Case 1:18-cv-01519-MN Document 150 Filed 06/12/20 Page 1 of 4 PageID #: 6292
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`
`Case No. 1:18-cv-01519-MN
`
`
`
`FINJAN, INC., a Delaware Corporation,
`
`
`
`
`
`RAPID7, INC., a Delaware Corporation
`and RAPID7 LLC, a Delaware Limited
`Liability Company,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`DECLARATION OF AARON M. FRANKEL IN SUPPORT OF
`PLAINTIFF FINJAN, INC.’S OPPOSITION TO DEFENDANTS RAPID7, INC.
`AND RAPID7 LLC’S MOTION TO EXTEND CASE SCHEDULE
`
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street 6th Floor
`Wilmington, DE 19801
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`
`Dated: June 12, 2020
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`
`Case No. 1:18-cv-01519-MN
`
`
`
`FINJAN, INC., a Delaware Corporation,
`
`
`
`
`
`RAPID7, INC., a Delaware Corporation
`and RAPID7 LLC, a Delaware Limited
`Liability Company,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`DECLARATION OF AARON M. FRANKEL IN SUPPORT OF
`PLAINTIFF FINJAN, INC.’S OPPOSITION TO DEFENDANTS RAPID7, INC.
`AND RAPID7 LLC’S MOTION TO EXTEND CASE SCHEDULE
`
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street 6th Floor
`Wilmington, DE 19801
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`
`Dated: June 12, 2020
`
`
`
`
`Case 1:18-cv-01519-MN Document 150 Filed 06/12/20 Page 2 of 4 PageID #: 6293
`
`
`
`I, Aaron M. Frankel, declare as follows:
`
`1.
`
`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
`
`of record for Finjan, Inc. (“Finjan”) for the above referenced matter. I have personal knowledge
`
`of the facts stated herein and can testify competently to those facts. I make this declaration in
`
`support of Plaintiff Finjan, Inc.’s Opposition to Defendants Rapid 7, Inc. and Rapid 7 LLC’s
`
`Motion to Extend Case Schedule (“Motion”).
`
`2.
`
`As a compromise proposal to further extend the expert discovery period without
`
`jeopardizing the trial date, Finjan suggested that the parties mutually agree to forgo summary
`
`judgment, which would have freed up over three months. Rapid7 declined the offer.
`
`3.
`
`Notwithstanding the logistical challenges created by COVID-19, our group is
`
`advancing its various cases by conducting remote depositions, hearings, meetings, and trials. We
`
`are also conducting remote source code reviews in multiple cases, relying on various secure
`
`technologies to do so.
`
`4.
`
`The same counsel representing Rapid7 in this action recently presented Drs.
`
`Kevin Almeroth and Steven Becker as expert witnesses at trial (by Zoom videoconference) in
`
`Centripetal Networks Inc. v. Cisco Systems Inc., 2:18-cv-00094 (E.D. Va.). Rapid7 is also using
`
`Drs. Kevin Almeroth and Steven Becker as experts in this action.
`
`5.
`
`Attached hereto as Exhibit 1 is a true and correct copy of a Rapid7 webpage
`
`entitled “Recent Releases” for Nexpose, available at https://help.rapid7.com/nexpose/en-
`
`us/release-notes/, last accessed on June 8, 2020.
`
`6.
`
`Attached hereto as Exhibit 2 is a true and correct copy of a Rapid7 webpage
`
`entitled “Recent Releases” for Metasploit, available at
`
`https://help.rapid7.com/metasploit/release-notes/, last accessed on June 8, 2020.
`
`1
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`
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`Case 1:18-cv-01519-MN Document 150 Filed 06/12/20 Page 3 of 4 PageID #: 6294
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`
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`7.
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`Attached hereto as Exhibit 3 is a true and correct copy of a Rapid7 webpage
`
`entitled “Recent Releases” for Appspider, available at https://help.rapid7.com/appspider/release-
`
`notes/, last accessed on June 8, 2020.
