Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 1 of 10 PageID #: 2856
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`FINJAN LLC,
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`Plaintiff,
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`v.
`TRUSTWAVE HOLDINGS, INC., and
`SINGAPORE TELECOMMUNICATIONS
`LIMITED,
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`Defendants.
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`C.A. No. 20-371-LPS
`REDACTED-
`PUBLIC VERSION
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`LETTER TO THE HONORABLE LEONARD P. STARK
`FROM JEFF CASTELLANO
`
`Karen E. Keller (No. 4489)
`Jeff Castellano (No. 4837)
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 298-0700
`kkeller@shawkeller.com
`jcastellano@shawkeller.com
`Attorneys for Plaintiff Finjan LLC
`
`OF COUNSEL:
`Bijal Vakil
`Jeremy T. Elman
`Henry Y. Huang
`WHITE & CASE LLP
`3000 El Camino Real
`2 Palo Alto Square, Suite 900
`Palo Alto, CA 94306
`(650) 213-0300
`
`Dated: May 28, 2021
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`1
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`

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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 2 of 10 PageID #: 2857
`Jeff Castellano
`1.M . Pei Building
`1105 North Market St ., 12th Floor
`Wilmingt on, DE 19801
`(302) 298-0703
`jcastellano@shawkeller.com
`
`SHAW KELLER
`LLP
`
`May 28, 2021
`
`BY CM/ECF
`The Honorable Leonard P. Stark
`U.S. District Comi for the District of Delaware
`844 N . King Street
`Wilmington, DE 19801
`
`CONFIDENTIAL -
`FILED UNDER SEAL
`
`Re:
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`Finjan LLC v. Trustwave Holdings, Inc., C.A. No. 20-371-LPS
`
`Dear Chief Judge Stark:
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`Plaintiff Finjan LLC ("Finjan") and Defendant Singapore Telecommunications Ltd.
`("Singtel") hereby provide a joint status repo1i including "their positions on which, if any,
`additional discove1y requests proposed by Finjan in D.I. 49 shall be ordered by the Comi ," and
`the status of jurisdictional discove1y. (See D.I. 68).
`
`Pursuant to the Comi's Order (D.I. 68), Singtel produced the Singtel-Trnstwave Merger
`Agreement on May 17, 2021 . Following a request from Finjan, Singtel then produced the
`Company Disclosure Letter to the Merger Agreement on May 24, 2021. The parties held a meet
`and confer on May 27, 2021 regarding additional jurisdictional discove1y.
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`Finjan's Position
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`The paiiies appear to agree that the merger agreement and related docmnents can dispose
`of Singtel's motion. Finjan submits that the Comi should den Sin tel's motion to dismiss for
`lack of ersonal · urisdiction now because the
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`Alternatively, as Finjan suggested earlier this week, Singtel
`should withdraw its motion to dismiss. 1 If the motion remains pending, Finjan believes that
`additional jurisdictional discove1y is necessa1y, as set fo1ih below.
`
`Finjan also objects to Singtel's blanket refusal to allow Julie Mar-Spinola, Finjan's Chief
`Intellectual Prope1iy Officer and Vice-President of Legal Operations, to view either the merger
`agreement or the Company Disclosure Letter, or at least provide a redacted version for her
`review.
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`REDACTED - PUBLIC VERSION
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`

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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 3 of 10 PageID #: 2858
`SHAW KELLER LLP
`The Honorable Leonard P. Stark
`Page2
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`A. The Recently Produced Merger Agreement Evidences Singtel's Express Consent to
`Jurisdiction
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`As discussed at the May 7 hearing, the 2012 Contract includes a Delaware fornm
`selection clause and expressly binds an "Acquirer" like Singtel b its
`lain Ian ua e. Consistent
`· th th t 1 · 1
`th M
`A
`ent confums that
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`contraiy to Singtel's assertions at the heai·ing.
`Finjan asked Singtel to withdraw its motion to dismiss in light of this fact many days ago, so its
`arguments about timing are unavailing. See Ex. C. Singtel has not agreed to withdraw its
`motion, which was discussed during the paiiies' meet and confer.
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`Thus, Finjan submits that additional discove1y and briefing ai·e not necessaiy to answer
`the question of whether Sin tel is bound b the fonnn selection clause in the 2012 Contract
`based on
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`Finjan does not believe that additional briefing is necessaiy, but if the Comt deems it
`appropriate, then both paiiies should get an oppo1tunity to brief the issue. Finjan proposes that
`briefing proceed on the agreed schedule, with Finjan's pages in this section to count against its
`page limit for its opening supplemental brief. If the Comt is not inclined to deny Singtel's
`motion now, Finjan respectfully submits that additional jurisdiction discove1y is required, as set
`fo1th below.
