Case 3:17-cv-00183-CAB-BGS Document 743 Filed 02/03/20 PageID.36968 Page 1 of 5
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`NICOLA A. PISANO, CA Bar No. 151282
` NicolaPisano@eversheds-sutherland.com
`JOSE L. PATIÑO, CA Bar No. 149568
`
`JosePatino@eversheds-sutherland.com
`JUSTIN E. GRAY, CA Bar No. 282452
`
`JustinGray@eversheds-sutherland.com
`SCOTT A. PENNER, CA Bar No. 253716
` ScottPenner@eversheds-sutherland.com
`EVERSHEDS SUTHERLAND (US) LLP
`12255 EL CAMINO REAL, SUITE 100
`SAN DIEGO, CALIFORNIA 92130
`TELEPHONE:
`858.252.6502
`FACSIMILE:
`858.252.6503
`Attorneys for Defendants and Counter-Plaintiffs
`ESET, LLC and ESET SPOL. S.R.O.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
` Case No. 3:17-cv-0183-CAB-BGS
`MOTION FOR LEAVE TO FILE
`DOCUMENTS UNDER SEAL
`RELATING TO FINJAN, INC.’S
`UPCOMING MOTIONS IN LIMINE
`
`Judge: Hon. Cathy Ann Bencivengo
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`FINJAN, INC.,
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`Plaintiff,
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`v.
`ESET, LLC, et al.,
`Defendants.
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`AND RELATED COUNTERCLAIMS.
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`Case 3:17-cv-00183-CAB-BGS Document 743 Filed 02/03/20 PageID.36969 Page 2 of 5
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`Defendants and Counter-Plaintiffs ESET, LLC and ESET spol. s.r.o. (collectively
`referred to as “ESET”), through their undersigned counsel, hereby request pursuant to
`Civil Local Rule 79.2, Patent Local Rule 2.2, this Court’s Chambers Rule V, and the
`Modified Protective Order (D.I. 146-4), that certain documents containing ESET
`confidential technical and financial information, and any portion of Finjan, Inc.’s
`(“Finjan”) forthcoming motions in limine citing or discussing these specific documents,
`be filed under seal.
`On January 28, 2020, pursuant to this Court’s Chambers Rule V(2), Finjan
`identified certain documents containing ESET’s confidential information that Finjan may
`rely on for Finjan’s forthcoming motions in limine to be filed on February 7, 2020. ESET
`understands that, pursuant to this Court’s Chambers Rule V(2), Finjan will provide this
`Court with a courtesy copy of this motion to seal as well as hard copies of the below
`documents within 24 hours of the filing of this motion to seal.
`A. THERE IS A COMPELLING NEED TO SEAL CONFIDENTIAL
`ESET TECHNIAL INFORMATION.
`This case involves ESET’s malware detection software. If the confidential details
`of ESET software’s structure, design, and operation were to become public, and thus
`known to hackers, such information could be used as a roadmap to defeat ESET’s
`software. ESET carefully compartmentalizes responsibility and handling of its software,
`even within company headquarters, to minimize the impact of any potential security
`breach, thereby minimizing the risk that ESET’s software could be compromised, and to
`protect its millions of customers. Disclosure of such information would put ESET’s
`entire business at risk. Thus, there is a compelling need to seal ESET’s source code and
`technical documents describing the structure, design, and operation of its software, as
`well as other technical documents that discuss such source code or design decisions. This
`is why, inter alia, “courts have found that source code presents a ‘self-evident’ risk of
`harm from disclosure.” Univ. of Va. Patent Found. v. Gen Elec. Co., No. 3:14cv51, 2015
`U.S. Dist. LEXIS 157137, at *8 (W.D. Va. Nov. 20, 2015). See also Telebuyer, LLC v.
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`Case 3:17-cv-00183-CAB-BGS Document 743 Filed 02/03/20 PageID.36970 Page 3 of 5
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`Amazon.com, Inc., No. 13cv1677, 2014 U.S. Dist. LEXIS 147049, at *7-8 (W.D. Wash.
`July 7, 2014). Additionally, this Court previously granted a motion to seal the below
`documents as part of the parties’ summary judgment and Daubert briefing in this case.
`See D.I. 462, 465.
`For at least the above reasons, ESET respectfully requests that the following
`documents, as well as any portion of Finjan’s upcoming motions in limine that cite or
`discuss such documents, be filed under seal:
`
`February 15, 2019 Expert Report of Dr. Eugene Spafford Regarding Non-
`Infringement (discusses at length ESET’s source code and other documents
`describing highly confidential details of the structure and operation of
`ESET’s accused products);
`November 30, 2018 Expert Report of Dr. Eugene Spafford Regarding
`Invalidity (discusses at length ESET’s source code describing highly
`confidential details the structure and operation of ESET’s accused products);
`and
`Transcripts of the March 13 and 15, 2019 Depositions of Eugene Spafford
`(discusses at length ESET’s source code and other documents describing
`highly confidential details of the structure and operation of ESET’s accused
`products).
