Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 1 of 10
`
`DUANE MORRIS LLP
`D. Stuart Bartow (CA SBN 233107)
`dsbartow@duanemorris.com
`Nicole E. Grigg (CA SBN 307733)
`negrigg@duanemorris.com
`2475 Hanover Street
`Palo Alto, CA 94304-1194
`Telephone: 650.847.4150
`Facsimile: 650.847.4151
`DUANE MORRIS LLP
`Joseph A. Powers (PA SBN 84590)
`Admitted Pro Hac Vice
`japowers@duanemorris.com
`Jarrad M. Gunther (PA SBN 207038)
`Admitted Pro Hac Vice
`jmgunther@duanemorris.com
`30 South 17th Street
`Philadelphia, PA 19103
`Telephone: 215.979.1000
`Facsimile: 215.979.1020
`Attorneys for Defendant
`SONICWALL INC.
`
`DUANE MORRIS LLP
`Matthew C. Gaudet (GA SBN 287789)
`Admitted Pro Hac Vice
`mcgaudet@duanemorris.com
`Robin L. McGrath (GA SBN 493115)
`Admitted Pro Hac Vice
`rlmcgrath@duanemorris.com
`David C. Dotson (GA SBN 138040)
`Admitted Pro Hac Vice
`dcdotson@duanemorris.com
`Jennifer H. Forte (GA SBN 940650)
`Admitted Pro Hac Vice
`jhforte@duanemorris.com
`1075 Peachtree NE, Suite 2000
`Atlanta, GA 30309
`Telephone: 404.253.6900
`Facsimile: 404.253.6901
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`FINJAN, LLC, A Delaware Limited Liability
`Company,
`
`
`Plaintiff,
`
`
`SONICWALL INC., a Delaware Corporation,
`
`
`
`
`v.
`
`
`
`
`
`
`
`
` Case No.: 5:17-cv-04467-BLF-VKD
`
`SONICWALL INC.’S ADMINISTRATIVE
`MOTION TO FILE DOCUMENTS UNDER
`SEAL
`
`
`Defendant.
`
`
`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
`CASE NO. 5:17-CV-04467-BLF-VKD
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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 2 of 10
`
`I.
`
`Exh. No.
`
`
`
`Document
`Defendant Sonicwall
`Inc.’s Motion to
`Exclude the Testimony
`of Finjan’s Experts Dr.
`McDuff, Dr. Striegel,
`Dr. Cole, Dr.
`Mitzenmacher, and
`Dr.Medvidovic
`
`INTRODUCTION
`Pursuant to Civil L.R. 7-11 and 79-5, this Court’s Standing Civil Order Re: Civil Cases, the
`Parties Stipulated Protective Order (Dkt. 68) and Federal Rule of Civil Procedure 26(b)(5)(B),
`Defendant SonicWall Inc. (“SonicWall”) hereby moves the Court for leave to file under seal,
`pursuant to Civil L.R. 79-5(d)-(e), the items identified in the table below:
`Portion(s) to
`Seal
`Highlighted
`portions at:
`
`Page 3 lines 2-5;
`Page 4 lines 26-
`27;
`Page 5 lines 1-2;
`Page 7 line 22;
`Page 8 lines 22-
`25;
`Page 9 lines 2-5;
`7-9; 11-12;
`Page 12 lines
`23-27;
`Page 13 line 1;
`
`
`Reason(s) for Sealing
`The highlighted portions of this
`document reflect information that
`SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” or “Highly
`Confidential – Attorney’s Eyes
`Only – Source Code” pursuant to
`the Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products as well as
`SonicWall’s confidential business
`information. See Declaration of
`Nicole E. Grigg in Support of
`Administrative Motion to File
`Documents Under Seal (“Grigg
`Declaration”), ¶¶ 2-5.
`This document contains testimony
`that SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products, as well as
`confidential business and financial
`information of SonicWall. See
`Grigg Declaration, ¶¶ 2-5.
`
`3 to Gunther
`Declaration
`
`Excerpts from the
`November 2, 2020
`Deposition of DeForest
`McDuff, Ph.D.
