Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 1 of 16 PageID #: 6202
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`FINJAN, INC., a Delaware Corporation,
`
`Plaintiff,
`
`v.
`
`RAPID7, INC., a Delaware Corporation
`and RAPID7 LLC, a Delaware Limited
`Liability Company,
`
`Defendants.
`
`C.A. No. 1:18-cv-01519-MN
`
` Jury Trial Demanded
`
`OPENING BRIEF IN SUPPORT OF MOTION TO EXTEND CASE SCHEDULE
`
`Richard L. Renck (No. 3893)
`DUANE MORRIS LLP
`222 Delaware Avenue,
`Suite 1600
`Wilmington, DE 19801-1659
`Tel.: (302) 657-4900
`Fax: (302) 657-4901
`RLRenck@duanemorris.com
`
`Counsel for Defendants
`Rapid7, Inc. and Rapid7 LLC
`
`Dated: June 4, 2020
`
`OF COUNSEL:
`L. Norwood Jameson
`Matthew C. Gaudet
`David C. Dotson
`DUANE MORRIS LLP
`1075 Peachtree Street NE, Suite 2000
`Atlanta, GA 30309
`Tel.: (404) 253-6900
`Fax: (404) 253-6901
`wjameson@duanemorris.com
`mcgaudet@duanemorris.com
`dcdotson@duanemorris.com
`
`Jordana Garellek
`DUANE MORRIS LLP
`Duane Morris LLP
`1540 Broadway
`New York, NY 10036-4086
`Tel.: (212) 471-1829
`Fax: (212) 214-0889
`jgarellek@duanemorris.com
`
`*admitted pro hac vice
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 2 of 16 PageID #: 6203
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`TABLE OF CONTENTS
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`
`Tab
`
`NATURE AND STAGE OF THE PROCEEDINGS ............................................. 1
`SUMMARY OF ARGUMENT .............................................................................. 1
`STATEMENT OF FACTS ..................................................................................... 2
`ARGUMENT .......................................................................................................... 3
`Legal Standard ........................................................................................................ 3
`Good Cause Exists for Amending the Schedule ..................................................... 4
`1.
`In-Person Meetings Among Experts, Counsel, and Engineers ................... 5
`2.
`Review of Pertinent Source Code ............................................................... 6
`Options in This Case ............................................................................................... 8
`There is No Prejudice to Finjan ............................................................................ 10
`CONCLUSION ..................................................................................................... 12
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`Virtual Meetings and Remote Source Code Review Are Not Reasonable
`
`
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`
`
`I.
`II.
`III.
`IV.
`
`V.
`
`
`
`
`
`A.
`B.
`C.
`D.
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 3 of 16 PageID #: 6204
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`Cases
`
`TABLE OF AUTHORITIES
`
`Dickerson v. KeyPoint Gov’t Sols., Inc., C.A. No. 16-657-RGA-MPT, 2017 WL
`2457457 (D. Del. June 7, 2017) .............................................................................................4, 7
`
`Finjan, Inc. v. Cisco Systems Inc., C.A. No. 5:17-cv-00072-BLF (N.D. Cal.) .............................11
`
`Finjan, Inc. v. SonicWall, Inc., C.A. No. 5:17-cv-04467-BLF (N.D. Cal.) ...................................11
`
`Race Tires America, Inc. v. Hoosier Racing Tire Corp.,
`614 F.3d 57 (3d Cir. 2010).........................................................................................................3
`
`Other Authorities
`
`FED. R. CIV. P. § 16(b)(4) .................................................................................................................3
`
`Local Rule 16.4 ................................................................................................................................3
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`
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 4 of 16 PageID #: 6205
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`
`I.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`This is a patent infringement matter that was filed October 1, 2018, in which Plaintiff,
`
`Finjan, Inc. (“Finjan”) has sued Defendants Rapid7, Inc. and Rapid7 LLC (collectively “Rapid7)
`
`for infringement of seven United States Patents. D.I. 1. Fact discovery has closed, and the
`
`Parties’ Opening Expert Reports are currently due June 15, 2020, with Rebuttal Expert Reports
`
`due July 17, 2020. D.I. 139. Expert discovery currently closes September 1, 2020. Id.
