Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 1 of 9
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`SONICWALL, INC.,
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`Defendant.
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`Case No. 17-cv-04467-BLF (VKD)
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`ORDER RE DISCOVERY DISPUTE RE
`PRIVILEGE CLAIMS
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`Re: Dkt. No. 248
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`Defendant SonicWall, Inc. (“SonicWall”) disputes plaintiff Finjan, Inc.’s (“Finjan”)
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`assertions of attorney-client privilege and attorney work product protection with respect to
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`portions of and exhibits to the depositions of four witnesses who provided testimony in a separate
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`litigation between Finjan and Cisco Systems, Inc. (“Cisco”). SonicWall moves to compel
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`production of those materials. Finjan argues that the disputed materials are protected from
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`disclosure and that they are not relevant. Dkt. No. 248.
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`The Court has considered the parties’ submissions dated April 17 and May 4, 2020,
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`including Finjan’s submission of the disputed exhibits for in camera review, as well as the
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`arguments presented at the hearing on April 28, 2020. Dkt. Nos. 254, 258, 259. The Court
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`concludes that Finjan has waived both the attorney-client privilege and attorney work product
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`protection for the disputed materials. As the materials appear to be responsive to SonicWall’s
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`discovery requests and are not clearly irrelevant, the Court grants SonicWall’s motion to compel.
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`I.
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`BACKGROUND
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`In this action, Finjan asserts that SonicWall infringes ten of Finjan’s patents. Dkt. No. 1.
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`During discovery, Finjan produced to SonicWall partially redacted transcripts of the depositions of
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 2 of 9
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`Yoav Samet, Philip Hartstein, Yuval Ben-Itzhak, and Daniel Chinn taken in another Finjan patent
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`infringement action, Finjan, Inc. v. Cisco Systems, Inc., No. 17-cv-00072-BLF-SVK (N.D. Cal.)
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`(“the Cisco action”). The Cisco action involves some of the same patents asserted in this action.
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`Dkt. No. 248 at 1. Finjan also produced a privilege log listing the redacted portions of the four
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`depositions as well as eight deposition exhibits (or portions thereof). Dkt. No. 258 ¶ 4, Ex. 1.
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`Finjan claims that these materials are protected from disclosure under both the attorney-client
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`privilege and the attorney work product doctrine. Id.
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`According to the parties, Cisco took the disputed depositions and produced the disputed
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`deposition exhibits in the Cisco action. Dkt. No. 248 at 1, 5 n.5. The disputed testimony and
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`documents concern information Finjan provided to Cisco several years before Finjan’s patent
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`infringement dispute with Cisco, when Cisco was an investor in Finjan and had a contractual right
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`to observe meetings of Finjan’s board of directors. Id. at 2, 4. Yoav Samet, then a Cisco
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`employee, served as Cisco’s board observer. Id. According to Finjan, it prepared and provided all
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`disputed deposition exhibits to Cisco via Mr. Samet in 2005 and 2006, except for Document 3,
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`which Finjan believes it prepared and provided in 2008. Id. at 4; Dkt. No. 258 ¶ 5.
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`The parties agree that Cisco is among the signatories to Finjan’s 2004 Investors’ Rights
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`Agreement (“IRA”). Dkt. No. 258 ¶ 7, Ex. 2. The IRA includes the following provision directed
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`to Cisco’s rights to observe Finjan’s board meetings:
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`. . .
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`Dkt. No. 256-6 at ECF p.18. Finjan says that Mr. Samet executed a “strict” non-disclosure
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`agreement (“NDA”) on behalf of Cisco but apparently has no record of that agreement or its
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`terms. See Dkt. No. 248 at 4.
