Case 1:18-cv-01519-MN Document 149 Filed 06/12/20 Page 1 of 9 PageID #: 6283
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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` v.
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`RAPID7, INC., a Delaware Corporation and
`RAPID7 LLC, a Delaware Limited Liability
`Company,
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`Defendants.
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`C.A. No. 18-1519-MN
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`PLAINTIFF FINJAN, INC.’S OPPOSITION TO DEFENDANTS RAPID7, INC.
`AND RAPID7 LLC’S MOTION TO EXTEND CASE SCHEDULE
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`I.
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`INTRODUCTION
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`The Rapid7 Defendants’ Motion to Extend Case Schedule (D.I. 144, “Motion”) should be
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`denied because Rapid7 has not shown good cause to postpone the February 2021 trial. Finjan is
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`sensitive to the disruption caused by COVID-19 and, accordingly, has already twice agreed to
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`extend the case schedule because of the pandemic, and the parties reached agreement on several
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`prior modifications to the case schedule. Finjan is not opposed to further adjustment to the
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`schedule, so long as it does not involve Finjan losing its long-awaited trial date. However,
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`Rapid7’s Motion seeks to move the trial by at least four months and possibly much longer
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`depending on the Court’s availability. At this point, no one knows what impact COVID-19 will
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`have on the Court or the parties’ business operations in August 2020, let alone in February 2021
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`eight months from now. Therefore, it is premature to release the trial date.
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`Rapid7’s requested expansive modification to the case schedule is particularly
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`unwarranted in view of the absence of compelling justification at this time. Rapid7’s primary
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`argument is that the closure of its offices could impede the ability of its expert to review source
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`code in person. However, notably absent from Rapid7’s Motion is any claim that it is unable to
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`remotely access its source code. To the contrary, Rapid7’s operations are continuing apace
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`remotely, as evidenced by the extensive updates Rapid7 has released for the accused products
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`since the onset of COVID-19, including new features, enhancements, modules, and bug fixes.
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`This confirms that Rapid7 can and is regularly remotely accessing its source code. Moreover,
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`Rapid7’s documents indicate that it is planning on starting to open its offices in just a few weeks.
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`Like businesses around the country, Finjan is persevering in the face of the challenges of
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`COVID-19. Finjan’s employees are also working remotely and making do with a lot of
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`videoconferencing and telephone meetings. Finjan is a small company with limited resources,
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`and an extensive delay will impact its business and licensing operations. Litigation is also
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`continuing around the country, notwithstanding the challenges of COVID-19. Parties are
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`proceeding with source code review, hearings, depositions, expert reports, and even trials. In
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`fact, many of the same counsel representing the parties in this case are in the middle of a trial on
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`behalf of other clients in the Eastern District of Virginia (conducted by Zoom
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`videoconference). There is no reason this case should be any different, and the Court should
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`deny Rapid7’s Motion.
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`II.
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`STATEMENT OF FACTS
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`A.
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`Finjan Already Agreed to Six Prior Extensions of the Case Schedule
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`Finjan filed this case over a year-and-a-half ago, on October 1, 2018. D.I. 1. The parties
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`completed fact discovery nearly four months ago, on February 21, 2020. D.I. 68. Finjan agreed
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`to four extensions of the case schedule through the conclusion of fact discovery. D.I. 10, 68, 75,
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`112.
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`While expert reports were originally due April 21, 2020 (D.I. 133), due to the disruptions
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`in business due to COVID-19, Finjan stipulated to Rapid7’s request to extend expert reports by a
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`month. D.I. 133. In so stipulating, the parties agreed that the “extended deadlines do not impact
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`the Court’s scheduled trial date.” Id. at 1. Finjan stipulated to a yet further extension of the
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`deadline for opening expert report to June 15, 2020, again noting that the extension would not
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`impact the trial date. D.I. 139 at 1. As a compromise proposal to further extend the expert
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`discovery period without jeopardizing the trial date, Finjan suggested that the parties mutually
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`agree to forgo summary judgment, which would have freed up over three months. Declaration of
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`Aaron Frankel (“Frankel Decl.”), ¶ 2. Rapid7 declined the offer. Id.