`
`II.
`
`SUMMARY OF ARGUMENT
`
`1. Rapid7 respectfully requests that the Court extend the remaining deadlines in this matter,
`
`starting with Rebuttal Expert Reports and including the trial date, as a result of complications
`
`resulting from the ongoing COVID-19 pandemic. Rapid7’s proposed deadlines are as follows:
`
`Deadline
`Opening/Burden of Proof Expert
`Reports
`Rebuttal Expert Reports
`Reply Expert Reports
`Close of expert discovery
`Opening letter briefs seeking
`permission to file summary
`judgment motions
`Answering letter briefs regarding
`requests to file motions for
`summary judgment
`Case Dispositive Motions (if
`permitted) and Daubert Motions
`Joint Proposed final pretrial order
`Pre-trial Conference
`
`Trial – 6-day Jury
`
`Current Date
`6/15/20
`
`Rapid7’s Proposal
`same
`
`7/17/20
`8/10/20
`9/1/20
`9/4/20
`
`11/13/20
`12/9/20
`1/15/21
`1/22/21
`
`7 days after
`opening letter brief
`
`7 days after opening
`letter brief
`
`9/25/20
`
`2/19/21
`
`2/1/21
`2/08/21 – 2 PM
`
`6/14/21
`6/21/21 (or at the
`Court’s convenience)
`2/22/21 – 9:30 AM 6/28/21 (or at the
`Court’s convenience)
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`2. Good cause exists for extending the deadlines, as explained herein, and there is no
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`prejudice to Finjan.
`
`III.
`
`STATEMENT OF FACTS
`
`The Parties have twice stipulated to extend the expert report and expert discovery
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`deadlines in this case in view of the COVID-19 pandemic and resulting shelter in place laws.
`
`D.I. 132, 138. The reason for the stipulations included the fact that Rapid7’s facilities had been
`
`closed through June 1, 2020, as the Parties noted in the stipulations: “[t]he COVID-19 pandemic
`
`and resulting shelter in place laws have created further substantial impediments to the ability of
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`the Parties and their experts to complete expert reports on the current schedule. This includes the
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`inability for experts to travel to access Defendants’ source code, as Defendants’ facilities are
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`currently closed through June 1, 2020.” D.I. 138 at 1.
`
`Rapid7 has now extended the general closure of its facilities and the related travel ban for
`
`its employees through August 2020 in view of the COVID-19 pandemic. Ex. 1, Rapid7 Return
`
`to Workplace Town Hall Update at 2-4.1 Rapid7’s headquarters are in Boston, MA, as are the
`
`stand-alone, non-networked source code review computers created for this matter pursuant to the
`
`Court’s Protective Order. D.I. 33 at ¶ 8.1(a), (b). The state of Massachusetts presently instructs
`
`“all travelers arriving to Massachusetts . . . to self-quarantine for 14 days.” Ex. 2, Mass.gov
`
`Travel Information related to COVID-19 at 1. Further illustrating the approach of the state of
`
`Massachusetts, the District of Massachusetts also recently issued a Second Supplemental Order
`
`Concerning Jury Trials and Related Proceedings continuing all jury trials in the District of
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`Massachusetts scheduled on or before September 8, 2020 in view of the COVID-19 pandemic.
`
`
`1 The term “Moose” in Ex. 1 refers to Rapid7’s employees.
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`Ex. 3, May 27, 2020 D. Mass. General Order 20-21 at ¶ 1. The offices of Rapid7’s outside
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`counsel likewise remain closed.
`
`Rapid7’s technical expert witnesses are located in California, Pennsylvania, and
`
`Wisconsin, and its outside counsel are located in Atlanta, New York, and Delaware. Rapid7’s
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`engineers who were deposed in this matter are located primarily in Boston, with some located in
`
`other states and Canada.
