Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38984 Page 1 of 11
`
`
`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 REDACTION OF THE
`MARCH 2020 TRIAL TRANSCRIPTS
`AND TO SEAL CERTAIN TRIAL
`EXHIBITS
`
`
`Judge: Hon. Cathy Ann Bencivengo
`
`FINJAN, INC.,
`
`Plaintiff,
`
`v.
`ESET, LLC, et al.,
`Defendants.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`AND RELATED COUNTERCLAIMS.
`
`
`
`
`
`
`
`
`17cv0183
`
`
`
`
`44851136.1
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38985 Page 2 of 11
`
`
`Defendants and Counter-Plaintiffs ESET, LLC and ESET, spol. s.r.o. (collectively,
`“ESET”), through their undersigned counsel, hereby request, pursuant to the procedures
`set forth in the Electronic Availability of Transcripts of Proceedings Before U.S. District
`and Magistrate Judges, that certain limited portions of the trial transcripts for March 11,
`2020 and March 12, 2020 (D.I. 793-794) in this matter be redacted as well as certain
`exhibits filed as part of the trial.1
`Specifically, ESET requests that the following information be redacted from the
`trial transcripts:2
`
`Trial Transcript Day 2 – March 11, 2020 (D.I. 793)
`Start
`End
`Words to Redact
`286:10 286:10
`Start of line until the question mark
`286:17 286:18 The words between “are” and the “.” at the end of the sentence
`337:14 337:14 Third word on the line
`337:16 337:16 The words between “calling” and “on”
`337:18 337:19
`Starting with the last word on line 18 and ending with the word
`before “and” on line 19
`338:12 338:13 The words between “118” and the “.”
`338:15 338:15
`Starting with the first word on the line and ending with the second
`to last word on the line
`338:16 338:17 The words between “have” and the “.” at the end of the sentence
`338:17 338:18 The words between “again” and the “.” at the end of the sentence
`339:13 339:13
`From the beginning of the line to the word before “which”
`339:15 339:16 The words between “the” and “together”
`340:3
`340:4
`The words between “have the” and “that”
`
`
`1 Defendants do not request any redactions to the Master Index or to the Trial Transcript
`for Day 1. (D.I. 791-792).
`2 Should the Court find it helpful, a highlighted version of the transcripts identifying the
`proposed redactions can be provided to chambers upon request.
`
`1
`17cv0183
`
`44851136.1
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38986 Page 3 of 11
`
`
`Words to Redact
`End
`Start
`The first word on the line
`340:5
`340:5
`340:15 340:15 Between the word “are” and the “.” at the end of the sentence
`340:19 340:20 Between the words “showing that” and ending at the “.” at the end
`of the sentence
`342:15 342:18 Entirety of these lines
`346:1
`346:5
`Between the words “a” on line 1 and “which” on line 5
`347:3
`347:4
`Between the words “and it’s” and “what was detected”
`347:5
`347:6
`Between the word “generates” and the “.” at the end of the
`sentence
`Between the word “it’s” and the “.” at the end of the sentence
`347:7
`347:6
`356:10 356:13 Between the word “it” on line 10 and the word “and” on line 13.
`356:18 356:18 Between the word “called” and the “.” at the end of the sentence
`361:9
`361:16 Between the words “ESET has” on line 9 and “which” on line 16
`362:6
`362:6
`Between the word “a” and the “?” at the end of the sentence
`362:8
`362:9
`Between the word “a” and the “.” at the end of the sentence
`362:16 362:17
`Starting with the first word on the line 16 and ending before the
`word “and” on line 17
`364:17 364:17 Between the word “downloadables” and the “.” at the end of the
`sentence
`The entirety of these lines
`368:7
`368:6
`368:10 368:10 Between the words “130” and “v9”
`368:17 368:18 Between the words “set” and “v15”
`368:25 369:1
`Between the words “for the” and “which”
`369:3
`369:3
`Between the words “about” and “service”
`369:18 369:21
`Starting with the first word on line 18 and ending before the word
`“which” on line 21
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`2
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38987 Page 4 of 11
`
`
`Start
`370:2
`370:3
`
`End
`370:2
`370:4
`
`370:4
`
`370:12
`
`Words to Redact
`Between the word “271” and the “.” at the end of the sentence
`Between the words “new entry” and the “.” at the end of the
`sentence
`Starting after the word “is” on line 4 and continuing to the end of
`the paragraph.
