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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`v.
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`Plaintiff,
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`ESET, LLC and ESET SPOL. S.R.O.,
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` Case No.: 17CV183 CAB (BGS)
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`ORDER ON DISCOVERY DISPUTES
`RE: ESET’S INTERROGATORIES 4
`AND 6
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`Defendants.
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`This Order addresses two discovery disputes currently pending before the Court,
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`ESET’s Interrogatory Nos. 4 and 6 to Finjan. Each has been raised by the parties,
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`discussed during a discovery conference, and briefed in joint statements. (ECF 300.)1
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`The Court rules as set forth below as to each.
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`///
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`1 There are additional discovery disputes raised in this joint statement that the Court will
`address separately.
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`17CV183 CAB (BGS)
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`

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`I.
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`Interrogatories 4 and 6
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`DISCUSSION
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`ESET seeks further responses to two of its contention interrogatories.
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`Interrogatory No. 4 seeks very specific information in a chart regarding Finjan’s positions
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`on ESET’s positions on invalidity of the patents-in-suit. Interrogatory No. 6 seeks a chart
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`providing priority dates on a claim-by-claim basis with mapping of each claim element to
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`the portions of the specification in support.
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`The Federal Rules of Civil Procedure provide that “[p]arties may obtain discovery
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`regarding any non-privileged matter that is relevant to any party’s claim or defense and
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`proportional to the needs of the case, considering the importance of the issues at stake in
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`the action, the amount in controversy, the parties’ relative access to relevant information,
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`the parties’ resources, the importance of the discovery in resolving the issues, and
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`whether the burden or expense of the proposed discovery outweighs its likely benefit.”
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`Fed. R. Civ. P. 26(b)(1). District courts have broad discretion in determining what is
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`relevant. Facedouble, Inc. v. Face.com, No. 12cv1584 DMS (MDD), 2014 WL 585868,
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`at *1 (S.D. Cal. Feb. 13, 2014). And, the 2015 Amendments to Rule 26 made clear that
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`“[r]elevancy alone is no longer sufficient—discovery must also be proportional to the
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`needs of the case.” In re Bard IVC Filters Prods. Liability Litig., 317 F.R.D. 562, 564)
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`D. Ariz. 2016). Limits on discovery may be issued where the “burden or expense
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`outweighs the likely benefits.” Facedouble, Inc., 2014 WL 585868, at *1 (citing Fed. R.
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`Civ. P. 26(b)). “The court’s responsibility, using all the information provided by the
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`parties, is to consider these, [undue burden or expense and importance of information
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`sought,] and all the other factors in reaching a case-specific determination of the
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`appropriate scope of discovery.” Fed. R. Civ. P. 26 advisory committee’s notes.
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`“An interrogatory may relate to any matter that may be inquired into under Rule
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`26(b).” Fed. R. Civ. P. 33(a)(2). “Each interrogatory must, to the extent it is not objected
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`to, be answered separately and fully in writing under oath.” Rule 33(b)(3).
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`Interrogatories that seek an opposing party’s contentions on a topic within the scope of
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`17CV183 CAB (BGS)
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`Rule 26(b) are permitted. Fed. R. Civ. P. 33(a)(2) (“An interrogatory is not objectionable
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`merely because it asks for an opinion or contention that relates to fact or the application
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`of law to fact.”) Contention interrogatories are generally distinguished by, as the name
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`suggests, their request for an opposing party to state its position, or contention, on a
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`particular point. See In re Grand Casinos Inc. Sec. Litig., 181 F.R.D. 615, 618 (D. Minn.
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`1998). They may also ask the opposing party to identify the facts, law, or evidence
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`supporting the party’s contention. Id. Among other reasons, contention interrogatories
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`are used to “narrow the issues that will be addressed at trial and to enable the
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`propounding party to determine the proof required to rebut the respondent’s position.”
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`Former S’holders of Cardiospectra, Inc. v. Volcano Corp., Case No. 12-CV-1535-WHO,
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`2013 WL 5513275, * 1 (N.D. Cal. 2013) (quoting Lexington Ins. Co. v. Commonwealth
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`Ins. Co., C98-3477CRB (JCS), 1999 WL 33292943, *7 (N.D. Cal. Sept. 17, 1999)).