`
`Entirety
`
`
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
`CASE NO. 5:17-CV-04467-BLF-VKD
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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 3 of 10
`
`Exh. No.
`
`4 to Gunther
`Declaration
`
`Document
`
`Excerpts from the
`September 3, 2020
`Expert Report of
`Michael Mitzenmacher,
`Ph.D.
`
`Portion(s) to
`Seal
`Entirety
`
`5 to Gunther
`Declaration
`
`Excerpts from the
`October 26, 2020
`Deposition of Michael
`Mitzenmacher, Ph.D.
`
`Entirety
`
`6 to Gunther
`Declaration
`
`Exhibit 5 to the
`November 2, 2020
`Deposition of DeForest
`McDuff, Ph.D.
`
`Entirety
`
`7 to Gunther
`Declaration
`
`Exhibit 10 to the
`November 2, 2020
`Deposition of DeForest
`McDuff, Ph.D.
`
`Entirety
`
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`Reason(s) for Sealing
`
`This document contains
`information that SonicWall has
`designated as “Highly Confidential
`– Attorneys’ Eyes Only” or
`“Highly Confidential – Attorneys’
`Eyes Only - Source Code”
`pursuant to the Stipulated
`Protective Order. If filed publicly,
`this confidential information could
`be used to SonicWall’s
`disadvantage by competitors as it
`concerns the identification,
`organization, and or operation of
`SonicWall’s proprietary products,
`including its source code. See
`Grigg Declaration, ¶¶ 2-5.
`This document contains testimony
`that SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document was produced by
`third party Francisco Partners and
`was designated as “Highly
`Confidential – Attorneys’ Eyes
`Only” pursuant to the Stipulated
`Protective Order. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains internal
`email communications that
`SonicWall has designated as
`“Confidential” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
`CASE NO. 5:17-CV-04467-BLF-VKD
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`

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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 4 of 10
`
`Exh. No.
`
`Document
`
`Portion(s) to
`Seal
`
`8 to Gunther
`Declaration
`
`Excerpts from the
`November 3, 2020
`Deposition of Aaron
`Striegel, Ph. D.
`
`Entirety
`
`11 to
`Gunther
`Declaration
`
`Excerpts from the
`September 3, 2020
`Expert Report of Aaron
`Striegel, Ph.D.
`
`Entirety
`
`12 to
`Gunther
`Declaration
`
`Entirety
`
`Exhibit 2 to the
`November 3, 2020
`Deposition of Aaron
`Striegel bearing the
`bates number
`SonicWall-
`Finjan_00101991
`
`1
`2
`3
`4
`5
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`
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`Reason(s) for Sealing
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains testimony
`that SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains
`information that SonicWall has
`designated as “Highly Confidential
`– Attorneys’ Eyes Only” pursuant
`to the Stipulated Protective Order.
`If filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products, as well as
`confidential business and financial
`information of SonicWall. See
`Grigg Declaration, ¶¶ 2-5.
`SonicWall has designated this
`document “Highly Confidential –
`Attorneys’ Eyes Only” pursuant to
`the Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`SonicWall’s confidential business
`information. See Grigg
`Declaration, ¶¶ 2-5.
`
`3
`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 5 of 10
`
`Exh. No.
`
`13 to
`Gunther
`Declaration
`
`15 to
`Gunther
`Declaration
`
`Document
`
`Exhibit 3 to the
`November 3, 2020
`Deposition of Aaron
`Striegel bearing the
`bates number FINJAN-
`SW 158696
`SonicWall Inc.’s
`Fourth Supplemental
`Response to Finjan,
`Inc.’s First Set of
`Interrogatories (No. 5)
`
`Portion(s) to
`Seal
`Entirety
`
`Entirety
`
`26 to
`Gunther
`Declaration
`
`Excerpts from the
`September 3, 2020
`Expert Report of Dr.
`Eric Cole
`
`Entirety
`
`27 to
`Gunther
`Declaration
`
`Excerpts from the
`September 3, 2020
`Expert Report of Dr.