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`Significant expansion to the expert discovery period would delay the start of summary
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`judgment briefing, which the Court has indicated cannot be extended further without losing the
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`trial date. D.I. 144-4 (“Ideally, Her Honor would like the responsive letters filed at least two
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`weeks before the deadline to file dispositive motions, if they are permitted, keeping in mind that
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`the September 25, 2020 date proposed is the latest date dispositive motions (if permitted) and
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`Daubert motions can be filed without the parties losing their trial date.”).
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`Rapid7, offering no compelling reason, now proposes extending all remaining case
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`deadlines by four months, moving the trial date from February 22, 2021 to no earlier than June
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`28, 2021, and possibly later depending on the Court’s availability.
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`B.
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`Rapid7’s Business Operations are Ongoing
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`Rapid7 represents that its offices are physically closed. Nevertheless, its employees are
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`currently working remotely and continuing to conduct business operations relating to its accused
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`software products. Since mid-March, Rapid7 has released extensive updates to all the accused
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`products in this case, including new features and enhancements, new modules, and bug fixes.
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`For example, Rapid7 released seven updates for Nexpose since the beginning of May, seven
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`updates for Metasploit since the beginning of March, and five updates for AppSpider since the
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`beginning of March. Frankel Decl., Ex. 1 (Nexpose Release Notes), Ex. 2 (Metasploit Release
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`Notes), Ex. 3 (AppSpider Release Notes).
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`Rapid7 announced that, while “work from home is the default,” it expects to make access
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`to some office locations available to its employees on request as early as next week. D.I. 144-1
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`(Ex. 1) at 3-4. Thus, to the extent some limited in-person access is necessary to setup remote
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`source code review or to ship a source code laptop to any of Rapid7’s experts, it will soon be
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`possible for Rapid7 to do so.
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`III.
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`ARGUMENT
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`Current logistical challenges are not good cause to abandon the February 2021 trial date.
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`Litigation and business activities are continuing across the country, such that Rapid7 has not met
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`its burden of demonstrating good cause to modify the case schedule and abandon the February
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`2021 trial date. “A schedule may be modified only for good cause and with the judge’s
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`consent.” Fed. R. Civ. P. 16(b)(4). As the moving party, Rapid7 bears the burden to
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`“demonstrate good cause and due diligence.” Compagnie des Grands Hotels d'Afrique S.A. v.
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`Starwood Capital Grp. Glob. I LLC, No. CV 18-654-RGA, 2019 WL 4740083, at *1–3 (D. Del.
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`Sept. 27, 2019) (denying motion to amend scheduling order for failure to demonstrate good
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`cause) (citing Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir.
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`2010)). Rapid7 fails to carry its burden here.
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`Litigation activity is proceeding in courts across the country, notwithstanding current
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`conditions. Frankel Decl., Ex. 4 (BPI Sports, LLC v. ThermoLife Int’l, LLC, No. 19-cv-60505,
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`D.I. 58, Paperless Order (S.D. Fla. Mar. 18, 2020)) (denying joint motion for extension of time:
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`“COVID-19 alone is not a sufficient basis for extension of pretrial deadlines or the trial date.
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`In today's highly technological world, restrictions on movement and in-person interactions do not
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`automatically preclude the parties from litigating their case.”) (emphasis added). Business
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`operations, including of Rapid7 and Finjan are continuing, and litigants around the country are
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`advancing their cases by conducting remote depositions, source code reviews, hearings,
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`meetings, and trials, and dealing with the same “familial and child care obligations” as Rapid7.
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`Frankel Decl., ¶ 3. Indeed, the same counsel representing the parties in this action are
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`concluding a six-week bench trial in a patent case involving different parties. Frankel Decl., Ex.
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`5 (“Cisco Patent Trial Kicks Off Over Zoom Without a Hitch”); Centripetal Networks, Inc. v.
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`Cisco Sys., Inc., No. 2:18-cv-00094 (E.D. Va.).