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`B. Further Discovery if the Court Does Not Deny Singtel's Motion Based on Merger
`Evidence
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`1. The Parties Agree To Limited Additional Discovery
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`For pmposes of resolving this Motion, Finjan has nanowed the jurisdictional discove1y
`requested (as stated in the May 20 letter attached as Exhibit C). On May 27, Singtel agreed to
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`{00037115}
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 4 of 10 PageID #: 2859
`SHAW KELLER LLP
`The Honorable Leonard P. Stark
`Page 3
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`supplement its interrogatory responses and produce additional documents on a rolling basis by
`June 18. Singtel agreed to the following jurisdictional discovery:
`
` Supplement Interrogatory No. 1 to address:
`• Whether Singtel had any involvement with development of the Trustwave Fusion
`Platform
`• Singtel’s involvement with the Singtel Cyber Security Institute
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` 
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` 
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` Supplement Interrogatory No. 2 to address Singtel’s first knowledge of the 2012 Finjan-
`Trustwave Agreement
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` Supplement Interrogatory No. 4 to confirm whether or not Singtel’s cybersecurity
`activities in the U.S. are limited to the already produced resales of Trustwave’s products
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` 
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` Supplement Interrogatory No. 5 to address any “Trustwave Group” (including Singtel
`Enterprise Security (US), Inc.) sales, manufacture, or design of cybersecurity products in
`the U.S. (other than by Trustwave Holdings, Inc. or its subsidiaries)
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` Singtel is in the process of searching for the following documents to produce: Org chart
`for “Trustwave Group”
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`2. Finjan Also Seeks The Following Discovery
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` RFP No. 1, and Interrogatories Nos. 2-3: communications internally and/or between
`Singtel or with Trustwave during due diligence about Finjan,2 and communications about
`Finjan and Singtel’s diligence when acquiring Trustwave are relevant to jurisdiction, as
`the Court indicated at the May hearing. See May 7, 2021 Hr’g Tr., at 19:15-20:9
`(“Maybe we would find out that a lot of due diligence was done and Singtel understood
`that it really was subject to this forum selection clause.”).
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` RFP Nos. 2-4 and 11: Documents, information, and communications about Singtel’s
`cyber security revenues in the U.S. (or other managed security services) that are reported
`by Singtel (and any of its subsidiaries, including Trustwave). Jurisdiction would be
`proper if Singtel or its agents engage in the marketing, sale or offer to sale the licensed
`products and/or the accused products in Delaware (or in the United States if Singtel
`continues to maintain that it is not subject to personal jurisdiction anywhere in the United
`States).
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`2
`No privilege applies to due diligence communications between separate parties. See Am.
`Bottling Co. v. Repole, C.A. No.: N19C-03-048 AML CCLD, 2020 Del. Super. LEXIS 225 at
`*12-13 (Del. Sup. Ct. May 12, 2020) (noting “this Court has held that privileged information
`shared during negotiations between two prospective partners regarding the terms of their
`partnership did not fall within the common interest doctrine.”).
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 5 of 10 PageID #: 2860
`SHAW KELLER LLP
`The Honorable Leonard P. Stark
`Page4
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`Finjan reserves the right to address any deficiencies in Singtel's responses and
`productions with this Comt prior to a deposition of Mr. Yang ( or the relevant Singtel corporate
`witness since Mr. Yang no longer works for Singtel), especially where Singtel proposes to
`provide info1mal discove1y responses rather than documentation.
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`Singtel's Position
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`Defendant Singapore Telecommunications Ltd. ("Singtel") hereby provides its section of the
`status report regarding the status of jurisdictional discove1y and Finjan's additional requests.
`(See D.I. 68).
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`I. Finjan's Status Report in Improper
`
`Singtel understood that the Comt wanted an update on whether the paities had agreed to the
`scope of additional jurisdictional discove1y on Singtel 's pending motion to dismiss. (See D .I.
`68). Accordingly, Singtel provides an update on agreed to and disputed jurisdictional discove1y.
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`Finjan 's submission is a supplemental brief, including evidentiaiy exhibits, not a status
`repo1t . Less than six hours before the deadline for submission of the joint status repo1t, counsel
`for Finjan provided a draft joint status repo1t that essentially seeks summa1y adjudication of
`Singtel's motion to dismiss. The timing and nature of Finjan's submission is inappropriate. The
`Comt's Order (D.I. 68) set a supplemental briefing schedule to occur after additional
`jurisdictional discove1y concludes. Appai·ently, Finjan seeks to brief its ai·guments now and then
`once again after subjecting Singtel to fmt her jurisdictional discove1y.
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`Moreover, Finjan's ai·gument is incon ect. Counsel have met and confen ed regarding
`Finjan 's ai·gument related to the Singtel-Tmstwave Merger Agreement. Singtel's counsel
`ex lained in detail how Fin.an's ai·
`ent relies on a misreadin of the Mer er A ·eement.