`Nenad Medvidovic
`
`Entirety
`
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`Reason(s) for Sealing
`
`This document contains
`information that Finjan has
`designated as “Highly Confidential
`– Attorneys’ Eyes Only” pursuant
`to the Stipulated Protective Order.
`See Grigg Declaration, ¶¶ 2-5.
`This document contains
`information that SonicWall has
`designated as “Highly Confidential
`– Attorneys’ Eyes Only” pursuant
`to the Stipulated Protective Order.
`If filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains
`information that SonicWall has
`designated as “Highly Confidential
`– Attorneys’ Eyes Only” pursuant
`to the Stipulated Protective Order.
`If filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains
`information that SonicWall has
`designated as “Highly Confidential
`– Attorneys’ Eyes Only” pursuant
`to the Stipulated Protective Order.
`If filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 6 of 10
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`Exh. No.
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`Document
`
`28 to
`Gunther
`Declaration
`
`Excerpts from the
`October 22, 2020
`Deposition of Eric B.
`Cole, Ph.D.
`
`Portion(s) to
`Seal
`
`Entirety
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`29 to
`Gunther
`Declaration
`
`Excerpts from the July
`29, 2020 Deposition of
`Dmitriy Ayrapetov
`
`Entirety
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`30 to
`Gunther
`Declaration
`
`Excerpts from the July
`14, 2020 Deposition of
`John Gordineer
`
`Entirety
`
`Reason(s) for Sealing
`Declaration, ¶¶ 2-5.
`This document contains testimony
`that SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains testimony
`that SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`This document contains testimony
`that SonicWall has designated as
`“Highly Confidential – Attorneys’
`Eyes Only” pursuant to the
`Stipulated Protective Order. If
`filed publicly, this confidential
`information could be used to
`SonicWall’s disadvantage by
`competitors as it concerns the
`identification, organization, and or
`operation of SonicWall’s
`proprietary products. See Grigg
`Declaration, ¶¶ 2-5.
`
`
`II.
`
`
`ARGUMENT
`
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
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`A.
`Legal Standard
`There is a presumption of public access to judicial records and documents. Nixon v. Warner
`Commc'ns, Inc., 435 U.S. 589, 597 (1978). However, records attached to non-dispositive motions,
`such is the case here, are not subject to the strong presumption of access. Finjan, Inc. v. Proofpoint,
`Inc., No. 13-CV-05808-HSG, 2015 WL 9023164, at *1 (N.D. Cal. Dec. 16, 2015) (internal citation
`omitted). Because the documents attached to non-dispositive motions “are often unrelated, or only
`tangentially related, to the underlying cause of action,” parties moving to seal must meet the lower
`“good cause” standard of the Federal Rules of Civil Procedure Rule 26(c). Id. (internal quotation
`marks omitted). The “good cause” standard requires a “particularized showing” that “specific
`prejudice or harm will result” if the information is disclosed. Phillips ex rel. Estates of Byrd v. Gen.
`Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002) (internal quotation marks omitted); see Fed.
`R. Civ. P. 26(c). “Broad allegations of harm, unsubstantiated by specific examples of articulated
`reasoning” will not suffice. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
`Sealing is appropriate where the requesting party “establishes that the document, or portions thereof
`is privileged or protectable as a trade secret or otherwise entitled to protection under the law.” N.D.
`Cal. Civ. L.R. 79–5(a). A party must “narrowly tailor” its request to sealable material only. Id.
`
`B.
`
`SonicWall’s Administrative Motion to Seal Is Supported By Good Cause and Is
`Narrowly Tailored
`As noted in the table above, SonicWall seeks to seal select portions of its Motion to Exclude
`the Testimony of Dr. McDuff and Dr. Striegel (“Motion”) at the pages listed in the table above and
`Exhibits 3-8, 11-13, 15, and 26-30 to the Declaration of Jarrad Gunther. SonicWall’s Motion quotes
`from or references the one or more exhibits that SonicWall is filing under seal which were designated
`as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY” or “HIGHLY
`CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE CODE” pursuant to the terms of the
`Stipulated Protective Order. See Declaration of Nicole E. Grigg in Support of Administrative Motion
`to File Documents Under Seal (“Grigg Declaration”), ¶¶ 2-5. Pursuant to Civil Local Rule 79-5,
`SonicWall has publicly filed the relevant excerpts of information that are not confidential. Attached
`hereto are redacted and unredacted versions of SonicWall’s Motion and unredacted versions of the
`
`
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
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`exhibits in support thereof that SonicWall seeks to seal.
