Finjan, Inc. v. Cisco Systems Inc.

Filing 304

ORDER DENYING REMAINDER OF 292 PLAINTIFF'S MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE. Signed by Judge Beth Labson Freeman on 7/17/2019. (blflc3S, COURT STAFF) (Filed on 7/17/2019)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 FINJAN, INC., Plaintiff, 8 v. 9 10 CISCO SYSTEMS INC., 11 United States District Court Northern District of California Case No. 17-cv-00072-BLF Defendant. ORDER DENYING REMAINDER OF PLAINTIFF’S MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE [Re: ECF 292] 12 Before the Court is Plaintiff’s Motion for Relief from Nondispositive Pretrial Order of 13 Magistrate Judge (ECF 274). Motion, ECF 292. Plaintiff’s motion requests relief from three 14 aspects of Magistrate Judge Susan van Keulen’s order at ECF 274: (1) Denial of Plaintiff’s motion for leave to supplement its infringement contentions with 15 16 (a) internal code names of software components and (b) a new infringement contention 17 concerning Talos; (2) Striking Plaintiff’s supplemental interrogatory response to Cisco’s Interrogatory 18 19 No. 10; and (3) Compelling Plaintiff to produce further documents relating to its subsidiary’s 20 21 relationship with IBM. 22 See generally Motion. The Court previously denied Plaintiff’s motion with respect to issues (2) 23 and (3) and requested an opposition brief from Defendant regarding issue (1). See ECF 293. 24 Defendant has submitted its opposition brief, see Opp’n, ECF 300, and this matter is suitable for 25 submission without oral argument, see ECF 293. 26 27 28 I. LEGAL STANDARD A district court may refer nondispositive pretrial matters to a magistrate judge under 28 U.S.C. § 636(b)(1)(A). The district court “may reconsider any pretrial matter under this 1 subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or 2 contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). On review of a 3 nondispositive order, “the magistrate’s factual determinations are reviewed for clear error, and the 4 magistrate’s legal conclusions are reviewed to determine whether they are contrary to law.” Perry 5 v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). This standard is highly deferential— 6 the district judge may not simply substitute his or her judgment for that of the magistrate judge. 7 Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991). 8 II. DISCUSSION The remaining issue consists of two subparts: (a) Judge van Keulen’s denial of Plaintiff’s 10 motion for leave to supplement its infringement contentions with internal code names of software 11 United States District Court Northern District of California 9 components; and (b) Judge van Keulen’s denial of Plaintiff’s motion for leave to supplement its 12 infringement contentions with a new contention concerning Talos. See Motion at 1–3. The Court 13 addresses each subpart in turn. 14 A. 15 During discovery, Plaintiff filed a motion for leave to supplement its infringement Request to Supplement with Internal Code Names of Software Components 16 contentions with internal code names of software components. See ECF 231 at 2. Judge van 17 Keulen denied this request based on her finding that “Finjan’s showing of diligence [was] 18 insufficient.” See van Keulen Order at 7, ECF 274. 19 Plaintiff argues that Judge van Keulen’s order on this point should be reversed “because 20 Finjan promptly notified Cisco of the internal code names accused of infringement and diligently 21 sought to supplement its infringement contentions with this new information, as this Court 22 indicated was appropriate in [Finjan, Inc. v. Blue Coat Sys., LLC, No. 15-cv-03295-BLF, 2017 23 U.S. Dist. LEXIS 220192, at *23 n.1 (N.D. Cal. July 28, 2017) (“Blue Coat II”)]. See Motion at 2. 24 Defendant counters that Judge van Keulen properly considered the relevant law, that Blue Coat II 25 does not support Plaintiff’s position, and that “[none] of the ‘internal names’ [were] new to 26 Finjan.” See Opp’n at 1, ECF 300. 