Case 5:17-cv-04467-BLF Document 367 Filed 03/04/21 Page 1 of 5
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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
`
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`(SAN JOSE DIVISION)
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`FINJAN LLC., a Delaware Limited Liability
`Company,
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` Plaintiff,
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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. 5:17-cv-04467-BLF (VKD)
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`PLAINTIFF FINJAN LLC’S MOTION IN
`LIMINE NO. 4 TO PRECLUDE
`EVIDENCE OR TESTIMONY
`REGARDING MR. TOUBOUL’S
`REPLACEMENT AS CEO OF FINJAN
`
`Date: March 18, 2021
`Time: 1:30 PM
`Hon. Beth Labson Freeman
`Ctrm: 3, 5th Floor
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`Case No. 17-cv-04467-BLF (VKD)
` FINJAN LLC’S MOTION IN LIMINE NO. 4
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`

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`Case 5:17-cv-04467-BLF Document 367 Filed 03/04/21 Page 2 of 5
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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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`the replacement of Finjan’s founder, Shlomo Touboul, as CEO of Finjan, because Mr. Touboul’s
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`replacement is of no relevance to the issues in this case and because of the likely prejudice and
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`confusion that would result should such evidence or testimony be presented.
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`I.
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`BACKGROUND
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`Mr. Touboul founded the earliest Finjan entity in 1996. Mr. Touboul served as Finjan’s
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`CEO for some time and is listed as an inventor on numerous Finjan patents, including seven of the
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`eight patents at issue in this case. In 2005, Asher Polani replaced Mr. Touboul as CEO.
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`Although SonicWall has not deposed Mr. Touboul in this matter, Mr. Touboul was deposed
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`in another suit in the Northern District of California against Cisco Systems, Inc. (“Cisco”), captioned
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`as Finjan LLC v. Cisco Systems, Inc., 5:17-cv-00072-BLF (N.D. Cal.) (the “Cisco case”). The
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`parties stipulated that Mr. Touboul’s deposition transcript in the Cisco case can be used in the instant
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`case to the same extent as if the deposition had been taken in this case. (D.I. 236 at 1.) Notably,
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`the parties also stipulated that any use of Mr. Touboul’s deposition transcript in this case would be
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`“subject to any objection by either party other than an objection that these depositions were not
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`taken in the SonicWall Case. . . .” (Id.)
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`II.
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`ARGUMENT
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`Under Federal Rule of Evidence 402, “irrelevant evidence is not admissible.” The fact that
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`in 2005 Mr. Touboul was replaced as CEO of Finjan has no relevance to any claim or defense in
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`this patent infringement case. That fact has no bearing on whether SonicWall infringes Finjan’s
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`asserted patents, the validity of Finjan’s patents, or the amount of damages SonicWall owes Finjan
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`for its willful infringement of the asserted patents. SonicWall should therefore be precluded from
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`introducing evidence or testimony relating to that replacement. See Fed. R. Evid. 402.
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`Case 5:17-cv-04467-BLF Document 367 Filed 03/04/21 Page 3 of 5
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`To the extent that SonicWall argues that Mr. Touboul’s replacement as CEO has any
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`marginal relevance to the issues in this case (it does not), any such marginal relevance would be
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`substantially outweighed by a significant risk of unfair prejudice and juror confusion. See Fed. R.
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`Evid. 403; Burlington v. News Corp., No. 09-1908, 2015 U.S. Dist. LEXIS 68792, at *47‒53 (E.D.
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`Pa. May 27, 2015) (excluding evidence of employee termination due to risk of unfair prejudice and
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`juror confusion). For example, the jury may improperly believe that Mr. Touboul’s replacement
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`reflects negatively on the significance/success of his inventions, which would be prejudicial to
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`Finjan’s validity and damages proofs. The jury might also improperly believe that Mr. Touboul’s
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`replacement as CEO reflects negatively on his character. Such speculative inferences would be
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`improper because they lack probative value and would result in unfair prejudice. See Burlington,
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`2015 U.S. Dist. LEXIS 68792, at *47‒53. The risk of such prejudice is especially high here because
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`the jury may be confused about the relevance of Mr. Touboul’s replacement as CEO (since there is
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`none), and as a result may be particularly prone to making improper speculative inferences. See,
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`e.g., id.; Arthur v. Gallagher Bassett Servs., No. CV 09-4882 SVW (CWx), 2010 U.S. Dist. LEXIS
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`162100, at *15 n.3 (C.D. Cal. June 1, 2010) (excluding evidence in part because the alleged
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`relevance “amount[ed] to nothing more than a speculative inference, the probative value of which
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`is substantially outweighed by unfair prejudice”).
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`Moreover, should SonicWall be permitted to present evidence or testimony regarding Mr.
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`Touboul’s replacement as CEO, jurors might also be prejudiced against Finjan itself for replacing
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`its founder (who is also an inventor on numerous Finjan patents) because they could make the
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`improper inference that Mr. Touboul was not treated fairly. Such an improper inference would lack
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`any probative value and would unfairly prejudice the jury against Finjan, causing lasting damage by
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`unfairly tarnishing Finjan’s corporate character and reputation. See Fed. R. Evid. 403; Arthur, 2010
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`U.S. Dist. LEXIS 162100, at *15 n.3.
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`Case 5:17-cv-04467-BLF Document 367 Filed 03/04/21 Page 4 of 5
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`SonicWall should be precluded from introducing evidence or testimony regarding
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`Mr. Touboul’s replacement as CEO because it is not relevant to any issue in this case, and any
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`marginal alleged relevance SonicWall might present is substantially outweighed by the significant
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`risk of juror confusion and unfair prejudice to Finjan. See Fed. R. Evid. 403.
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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. 4.
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`Dated: March 4, 2021
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`
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`Respectfully Submitted,
`
`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
`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 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
`
`
`
`
`
`3
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`Case 5:17-cv-04467-BLF Document 367 Filed 03/04/21 Page 5 of 5
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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)
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