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`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 1 of 7
`
`
`
`STEFANI E. SHANBERG (State Bar No. 206717)
`sshanberg@mofo.com
`JENNIFER J. SCHMIDT (State Bar No. 295579)
`jschmidt@mofo.com
`NATHAN B. SABRI (State Bar No. 252216)
`nsabri@mofo.com
`ROBIN L. BREWER (State Bar No. 253686)
`rbrewer@mofo.com
`EUGENE MARDER (State Bar No. 275762)
`emarder@mofo.com
`MADELEINE E. GREENE (State Bar No. 263120)
`mgreene@mofo.com
`MICHAEL J. GUO (State Bar No. 284917)
`mguo@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105
`Telephone:
`(415) 268-7000
`Facsimile:
`(415) 268-7522
`
`DAVID A. NELSON (Pro Hac Vice)
`davenelson@quinnemanuel.com
`NATHAN A. HAMSTRA (Pro Hac Vice)
`nathanhamstra@quinnemanuel.com
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`500 W. Madison Street, Suite 2450
`Chicago, Illinois 60661
`Telephone:
`(312) 705-7400
`Facsimile:
`(312) 707-7401
`
`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`Case No.: 15-cv-03295-BLF-SVK
`
`Plaintiff,
`
`v.
`
`BLUE COAT SYSTEMS LLC, a Delaware
`Corporation,
`
`Defendant.
`
`DEFENDANT BLUE COAT SYSTEMS
`LLC’S OPPOSITION TO PLAINTIFF
`FINJAN, INC.’S MOTION IN LIMINE
`NO. 4 TO EXCLUDE EVIDENCE
`REGARDING USAGE DATA
`
`Pretrial: October 5, 2017
`Time:
`1:30 p.m.
`Place: Courtroom 3, 5th Floor
`Judge: Honorable Beth Labson Freeman
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
`
`
`
`
`

`

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`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 2 of 7
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`
`
`TABLE OF ABBREVIATIONS
`
`
`Plaintiff Finjan, Inc.
`Defendant Blue Coat Systems LLC
`U.S. Patent No. 6,154,844
`U.S. Patent No. 8,079,086
`U.S. Patent No. 8,677,494
`Security Analytics
`Malware Analysis Appliance
`Advanced Secure Gateway
`Plaintiff Finjan, Inc.’s Motion in Limine No. 4, Dkt. No. 293
`Declaration of Hannah Lee in Support of Plaintiff Finjan Inc.’s Motions
`in Limine Nos. 1-4 and Daubert Motion, Dkt. No. 304
`Declaration of Robin L. Brewer in Support of Defendant Blue Coat
`Systems LLC’s Motions in Limine, Dkt. No. 307
`Declaration of Robin L. Brewer in Support of Defendant Blue Coat
`Systems LLC’s Oppositions to Motions in Limine
`
`Finjan or Plaintiff
`Blue Coat or Defendant
`’844 patent
`’086 patent
`’494 patent
`SA
`MAA
`ASG
`Br.
`Lee Decl.
`
`Brewer Decl.1
`
`Brewer Opp. Decl. 2
`
`
`1 Unless otherwise specified, all numeric exhibits refer to those attached to the Brewer Decl.
`2 Unless otherwise specified, all alphabetic exhibits refer to those attached to the Brewer Opp.
`Decl.
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
`
`
`i
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`

`

`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 3 of 7
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`Finjan’s motion is based upon an assertion that Blue Coat failed to provide certain
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`apportionment data upon which Mr. Thomas relies in its discovery responses. But Finjan did not
`
`request the information, and Blue Coat could not have provided it. Finjan changed its
`
`infringement theory relating to SA in its expert reports. See, e.g., Dkt. No. 203 at *8-9. The
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`complained-about information responds to that late theory and could not have been provided
`
`earlier. As the Court heard in connection with Blue Coat’s motion to strike, in its infringement
`contentions, Finjan accused SA in combination with ASG of infringing and alleged that MAA
`sends a report to SA. See, e.g., Dkt. No. 203 at *8-9. In its expert reports, Finjan changed its
`theory to accuse SA in combination with MAA and allege for the first time that SA sends files to
`MAA for sandboxing. Id.
`
`In the Order on Blue Coat’s motion to strike, this Court agreed that Finjan had not
`
`adequately disclosed its infringement theories relating to the combination of SA and MAA for the
`
`’086 and ’844 patents. Dkt. No. 277, at *7-9. With respect to the ’494 patent, for which the
`
`Court found sufficient disclosure, Finjan never previously alleged that SA sent files to MAA for
`
`sandboxing. Compare Dkt No. 205-8, Ex. C (infringement contentions) at 44, 57 (“the Security
`
`Analytics Products act as a receiver”) with Dkt. No. 205-14, Ex. G (Finjan’s expert report) at ¶
`
`1290 (“SA . . . feed[s] downloaded web content into a MAA for analysis and processing.”).
`
`Consistent with its theories at the time, Finjan’s interrogatories requested, inter alia,
`
`identification of the number of files scanned, threats received, and threats detected. Lee Decl.,
`
`Ex. 17 (Interrogatory No. 8). Finjan further requested identification of “the number of files,
`
`threats or malware that are detected through sandboxing or dynamic malware analysis.” Lee
`
`Decl., Ex. 16 (Interrogatory No. 23). Blue Coat provided a fulsome response based on Finjan’s
`theories at the time, which required MAA to send a report to SA. See Lee Decl., Ex. 17. Blue
`
`Coat does not have
` and Blue Coat does not have information about
`the traffic sent by MAA to SA. Id. In contrast, Blue Coat does have information regarding traffic
`sent from SA to MAA. It is that information upon which Mr. Thomas relied and about which
`
`Finjan complains. Prior to expert reports, Blue Coat had no notice that this information was
`
`relevant. Once Finjan introduced a theory that made it relevant, Blue Coat adequately disclosed
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
`
`
`1
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`

