Case 5:17-cv-04467-BLF Document 366 Filed 03/04/21 Page 1 of 6
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`Juanita R. Brooks (CA SBN 75934) brooks@fr.com
`Roger A. Denning (CA SBN 228998) denning@fr.com
`Jason W. Wolff (CA SBN 215819) wolff@fr.com
`John-Paul Fryckman (CA 317591) fryckman@fr.com
`K. Nicole Williams (CA291900) nwilliams@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Ste. 400
`San Diego, CA 92130
`Telephone: (858) 678-5070 / Fax: (858) 678-5099
`
`Proshanto Mukherji (Pro Hac Vice) mukherji@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Phone: (617) 542-5070/ Fax: (617) 542-5906
`
`Robert Courtney (CA SNB 248392) courtney@fr.com
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Phone: (612) 335-5070 / Fax: (612) 288-9696
`
`Attorneys for Plaintiff
`FINJAN LLC
`
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`(SAN JOSE DIVISION)
`FINJAN LLC., a Delaware Limited Liability
`Case No. 5:17-cv-04467-BLF (VKD)
`Company,
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`PLAINTIFF FINJAN LLC’S MOTION IN
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`LIMINE NO. 5 TO PRECLUDE
` Plaintiff,
`EVIDENCE OF OTHER PENDING
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`PROCEEDINGS INVOLVING FINJAN
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`Date: March 18, 2021
`Time: 1:30 PM
`Hon. Beth Labson Freeman
`Ctrm: 3, 5th Floor
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`v.
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`SONICWALL, INC., a Delaware Corporation,
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` Defendant.
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`Case No. 17-cv-04467-BLF (VKD)
` FINJAN LLC’S MOTION IN LIMINE NO. 5
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`Case 5:17-cv-04467-BLF Document 366 Filed 03/04/21 Page 2 of 6
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`I.
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`INTRODUCTION
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`Pursuant to Federal Rules of Evidence 401, 402, 403, and 611, Finjan LLC (“Finjan”)
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`respectfully requests that the Court exclude from presentation to the jury at trial any discussion of
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`other pending proceedings—namely, proceedings that have not reached final disposition or remain
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`on appeal—involving Finjan and Finjan’s patents (the “Pending Proceedings”). This court granted
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`similar motions in limine in Finjan, Inc. v. Blue Coat Sys., Case No. 15-03295, D.I. 404 at 4–5 (N.D.
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`Cal. Oct. 18, 2017) (“Bluecoat”). In Finjan v. Cisco Sys., Case No. 17-00072, D.I. 660 at 1–2 (N.D.
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`Cal. June 5, 2020) (“Cisco”), this Court excluded all mention of pending IPRs, id. at 2, and allowed
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`mention of pending litigation only for the very limited purpose of “cross examin[ing] Finjan’s
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`experts on their work and associated compensation for Finjan in other pending lawsuits,” id., and
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`not for purposes such as criticizing Finjan or its litigation practices. Id.
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`The Court should exclude evidence and argument regarding the Pending Proceedings
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`because preliminary results in those proceedings are irrelevant and also carry a substantial risk the
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`jury will be confused as to the specifics of Finjan’s claims against SonicWall and its accused
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`products, and/or that the jury will perceive Finjan negatively because of its involvement in other
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`litigations. Thus, any discussion of the Pending Proceedings would be unduly prejudicial to Finjan
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`given the risk of confusing the jury and/or encouraging it to decide the issues before it based on
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`irrelevant factors. At a minimum, the court should follow Cisco in excluding pending IPRs entirely
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`and limit evidence of pending litigations solely to the question of expert witness compensation.
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`II.
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`ARGUMENT
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`The Court should preclude SonicWall from presenting any argument or evidence regarding
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`Pending Proceedings involving Finjan and its patent portfolio as it did in Bluecoat. First, the mere
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`existence of these proceedings (and the substance/outcome of any interlocutory rulings) has no
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`bearing or relevance to the issues here, i.e., the Pending Proceedings do not have “any tendency to
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`make a fact more or less probable than it would be without the evidence.” Fed. R. Evid. 401. There
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`Case 5:17-cv-04467-BLF Document 366 Filed 03/04/21 Page 3 of 6
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`are multiple co-pending proceedings involving Finjan and patents in its portfolio, but not SonicWall
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`or its accused products. There have been no final decisions on the merits of the claims or defenses
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`in these proceedings, and fact discovery has yet to close in some of them.
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`Second, given the non-final nature of the co-pending proceedings, any alleged probative
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`value would be far outweighed by the significant risk of prejudice and confusion. See Fed. R. Evid.
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`403. For example, introducing evidence of Pending Proceedings carries a substantial risk the jury
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`will be confused as to the specifics of Finjan’s claims against SonicWall and its accused products.