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`They are often considered more appropriate after substantial discovery is completed. Id.
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`at *2.
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`A.
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`Interrogatory No. 4 – Invalidity Positions
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`ESET’s Interrogatory No. 4 seeks Finjan’s contentions regarding ESET’s
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`invalidity contentions. It broadly seeks “all legal and factual bases” for Finjan’s
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`contention that a claim is valid and very specifically requests the answer in the form of a
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`claim chart broken out by each claim element Finjan contends is not covered by the prior
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`art identified by ESET, a particularized description of how and why it is not covered with
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`citation to specific portions of prior art, and “all Documents and Things” in support. It
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`requests the response include a complete explanation for any disagreements with ESET’s
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`invalidity contentions.
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`ESET argues the interrogatory is equivalent to a Finjan interrogatory seeking
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`ESET’s position on which elements of the asserted claims were not practiced by ESET’s
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`accused products and seeks the response in a similar chart format. In essence, ESET
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`argues Finjan should have to provide the same level of detail explaining its position with
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`17CV183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 337 Filed 10/03/18 PageID.12649 Page 4 of 11
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`regard to ESET’s invalidity contentions as Finjan demanded of ESET regarding its
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`position on Finjan’s infringement contentions.
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`Finjan has responded to the interrogatory, incorporating its response to
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`Interrogatory No. 3 which includes citation of prior decisions of the Patent Office, district
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`court, and Federal Circuit decisions addressing the validity of the patents-in-suit.
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`Finjan’s response also indicates that it disagrees that any of the alleged prior art
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`references invalidates any element of the asserted claims.2 Finjan argues the detail
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`demanded and the chart format is unduly burdensome, seeks explanations that are the
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`subject of expert opinions that will be provided later, and that it cannot provide a detailed
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`response to ESET’s invalidity contentions when the underlying invalidity contentions
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`ESET seeks a response to are not detailed enough to permit the response demanded.
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`Finjan also argues the interrogatory is compound with numerous subparts and improperly
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`shifts the burden of proof on validity to Finjan.
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`As a threshold issue, Finjan argues that requiring it to explain why its patents are
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`valid shifts the burden of proving invalidity, ESET’s burden, to Finjan. However,
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`importantly “[t]he ultimate burden of invalidity . . . does not dictate the scope of
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`discovery. SPH Am., LLC v. Research in Motion, Ltd., No. 13CV2320 CAB (KSC),
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`2016 WL 6305414, at *2 (S.D. Aug. 15, 2016) (quoting Rule 26(b)(1) regarding scope of
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`discovery). If ESET is able to present a prima facie case of invalidity, Finjan would need
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`to present rebuttal evidence as to validity. Innovative Scuba Concepts, Inc. v. Feder
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`Indus., 26 F.3d 1112, 1115 (Fed. Cir. 1994). To the extent ESET has set out its position
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`on invalidity, it is essentially asking for Finjan’s rebuttal positions. That ESET always
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`has the burden of proving invalidity, does not mean Finjan’s positions on validity are not
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`relevant or potentially within the scope of permissible discovery. See Apple, Inc. v. Wi-
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`LAN Inc., Case No. 14CV2235 DMS (BLM), 2018 WL 733740, at *5 (S.D. Cal. Feb. 6,
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`2 The Court is not addressing any objections that haven not been specifically raised with
`the Court.
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`17CV183 CAB (BGS)
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`2018) (“not required to establish a prima facie case of invalidity before . . . seeking
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`discovery on . . . validity contentions”). However, as noted above, relevance alone is not
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`sufficient, the discovery sought must also be proportional to the needs of the case.
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`Interrogatory No. 4 is overbroad. As the Court explained in a prior order on an
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`interrogatory propounded by Finjan, asking the opposing party to “identify all legal and
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`factual bases” and for “all documents and things in support” of a position is overly broad
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`and unduly burdensome. (March 23, 2018 Order on Finjan’s Interrogatory No. 6 at 5.)
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`In addition to the additional limitations set forth below, the Court narrows this
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`interrogatory to only require Finjan to state the principal and material factual and legal
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`bases for its positions. (Id.)