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`SonicWall disputes the existence of any such NDA. According to SonicWall, Cisco sent a
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`proposed mutual NDA to Finjan using Cisco’s standard form agreement in January 2004, several
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 3 of 9
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`months before the IRA. Id. at 2; Dkt. No. 259 ¶ 2, Ex. 1. However, the Cisco mutual NDA
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`appears not to have been signed by Finjan. Dkt. No. 248 at 2; Dkt. No. 259 ¶ 2, Ex. 1. Moreover,
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`the Cisco mutual NDA recites that it governs the use and disclosure of confidential information for
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`the purpose of “[d]etermining whether a potential business opportunity exists between the
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`parties”; it does not refer to Cisco’s board observer status or its role as an investor. Dkt. No. 259
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`¶ 2, Ex. 1, § 3.0. In any event, by its terms, the Cisco mutual NDA would have terminated five
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`years after the receipt of confidential information, or at the latest in 2013 (assuming Finjan’s last
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`disclosure to Cisco was in 2008). Id. § 11.0.
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`SonicWall says that the only other NDA between Cisco and Finjan is one dated March 21,
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`2014, which post-dates the disclosure of the disputed documents by many years and was intended
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`to cover certain pre-suit licensing discussions between Cisco and Finjan. Dkt. No. 248 at 3 n.3;
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`Dkt. No. 259 ¶ 4, Ex. 3. Finjan does not contest this assertion.
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`SonicWall observes that all disputed exhibits and deposition testimony are likely to be
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`used as evidence in the Cisco action. Dkt. No. 248 at 2. Finjan acknowledges that the disputed
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`materials reflect “Cisco’s intimate knowledge of Finjan’s patents and its litigation activities and,
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`thus, serv[e] as evidence in [the Cisco action] of, among other things, Cisco’s willful infringement
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`of Finjan’s patents.” Id. at 5. The Court has reviewed the lists of proposed witnesses and trial
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`exhibits the parties filed in the Cisco action, which is now set for trial in mid-October 2020.
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`Cisco, No. 17-cv-00072-BLF-SVK, Dkt. No. 646 (N.D. Cal. May 26, 2020). Finjan identifies
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`each of Messrs. Samet, Hartstein, Ben-Itzhak, and Chinn as witnesses it will or may call at trial.
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`See Cisco, No. 17-cv-00072-BLF-SVK, Dkt. No. 547-1 (N.D. Cal. Apr. 16, 2020). In addition,
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`Finjan lists six of the eight disputed deposition exhibits as trial exhibits (i.e., Documents 1, 3, 4, 5,
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`7 and 8), and Cisco lists the other two (i.e., Documents 2 and 6). See Cisco, No. 17-cv-00072-
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`BLF-SVK, Dkt. No. 547-4 (N.D. Cal. Apr. 16, 2020) (Exs. 229, 238, 239, 602, 603 and 614);
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`Cisco, No. 17-cv-00072-BLF-SVK, Dkt. No. 547-5 (N.D. Cal. Apr. 16, 2020) (Exs. 2415 and
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`2416). Finjan objects to Cisco’s use of Documents 2 and 6 at trial in the Cisco action, but not on
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`the basis of attorney-client privilege or work product immunity. See Cisco, No. 17-cv-00072-
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`BLF-SVK, Dkt. No. 547-5 (N.D. Cal. Apr. 16, 2020) (objections column).
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 4 of 9
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`II.
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`LEGAL STANDARDS
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`A.
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`Scope of Discovery
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`A party may obtain discovery of any matter that is relevant to a claim or defense and that is
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`“proportional to the needs of case, considering the importance of the issues at stake in the action,
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`the amount in controversy, the parties’ relative access to relevant information, the parties’
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`resources, the importance of the discovery in resolving the issues, and whether the burden or
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`expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
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`B.
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`Attorney-Client Privilege and Work Product Doctrine
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`The attorney-client privilege protects from discovery communications concerning legal
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`advice sought from an attorney in his or her capacity as a professional legal advisor, where the
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`communication is made in confidence, is intended to be maintained in confidence by the client,
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`and is not disclosed to a third party. United States v. Martin, 278 F.3d 988, 999–1000 (9th Cir.
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`2002) (citing 8 John H. Wigmore, Evidence § 2292, at 554 (McNaughton rev. 1961)). The
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`privilege extends to a client’s confidential disclosures to an attorney in order to obtain legal
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`advice, as well as an attorney’s advice in response to such disclosures. United States v. Ruehle,
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`583 F.3d 600, 607 (9th Cir. 2009) (citations and quotations omitted).