`371:25 371:25 Between the words “by” and “and”
`372:5
`372:6
`Starting with the first word on line 5 and ending before the word
`“and” on line 6
`Between the words “and” and “to”
`372:9
`372:8
`373:25 373:25 The first two words on the line
`374:3
`374:3
`Between the words “be” and “from”
`374:5
`374:8
`Between the word “so” on line 5 and the end of line 8
`375:10 375:14 Between the words “are” on line 10 and “would” on line 14
`376:8
`376:8
`Starting at the beginning of the line and ending before the word
`“contains”
`Between the words “System” on line 21 and “which” on line 6
`Between the word “your” and the “.” at the end of the sentence
`
`376:21 377:6
`378:1
`378:2
`
`
`Trial Transcript Day 3 – March 12, 2020 (D.I. 794)
`Start
`End
`Words to Redact
`421:5
`421:6
`Between the words “example” and “if”
`421:18 421:19 Between the words “in” and “if”
`423:9
`423:10 Between the words “including” and “it”
`423:15 424:16 Between the words “the” and “via”
`448:25 449:1
`Between the words “called” and “right”
`449:3
`449:3
`Between the words “just” and “and”
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`3
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38988 Page 5 of 11
`
`
`Words to Redact
`End
`Start
`From the start of the line until the word before “are”
`449:5
`449:5
`Between the word “that” and the “?” at the end of the sentence
`455:3
`455:3
`455:16 455:17 Between the word “not” and the “?” at the end of the sentence
`455:18 455:18 Between the words “the” and “on”
`455:20 455:21 The entirety of both lines
`456:1
`456:2
`Between the word “it’s” and the “.” at the end of the sentence
`515:2
`515:3
`Between the words “interesting” and “Can”
`519:16 519:21
`Starting after the word “sees” on line 16 and ending at the end of
`line 21
`519:24 519:24 Between the words “words like” and “and”
`520:2
`520:2
`Between the word “as” and the “.” at the end of the sentence
`520:6
`520:7
`Between the words “file” and “so”
`520:9
`520:10 Between the word “okay” and the “.” at the end of the sentence
`520:14 520:14 Between the words “at” and “that”
`520:15 520:15 Between the words “here” and “and”
`520:16 520:17 Between the word “these” and the “.” at the end of the sentence
`520:19 520:20 Between the words “at” and “That’s”
`520:20 520:22 Between the words “the” and “and so on”
`520:24 520:25 Between the word “does” and “right”
`521:2
`521:2
`Between the words “complicated” and “But”
`521:3
`521:7
`Between the word “a” on line 3 and the end of line 7
`521:9
`521:10 Between the words “as” and “right”
`521:11 521:13
`Starting with the first word on line 11 and ending before the word
`“looks”
`Between the words “1” and “those”
`Between the words “this” and “that”
`
`522:7
`522:9
`
`522:6
`522:9
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`4
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38989 Page 6 of 11
`
`
`Words to Redact
`End
`Start
`524:14 524:14 Between the words “the” and “on”
`524:16 524:16 After the word “genes” to the end of the line
`525:14 525:14
`Starting with the first word on the line and ending before the word
`“that”
`526:10 526:12 Between the words “genes” and “which”
`526:12 526:14 Between the words “as” and “These”
`526:24 526:25 Between the words “represents” and “that”
`527:3
`527:3
`Between the words “to” and “or so”
`528:3
`528:5
`Between the words “the” and “So”
`528:6
`528:6
`Between the words “documents.” and “The”
`528:7
`528:7
`Between the words “So the” and “that’s”
`528:19 528:20 Between the word “is” and the “.” at the end of the sentence
`528:21 528:22 Between the words “example” and “and”
`529:2
`529:3
`Between the word “the” and the “.” at the end of the sentence.