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`There is nothing unique to this case that requires abandoning the current trial date. This
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`case is in the expert discovery phase, which does not require travel. Experts can work on their
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`reports from their homes and can confer with counsel by telephone and videoconference. See
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`Frankel Decl., Ex. 6 (Orthopaedic Hosp. v. DJO Global, Inc., No. 3:19-cv-00970-JLS-AHG, D.I.
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`66, Order at 3 (S.D. Cal. May 28, 2020)) (“there is no right to prepare witnesses or take
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`depositions in person”). Indeed, Finjan and Rapid7 will soon complete the first round of expert
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`reports by doing just that.
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`Rapid7 suggests that it will be challenging to work with its experts remotely, but
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`Rapid7’s counsel did just that during the Centripetal trial, even presenting as witnesses (by
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`Zoom) two of the same experts Rapid7 is using in this case, Drs. Kevin Almeroth and Steven
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`Becker. Frankel Decl., ¶ 4. There is no specific reason that Rapid7 cannot do the same for the
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`second and third rounds of expert reports. Frankel Decl., Ex. 7 (Uniloc USA, Inc. v. Big Fish
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`Games, Inc., No. 2:16-cv-00741-RWS, D.I. 375, Order at 2–3 (E.D. Tex. Apr. 30, 2020))
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`(denying portion of motion seeking to extend schedule more than three weeks: “Motions such as
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`these require something more than . . . generalized concerns about COVID-19 to establish good
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`cause.”).
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`Rapid7’s Motion relies heavily on an argument that it is currently unsafe to travel to
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`Massachusetts to review source code in person. Motion at 5–9. But it is not necessary for
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`Rapid7’s experts to do so. For months now, Finjan has not had access to Rapid7’s source code,
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`other than its limited paper printouts, but Finjan is still able to complete its burden of proof
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`infringement reports on schedule. In contrast, Rapid7’s programmers and experts can access
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`source code remotely, without travelling to do so (and can also work with the same printouts that
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`Finjan is relying upon).
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`The issue of reviewing source code under current conditions is not unique to this case.
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`Practitioners have written articles offering guidance on how to securely and effectively review
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`source code remotely using tools such as Google Chrome Remote Desktop or Microsoft Remote
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`Desktop. See, e.g., Frankel Decl., Ex. 8 (Strategies for Remote Source Code Review)
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`(discussing strategies for remote source code review, including where source code can be hosted,
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`how access can be provided to appropriate source code reviewers, when the source code can be
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`accessed, who can access source code, virtual sign-in sheets, and monitoring code reviewers).
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`The undersigned counsel are conducting remote source code review in other cases using various
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`secure technologies. Frankel Decl., ¶ 3. As such, Rapid7’s experts can remotely access its
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`source code, negating the need for a four-month adjustment to the schedule.
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`Indeed, courts across the country, including this District, have directed or approved of the
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`use of remote-access technology for source code review by the opposing party. See Frankel
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`Decl., Ex. 9 (Fraunhofer-Gesellschaft Zur Forderung der Angewandten Forschung E.V. v. Sirius
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`XM Radio Inc., C.A. No. 17-184-JFB-SRF, D.I. 253 (D. Del. May 21, 2020)) (stipulated order
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`allowing plaintiff’s experts and outside counsel to remotely review source code through a third
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`party vendor); id., Ex. 10 (Bot M8 LLC v. Sony Corp. of Am., No. C 19-07027 WHA, D.I. 131
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`(N.D. Cal. Mar. 26, 2020)) (ordering parties to “propose an alternate method of timely source
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`code review in an effort to resolve the present disagreement without a schedule disruption.”)
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`(emphasis added); id., Ex. 11 (In the Matter of Certain Wearable Monitoring Devices, Sys., and
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`Components Thereof, Inv. No. 337-TA-1190, Order at 2–3 (U.S. I.T.C. Apr. 28, 2020))
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`(amending protective order to allow for remote review of source code in view of the current
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`travel restrictions and stay-at-home orders in effect in many states). As a cybersecurity
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`company, it is not credible to believe that Rapid7 cannot safely allow its own experts and
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`attorneys to do the same.