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`See, e.g., Callaway Golf Co. v. Acushnet Co., 576 F.3d 1331, 1343 (Fed. Cir. 2009) (“[T]he
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`prejudicial nature of evidence concerning the ongoing parallel re-examination proceeding
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`outweighed whatever marginal probative or corrective value it might have had ….”); Wonderland
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`NurseryGoods Co. v. Thorley Indus., LLC, No. CIV.A. 12-196, 2014 WL 289446, at *2 (W.D. Pa.
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`Jan. 22, 2014) (“the probative value of the existence of other litigation and disputes is substantially
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`outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and
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`undue delay.”); In re Static Random Access Memory (SRAM) Antitrust Litig., No. 07-md-01819
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`CW, 2010 WL 10086747, at *2 (N.D. Cal. Dec. 16, 2010) (granting motion in limine to exclude
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`reference to party’s other litigation, finding “[s]uch evidence does not appear relevant”); In re
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`Homestore.com, Inc. Sec. Litig., No. CV 01-11115, 2011 WL 291176, at *1 (C.D. Cal. Jan. 25,
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`2011) (excluding evidence of other litigations due to irrelevance).
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`Third, as this court recognized in Cisco, introducing evidence of other pending litigations
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`also carries a substantial risk that the jury will perceive Finjan negatively simply because it is
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`involved in other litigations. Cisco, D.I. 660 at 1–2 (“The Court also excludes any characterization
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`of Finjan as litigious by discussing details of Finjan’s ongoing lawsuits . . . .”). Finjan has a lawful
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`right to seek redress for infringement of its patents against SonicWall, regardless of the existence of
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`other proceedings, and any evidence or argument seeking to paint Finjan as overly litigious is highly
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`prejudicial. See, e.g., Seals v. Mitchell, No. CV 04-3764 NJV, 2011 WL 1399245, at *5 (N.D. Cal.
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`Case 5:17-cv-04467-BLF Document 366 Filed 03/04/21 Page 4 of 6
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`Apr. 13, 2011) (the slight probative value of plaintiff’s litigation history was “outweighed by the
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`substantial danger of jury bias against the chronic litigant”).
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`Finjan submits that, in light of these considerations, the court was correct in Blue Coat to
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`exclude all evidence of pending proceedings, subject to revision if SonicWall can make a showing
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`at trial that, in light of evidence or argument presented at trial, justice requires permitting specific
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`evidence of specific pending litigation be admitted. Blue Coat, D.I. 404 at 4–5. However, if the
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`Court were to find, as in Cisco, that the suggestion of expert-witness bias arising from the fact that
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`the parties compensated their experts for their work in those cases can outweigh these
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`considerations, then Finjan asks that the court at least follow its decision in that case and: (1) exclude
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`all mention of pending IPRs, id. at 2, and (2) allow mention of pending litigation only for the very
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`limited purpose of “cross examin[ing] Finjan’s experts on their work and associated compensation
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`for Finjan in other pending lawsuits.” Id. Specifically, Cisco should not be permitted to introduce
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`evidence regarding the substance of pending litigation or use such litigation to expressly or
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`implicitly criticize Finjan’s business or litigation practices. Id.
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`III. CONCLUSION
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`Based on the foregoing reasons, Finjan respectfully requests the Court grant its Motion in
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`Limine No. 5.
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`Dated: March 4, 2021
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`
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`Respectfully Submitted,
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`
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`By: /s/ Proshanto Mukherji
`Juanita R. Brooks (CA SBN 75934)
`brooks@fr.com
`Roger A. Denning (CA SBN 228998)
`denning@fr.com
`Jason W. Wolff (CA SBN 215819)
`wolff@fr.com
`John-Paul Fryckman (CA 317591)
`fryckman@fr.com
`K. Nicole Williams (CA 291900)
`nwilliams@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Ste. 400
`San Diego, CA 92130
`3
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`Case 5:17-cv-04467-BLF Document 366 Filed 03/04/21 Page 5 of 6
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`Phone: (858) 678-5070 / Fax: (858) 678-5099
`
`Proshanto Mukherji (Pro Hac Vice)
`mukherji@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Phone: (617) 542-5070/ Fax: (617) 542-5906
`
`Robert Courtney (CA SBN 248392)
`courtney@fr.com
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Phone: (612) 335-5070 / Fax: (612) 288-9696
`
`Attorneys for Plaintiff
`FINJAN LLC
`
`
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`
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`Case 5:17-cv-04467-BLF Document 366 Filed 03/04/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on March 4, 2021 to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system. Any other counsel of record will
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`be served by electronic mail and regular mail.
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`/s/ Proshanto Mukherji
`Proshanto Mukherji
`mukherji@fr.com
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`Case No. 17-cv-04467-BLF (VKD)
`FINJAN LLC’S MOTION IN LIMINE NO. 5
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