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`The work product doctrine protects from discovery materials that are prepared by or for a
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`party or its representative in anticipation of litigation. Fed. R. Civ. P. 26(b)(3). Typically, the
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`doctrine provides qualified protection against discovery of the legal strategies and mental
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`impressions of a party’s attorney. Upjohn Co. v. United States, 449 U.S. 383, 390–91 (1981);
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`Hickman v. Taylor, 329 U.S. 495, 508–10 (1947).
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`Finjan, as the party asserting attorney-client privilege and work product protection, bears
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`the burden of proving that the privilege or protection applies. See Ruehle, 583 F.3d at 607–08; In
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`re Appl. of Republic of Ecuador, 280 F.R.D. 506, 514 (N.D. Cal. 2012).
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`C.
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`Common Interest Doctrine
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`The voluntary disclosure of a privileged or protected document to a third party ordinarily
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`waives that privilege or protection. Ruehle, 583 F.3d at 612; Weil v. Inv./Indicators, Research &
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`Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981). The “common interest” or “joint defense” doctrine is
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 5 of 9
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`an exception to ordinary waiver rules that applies when parties represented by separate counsel
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`communicate in confidence about a matter of common legal interest, in furtherance of that
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`common legal interest. See In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012). The
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`doctrine does not create a privilege but comes into play only if a privilege already covers the
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`material disclosed to the third party. Id.; see also Nidec Corp. v. Victor Co. of Japan, 249 F.R.D.
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`575, 578–79 (N.D. Cal. 2007) (describing boundaries and application of common interest
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`doctrine).
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`III. DISCUSSION
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`A.
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`Relevance
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`Finjan argues that it should not be required to produce the disputed exhibits and deposition
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`testimony because the materials are not relevant to any claim or defense in this action. Dkt. No.
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`248 at 5. SonicWall responds that the Cisco action concerns patents that are also at issue in this
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`action and that while it cannot know what Finjan has withheld or redacted, the fact that Finjan
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`included the depositions and exhibits on its privilege log without objection on grounds of
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`relevance indicates that they are relevant to the dispute between Finjan and SonicWall. Id. at 1.
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`The parties’ respective arguments about relevance are not well-developed in the discovery dispute
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`letter submitted to the Court.
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`The Court has reviewed the eight disputed deposition exhibits in camera. Without the
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`benefit of more information from the parties about the issues in this case, the Court cannot say
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`definitively that the exhibits are clearly irrelevant. The Court presumes that the documents are at
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`least responsive to SonicWall’s document requests, otherwise Finjan would have no obligation to
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`log its privilege objections with respect to these documents. See Fed. R. Civ. P. 26(b)(5)
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`(requiring a privilege log “[w]hen a party withholds information otherwise discoverable”)
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`(emphasis added); Fed. R. Civ. P. 26(b)(1) (describing discoverable material as “any
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`nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
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`of the case . . . . ”). Further, even if portions of the exhibits or testimony are not relevant, a party
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`generally may not redact or withhold from production irrelevant portions of documents that also
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`contain relevant and responsive information. See, e.g., Doe v. Trump, 329 F.R.D. 262, 276 (W.D.
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 6 of 9
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`Wash. 2018) (“[T]he unilateral redaction of irrelevant or nonresponsive material from otherwise
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`responsive documents gives rise to suspicion that relevant material harmful to the producing party
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`has been obscured and tends to make documents confusing or difficult to use.”) (internal quotation
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`marks and citation omitted); United States v. McGraw-Hill Cos., Inc., No. 13-CV-0779-
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`DOCJCGX, 2014 WL 8662657, at *4 (C.D. Cal. Sept. 25, 2014) (“[U]nilateral redactions are
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`inappropriate if they seek not to protect sensitive or protected information, but merely to keep non-
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`responsive information out of an adversary’s hands.”).
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`In these circumstances, the Court finds that the disputed materials are likely responsive to
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`SonicWall’s discovery requests, and that Finjan (the only party with access to the materials) has
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`not shown that the deposition exhibits and testimony identified on its privilege log should be
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`withheld from production because they are not relevant to a claim or defense.
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`B.