`
`The Court has instructed the parties that the presently-scheduled Summary Judgment
`
`letter briefing process cannot be extended further without the Parties losing their trial date. Ex. 4,
`
`April 16, 2020 Email form D. Welham to P. Rovner and R. Renck.
`
`In addition to email communications on the topic, on May 28, 2020, David Dotson (on
`
`behalf of Rapid7) and Aaron Frankel (on behalf of Finjan) met telephonically to discuss the
`
`scheduling matters addressed in this motion, and on May 29, 2020, Delaware counsel for each of
`
`the parties (Mr. Renck for Rapid7 and Mr. Rovner for Finjan) met separately by telephone to
`
`discuss the instant dispute. Following these meet and confer efforts, counsel for Finjan indicated
`
`that Finjan would not agree to moving the trial date, and did not offer any counter-proposal
`
`regarding Rapid7’s proposed dates.2 Ex. 5, June 2, 2020 Email from A. Frankel to D. Dotson.
`
`IV. ARGUMENT
`
`Legal Standard
`
`A.
`Local Rule 16.4 provides that “[u]nless otherwise ordered, a request for an extension of
`
`deadlines for completion of discovery or postponement of the trial shall be made by motion or
`
`stipulation prior to expiration of the date deadline, and shall include the following: (a) The
`
`reasons for the request; and (b) Either a supporting affidavit by the requesting counsel’s client or
`
`
`2 The undersigned counsel certifies his good faith belief that the meet and confer efforts
`described in this paragraph satisfy Local Rule 7.1.1.
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 7 of 16 PageID #: 6208
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`a certification that counsel has sent a copy of the request to the client.” L.R. 16.4.3 Federal Rule
`
`of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and
`
`with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The burden is on the moving party to
`
`‘demonstrate good cause and due diligence.’” Race Tires America, Inc. v. Hoosier Racing Tire
`
`Corp., 614 F.3d 57, 84 (3d Cir. 2010). “Good causes exists ‘when the schedule cannot
`
`reasonably be met despite the diligence of the party seeking the extension.’” Dickerson v.
`
`KeyPoint Gov't Sols., Inc., C.A. No. 16-657-RGA-MPT, 2017 WL 2457457, at *4 (D. Del. June
`
`7, 2017).
`
`The District of Delaware’s May 27, 2020 Modified Standing order in Re: Court
`
`Operations Under the Exigent Circumstances Created by COVID-19 provides that “Judicial
`
`officers may apply the principles of flexibility and accommodation to reasonable requests for
`
`filing or scheduling adjustments necessitated by reasonable and fact-based travel, health or safety
`
`concerns, or advice or directives of public health officials.” May 27, 2020 D. Del. Modified
`
`Standing Order at 2.
`
`Good Cause Exists for Amending the Schedule
`
`B.
`In view of the COVID-19 pandemic, Rapid7 cannot reasonably meet the deadlines
`
`imposed by the current case schedule. As set forth below, the ability for Rapid7 and its experts
`
`to effectively rebut Finjan’s forthcoming opening expert reports, particularly on the issue of
`
`infringement, has been severely hampered, and the remaining deadlines in this case should be
`
`extended in order to avoid undue prejudice. The fallout from the COVID-19 pandemic makes it
`
`nearly impossible for Rapid7’s experts, employees, and/or counsel to have any in-person
`
`
`3 Counsel for Rapid7 hereby certifies that a copy of this request for extension of time has been
`sent to Rapid7.
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 8 of 16 PageID #: 6209
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`discussions (even rendering virtual communications much more cumbersome), and likewise
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`makes it nearly impossible for Rapid7’s experts and outside counsel to access and review source
`
`code for this case, which is on stand-alone computers located in Boston, MA.
`
`Finjan already acknowledged, when the Parties previously twice stipulated to extend
`
`expert reports and discovery, that “[t]he COVID-19 pandemic and resulting shelter in place laws
`
`have created . . . substantial impediments to the ability of the Parties and their experts to
`
`complete expert reports. This includes the inability for experts to travel to access Defendants’
`
`source code, as Defendants’ facilities are currently closed through June 1, 2020.” D.I. 138 at 1.