`
`8.
`
`Attached hereto as Exhibit 4 is a true and correct copy of the docket text for the
`
`Order Denying Joint Motion for Extension of Time from BPI Sports, LLC v. ThermoLife Int’l,
`
`LLC, 19-cv-60505 (S.D. Fla. Mar. 18, 2020).
`
`9.
`
`Attached hereto as Exhibit 5 is a true and correct copy of a webpage entitled
`
`“Cisco Patent Trial Kicks Off Over Zoom Without a Hitch,” available at
`
`https://www.law360.com/articles/1269331/cisco-patent-trial-kicks-off-over-zoom-without-a-
`
`hitch, last accessed on June 11, 2020.
`
`10.
`
`Attached hereto as Exhibit 6 is a true and correct copy of the Order Granting in
`
`Part Defendants’ Opposed Motion to Extend Case Schedule from Orthopaedic Hospital v. DJO
`
`Global, Inc. and DJO Finance, LLC, Case No. 3:19-cv-00970-JLS-AHG, Dkt. No. 66 (S.D. Cal.
`
`May 28, 2020).
`
`11.
`
`Attached hereto as Exhibit 7 is a true and correct copy of the Order from Uniloc
`
`USA, Inc. v. Big Fish Games, Inc., 2:16-cv-00741-RWS (E.D. Tex. Apr. 30, 2020).
`
`12.
`
`Attached hereto as Exhibit 8 is a true and correct copy of a webpage entitled
`
`“Strategies for Remote Source Code Review,” available at
`
`https://www.law360.com/articles/1265185/strategies-for-remote-source-code-review, last
`
`accessed on June 11, 2020.
`
`13.
`
`Attached as Exhibit 9 is a true and correct copy of the Stipulation and Proposed
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`Order Amending ¶¶ 37-46 (Disclosure and Review of Source Code) of the Protective Order from
`
`2
`
`
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`Case 1:18-cv-01519-MN Document 150 Filed 06/12/20 Page 4 of 4 PageID #: 6295
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`
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`Fraunhofer-Gesellschaft Zur Forderung Der Angew Andten Forschung E.V. v. Sirius XM Radio
`
`Inc., C.A. No. 17-184-JFB-SRF, D.I. 253 (D. Del. May 21, 2020).
`
`14.
`
`Attached as Exhibit 10 is a true and correct copy of the Order re: Source Code
`
`Review from Bot M8 LLC v. Sony Corp. of Am., et al., No. 19-cv-07027 WHA, Dkt. No. 131
`
`(N.D. Cal. Mar. 26, 2020).
`
`15.
`
`Attached as Exhibit 11 is a true and correct copy of the Order Granting Joint
`
`Motion to Amend and Supplement the Protective Order from In the Matter of Certain Wearable
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`Monitoring Devices, Systems, and Components Thereof, Inv. No. 337-TA-1190, U.S. I.T.C.
`
`(Apr. 28, 2020).
`
`16.
`
`Attached as Exhibit 12 is a true and correct copy of a webpage entitled Reopening
`
`Massachusetts: Baker-Polito Administration Initiates Transition to Second Phase of Four-Phase
`
`Approach, available at https://www.mass.gov/news/reopening-massachusetts-baker-polito-
`
`administration-initiates-transition-to-second-phase-of, last accessed on June 11, 2020.
`
`17.
`
`Attached as Exhibit 13 is a true and correct copy of the Order from SAS Institute
`
`Inc. v. World Programming Limited, Luminex Software, Inc., 2:18-cv-00295-JRG (E.D. Tex.
`
`May 22, 2020).
`
`
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`I declare under penalty of perjury of the United States of America that the foregoing is
`
`true and correct. Executed on June 12, 2020, in Allendale, New Jersey.
`
`By: /s/ Aaron M. Frankel
`Aaron M. Frankel
`
`
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`
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`3
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