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`As to whether the interrogatory is unduly burdensome based on the format and
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`specificity required, the parties principally rely on two cases., SPH Am., LLC v. Research
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`in Motion and Apple, Inc. v. Wi-LAN. SPH Am., LLC, 2016 WL 6305414, at *1-3; Apple,
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`2018 WL 733740, at *5.3 However, the interrogatories in these cases did not request a
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`response as detailed as that demanded by ESET here and, even though both courts
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`required a complete response to less burdensome interrogatories, neither required a
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`response in a chart. SPH Am., 2016 WL 6305414, at *1-2 (requiring complete
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`explanation for any disagreements with defendant’s invalidity contentions, but not in a
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`chart); Apple, 2018 WL 733740, *5 (requiring “comprehensive responses to these
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`interrogatories, including the factual and legal bases for . . . validity contentions,” but
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`denying claim charts for each asserted prior art reference for each asserted claim as
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`unduly burdensome).4
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`3 The parties cite other cases in their briefing on this interrogatory, but those cases
`address different issues.
`4 Friskit v. Real Networks, also found a plaintiff was not required to produce and element-
`by-element validity claim chart, but relied primarily on the absence of a requirement for
`it under the Patent Local Rules and the presumption of validity addressed above. No. C
`03-5085 WWS (MEJ), 2006 WL 1305218, at *2 (N.D. Cal. May 11, 2006).
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`17CV183 CAB (BGS)
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`The Court finds this interrogatory unduly burdensome both in terms of the format
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`required as well as the specificity demanded, particularly given the response is in rebuttal
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`to ESET’s invalidity contentions. The Court finds requiring this particular response in a
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`chart unduly burdensome. Apple, 2018 WL 73374, at *5 (finding creation of claim charts
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`for each of 63 asserted prior art references and for each asserted claim of six patents-in-
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`suit). ESET’s only argument in support of this format is that Finjan requested ESET’s
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`response regarding non-infringement in the same format. As discussed below,
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`substantively, there is some difference between the two, but the point is well taken. In
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`attempting to resolve the many discovery disputes that have arisen in this case, the
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`burdensome nature of both parties’ discovery requests has become apparent. Although,
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`there can be important distinctions and the Court must address the issues as they arise, the
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`parties should be cautious in demanding more from each other than they would be willing
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`to respond to themselves. That said, the chart format adds a layer of burden to an already
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`very burdensome interrogatory without sufficient benefit to justify it.
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`The information demanded is itself unduly burdensome. As noted above, in the
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`cases the parties rely on, the courts were ordering parties to explain their disagreements
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`with the opposing parties’ invalidity contentions or to provide comprehensive responses
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`explaining the factual and legal bases for its validity contentions. Here, ESET is
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`demanding a substantive and particularized explanation on an element-by-element basis
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`with citation to specific portions of prior art and, as relevant, source code modules. Even
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`if not in a chart, this level of detail is unduly burdensome. Additionally, the burden is
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`exacerbated by ESET’s invalidity contentions, the basis for Finjan’s response. Rather
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`than explaining why they are sufficient for purposes of Finjan’s response, ESET argues
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`Finjan cannot raise the insufficiency of ESET’s invalidity contentions because it failed to
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`timely move to strike them. However, the issue here is not the sufficiency of the
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`invalidity contentions independently, an issue not raised by the parties or addressed by
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`the Court. The issue is not even whether the invalidity contentions are clear enough that
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`Finjan is capable of providing the very specific response ESET demands in response to
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`17CV183 CAB (BGS)
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`them, itself questionable. The issue is whether responding to them, and specifically as
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`ESET demands, is too burdensome given the benefit. Fed. R. Civ. P. 26(b)(1) (“whether
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`the burden or expense of the proposed discovery outweighs its likely benefit.”). As
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`discussed above, knowing Finjan’s positions on ESET’s invalidity positions is relevant
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`for rebuttal purposes, however, the benefit of it is not great enough to justify responding
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`with this level of detail and analysis when the underlying contentions lack a similar level
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`of specificity or analysis of ESET’s positions that Finjan could respond to. The rebuttal
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`to ESET’s positions on invalidity is necessarily limited by what it is rebutting.