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`These “substantial impediments” remain, as Rapid7 has now extended the general closure of its
`
`facilities and the related travel ban for its employees from June 1, 2020, through August 2020 in
`
`view of the COVID-19 pandemic. Ex. 1, Rapid7 Return to Workplace Town Hall Update, at 3-
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`4. Further, Massachusetts – where Rapid7 is headquartered and where the stand-alone source
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`code review computers are located – has a 14-day self-quarantine requirement for anyone
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`travelling to Massachusetts. Ex. 2, Mass.gov Travel Information related to COVID-19, at 1.
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`In-Person Meetings Among Experts, Counsel, and Engineers
`
`1.
`In order to defend a case of this scope and effectively and efficiently prepare rebuttal
`
`expert reports, in-person meetings between experts, outside counsel, and Rapid7 employees is
`
`standard practice. All of Rapid7’s experts, outside counsel, and even some of Rapid7’s
`
`engineers who were deposed in this case are not local to Boston. Thus, any in-person meetings
`
`involving Rapid7’s out-of-state experts, outside counsel, or employees with Rapid7’s Boston-
`
`based employees or in-house lawyers would require those out-of-state participants to self-
`
`quarantine for 14 days upon arrival in Boston, and it would also require the Rapid7 employees to
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`circumvent Rapid7’s office closure and travel ban. More importantly, it would require
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`potentially jeopardizing the health of all involved with in-person meetings, particularly
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`considering the air travel that would be required of Rapid7’s experts, outside counsel, and some
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`of its engineers.
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`Review of Pertinent Source Code
`
`2.
`The inability of Rapid7’s experts and outside counsel to access and review the source
`
`code for the accused products is an even bigger concern. Finjan has taken the position from the
`
`very beginning of this case that the source code is important. January 30, 2019 Transcript of
`
`Scheduling Conference at 4:7-11 (“Source code is needed to show how these products work. A
`
`lot of the operations of this type of technology is on the back end, so all these type of cases we
`
`always get source code…”). Finjan and its experts have reviewed Rapid7’s source code on the
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`stand-alone review computers in Boston multiple times throughout fact discovery, and Finjan
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`cites source code in its Final Infringement Contentions.
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`Upon receipt of Finjan’s opening expert reports on the issue of infringement, Rapid7’s
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`counsel and experts will need to review Finjan’s arguments and travel to Boston so that they may
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`analyze any cited source code, and any related source code necessary for context or rebuttal of
`
`Finjan’s infringement positions. Rapid7’s experts and counsel must do this for each of the seven
`
`accused products for each of the seven asserted patents (as applicable). Likewise, Rapid7’s
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`experts will need to confer with Rapid7’s engineers regarding any questions or issues that arise
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`relating to the source code and other operational aspects of the accused products. This needs to
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`be done in-person with access to the non-networked source code review computers to be
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`effective. This is a massive undertaking under normal conditions. Under the current schedule,
`
`and in view of the COVID-19 pandemic, it is not reasonably possible.
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`Rebuttal expert reports are presently due July 17. As things currently stand, Rapid7’s
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`technical experts – who are located in California, Pennsylvania, and Wisconsin – will not be able
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`to access to Rapid7’s source code review computers along with Rapid7’s engineers and counsel
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 10 of 16 PageID #: 6211
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`until early September, when Rapid7 is currently scheduled to re-open its offices. Even then, it is
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`not known whether anyone travelling to Boston will still need to quarantine for 14 days per
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`Massachusetts requirements before reviewing the source code or meeting with Rapid7
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`employees.
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`If the current schedule remains in place, the Parties will serve Opening/Burden of Proof
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`Expert Reports (including Finjan’s Opening expert reports on infringement) on June 15, 2020.