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`That Rapid7 is able to provide its experts and counsel with remote access its source code
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`is confirmed by the fact that its employees are already doing so, notwithstanding the closure of
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`Rapid7’s offices. This is evidenced by Rapid7’s release of regular updates and patches for the
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`accused products on a near-weekly basis, which entails accessing the source code for those
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`products to fix bugs and add new features and improvements. See supra § II.B. While Rapid7’s
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`Town Hall Update expresses a “preference” to have its employees work from home through
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`August, Rapid7 also indicates that it expects to provide its employees with access to the office as
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`soon as next week upon request. D.I. 144-1 (Ex. 1) at 4. Happily, the public health data and
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`trends are improving in Massachusetts and, after Rapid7 filed the Motion, Massachusetts
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`announced that it is transitioning to the second phase of the four-phase reopening plan. Frankel
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`Decl., Ex. 12. The improving conditions and partial reopening of Rapid7’s offices and
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`Massachusetts in general will further enable Rapid7 to provide access to remote source code
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`review to its experts or to ship an encrypted laptop containing its source code to its experts.
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`Rapid7’s argument that the protective order prohibits Rapid7’s experts from remotely
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`reviewing Rapid7’s source code is incorrect. Motion at 8–9. The protective order includes
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`protections to safeguard a disclosing party’s source code from the reviewing party, it does not
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`limit a disclosing party’s access to its own source code. D.I. 33, § 2.2 (“Nothing in this
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`Case 1:18-cv-01519-MN Document 149 Filed 06/12/20 Page 8 of 9 PageID #: 6290
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`Protective Order shall prevent or restrict a Producing Party’s own disclosure or use of its own
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`Designated Material for any purpose”). Rapid7 has had and continues to have unfettered access
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`to its own source code for its own products and to the engineers who created those products.1
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`Rapid7’s failure to carry its burden of demonstrating good cause to modify the case
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`schedule alone warrants denial of the Motion. Fed. R. Civ. P. 16(b)(4); Compagnie des Grands
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`Hotels d'Afrique, 2019 WL 4740083, at *1. Another reason to deny the Motion is that
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`significantly postponing the conclusion of this case is highly prejudicial to Finjan. Finjan is a
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`small company, and a significant delay will detrimentally impact Finjan’s business operations
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`and finances. Finjan began licensing discussions with Rapid7 in March 2016, and filed this
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`action in October 2018, twenty months ago. D.I. 1, ¶¶ 30–32. A delay of at least four months,
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`and possibly much longer depending on the Court’s calendar, is per se prejudicial, and Finjan
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`should have an opportunity to have its day in Court. See Bhatnagar v. Surrendra Overseas Ltd.,
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`52 F.3d 1220, 1229 (3d Cir. 1995) (reiterating “the well-worn but nevertheless truthful aphorism
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`that ‘justice delayed is justice denied’”), quoting Burkett v. Cunningham, 826 F.2d 1208, 1218
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`(3d Cir. 1987).
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`IV.
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`CONCLUSION
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`For the reasons set forth above, Finjan respectfully requests that the Court deny Rapid7’s
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`Motion.
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`1 Rapid7’s reliance on the District of Massachusetts’ order regarding jury trials is entirely
`irrelevant and perplexing, as this case is taking place in the District of Delaware, and there has
`been no determination that it will not be possible in Delaware to conduct a trial in February
`2021. Motion at 2-3 (citing D.I. 144-3, Ex. 3); see also Frankel Decl., Ex. 13 (SAS Inst. Inc. v.
`World Programming Ltd., No. 2:18-cv-00295-JRG, D.I. 354 at 1–2 (E.D. Tex. May 22, 2020))
`(denying motion for extension: “Across the world, the COVID-19 pandemic and related travel
`restrictions are rapidly evolving, and may very well change several times before the scheduled
`jury selection in the above-captioned case.”).
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`Case 1:18-cv-01519-MN Document 149 Filed 06/12/20 Page 9 of 9 PageID #: 6291
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`POTTER ANDERSON & CORROON LLP
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`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
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`Attorneys for Plaintiff Finjan, Inc.
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`OF COUNSEL:
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`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Hannah Lee
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: June 12, 2020
`6760844
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