`Finjan has also indicated that because Finjan has not finalized its upcoming
`motions, it may be the case that Finjan will rely on different or additional technical
`documents than those identified above. However, any such documents would be of
`similar technical detail and should thus be treated in the same manner. For the foregoing
`reasons, ESET respectfully requests that the Court grant its motion and issue an order
`permitting Finjan to file the above referenced documents, and any other documents that
`contain similar technical detail, under seal.
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`Case 3:17-cv-00183-CAB-BGS Document 743 Filed 02/03/20 PageID.36971 Page 4 of 5
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`B.
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`THERE IS A COMPELLING NEED TO SEAL CONFIDENTIAL
`ESET FINANCIAL INFORMATION.
`ESET keeps its financial information—including its sales, revenues, costs, and
`expenditures for specific products—confidential. ESET is a private company that does
`not publicly disclose such financial information. Additionally, ESET does not publicly
`disclose information that would allow third-parties to approximate such financial
`information. Public disclosure of such financial information would permit competitors to
`access ESET’s confidential financial information and thereby enable them to determine,
`for example, product-specific sales information, as well as profits and profit margin
`information, that is highly confidential and can be used by competitors to disadvantage
`ESET, by, for example, undercutting ESET’s pricing and sales efforts. See Apple Inc. v.
`Samsung Elecs. Co., 727 F.3d 1214, 1223 (Fed. Cir. 2013) (district court abused its
`discretion in ordering detailed financial information unsealed). Compelling reasons exist
`to file such documents under seal, and courts regularly grant motions to seal confidential
`financial information such as the information ESET intends to file under seal here. See
`Obesity Research Institute, LLC v. Fiber Research Int’l, LLC, No. 15-cv-595-BAS-MDD,
`2017 WL 50001287, at *6 (S.D. Cal. Nov. 2, 2017) (granting motion to seal confidential
`financial information, including sales figures); San Diego Comic Convention v. Dan Farr
`Prods., No. 14-cv-1865 AJB (JMA), 2017 U.S. Dist. LEXIS 177985, at *3 (S.D. Cal.
`Oct. 25, 2017) (“compelling reasons exist to seal the documents as they contain private
`financial records of both parties”). Additionally, this Court previously granted a motion
`to seal the below documents as part of the parties’ summary judgment and Daubert
`briefing in this case. See D.I. 462, 465.
`For at least the above reasons, ESET respectfully requests that the following
`documents, as well as any portion of Finjan’s upcoming motions in limine that cite or
`discuss such documents, be filed under seal:
`
`February 15, 2019 Expert Report of Thomas W. Britven (discusses ESET’s
`confidential product-specific financial information, profitability information,
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`Case 3:17-cv-00183-CAB-BGS Document 743 Filed 02/03/20 PageID.36972 Page 5 of 5
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`and licensing strategies throughout the document); and
`Transcript of the March 13, 2019 Deposition of Thomas W. Britven
`(discusses at
`length ESET’s confidential product-specific
`financial
`information, profitability information, and licensing strategies).
`Finjan has also indicated that because Finjan has not finalized its upcoming
`motions, it may be the case that Finjan will rely on different or additional financial
`documents than those identified above. However, any such documents would be of
`similar financial detail and should thus be treated in the same manner. For the foregoing
`reasons, ESET respectfully requests that the Court grant its motion and issue an order
`permitting Finjan to file the above referenced documents, and any other documents that
`contain similar financial detail, under seal.
`ESET separately and concurrently submits a proposed order to the Court in
`accordance with Civ. L.R. 79.2 and Section 2(h) of the Electronic Case Filing and
`Administrative Policies and Procedures Manual.
`Dated: February 3, 2020
`Respectfully submitted,
`
`EVERSHEDS SUTHERLAND (US) LLP
`
`
`
`
`/s/ Justin E. Gray
`NICOLA A. PISANO, CA Bar No. 151282
` NicolaPisano@eversheds-sutherland.com
`JOSE L. PATIÑO, CA Bar No. 149568
`
`JosePatino@eversheds-sutherland.com
`JUSTIN E. GRAY, CA Bar No. 282452
`
`JustinGray@eversheds-sutherland.com
`SCOTT A. PENNER, CA Bar No. 253716
` ScottPenner@eversheds-sutherland.com
`12255 EL CAMINO REAL, SUITE 100
`SAN DIEGO, CALIFORNIA 92130
`TELEPHONE:
`858.252.6502
`FACSIMILE:
`858.252.6503
`Attorneys for Defendants and Counter-Plaintiffs
`ESET, LLC and ESET SPOL. S.R.O.
`
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