`530:2
`530:2
`The first word on the line
`530:22 530:23
`From the first word on line 22 to the word “and” on line 23
`530:24 530:24 The word between “what” and “is”
`530:25 530:25
`From the first word on the line to the word before “It’s”
`534:7
`534:7
`Between the word “like” and the “.” at the end of the sentence
`536:7
`536:7
`Between the words “says” and “can”
`536:18 536:19 Between the words “document” and “at”
`536:22 536:23 Between the words “is a” and “here”
`537:11 537:13 Between the words “have” and “that”
`537:14 537:16 Between the words “these” and “So”
`537:17 537:18 Between the words “these” and “right”
`537:22 537:25 Between the word “suspicious” and the “.” at the end of the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`5
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38990 Page 7 of 11
`
`
`Start
`
`End
`
`538:1
`538:1
`538:5
`538:5
`538:11 538:12
`
`Words to Redact
`sentence
`Between the words “see” and “are”
`Between the words “the” and “is”
`Starting with the first word on the line 11 and ending before the
`word “So” on line 12
`From the beginning of the line to the word “So”
`539:2
`539:2
`539:12 539:12 The first word on the line
`539:24 540:7
`Entirety of the lines
`540:19 540:19 Entirety of the line
`541:1
`541:1
`Between the words “called” and “and”
`541:1
`541:2
`Between the words “the” and “is”
`541:5
`541:5
`Between the words “code” and “Remember”
`541:6
`541:7
`Between the word “that” and “.” at the end of the sentence.
`541:13 541:21
`Starting with the word after “this” on line 13 and ending at the
`end of the paragraph.
`The last two words on the line
`Between the word “case” and the “.” at the end of the sentence
`Starting with the word after “saying” on line 5 and ending with
`the “.” at the end of line 7
`542:15 542:17 Between the words “the” and “and”
`542:19 542:21
`Starting after the word “those” and ending with the “?” at the end
`of the sentence
`542:25 542:25 Between the word “remember” and “.” at the end of the sentence.
`543:1
`543:1
`Between the word “the” and the “.” at the end of the sentence
`543:2
`543:2
`Between the word “comments” and the “.” at the end of the
`sentence
`
`542:2
`542:3
`542:5
`
`542:2
`542:3
`542:7
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`6
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38991 Page 8 of 11
`
`
`Words to Redact
`End
`Start
`The entirety of the line
`543:5
`543:5
`543:12 543:14 Between the words “to” and “this”
`543:16 543:17 Between the words “called” and “That’s”
`543:18 544:9
`Starting with the first word on line 543:18 and ending before the
`word “right” on line 544:9
`544:11 544:12 Between the words “those” and “that”
`544:25 544:25 Between the word “to” and the “.” at the end of the sentence
`545:2
`545:2
`Starting with the first word on the line and ending before the word
`“things”
`The first two words on the line
`545:5
`545:5
`Between the words “got this” and “this gene”
`545:8
`545:8
`545:10 545:12 Between the words “to” and “okay”
`545:13 545:14 Between the words “says” and “in”
`545:16 546:16 The entirety of these lines
`547:12 547:12 Between the words “out” and “and”
`549:12 549:13 Between the words “in the” and “things”
`549:14 549:15 Between the word “those” and the “.” at the end of the sentence
`555:7
`555:11 Between the words “the” and “We”
`558:13 558:13 Between the words “the” and “it’s”
`
`
`In addition, ESET requests that the following exhibits be sealed:
` PTX-43: an internal ESET document relating a to a brainstorming session that
`describes potential implementation level details of its anti-virus scanner;
` PTX-51: an internal ESET presentation describing features of future products
`and technical level implementation level details relating to its anti-virus
`scanning technologies;
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`7
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38992 Page 9 of 11
`
`
` PTX-74: another internal ESET presentation describing features of future
`products and technical level implementation level details relating to its anti-
`virus scanning technologies;
` PTX-195: an internal ESET document describing technical implementation
`details of its backend servers;
` PTX-818: a compilation of ESET’s source code revealing implementation level
`details of ESET’s products;
` PTX-1087: deposition clip report of ESET’s CTO, Mr. Malcho, in which his
`testimony describes internal technical functionality of ESET’s scanning engine;
` PTX-1089: deposition clip report of ESET’s engineer, Mr. Sucansky,
