Case 4:18-cv-07229-YGR Document 139 Filed 11/10/20 Page 1 of 3
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`November 10, 2020
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`VIA ELECTRONIC FILING
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`Honorable Thomas S. Hixon
`U.S. District Court, Northern District of California
`Oakland Courthouse
`Courtroom G – 15th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
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`Re:
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`Discovery Order (Dkt. No. 138)
`Finjan LLC v. Qualys, Inc., Case No. 4:18-cv-07229-YGR
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`Dear Magistrate Judge Hixson:
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`Pursuant to the Court’s November 9, 2020 Order (D138), Plaintiff Finjan LLC (“Finjan”)
`and Defendant Qualys, Inc. (“Qualys”) submit the following joint discovery letter brief
`answering the questions: (1) when on or after October 1, 2020 Finjan first requested continued
`access to the Qualys source code; and (2) when Qualys said no.
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`Respectfully submitted,
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`/s Jason W. Wolff /
`Jason W. Wolff
`FISH & RICHARDSON P.C.
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`Attorneys for Plaintiff
`Finjan LLC
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`Respectfully submitted,
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`/s Ryan R. Smith /
`Ryan R. Smith
`WILSON SONSINI GOODRICH & ROSATI
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`Attorneys for Defendant
`Qualys, Inc.
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`Case 4:18-cv-07229-YGR Document 139 Filed 11/10/20 Page 2 of 3
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`Finjan’s Position
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`Finjan first requested continued access to Qualys’s source code review computer on
`October 18, 2020. See Ex. A (email thread concerning this dispute) at 10/18/2020 email from
`Jason Wolff to Christopher Mays. Qualys confirmed it would not allow any further access to the
`inspection computer during a meet and confer on October 29, 2020.
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`Finjan’s initial request on October 18, 2020 was to inspect the source of a corrupted file
`recently produced by Qualys from a past inspection by Finjan’s former counsel. Id. On October
`19, 2020, Qualys refused to allow an inspection of the corrupted file, but, sensing a broader
`issue, Finjan asked for a clarification the same day and requested a meet and confer on October
`20 (7:11 am). No direct response to the key question or to the request for counsel’s availability
`to meet and confer was received from Qualys, so Finjan followed up again on October 20 (7:48
`pm), and on October 25 (requesting inspection dates and a meet and confer), 26, and 28, when a
`meet and confer date was set. Id. Because Qualys indicated it was unclear what the basis for the
`dispute was in its response on October 27, Finjan sent its half of a letter brief on October 28. Id.
`A meet and confer was subsequently scheduled for October 29.1
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`On October 29, the parties met and conferred. Qualys stated that it would not provide
`Finjan further access to the inspection computer for any purpose. Finjan asked Qualys to provide
`its portion of a joint discovery letter brief by close of business on October 30, 2020. Id. at
`10/29/2020 Email from Ryan O’Connor to Ryan Smith. Qualys did not comply with that
`request. Accordingly, on November 2, 2020, Finjan asked Qualys to provide its availability for a
`teleconference with the Court. And, on November 3, 2020, Finjan contacted Ms. Maher to
`schedule the teleconference.
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`Qualys’s Position
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`Qualys agrees that Finjan did not request continued access to Qualys’s source code
`review computer until Sunday, October 18, 2020 at 2:47pm. In other words, Qualys did not
`make its request until more than seventeen days after the close of fact discovery and ten days
`after the Local Rule 37-3 deadline to file a motion to compel fact discovery. Qualys replied
`within hours (at 12:01am) stating:
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`“…considering that fact discovery is closed, we are not willing to
`permit another inspection.”
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`Ex. A at 8 (10/19/20 Email from Smith to Wolff). Qualys has never wavered from its refusal to
`provide continued access to the source code computer. Finjan’s counsel was not “sensing a
`broader issue,” but was clearly informed of Qualys’s position. Finjan may have sought to
`convince Qualys to change its position, but Finjan knew there was a dispute at that point.
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`1 Finjan’s testifying experts were scheduled to be in San Jose for the Finjan v. Cisco trial before
`Judge Freeman, which was set to begin on November 2, so Finjan’s plan was to have its experts
`access the computer after they testified. The Cisco trial was subsequently rescheduled for
`January. Qualys complains that Mr. Jain, a consultant, lives in San Jose, but Mr. Jain is not a
`testifying expert for Finjan.
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`1
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`Case 4:18-cv-07229-YGR Document 139 Filed 11/10/20 Page 3 of 3
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`Finjan incorrectly asserts that Qualys did not respond quickly enough to Finjan’s
`correspondence. In that regard, Finjan neglects to mention that the parties were also continuing
`to address Finjan’s ongoing violation of this Court’s order directing Finjan to produce expert
`materials from other cases. The parties’ anticipated meet and confer was intended to cover both
`topics and, such as, took longer to schedule. Finjan also incorrectly asserts that Qualys requested
`a joint letter brief regarding the dispute on October 27. In reality, Finjan initially proposed that
`the parties submit a joint letter brief. Qualys agreed. Finjan then provided multiple versions of
`its brief, which forced Qualys to repeatedly revise its portion. Finjan finally provided a “final”
`version of its brief on Thursday, October 29 at 2:51pm. Qualys had nearly finalized its portion
`of the letter brief on Monday, November 2 at 11:09am when Finjan abruptly changed course by
`seeking a teleconference without submitting a joint letter brief. Qualys did not object. Finjan
`then sought to schedule another meet and confer, but then changed course again. All the while,
`Finjan continued to drag its feet on complying with the Court’s order requiring the production of
`expert report from other matters.
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`In summary, Finjan waited until weeks after the close of fact discovery to request
`continued access to Qualys’ source code computer and, within hours, Qualys refused the request
`in accordance with the Local Rule 37-3 deadline.2
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`2 In a footnote, Finjan states that its “plan was to have the experts access the computer after they
`testified” in San Jose on November 2. Finjan neglects to mention that one of its source code
`review experts in this case (Andy Jian) resides in San Jose. Exhibit B (Jian CV). Mr. Jian had
`been to Wilson Sonsini’s Palo Alto office numerous times starting in August 2019, including
`reviews during the pandemic in 2020. Finjan’s suggestion that it failed to complete its source
`code review during fact discovery due to travel issues or a conflict with trial in the Cisco case is
`non-sensical.
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`2
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