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`Rebuttal expert reports are due July 17, 2020 (i.e., 32 days later). In order to access the source
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`code review computers in Boston, MA, and meet with Rapid7 engineers to assist with any
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`source-code related issues, Rapid7’s experts and outside counsel (and potentially certain Rapid7
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`engineers not located in Boston) would need to travel to Boston and self-quarantine for 14 days,
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`and Rapid7’s employees would have to bypass the company’s restrictions relating to travel and
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`working from home. The timeframe for responding to Finjan’s expert reports would be nearly
`
`half over by the expiration of the self-quarantine period. In other words, Rapid7’s experts and
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`outside counsel would spend nearly half of the available time between opening and rebuttal
`
`expert reports in self-quarantine in Boston, just to effectively analyze whatever source code
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`Finjan ultimately decides to utilize in its opening expert reports. Such a result would be highly
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`prejudicial to Rapid7’s ability to prepare its rebuttal expert reports on the issue of infringement,
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`and would be unduly burdensome and expensive for Rapid7. In view of all of these
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`complications arising from COVID-19, the current schedule simply cannot “reasonably be met”.
`
`Dickerson, 2017 WL 2457457, at *4. Rapid7’s request for an extension of the deadlines is
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`necessitated by reasonable and fact-based travel, health and safety concerns, and the directives of
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`the officials of Massachusetts, as well as company policy designed to protect the health and
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`safety of Rapid7’s employees and their families.
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`C.
`
`Virtual Meetings and Remote Source Code Review Are Not Reasonable
`Options in This Case
`
`Finjan may argue that Rapid7 should be able to coordinate its rebuttal expert reports
`
`without any travel to Boston – e.g., via telephone or video conferencing. While a certain amount
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`of “virtual” coordination is possible, given the expansive nature of this case and what will
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`undoubtedly be a substantial damages demand from Finjan, Rapid7 should not have to defend its
`
`case as Finjan sees fit due to circumstances outside of Rapid7’s control. This is particularly true
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`where Rapid7’s requested extension creates no discernable prejudice to Finjan.
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`When it comes to complex technical issues, such as discussions between experts and
`
`engineers related to highly-confidential source code, there is no substitute to the efficiency and
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`effectiveness of in-person meetings where both participants can sit in front of the same
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`information and discuss it live. This is particularly the case for highly confidential source code
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`that is not permitted to be transmitted electronically (e.g., emailed) to facilitate virtual
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`discussions. Thus, given that the source code review computers are non-networked computers
`
`pursuant to the Court’s Protective Order, in-person discussion with Rapid7’s engineers and the
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`non-networked source code computers is the most effective way to investigate any issues related
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`to the source code. Moreover, given shelter-in-place requirements and the fact that Rapid7’s
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`employees are not currently allowed to work from Rapid7’s offices, coordinating efforts even
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`virtually presents unique challenges at this time. As one example, familial and child care
`
`obligations in view of COVID-19 can create difficult and unreliable scheduling dynamics.
`
`Regarding the source code more specifically, Finjan may argue that Rapid7 should set up
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`a remote source code review platform accessible by its experts and outside counsel in lieu of the
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`required non-networked review computers. The Protective Order in this case recognizes the
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`stringent security precautions necessary to protect source code, setting forth that source code
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`review should take place on a stand-alone, non-networked source code review computers, with
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`strict restrictions on who is permitted to access the source code review computers (and how), and
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`restrictions on the printing of portions of source code. D.I. 33 at ¶ 8. Rapid7 is a security
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`company, and unauthorized disclosure of its source code – even if accidental – could be
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`detrimental to Rapid7’s business and reputation.
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`Not surprisingly, Rapid7 does not allow third parties to have remote access to its source
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`code, and such an approach was never contemplated in this case nor even suggested by Finjan
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`during the negotiation of the Protective Order. Further, setting up a remote source code review
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`at this juncture of the litigation would be unduly burdensome in view of the requested extension
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`that would remedy these issues. Since Rapid7’s facilities are closed, coordinating any potential
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`remote access (and related security precautions) of source code will be extremely difficult and
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`time-consuming, and would require (at a minimum) multiple Rapid7 employees bypassing
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`Rapid7’s requirement that its employees stay home for health and safety reasons. Further, the
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`source code for this case had to be imaged and set up for review on the stand-alone review
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`computers, pursuant to the Court’s Protective Order, and at significant effort by Rapid7.