`SonicWall seeks to seal Exhibits 3-5, 7-8, 11-12, 15, and 26-30 to the Declaration of Jarrad
`Gunther because they reflect or contain information that SonicWall has designated as “Confidential”,
`“Highly Confidential – Attorneys’ Eyes Only”, or “Highly Confidential – Attorney’s Eyes Only –
`Source Code” pursuant to the Stipulated Protective Order. If filed publicly, this confidential
`information could be used to SonicWall’s disadvantage by competitors as it concerns the
`identification, organization, and or operation of SonicWall’s proprietary products as well as
`SonicWall’s confidential business information. See Grigg Declaration, ¶¶ 2-5.
`SonicWall contends that public disclosure of this information would cause irreparable harm
`to SonicWall. Id.; see also Andrx Pharms., LLC v. GlaxoSmithKline, 236 F.R.D. 583, 586 (S.D. Fla.
`2006) (“Courts dress technical information with a heavy cloak of judicial protection because of the
`threat of serious economic injury to the disclosure of scientific information.”); Network Appliance,
`Inc. v. Sun Microsys. Inc., 2010 WL 841274, at *5 (N.D. Cal. Mar. 10, 2010) (granting application
`to seal “information regarding NetApp’s internal usability testing of its software”).
`SonicWall is sealing Exhibit 13 because it was designated by Finjan as “Highly Confidential
`– Attorneys’ Eyes Only” pursuant to the Stipulated Protective Order.
`SonicWall is sealing Exhibit 6 because it was produced by third party Francisco Partners and
`designated as “Highly Confidential – Attorneys’ Eyes Only” pursuant to the Stipulated Protective
`Order.
`
`SonicWall’s administrative motion is narrowly tailored and only seeks to seal the exhibits
`associated with SonicWall’s Motion that were either designated in their entirety by Plaintiff Finjan,
`third party Francisco Partners or Defendant SonicWall as “CONFIDENTIAL”, “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY – SOURCE CODE” or reflect information from which confidential
`and proprietary technical or financial information of SonicWall could be ascertained. See Kowalsky
`v. Hewlett-Packard Co., 2012 WL 892427, at *2 (N.D. Cal. Mar. 14, 2012) (finding sealing
`appropriate where “[t]he proposed redactions contain[ed] . . . confidential product development
`information, the disclosure of which could harm [the defendant's] competitive advantage in the
`
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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 9 of 10
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`marketplace.”).
`III. CONCLUSION
`For these reasons, SonicWall respectfully requests that the Court grant its Administrative
`Motion to Seal.
`Dated: January 21, 2021
`
`DUANE MORRIS LLP
`
`
`
`/s/ Nicole E. Grigg
`Nicole E. Grigg
`D. Stuart Bartow
`Matthew C. Gaudet (admitted pro hac vice)
`Robin McGrath (admitted pro hac vice)
`David C. Dotson (admitted pro hac vice)
`Jennifer H. Forte (admitted pro hac vice)
`Joseph A. Powers (admitted pro hac vice)
`Jarrad M. Gunther (admitted pro hac vice)
`
`Attorneys for Defendant
`SONICWALL INC.
`
`
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
`CASE NO. 5:17-CV-04467-BLF-VKD
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`Case 5:17-cv-04467-BLF Document 346 Filed 01/21/21 Page 10 of 10
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`/s/ Nicole E. Grigg
` Nicole E. Grigg
`
`
`
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a true and correct copy of the above and foregoing
`document has been served on January 21, 2021, to all counsel of record who are deemed to have
`consented to electronic service via the Court’s CM/ECF system.
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`SONICWALL INC.’S ADMINISTRATIVE MOTION TO FILE DOCUMENTS UNDER SEAL
`CASE NO. 5:17-CV-04467-BLF-VKD
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