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`Attorney-Client Privilege
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`Finjan argues that all disputed materials are protected from disclosure by the attorney-
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`client privilege because they contain legal advice from Finjan’s outside counsel to Finjan. Dkt.
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`No. 248 at 6. Finjan says that disclosure of these materials to Mr. Samet, as Cisco’s board
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`observer, did not waive the privilege because Cisco and Finjan had a common legal interest in the
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`validity and enforcement of Finjan’s patents. Id. at 6–7. SonicWall argues that no privilege exists
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`because the legal advice was shared with Mr. Samet and Cisco, who are third parties, and that at
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`the time Finjan and Cisco shared only a common commercial interest, not a common legal
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`interest. Id. at 2–3.
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`The Court agrees with SonicWall. Cisco’s investment in Finjan and its status as a board
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`observer, with or without an obligation of confidentiality, did not create a common legal interest
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`between Cisco and Finjan. None of Cisco’s legal rights were implicated by Finjan’s efforts to
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`enforce its patents or defend their validity. Cisco did not own any interest in any of the patents; its
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`sole interest was as a shareholder of Finjan. Nor did Finjan and Cisco anticipate joint litigation.
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`See Nidec, 249 F.R.D. at 578–79 (communications between company and third-party bidders were
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`not made to further common legal interest, but rather to facilitate commercial transaction); cf.
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`Rembrandt Patent Innovations, LLC v. Apple Inc., No. C 14-05093 WHA, 2016 WL 427363, at *7
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 7 of 9
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`(N.D. Cal. Feb. 4, 2016) (finding common legal interest where one party had acquired an
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`exclusive option to purchase the other party’s patent and the parties began to pursue joint legal
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`interests, including perfecting title to the patent and identifying targets for litigation). Rather,
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`Finjan voluntarily disclosed the disputed materials to a third-party investor who merely observed
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`its board meetings. This voluntary disclosure waived whatever attorney-client privilege otherwise
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`attached to these materials. See In re Pacific Pictures, 679 F.3d at 1126–27, 1128–29 (voluntary
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`disclosure waives privilege, even where disclosure is made pursuant to a confidentiality
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`agreement).
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`The Court is not persuaded by the decisions in Devon IT, Inc. v. IBM Corp., No. 10-2899,
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`2012 WL 4748160 (E.D. Pa. Sept. 27, 2012) or SecurityPoint Holdings, Inc. v. United States, No.
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`11-268C, 2019 WL 1751194 (Fed. Cl. Apr. 16, 2019), on which Finjan relies. Neither decision
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`explains how a litigation funder (Devon) or outside investor (SecurityPoint) has any legal
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`interest—as opposed to financial interest—at stake in the successful outcome of litigation, or how
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`declining to find a waiver of privilege in the circumstances presented in those cases serves the
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`interests the attorney-client privilege protects. See In re Pacific Pictures, 679 F.3d at 1126–27.
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`For these reasons, the Court concludes that Finjan waived any attorney-client privilege it
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`may have had with respect to the disputed materials by voluntarily disclosing them to Cisco.
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`C.
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`Attorney Work Product
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`Finjan argues that all disputed materials are protected from disclosure under the attorney
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`work product doctrine because they reflect attorney advice Finjan’s outside counsel prepared in
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`anticipation of litigation. See Dkt. No. 248 at 5. Finjan says that disclosure of these materials to
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`Mr. Samet, as Cisco’s board observer, did not waive work product protection because Cisco and
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`Finjan were not adversaries at the time of disclosure, and because Cisco had an obligation to
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`maintain the materials in confidence. Id. at 5–6. SonicWall argues that Finjan has not shown that
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`the disputed materials were prepared in anticipation of specific litigation, and that Finjan did not
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`take steps to require Cisco to maintain the information in confidence. Id. at 2–3.
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`The Court agrees with Finjan that the disputed materials include discussion of litigation
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`strategy regarding several matters concerning its patents and reflect that Finjan was contemplating
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 8 of 9
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`enforcement of its patents against specific targets. Accordingly, the disputed materials include
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`attorney work product. The question is whether Finjan waived the attorney work product
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`protection when it disclosed the materials to Cisco. Even in the absence of a common legal
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`interest between Finjan and Cisco, “the disclosure [of work product] to a third party does not
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`necessarily constitute a waiver.” Nidec, 249 F.R.D. at 580. “For work product, ‘protection is
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`waived where disclosure of the otherwise privileged documents is made to a third party, and that
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`disclosure enables an adversary to gain access to the information.’” Id. (quoting United States v.