`describing implementation details of ESET’s backend technologies;
` PTX-1090: deposition clip report of ESET’s engineer, Mr. Kovacik, describing
`implementation details of ESET’s script scanning technologies;
` JTX-40: an internal ESET document providing technical implementation details
`regarding ESET’s products, backend systems, communications methods, and
`development plans;
` JTX-42: an internal ESET presentation showing the technical details of ESET’s
`backend system and identifying specific pieces of information relevant to
`ESET’s technology that are proprietary to ESET;
` JTX-43: an internal ESET document describing the implementation of ESET’s
`advanced heuristic module including specific proprietary techniques used by
`ESET to detect malware;
` JTX-51: an internal ESET document describing the collection of files and
`metadata from ESET’s end-users for further processing and evaluation by
`ESET’s backend systems;
` JTX-58: an internal ESET presentation detailing the technical implementation
`of the interactions of the various modules, technical implementation of ESET’s
`proprietary signature files, and details of ESET’s detection technologies;
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`8
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38993 Page 10 of 11
`
`
` JTX-59: an internal ESET document describing the implementation of ESET’s
`advanced heuristic module and proprietary emulation techniques used by ESET
`to detect malware;
` JTX-63: an ESET presentation describing techniques and internal analytic
`methods used to detect and disable botnets;
` JTX-64 (pages 48-52): pages of an ESET presentation that disclose information
`about ESET’s backend machine learning technologies;
` JTX-73: an internal ESET document revealing technical details of ESET’s
`implementation of its proprietary reputation system;
` JTX-75: an internal ESET document describing technical details of its backend
`systems for categorizing, logging, and processing potential malware;
` JTX-91: an internal ESET document describing potential features and
`implementation level details of ESET’s proprietary backend systems that help
`detect malware; and
` JTX-92: another internal ESET document describing potential features and
`implementation level details of ESET’s proprietary backend systems that help
`detect malware.
`
`
`
`Each of the above transcript excerpts and exhibits contains technical information
`and/or implementation level details relating to ESET’s malware detection products such
`as description of the functionality of ESET’s source code, file names, variable names, and
`proprietary ESET technologies used to detect malware. ESET protects this information
`both because it provides ESET with a competitive advantage over others in the market
`and because it prevents malicious code developers from learning how to defeat ESET’s
`code. Revealing this information publicly would cause ESET irreparable harm in the
`marketplace. First, revelation of the information would allow ESET’s competitors to
`learn how ESET’s products work and adopt those technologies that have allowed ESET
`to differentiate itself in the market. Second, if a malware author were to learn how
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`9
`
`17cv0183
`
`

`

`Case 3:17-cv-00183-CAB-BGS Document 796 Filed 06/29/20 PageID.38994 Page 11 of 11
`
`
`ESET’s technology worked, the author could develop software that would be capable of
`bypassing ESET’s detection technologies and thereby put ESET’s customers at risk.
`Preservation of the confidentiality of this information is essential to ESET’s business.
`This Court has previously granted ESET’s motion to seal similar information in the
`various summary judgment briefings in this matter. See, e.g., D.I. 465, 545, 683.
`For the foregoing reasons, ESET respectfully requests that the Court grant its
`motion and issue an Order instructing the Court Reporter to redact the above-referenced
`portions of the trial transcripts for the March 11, 2020 (D.I. 793) and March 12, 2020
`(D.I. 794) trial days.
`ESET separately and concurrently submits a proposed order to the Court in
`accordance with Section 2(h) of the Electronic Case Filing and Administrative Policies
`and Procedures Manual.
`Dated: June 29, 2020
`
`
`Respectfully submitted,
`EVERSHEDS SUTHERLAND (US) LLP
`
`
`
`
`
`/s/ Scott A. Penner
`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.
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`44851136.1
`
`10
`
`17cv0183
`
`