27 28 Having reviewed the parties’ arguments with respect to the internal code names issue, the Court now better understands the controversy between the parties and concurs with Judge van 2 1 Keulen’s determination that the issue is more complex than initially presented by Finjan. The 2 Court would have expected Finjan to present a list of newly identified internal code names to be 3 swapped out for less precise designations in the infringement contentions. Having been advised of 4 this deficiency by Judge van Keulen, Finjan has done nothing to persuade this Court that the true 5 effect of its request is as benign as suggested in the moving papers. Thus, the Court finds no 6 “clear error” in Judge van Keulen’s factual determinations and does not find that Judge van 7 Keulen’s legal conclusions are “contrary to law.” See Perry, 268 F.R.D. at 348. The Court will 8 not substitute its judgment for the considered judgment of Judge van Keulen. See Grimes, 951 9 F.2d at 241. Accordingly, Plaintiff’s motion for relief from the portion of Judge van Keulen’s order denying Plaintiff’s motion for leave to supplement its infringement contentions with internal 11 United States District Court Northern District of California 10 code names of software components is DENIED. 12 B. 13 During discovery, Plaintiff also sought to supplement its infringement contentions with a 14 new infringement contention that Talos, by itself, infringed certain patents-in-suit. See ECF 231 15 at 5. In her order denying this request, Judge van Keulen noted Finjan’s admission “that its 16 ‘standalone Talos’ contention is a new theory” and ruled that “[i]t is too late for Finjan to add this 17 new theory to its infringement contentions.” See van Keulen Order at 8. Judge van Keulen 18 considered Finjan’s argument “that Cisco misrepresented the nature of Talos” but found that “a 19 review of the proffered evidence on this point is not persuasive.” See id. at 8. Judge van Keulen 20 explained that “[the] evidence, including produced documents and deposition testimony, indicates 21 that enough of Talos’s functionality was revealed to Finjan to enable it to seek discovery on these 22 issues earlier” and that “Finjan’s showing of diligence [was] insufficient given the significance of 23 its proposed amendment/supplementation.” See id. 24 Request to Supplement with New Contention concerning Talos In the instant motion, Plaintiff argues that Judge van Keulen’s order on this point should be 25 reversed “because Finjan promptly sought leave to add [Talos as a new infringement contention] 26 upon learning that Talos included infringing software . . . . [and] was [not merely] a group of 27 people.” See Motion at 2. Finjan contends it only learned in February 2019 that Talos included 28 software “when it took the deposition of Talos’ head of engineering, who testified that Talos 3 1 actually included software that performed analysis of malicious code.” See Motion at 2; see also 2 2/19/2019 Watchinski Depo. at 44:15–19, Ex. 5 to Hannah Decl., ECF 258-14. Defendant 3 counters that its counsel’s statements at an October 2017 hearing before Judge van Keulen “are 4 near-verbatim” to portions of the 2/19/2019 Watchinski testimony that supposedly revealed to 5 Plaintiff for the first time that Talos included software. See Opp’n at 2–3; see also 10/10/2017 6 Hearing Tr. at 8:4–25, Ex. 8 to Hannah Decl., ECF 258-20; 2/19/2019 Watchinski Depo. at 26:6– 7 23. Defendant also contends that “Finjan made this same [misrepresentation] allegation to Judge 8 van Keulen . . . [which] Judge van Keulen flatly rejected.” See Opp’n at 2 (citing van Keulen 9 Order at 8). Having reviewed the parties’ arguments with respect to Plaintiff’s “Talos only” theory, the 10 United States District Court Northern District of California 11 Court finds no “clear error” in Judge van Keulen’s factual determinations and does not find that 12 Judge van Keulen’s legal conclusions are “contrary to law.” See Perry, 268 F.R.D. at 348. Judge 13 van Keulen considered the same arguments now before the Court and—relying on multiple 14 citations to the record—explained that “[t]he nature and characteristics of Talos have long been 15 the subject of discovery and argument between the[] parties.” See van Keulen Order at 8. Judge 16 van Keulen considered the evidence and record and ruled that “enough of Talos’s functionality 17 was revealed to Finjan to enable it to seek discovery on these issues earlier.” See id. at 8. Thus, 18 the Court will not substitute its judgment for the reasoned judgment of Judge van Keulen. See 19 Grimes, 951 F.2d at 241. Accordingly, Plaintiff’s motion for relief from the portion of Judge van 20 Keulen’s order denying Plaintiff’s motion for leave to supplement its infringement contentions 21 with a “Talos only” theory is DENIED. 22 III. 23 24 25 26 27 28 ORDER For the foregoing reasons, the remainder of Plaintiff’s motion for relief from nondispositive pretrial order of magistrate judge is DENIED. IT IS SO ORDERED. Dated: July 17, 2019 ______________________________________ BETH LABSON FREEMAN United States District Judge 4

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