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`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 4 of 7
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`the information in its expert report. The timing of the disclosure is justified and harmless, and
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`Finjan’s motion should be denied.
`
`I.
`
`LEGAL STANDARD
`Rule 37 permits a court to exclude untimely disclosed information unless the failure to
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`supplement was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). “Among the factors
`
`that may properly guide a district court in determining whether a violation of a discovery deadline
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`is justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is
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`offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the
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`trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence.” Lanard
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`Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010). Courts may also consider
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`the importance of the evidence. See, e.g., San Francisco Baykeeper v. West Bay Sanitary
`
`District, 791 F. Supp. 2d 719, 733 (N.D. Cal. 2011).
`
`II.
`
`SA APPORTIONMENT INFORMATION SHOULD NOT BE EXCLUDED
`A. Mr. Thomas’s SA Apportionment Is Consistent with Blue Coat’s Discovery
`Responses.
`
`Finjan’s interrogatories requested, inter alia, identification of the number of files scanned,
`
`the number of threats received, and the number of threats detected. Lee Decl., Ex. 17
`
`(Interrogatory No. 8). Finjan further requested identification of “the number of files, threats or
`
`malware that are detected through sandboxing or dynamic malware analysis.” Lee Decl., Ex. 16
`
`(Interrogatory No. 23). Blue Coat provided a fulsome and accurate response based upon Finjan’s
`
`infringement theories at the time. Lee Decl., Ex. 17. Regarding SA specifically, Finjan alleged
`in its infringement contentions that SA infringed in combination with ASG and that MAA sends a
`report that would be stored on SA. See, e.g., Dkt No. 205-8 at 44, 57. Prior to its expert reports,
`Finjan never alleged infringement because SA sends files to MAA for sandboxing. Id.; see also
`
`Dkt. No. 205-14, Ex. G at ¶ 1290.
`
`Based on the infringement theories disclosed before the close of discovery, Blue Coat had
`
`no responsive information relating to SA. Specifically, as stated in response to Finjan’s
`
`interrogatories, Blue Coat does not receive
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
`
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` and does not
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`2
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`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 5 of 7
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`have information about the SA usage requested in the interrogatories. Lee Decl., Ex. 17.
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`Similarly, Blue Coat does not have information about the number of reports received by SA from
`
`MAA. Id. In response to Finjan’s new infringement theory relating to files sent from SA to
`
`MAA, there is usage data available. Blue Coat disclosed that information at its first opportunity.
`
`Specifically, Mr. Thomas’s report discloses his apportionment theory which relies on a broad
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`range of average traffic for SA
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` and the maximum throughput
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`from SA to MAA
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` Ex. D at ¶ 164. This data was not responsive to Finjan’s
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`discovery requests for two reasons: (1) this traffic flow was not accused; and (2) it does not
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`constitute the requested number of files scanned, threats received, or threats detected. Instead, it
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`is maximum throughput, a conservative measure. Mr. Thomas took the lowest part of the traffic
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`range for SA
` and the maximum throughput for MAA
` to
`calculate the maximum possible usage of MAA by SA, not actual usage. Id. He then used this
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`maximum measure to determine a reasonable apportionment for SA revenue. Id.
`
`Blue Coat’s responses to Finjan’s interrogatories are truthful, accurate, and consistent with
`
`the information relied on by Mr. Thomas. The timing and manner of disclosure results from (1)
`
`the questions asked by Finjan, and (2) Finjan’s evolving infringement theories. Finjan’s
`
`accusations of “fabrication” and “sandbagging” are not well-taken. Its motion should be denied.
`
`Disclosure of SA Apportionment Data Was Timely, Justified, and Harmless.
`B.
`Blue Coat’s apportionment information for SA may only be excluded if its disclosure was
`
`untimely and the failure to disclose it sooner was not substantially justified or harmless. Fed. R.
`
`Civ. P. 37(c)(1). First, Blue Coat’s disclosure was timely under the circumstances. Second,
`
`under all factors, the timing of the disclosure was substantially justified and harmless.
`Blue Coat’s Disclosure was Timely. As discussed above, in its infringement contentions,
`Finjan identified SA in combination with ASG and further alleged that MAA sends a report that
`could be stored on SA. See, e.g., Dkt. No. 203 at *8-9. Finjan, however, changed its
`
`infringement theory in its expert reports and accused the SA in combination with MAA and
`alleged for the first time that SA sends files to MAA for sandboxing. Id. The Court agreed that
`
`Finjan had not adequately disclosed its infringement theories relating to the combination of SA
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
`
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`3
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`