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`Finjan’s attorneys and experts used those stand-alone review computers to identify what they
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`believe is pertinent portions of the source code and to formulate their infringement theories,
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`including printing out hundreds of pages of source code that Finjan had the opportunity to use
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`during depositions of Rapid7’s engineers. Rapid7’s experts need to have access to the same
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`source code images on the stand-alone source code computers Finjan is relying upon, e.g., to
`
`avoid any disputes or confusion about the applicable source code.4
`
`
`4 To be clear, Rapid7’s experts will need to review more than just the portions of the source
`code Finjan’s experts elected to print. First, Finjan may attempt to cite in its opening expert
`reports additional portions of the source code that were not printed (whether permissible or not).
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`Rapid7 should not be required to risk the health and safety of its employees and the
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`security of its source code (as recognized by the Court’s Protective Order) to attempt to set up a
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`remote source code review on short notice, all to accommodate a trial date that has become
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`unworkable in view of the COVID-19 pandemic. Rapdi7’s requested extension of only a few
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`months should remedy these issues. Likewise, Rapid7 should not have its defense efforts
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`hamstrung as the result of a pandemic that is out of Rapid7’s control, particularly for a case of
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`this magnitude and complexity.
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`There is No Prejudice to Finjan
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`D.
`Finjan stated during the Parties’ meet and confer that it simply would not agree to move
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`the trial date. Finjan did not articulate any prejudice that would result from Rapid7’s requested
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`extension, and given that there is no more room in the schedule to move expert reports and
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`expert discovery without losing the currently-scheduled trial date, there is no other option but to
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`move the trial date. Ex. 4, April 16, 2020 Email form D. Welham to P. Rovner and R. Renck.
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`To the extent Finjan argues that it will be impacted financially if the trial date is moved,
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`Finjan and Rapid7 are not competitors. Finjan appears to advertise a single product on its
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`website, the InvinciBull VPN mobile web browser. https://www.finjan.com/our-businesses.
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`Rapid7 does not sell a VPN or mobile web browser product, and of course, no such product has
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`been accused of infringement. Moreover, Rapid7 (and most other businesses) likewise has been
`
`impacted financially by the COVID-19 pandemic.5 The wide-ranging economic impact of this
`
`pandemic is, unfortunately, an unavoidable reality.
`
`
`Second, the source code must be understood within the context of surrounding source code that
`Rapid7’s experts need to be able to access as they rebut Finjan’s opening expert reports.
`
`5 Compare Ex. 7, Rapid7 Announces Fourth Quarter and Full-year 2019 Financial Results, at 3-
`4, with Ex. 8, Rapid7 Announces First Quarter 2020 Financial Results, at 3-4 (Showing reduction
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`To the extent Finjan disputes the length of the requested extension, Rapid7’s request is
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`reasonable. Rapid7 seeks to avoid a situation where it must return to the Court to seek additional
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`relief on the schedule. The best-case scenario is that Rapid7’s facilities re-open September 1,
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`2020. It is possible that this date could be extended further if the pandemic conditions do not
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`improve. Moreover, even in the best-case scenario, the re-opening of Rapid7’s facilities will be
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`phased, with many restrictions in place that will still make it cumbersome for the legal team,
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`Rapid7 employees, and Rapid7’s experts to interact and collaborate. Ex. 1, Rapid7 Return to
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`Workplace Town Hall Update, at 3. It is also unknown whether the 14-day self-quarantine
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`requirement of Massachusetts will remain in place at that time, potentially complicating travel to
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`Boston even when Rapid7 does re-open its offices, as noted above. These factors will
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`complicate the preparation of rebuttal expert reports, making it more inefficient and time-
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`consuming than usual.
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`Additionally, there are two other long-pending Finjan cases (both filed well over a year
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`before this case) with significant conflicting deadlines in September and October 2020.