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`Finjan should not be pennitted to brief this ai·gument now and then submit another
`supplemental brief after further jurisdictional discove1y from Singtel. If the Court is inclined to
`ente1tain Finjan 's status repo1t ai·gument at this juncture, then Singtel requests leave to provide a
`brief to rebut Finjan 's argument in detail., If that procedure will be followed, however, then
`Singtel respectfully requests that any fmt her jurisdictional discove1y be denied and Singtel's
`motion to dismiss be resolved based on the arguments in the status repo1t and Singtel's response.
`Singtel is prepai·ed to respond by June 11, 2021, if the Comt wishes the paities to proceed in that
`way.
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`II. Agreed to Jurisdictional Discovery
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`{00037115}
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 6 of 10 PageID #: 2861
`SHAW KELLER LLP
`The Honorable Leonard P. Stark
`Page 5
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`Pursuant to the Comi's Order (D.I. 68), Singtel produced the Singtel-Trnstwave Merger
`Agreement on May 17, 2021. Following a request from Finjan, Singtel then produced the
`Company Disclosure Letter to the Merger Agreement on May 24, 2021. The parties held a meet
`and confer on May 27, 2021 regarding additional jurisdictional discove1y.
`
`If the Court does not want Singtel to respond to Finjan's argument by June 11 , 2021 , then
`subject to Singtel 's previously served objections, Singtel has agreed to supplement its
`intenogato1y responses and produce additional documents on a rolling basis by June 18 as
`follows:
`
`• Supplement Intenogato1y No. 1 to address:
`• Whether Singtel had any involvement with development of the
`Trnstwave Fusion Platfo1m
`• Singtel's involvement with the Singtel Cyber Security Institute
`
`• Supplement Intenogato1y No. 2 to address Singtel's first knowledge of the
`2012 Finjan-Trnstwave Agreement
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`• Supplement Intenogato1y No. 4 to confom whether or not Singtel's
`cybersecurity activities in the U.S. are limited to the already produced
`resales of Trnstwave's products
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`• Supplement Intenogato1y No. 5 to address any "Trnstwave Group"
`(including Singtel Enterprise Security (US), Inc.) sales, manufacture, or
`design of cybersecurity products in the U.S. ( other than by Trnstwave
`Holdings, Inc. or its subsidiaries)
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`• Singtel is in the process of searching for the following documents to
`produce: Org chaii for "Trnstwave Group"
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`III.Disputed Jurisdictional Discovery
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`Singtel does not agree to provide the communications sought by Finjan under RFP No. 1, and
`Intenogatories Nos. 2-3. Singtel agreed to identify Singtel's first knowledge of the 2012 Fin'an(cid:173)
`Trnstwave A
`·eement and has ah-ead
`roduced the Sin tel-Trnstwave Mer er A
`·eement.
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`It is uncleai· how subjecting Singtel to burdensome discove1y of the
`communications sought by Finjan is relevant, let alone propo1iional to the needs of resolving
`Singtel's motion to dismiss.
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`Singtel believes that Finjan's RFP Nos. 2-4 and 11 ai·e addressed in Singtel 's supplemental
`responses to Intenogato1y Nos. 4-5 as outlined above. The crnx of Finjan's position is that if
`Singtel or another Singtel subsidiaiy other than Trnstwave Holdings, Inc. is selling,
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`{00037115}
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 7 of 10 PageID #: 2862
`SHAW KELLER LLP
`The Honorable Leonard P. Stark
`Page 6
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`manufacturing, or marketing cybersecurity products in the U.S., then it is relevant to the pending
`motion to dismiss. Although Singtel believes that none of what Finjan seeks is relevant, Singtel
`believes its prior responses and forthcoming supplemental responses to Interrogatory Nos. 4-5
`will adequately address Finjan’s inquiry. Moreover, Singtel has agreed to a 3-hour deposition on
`these topics.
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`Singtel’s counsel is available to discuss this matter with the court in more detail if the Court
`desires.
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`Counsel and the parties remain available should the Court have any questions.
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`Respectfully,
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`/s/ Jeff Castellano
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`Jeff Castellano (No. 4837)
`
`Clerk of the Court (by CM/ECF)
`All counsel of record (by CM/ECF and email)
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`cc:
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`{00037115}
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 8 of 10 PageID #: 2863
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`Exhibit A
`Redacted in its Entirety
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 9 of 10 PageID #: 2864
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`Exhibit B
`Redacted in its Entirety
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`Case 1:20-cv-00371-LPS Document 80 Filed 06/04/21 Page 10 of 10 PageID #: 2865
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`Exhibit C
`Redacted in its Entirety
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