
`Andre, Paul <PAndre@KRAMERLEVIN.com>; Kobialka, Lisa <LKobialka@KRAMERLEVIN.com>; Hannah, James
`<JHannah@KRAMERLEVIN.com>; Williams, Daniel <DDWilliams@KRAMERLEVIN.com>
`Subject: Finjan/Qualys: Finjan's Letter Brief on Discovery Disputes
`
`[External]
`Ryan,
`
`See the attached discovery letter brief to the Judge. Provide Qualys’ half of the brief by COB of business on June 30th.
`
`Sincerely,
`Kris
`
`
`
`Kris Kastens
`Partner
`
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road, Menlo Park, California 94025
`T 650.752.1715 F 650.752.1815
`kkastens@kramerlevin.com
`
`
`Bio
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is
`confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received
`this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication.
`Thank you for your cooperation.
`
`
`
`This email and any attachments thereto may contain private, confidential, and privileged material for the sole
`use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by
`others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and
`permanently delete the original and any copies of this email and any attachments thereto.
`
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