`
`Specifically, in the Finjan v. Cisco matter, which was filed January 6, 2017, trial is scheduled to
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`begin October 19, 2020 and extend through November 6, 2020. Finjan, Inc. v. Cisco Systems
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`Inc., C.A. No. 5:17-cv-00072-BLF (N.D. Cal.), at Dkt. No. 646. At least four of Finjan’s expert
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`witnesses in the Rapid7 case, and four out of five of Rapid7’s experts are also involved in the
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`Cisco case. Thus, it will be nearly impossible for these experts to work on expert reports for
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`another matter, much less prepare for and sit for depositions for another matter, during this
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`timeframe. In the Finjan v. SonicWall matter, which was filed August 4, 2017, Opening expert
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`in full year 2020 guidance on AAR revenue year-over-year growth (from 24%-26% to 14%-
`20%) and revenue year-over-year growth (from 21%-24% to 19%-21%)).
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 15 of 16 PageID #: 6216
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`reports are due September 4, 2020, Rebuttal expert reports due October 5, 2020, and the close of
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`expert discovery is November 3, 2020. Finjan, Inc. v. SonicWall, Inc., C.A. No. 5:17-cv-04467-
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`BLF (N.D. Cal.), at Dkt. No. 246. Outside counsel for both Finjan and Rapid7 are involved in
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`the Finjan v. SonicWall matter, as will be at least some of the same expert witnesses.
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`Accordingly, Rapid7 has tailored its requested extension to address these significant concerns
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`without prejudicing either Finjan or Rapid7’s ability to effectively prosecute and defend this
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`case.
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`Finally, it is noteworthy that Finjan first initiated pre-suit discussions with Rapid7 in
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`March of 2016, including a period of well over a year (from September of 2016 to January of
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`2018) during which Rapid7 did not hear anything from Finjan. Ex. 6, February 26, 2020 Depo.
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`Tr. of John Garland at 136:15-137:16. Finjan ultimately sued Rapid7 in October of 2018. D.I. 1.
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`Extending the trial date by 4 months due to an ongoing pandemic – in view of the fact that Finjan
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`previously shelved pre-suit discussions for over a year –cannot be said to be unreasonable or
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`prejudicial to Finjan.
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`V.
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`CONCLUSION
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`For the foregoing reasons, Rapid7 respectfully requests that the Court enter an order
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`extending the remaining case deadlines, as set forth above.
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`[SIGNATURE PAGE FOLLOWS.]
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`Case 1:18-cv-01519-MN Document 144 Filed 06/04/20 Page 16 of 16 PageID #: 6217
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`Dated: June 4, 2020
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`DUANE MORRIS LLP
`
`/s/ Richard L. Renck -
`Richard L. Renck (I.D. No. 3893)
`222 Delaware Avenue, Suite 1600
`Wilmington, DE 19801
`Tel.: (302) 657-4900
`Fax: (302) 657-4901
`rlrenck@duanemorris.com
`
`Counsel for Defendants
`Rapid7, Inc. and Rapid7 LLC
`
`OF COUNSEL:
`L. Norwood Jameson
`Matthew C. Gaudet
`David C. Dotson
`John R. Gibson
`Robin McGrath
`Jennifer H. Forte
`DUANE MORRIS LLP
`1075 Peachtree Street NE, Suite 2000
`Atlanta, GA 30309
`Tel.: (404) 253-6900
`Fax: (404) 253-6901
`wjameson@duanemorris.com
`mcgaudet@duanemorris.com
`dcdotson@duanemorris.com
`jrgibson@duanemorris.com
`rlmcgrath@duanemorris.com
`jhforte@duanemorris.com
`Jarrad M. Gunther
`DUANE MORRIS LLP
`30 South 17th St.
`Philadelphia, PA 19103-4196
`Tel.: (215) 979-1837
`Fax: (215) 689-4921
`jmgunther@duanemorris.com
`
`Jordana Garellek
`DUANE MORRIS LLP
`1540 Broadway
`New York, NY 10036-4086
`Tel.: (212) 471-1829
`Fax: (212) 214-0889
`jgarellek@duanemorris.com
`
`*admitted pro hac vice
`
`DM2\12698447.1
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