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`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 6 of 7
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`and MAA for the ’086 and ’844 patents. Dkt. No. 277, at *7-9. With respect to the ’494 patent,
`
`for which the Court found sufficient disclosure, Finjan never previously alleged that SA sent files
`
`to MAA for sandboxing. Compare Dkt No. 205-8, Ex. C (infringement contentions) at 44, 57
`
`(“the Security Analytics Products act as a receiver” and “ASG Systems will store Downloadable
`
`security profile data in a database by . . . communicating results to security analytics from Solera
`
`(i.e. Security Analytics)”) with Dkt. No. 205-14, Ex. G (Finjan’s expert report) at ¶ 1290 (“The . .
`
`. SA . . . feed[s] downloaded web content into a MAA for analysis and processing.”). It was not
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`known prior to the close of discovery that information relating to number of files sent from SA to
`
`MAA could possibly be relevant. Blue Coat disclosed this information at its first opportunity,
`
`Mr. Thomas’s expert report. This information was, therefore, timely disclosed.
`The Timing of the Disclosure was Substantially Justified and Harmless. All of the
`
`factors support finding the timing of the disclosure substantially justified and harmless.
`There is no prejudice or surprise to Finjan. Finjan has been aware of this information
`
`since April, and it deposed Mr. Thomas regarding the information. Blue Coat and Blue Coat’s
`
`experts properly disclosed this apportionment, including that Mr. Thomas relied on his
`
`conversation with Matt Wood to calculate an apportionment factor for SA. See Bourns, Inc. v.
`
`Raychem Corp., No. 1999 U.S. Dist. LEXIS 23677 at *6 (C.D. Cal. 1999) (expert may reasonably
`
`rely on interviews in support of damages opinion). Finjan’s claim that it cannot adequately cross-
`
`examine Mr. Thomas or Mr. Wood (who Finjan has designated as a witness it intends to present
`by deposition) are baseless, and this information will not disrupt trial.
`
`As the subject information was not among Finjan’s 30(b)(6) topics and was not requested
`
`during discovery, Finjan cannot now complain that it did not depose Mr. Wood on the topic. Br.
`
`at 3. Similar to the interrogatory responses, the topics for which Blue Coat indicated that no
`
`relevant information about SA was available were the number of scans performed by the accused
`
`instrumentalities (Topic 29) and the number and types of malware detected by the accused
`
`instrumentalities (Topic 30). SA does not scan files and does not detect malware. It is still
`
`accurate that Blue Coat has no relevant information responsive to Topics 29 and 30 for SA.
`
`Finjan cannot claim that it is prejudiced because Blue Coat did not identify a witness for topics
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
`
`
`4
`
`

`

`Case 5:15-cv-03295-BLF Document 318 Filed 09/28/17 Page 7 of 7
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`
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`that were never propounded.
`Finjan also did nothing to cure any alleged prejudice. Finjan never requested a
`
`supplemental deposition of Mr. Wood, which Blue Coat would not have opposed had Finjan
`
`expressed any desire to cure its now-alleged prejudice.
`
`Finally, this information provides the basis for apportionment of SA revenues and is
`important to Blue Coat. The fact that it was not earlier disclosed does not result from bad faith
`
`or willfulness by Blue Coat. It results from the scope of Finjan’s questions and Finjan’s belated
`
`changes to its infringement theories. Finjan fails to explain the implications of its motion, but
`Blue Coat would be substantially prejudiced if it is precluded from introducing its apportionment
`
`for SA.
`
`All factors demonstrate that the timing for disclosure of this information was substantially
`
`justified and harmless. Finjan’s motion should be denied.
`
`III. CONCLUSION
`The information relied upon by Mr. Thomas for SA apportionment is consistent with Blue
`
`Coat’s discovery responses and timely. Further, the timing of the disclosure is substantially
`
`justified and harmless. For these reasons, Finjan’s motion should be denied.
`
`
`
`Dated: September 28, 2017
`
`
`
`
`
`
`MORRISON & FOERSTER LLP
`
`By:
`
`/s/ Stefani E. Shanberg
`Stefani E. Shanberg
`
`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
`
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`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 4
`15-cv-03295-BLF-SVK
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`5
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