Finjan, LLC v. Qualys Inc.

Background

The parties filed a joint discovery letter concerning whether Finjan could continue electronically accessing Qualys’s source code on the review computer where Qualys had made it available until October 1, 2020. Finjan sought continued access so its experts could review the code while preparing their expert reports.

The scheduling order set October 1, 2020, as the end of fact discovery. Opening expert reports were due December 1, 2020, rebuttal reports were due six weeks later, and expert discovery ended March 5, 2021. The court therefore had to decide whether continued source-code access was fact discovery or expert discovery. Under Civil Local Rule 37-3, a motion to compel concerning fact discovery was due within seven days after the fact-discovery deadline. The opinion states that the parties agreed Finjan first requested continued access on or after October 1 on October 18, 2020.

Court’s Analysis

The court held that inspecting an opponent’s materials and obtaining or accessing information are fact discovery. The fact that an expert would use the information to prepare a report did not convert the activity into expert discovery. The court explained that expert discovery means discovery about the expert, including expert disclosures and depositions, rather than discovery conducted by the expert.

The court rejected Finjan’s reliance on cases in which source code had been available after fact discovery, finding that those cases did not decide whether continued access was required after the fact-discovery deadline. The court also distinguished a case involving modification of a scheduling order, explaining that a request to modify the schedule would have to be directed to Judge Gonzalez Rogers, while the present order enforced the existing schedule.

The court rejected Finjan’s arguments based on the stipulated protective order. Although the order allowed source-code inspection and allowed requests for limited paper copies reasonably necessary for expert reports or other litigation papers, the court found that it did not promise access through the end of expert discovery or trial.

The court also rejected Finjan’s argument that Qualys’s October 1 amended interrogatory responses newly directed Finjan to source code. According to the court, the relevant reference had appeared in an earlier supplemental response served on December 10, 2019. The court found that Finjan’s contrary argument was a misrepresentation. Regarding other references to source-code printouts and non-infringement arguments, the court stated that Finjan had seven days to seek additional access but missed that deadline by several weeks.

Finally, the court addressed Finjan’s fairness argument concerning access by Qualys’s experts. Qualys stated that it had certified that none of its experts accessed the source-code repository after fact discovery closed and agreed not to provide them such access. The court therefore found no unequal access requiring relief.

Ruling

Judge Thomas S. Hixson denied Finjan’s motion for continued access to Qualys’s source code. The order did not decide the underlying patent dispute; it resolved the parties’ discovery dispute by enforcing the existing discovery schedule.