Finjan, Inc. v. Juniper Network, Inc.

Filing 451

**Counsel please note: This order was previously filed in docket no. 449 which you received yesterday, 4/25/2019. This Order is being re-posted to correct a docketing error by the Court, the Order has not changed in any way.**Discovery Order re: Order Denying Motion to Compel re Docket No. 429. Signed by Magistrate Judge Thomas S. Hixson on 4/25/2019. (rmm2S, COURT STAFF) (Filed on 4/26/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FINJAN, INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-05659-WHA (TSH)
ORDER DENYING MOTION TO
COMPEL

v.
JUNIPER NETWORK, INC.,

Re: Dkt. No. 429

Defendant.

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Plaintiff Finjan, Inc., moves to compel Defendant Juniper Network, Inc., to produce eight

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emails listed as entries 0162, 0163, 0164, 0166, 0167, 0171, 0174 and 0175 on Juniper’s privilege

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log. The emails all included Scott Coonan, Juniper’s head of patent litigation, as well as

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representatives from Juniper’s competitors. The subject line of each email is: “RE: Finjan in-

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house JDG / SUBJECT TO COMMON INTEREST,” except that 0175 says “FW” instead of

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“RE.” It’s undisputed that “JDG” stands for joint defense group.

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Prior to this lawsuit, Finjan had sued a number of other companies on the same or similar

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patents. These other defendants had established a well-functioning joint defense group, and they

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had suggested to Juniper that it might want to join if Finjan sued it. After the dispute between

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Finjan and Juniper arose, but before the complaint in this case was filed, Coonan recalls having

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communications with Michael Ritter, Palo Alto Network’s Chief Patent Counsel, about the joint

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defense group, and in particular about the experiences Ritter had had in the litigation. Coonan

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recalls these being oral conversations and does not recollect them being emails. Yet, looking at

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the privilege log, and in particular the people listed on the emails, the subject lines, and the dates –

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that’s what these emails obviously were. Juniper ultimately decided not to join the joint defense

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group. So, are the emails nonetheless privileged under the common interest doctrine?

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“Rather than a separate privilege, the ‘common interest’ or ‘joint defense’ rule is an

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exception to ordinary waiver rules designed to allow attorneys for different clients pursuing a

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common legal strategy to communicate with each other.” In re Pacific Pictures Corp., 679 F.3d

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1121, 1129 (9th Cir. 2012). It applies “‘where (1) the communication is made by separate parties

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in the course of a matter of common [legal] interest; (2) the communication is designed to further

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that effort; and (3) the privilege has not been waived.” Nidec Corp. v. Victor Co. of Japan, 249

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F.R.D. 575, 578 (N.D. Cal. 2007) (quoting United States v. Bergonzi, 216 F.R.D. 487, 495-96

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(N.D. Cal. 2003)). “It has been applied beyond the joint client context to the joint defense context

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– for example, when the defendants are co-defendants in the same action or are defendants in
separate actions sued by the same plaintiff.” Id. “Moreover, the joint defense theory can extend to

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United States District Court
Northern District of California

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interested third parties who have a community of interests with respect to the subject matter of the

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communications.” Id. (citations and quotation marks omitted).

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These factors are satisfied here. Juniper had a common legal interest with the other

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defendants that had been sued for infringing the same or similar patents. The communications

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were designed to further that effort because they appear to relate to Juniper’s potential

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participation in the joint defense group. And neither Juniper nor any of the other recipients have

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waived the privilege.

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Finjan says this isn’t good enough, citing Coonan’s testimony that Juniper ultimately did

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not join the joint defense group. It is true that the common interest doctrine requires an

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agreement. “[T]he parties must make the communication in pursuit of a joint strategy in

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accordance with some form of agreement—whether written or unwritten.” In re Pacific Pictures

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Corp., 679 F.3d at 1129. But an agreement can be implied, and here it is implied by the subject

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line of the emails, which again states: “RE: Finjan in-house JDG / SUBJECT TO COMMON

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INTEREST.” It would be difficult to find a clearer example of the parties’ agreement that the

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emails are subject to a common interest agreement than a statement to that effect on the emails

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themselves. See, e.g., U.S. v. Esformes, No. 16-20549, 2018 WL 5919517, *12 (S.D. Fla. Nov.

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13, 2018) (“The Court does not find the fact that the Moscowitzes did not sign the JDA [Joint

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Defense Agreement] dispositive. The parties, through counsel, exchanged confidential material,
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frequently labeled their emails ‘joint defense,’ . . . . [¶] It is clear by their conduct, all parties

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operated under the assumption that their actions and statements were covered by a valid JDA.”);

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Abselet v. Leven Neale Bender Yoo & Brille L.L.P., No. CV 16-6263, 2017 WL 8236270, *3 (C.D.

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Cal. June 7, 2017) (that a “letter was marked ‘Privileged Common Interest Communication’ and

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confirmed counsel’s agreement that ‘our communications . . . are subject to the common interest

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privilege’ [] demonstrates that the parties intended the letter to remain confidential.”).

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Accordingly, Finjan’s motion to compel is DENIED.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: April 25, 2019

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THOMAS S HIXSON
S.
United States Magistrate Judge

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