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`Finjan’s similar interrogatory to ESET as to non-infringement does not alter the
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`Court’s conclusion that as propounded, Interrogatory No. 4 is unduly burdensome and
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`overbroad. One of ESET’s primary arguments for compelling Finjan to respond to this
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`interrogatory is that Finjan propounded a similar interrogatory on it with regard to its
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`positions on infringement. Finjan argues that asking its positions regarding invalidity
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`based on prior art (others’ products or technologies) identified by ESET, is not
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`comparable to Finjan asking ESET’s position regarding infringement as to its own
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`products or technologies. Although the Court recognizes the persuasiveness of an
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`argument that that parties should not propound burdensome discovery unless they are not
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`willing to respond to the same, ESET’s demands for Finjan’s positions on invalidity are
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`not equivalent to Finjan’s demands from ESET regarding infringement. As one court
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`explained, “unlike the non-infringement contentions . . . which hinge on . . . insight into
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`and understanding of the functionality of its own products – neither side has a better
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`understanding of how or whether prior art references and combinations asserted by . . .
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`disclose each of the claim elements at issue here.” Implicit Networks, Inc. v. Juniper
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`Networks, Inc., No. C 10-04234 SI, at 2 (N.D. Cal. June 6, 2012). Requiring Finjan to
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`explain why claim elements are valid over all the prior art cited by ESET is more
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`burdensome than ESET identifying why its own products do not infringe.
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`///
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`17CV183 CAB (BGS)
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`The Court’s conclusion that this interrogatory is unduly burdensome as
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`propounded does not mean no further response is required. As noted above, Finjan’s
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`rebuttal positions on invalidity are relevant. Additionally, given the litigation history of
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`Finjan’s patents, Finjan is likely to have some insight into the validity of its patents over
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`prior art.
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`Finjan has provided ESET some information by reference to numerous decisions
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`on these patents in federal courts and before the Patent Office, presumably attempting to
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`set forth its positions on the validity of the patents over prior art. However, it is not clear
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`that Finjan has explained which of these decisions address which prior art cited by ESET
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`or if Finjan has other principal and material factual and legal bases for its positions that
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`the patents-in-suit are valid over the cited prior art other than the conclusions reached in
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`these decisions. To the extent it has not, Finjan should provide ESET with any validity
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`decisions that address the prior art cited by ESET for the patents-in-suit, indicating which
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`decisions correspond to which cited prior art. Additionally, Finjan should attempt to
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`explain the principal and material factual and legal bases for it position that the patents-
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`in-suit are not invalid based on the prior art cited by ESET. It need not be in a chart or as
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`detailed as the interrogatory demands. Rather, Finjan need only explain its rebuttal
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`positions to the invalidity positions provided by ESET. The Court recognizes that the
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`response will necessarily be limited depending on the specificity or vagueness of the
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`The response also is not required to include any analysis requiring an expert
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`opinion. “[I]interrogatories are improper where they ask the respondent to provide expert
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`opinion.” Amgen, 2017 1352052, at *2 (citing Montgomery v. Wal-Mart Stores, Inc.,
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`2015WL 11233384, at *6 (S.D. Cal. July 17, 2015)); Amgen Inc. v. Sandoz, Inc., No. 14-
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`cv-4741-RS (MEJ), 2017 WL 1352052, at *2(N.D. Cal. April13, 2017) (finding
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`interrogatories not improper “to the extent they seek only facts, not how an expert would
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`construe those facts.”). Neither party has explained why expert opinion would or would
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`not be necessary to respond to this interrogatory. The Court is not going to speculate.
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`17CV183 CAB (BGS)
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`Given the limited information, the Court can only indicate that to the extent Finjan can
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`respond with factual information, “not how an expert would construe those facts,” and
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`subject to the other limitations set by the Court above, it must. Amgen, 2017 WL
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`1352052, at *2.
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`Finjan shall supplement its response to Interrogatory No. 4, as set forth above, by
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`October 15, 2018.
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`B.
