Finjan, Inc. v. ESET, LLC et al

Filing 436

ORDER Denying Finjan's Motion to Compel Discovery Regarding Eset's Payments to Attorneys [ECF 425 ]. Signed by Magistrate Judge Bernard G. Skomal on 2/4/2019. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FINJAN, INC.,

Case No.: 17CV183 CAB (BGS)
Plaintiff,

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v.

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ORDER DENYING FINJAN'S
MOTION TO COMPEL
DISCOVERY REGARDING ESET’S
PAYMENTS TO ATTORNEYS

ESET, LLC and ESET SPOL. S.R.O.,

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Defendant.

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[ECF 425]

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Finjan raised this discovery dispute in which it seeks to compel Eset to produce

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information relating to Eset’s payments to its attorneys to the extent that Finjan must

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provide information concerning its payments to Finjan’s attorneys as ordered by the

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Court in its November 20, 2018 Order. (ECF 392.) The Court allowed Finjan to bring a

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motion to compel (ECF 425), to which Eset filed an oppostion (ECF 429), and Finjan

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replied (ECF 432). For expediency the Court will not repeat the arguments made in these

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filings, but will address the merits relevant to this issue.

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Finjan claims its initial RFPs 1-2, 4, 41, 44-46, served on October 14, 2016, sought

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damages related discovery, which included Eset’s attorney payments. The Court, having

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reviewed these RFPs finds that Finjan did not request this information. In fact, none of

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the RFPs identified by Finjan requests specifically information concerning damages.
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17CV183 CAB (BGS)

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Finjan also admits it did not pursue this discovery because it was of the view it was not

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relevant. The Court finds Finjan never requested Eset produce payments made to its

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attorneys pursuant to these RFPs.

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Notwithstanding, and assuming arguendo the RFPs request this information,

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Finjan’s raising of this dispute more than 2 years after the requests were made is not

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timely. The dispute is clearly outside of this Court’s chambers rules limit of 30 days to

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raise a dispute with the Court. The Court gives no weight to Finjan’s contention that

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since these requests were made before the case was transferred to this District Finjan did

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not have to abide by the Court’s chambers rules post transfer. Finjan’s compliance with

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the Court’s 30-day time limit throughout this case contradicts this position. Further,

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Finjan’s attempt to somehow justify this late dispute by arguing it fits within the dispute

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raised by Eset’s ROG 23, (ECF 392), makes no sense. ROG 23 was a timely raised

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dispute in which Eset had specficially requested Finjan’s payments to its attorneys.

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Finjan objected to this ROG, and timely raised the dispute. Finjan’s RFPs listed above

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were responded to by Eset in November 2016. Finjan did not raise this dispute regarding

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these RFPs. Eset’s ROG 23 and Finjan’s initial RFPs are two separate and distinct

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discovery issues, and are treated as such. Finjan chose not to raise any dispute, and

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therefore it waived any dispute per this Court’s chambers rules.
Even if the Court was to interpret Finjan’s raising of this dispute as a request to re-

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open fact discovery so it can now request Eset’s attorneys fees, such request is denied.

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Federal Rule of Civil Procedure 16 states that a schedule may be modified only for good

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cause and with the judge’s consent. In the absence of good cause, the court will not

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modify the scheduling order. See Johnson v Mammoth Recreations, Inc., 975 F.2d 604,

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608-09 (9th Cir. 1992). The inquiry under Rule 16(b)’s good cause standard first focuses

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on the diligence of the party seeking the amendment. Id. at 609. Carelessness is not the

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same as diligence and offers no reason for a grant of relief. Id. If the party was not

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diligent, the inquiry should end. Id.

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///
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17CV183 CAB (BGS)

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When the motion to extend time is made after time has expired, “the court may, for

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good cause, extend the time . . . if the party failed to act because of excusable neglect.”

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Fed. R. Civ. P 6(b)(1). The determination of excusable neglect takes into account: (1) the

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danger of prejudice; (2) the length of the delay and its potential impact on judicial

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proceedings; (3) the reasons for the delay which includes whether it was within the

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reasonable control of the party seeking to show excusable neglect; and (4) whether that

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party acted in good faith. Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d

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1225, 1234-35 (D. Kan. 2007).

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Without even considering excusable neglect, a higher burden than the good cause

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standard under Rule 16, the Court cannot find that Finjan was diligent. The excuse that it

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did not raise this issue because it thought such a request was not relevant, and admitting

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that it intentionally did not pursue this discovery, is not due diligence, much less

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excusable neglect. Finjan had over 2 years to request this discovery, but failed to do so.

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Fact discovery closed over 4 months ago, and Finjan has served its expert report on

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damages. The Court finds that Finjan has had ample time to seek this discovery but has

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chosen not to. See Fed. R. Civ. P. 26(b)(2)(C)(ii). Finjan’s motion to compel is

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DENIED.

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IT IS SO ORDERED.
Dated: February 4, 2019

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17CV183 CAB (BGS)