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`Bergonzi, 216 F.R.D. 487, 497 (N.D. Cal. 2003)).
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`Here, Finjan has not shown that it ever entered into a confidentiality agreement with Mr.
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`Samet or Cisco to protect the disputed materials from disclosure, even though section 2.7 of the
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`IRA apparently required it. Mr. Samet testified that it was his “habit” to treat information received
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`from Cisco’s portfolio companies, like Finjan, as confidential, and some—but not all—of the
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`documents he received were marked “confidential.” See, e.g., Dkt. No. 256-10 at 5 (Samet dep. at
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`214:3-14). However, the Court doubts that the mere habit of Cisco’s board observer and Finjan’s
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`inconsistent confidentiality marking, without more, are sufficient to support Finjan’s position that
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`it disclosed the disputed materials to Cisco in a manner that reasonably ensured they would be
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`kept confidential and would not be shared with an adversary. The fact that Cisco is now Finjan’s
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`adversary is an additional complication, particularly as there is no evidence that Finjan ever
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`demanded return of its confidential materials once Cisco ceased attending board meetings and
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`became a target of Finjan’s patent enforcement efforts. However, the Court need not resolve how
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`these circumstances impact Finjan’s claim to work product protection because Finjan’s more
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`recent conduct in the Cisco action clearly waives any such protection.
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`The purpose of the work product doctrine is to shield the mental impressions, conclusions,
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`opinions, or legal theories of a party’s counsel from that party’s adversary. See Hickman v, 329
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`U.S. at 510–11 (“[I]t is essential that a lawyer work with a certain degree of privacy, free from
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`unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case
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`demands that he assemble information, sift what he considers to be the relevant from the irrelevant
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`facts, prepare his legal theories and plan his strategy without undue and needless interference.”).
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`Case 5:17-cv-04467-BLF Document 273 Filed 07/21/20 Page 9 of 9
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`As noted above, Cisco produced the disputed exhibits and obtained the disputed depositions
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`during discovery in the Cisco action, and Finjan has made no efforts to shield those materials from
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`use or disclosure in that action. To the contrary, Finjan and SonicWall agree that the parties in the
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`Cisco action will use the disputed materials as evidence in that case. Using these materials as
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`evidence is fundamentally inconsistent with Finjan’s purported desire to protect them from
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`disclosure as work product. United States v. Nobles, 422 U.S. 225, 239 (1975) (finding waiver of
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`work product protection for investigator’s work where party elected to use investigator’s
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`testimony at trial); see also Moeller v. Taco Bell Corp., No. C 02-5849 PJH (JL), 2009 WL
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`10710495, at *3 (N.D. Cal. Oct. 6, 2009) (applying Nobles in civil litigation). It does not matter
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`that the disputed materials are proposed to be used as evidence in the Cisco action as opposed to
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`this action, as once Finjan has deliberately waived its work product protection, the waiver cannot
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`be undone. See Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02CV2258 B (AJB),
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`2005 WL 8173278, at *4 (S.D. Cal. Aug. 19, 2005) (“Waiver is the deliberate relinquishment of a
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`right which might otherwise be claimed. . . . [A] right that is waived is not available to be picked
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`up again as if it were a handy tool.”).
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`For these reasons, the Court concludes that Finjan affirmatively waived any attorney work
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`product protection it may have had with respect to the disputed materials by electing to use the
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`materials in evidence against an adversary.
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`IV. CONCLUSION
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`The Court grants SonicWall’s motion to compel the production of the disputed materials
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`described above. Unless the parties stipulate otherwise, Finjan must produce the disputed
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`materials no later than seven days from the date of this order.
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`IT IS SO ORDERED.
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`Dated: July 7, 2020
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`VIRGINIA K. DEMARCHI
`United States Magistrate Judge
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`Northern District of California
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`United States District Court
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