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`Interrogatory No. 6 – Priority Dates Claim Chart
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`In Interrogatory No. 6, ESET seeks all legal and factual bases and all documents
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`and persons supporting Finjan’s contention the asserted claims are entitled to the priority
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`dates identified in Finjan’s Amended Infringement Contentions. It specifically requires
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`Finjan to provide a claim chart, based on the Court’s claim construction ruling, mapping
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`each claim element of the asserted claims to the portion of the specification that supports
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`that claim element and the priority date for each piece of support in the specification.
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`Essentially, it requires Finjan to provide a claim-by-claim mapping of each asserted claim
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`element to the portion of the specification that justifies the priority dates Finjan claims.
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`ESET claims this information is relevant to its defense of invalidity based on
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`anticipating prior art. ESET, relying on Technology Licensing Corp. v. Videotek, Inc.
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`545 F.3d 1316, 1327 (Fed. Cir. 2008), argues that if it can meet its burden to come
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`forward with evidence of prior art, Finjan will have to produce evidence that either the
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`identified prior art does not invalidate the claim or that the prior art identified is not really
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`prior art because the asserted claim is entitled to an earlier priority date. As to this
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`second option, ESET argues Finjan will have to show why the written description of the
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`earlier application supports each of the elements of the asserted claims. Hence, ESET
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`claims it is entitled to a mapping of each claim element to the supporting portion of the
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`specification, presumably in the earlier applications, to justify the priority date that
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`precedes the prior art identified by ESET.
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`///
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`///
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`17CV183 CAB (BGS)
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`Finjan does not dispute the burdens of proof set forth in Technology Licensing, but
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`accurately points out that it says nothing about obtaining detailed claim charts on these
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`issues via an interrogatory.5 Finjan does not argue priority dates are not relevant, but
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`rather argues the interrogatory is unduly burdensome and compound, far exceeding
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`reasonable and appropriate discovery. Additionally, Finjan points to everything it has
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`already produced and the opportunities already provided to ESET to obtain relevant
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`discovery on this point: priority dates for each asserted patent, document citations,
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`infringement contentions that identify priority dates, and opportunities to depose Finjan’s
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`inventors. Finjan also argues that to the extent ESET wants more, it is the subject of
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`expert opinion and notes that there is no requirement under the Patent Local Rules to
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`provide the claim charts ESET demands.
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`As with Interrogatory No. 4, the Court must consider whether this interrogatory is
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`proportional to the needs of the case. ESET has explained why the information it seeks is
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`relevant to invalidity, but does not explain why such a detailed mapping is required, why
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`the information has to be in this format, or explain why the information it has already
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`obtained (other than priority dates by patent) are insufficient. ESET has explained why
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`this information is relevant to invalidity, but being relevant is not the end of the inquiry.
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`The Court must consider whether it is proportional to the needs of the case.
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`Although this interrogatory is framed in terms of claim-by-claim priority dates, the
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`request for mapping claim elements to particular portions of specifications, albeit to
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`justify the associated priority dates, seems to make it more like some sort of written
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`description contentions. And, although the Court does not find parties are absolutely
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`precluded from seeking discovery in a chart format unless specified in the Patent Local
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`Rules as Finjan seems to argue, the Court recognizes that demanding this level of
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`specificity in a claim chart, particularly the mapping it demands, is a significant burden.
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`5 Neither party cites any authority for obtaining or not obtaining this type of discovery.
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`10
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`17CV183 CAB (BGS)
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`

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`Case 3:17-cv-00183-CAB-BGS Document 337 Filed 10/03/18 PageID.12656 Page 11 of 11
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`It, as with Interrogatory No. 4, is the type of “scorched earth,” “no stone unturned”
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`(potentially numerous times) approach to discovery the changes to Rule 26 were intended
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`to curb. See Roberts v Clark Cnty. Sch. Dist., 312 F.R.D. 594, 604 (D. Nev. 2016)
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`(discussing the 2015 Amendments to Rule 26). Given the other avenues for discovering
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`this information already provided and the burden imposed in responding to it, the Court
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`finds no further response to the interrogatory is required.
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`IT IS SO ORDERED.
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`Dated: October 3, 2018
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`17CV183 CAB (BGS)
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`