So Oracle has asked the court's permission [PDF] to depose Larry Page of Google along with three other Google employees. Exciting news?! Not really. In fact, if anything this strikes me as a bit of tit-for-tat. Google requested Larry Ellison's deposition so Oracle is going to do the same with Page.
Does it change any of the underlying facts of what has transpired? No.
Is it likely to disclose a conscious decision on the part of Google to infringe the Oracle/Sun patents? No.
As I have said before, anyone who believes that Google made a conscious decision to infringe the Sun patents and basically dare Sun, now Oracle, to sue them for infringement is naive. Technology companies have discussions about patent licenses all the time, and many of those discussions never lead to a license. Does that make the potential licensee a willful infringer if they later are accused of infringing one of the patents offered for license? Not without something more.
Should the court permit these additional depositions? Although it is late in the game, it's a toss up. Oracle is late to the party, is asking the court to deviate from the Federal Rules of Civil Procedure (Rule 30(a)(i), and makes no cogent argument as to why these potential deponents are likely to produce information not already produced in discovery. On the other hand, it is well within the court's latitude to grant Oracle's request (Rule 26(b)(2)(A)). I just wouldn't expect much to come of all of this even if the court does grant the request.
Oracle's request to the court:
[BOIES, SCHILLER & FLEXNER
Logo]
July 14, 2011
The Honorable Donna M. Ryu
United States Magistrate Judge
Northern District of California
[address]
San Francisco, California 94612
Re: Oracle America, Inc. v. Google Inc., No.
3:10-CV-03561-WHA (N.D. Cal.)
Joint Letter Regarding Oracle's Request for Four Additional
Depositions
Dear Judge Ryu:
Oracle respectfully requests that the Court permit Oracle to notice and take four additional depositions before the end of fact discovery on July 29, 2011. This would result in
Oracle deposing a total of 14 fact witnesses in this case. The parties met and conferred telephonically on July 1, 2011 and then again on July 12, 2011, and Google did not agree to Oracle's request to depose these individuals.
Oracle's Statement
Oracle is seeking this Court's permission to notice four individual depositions beyond the ten previously permitted by the Court. Each of the four deponents below is likely to give
relevant testimony that could not or cannot otherwise be obtained from the witnesses that Oracle has deposed or will depose.
1. Larry Page. Mr. Page is Google's CEO, and he reportedly made the decision to acquire Android, Inc., and thereby develop and launch the platform that Oracle now contends infringes its patents and copyrights. Mr. Page also participated in negotiations that took place between Sun and Google regarding a Java license for Android and in subsequent
communications with Oracle's CEO, Larry Ellison (whose deposition Google has requested). Oracle believes that Mr. Page's testimony will
likely be relevant with
respect to a number of other key issues in this case as well,
including the value of the
infringement to Google.
2. Dipchand Nishar. Mr. Nishar is a former Google
employee who, according to his
LinkedIn profile, "[s]tarted and managed Google's mobile
initiatives worldwide (2005-
2007)." As such, Mr. Nishar was involved with strategic
decisions relating to Google's
Honorable Donna M. Ryu
July 14, 2011
Page 2 of 8
mobile efforts and Android in particular. Mr. Nishar
was also involved with
negotiations that took place between Google and Sun to obtain a
Java license. Google
has otherwise produced a number of documents that were authored
or sent by Mr. Nishar
and which Oracle believes are relevant to the issues raised in
this lawsuit.
3. Bob Lee. Mr. Lee is a former Google employee who was a
Senior Software Engineer at
Google who led the core library development for Android. Oracle's
claims involve
certain Android libraries, and Mr. Lee's testimony would be
relevant both with respect
to certain aspects of Oracle's liability and damages theories in
this respect. Google has
also produced a number of documents reflecting communications by
or to Mr. Lee that
relate to other matters that are relevant to the claims and
issues in this case. Among
other things, his documents evidence intimate knowledge of Sun's
licensing practices,
which is relevant to Oracle's claims of willful infringement.
4. Tim Lindholm. Mr. Lindholm is an Android software
engineer who was previously
employed by Sun Microsystems. While at Sun, Mr. Lindholm
contributed to certain
Java technology at issue in this lawsuit. He constructed one of
the very first Java virtual
machines, and came to Google with intimate knowledge of the Java
platform
architecture. In addition, Mr. Lindholm participated in the
negotiations that took place
between Sun and Google for a Java license. Oracle believes that
Mr. Lindholm's
testimony likely will be relevant both to the liability and
damages issues in this case.
Oracle and Google jointly requested that each party be permitted
to notice up to 25
depositions (see Docket # 53 p. 5), but Judge Alsup ordered the parties
to file a motion seeking
permission to take more than 10 depositions only after eight depositions
had been taken. Judge
Alsup ruled: "No enlargements of the limitations on discovery in the
Federal Rules of Civil
Procedure will be allowed until after counsel have demonstrated that
they will behave reasonably
in the discovery already authorized. Such a motion may be made after
eight of the ten
depositions already authorized have been taken by the moving party."
(Docket # 56 p. 6.)
During the hearing that took place on November 18, 2010, Judge Alsup
stated: "I'm not going to
give you any extra depositions at this time, but I will if you behave
yourselves."
Oracle has complied with Judge Alsup's order by having already
taken eight depositions
and by behaving reasonably throughout the course of discovery, and by
seeking to limit the total
number of depositions.
In its Statement below, Google takes issue with the timing of
Oracle's request, but does
not note that its rolling document productions are the primary cause of
the backloading of
depositions in this case. Oracle started taking depositions months ago,
despite not having
received complete productions for any of the witnesses it has deposed.
Despite this fact, and
despite Judge Alsup's comment in February that a party may seek to
retake the deposition of
individuals for whom productions are incomplete at the time of
deposition, Oracle is not seeking
to take the broader course of redeposing these individuals. It is simply
seeking four additional
depositions, among more than 90 individuals Google has listed in its
initial disclosures, including
2
Honorable Donna M. Ryu
July 14, 2011
Page 3 of 8
twenty new individuals in supplemental disclosures served last week,
just over three weeks
before the close of fact discovery. Judge Alsup anticipated that the
parties would seek additional
depositions if they behaved reasonably, and that is precisely what
Oracle has done.1
Permitting these additional depositions will cause no
prejudice to Google. Google is
represented by three large law firms, and it is more than able to handle
these depositions within
the remaining weeks of discovery. This is particularly true given that
Google's counsel has not
even stated that they represent Mr. Nishar or Mr. Lee, both former
Google employees. The
parties are working together to schedule depositions, and they could
readily schedule these
depositions within the remaining weeks.
The four additional depositions will be neither duplicative
nor cumulative. Google
argues, for example, that Oracle should not be permitted to depose Mr.
Page because Oracle has
deposed and will again depose Mr. Rubin. However, Mr. Page has
information that Mr. Rubin
cannot have known and admittedly does not know. Mr. Page reportedly made
the decision to
acquire Android, Inc.,2 and
Mr. Rubin cannot possibly know what Google was considering at
that time given that Mr. Rubin was not even a Google employee at that
time. During his
previous deposition, Mr. Rubin confirmed that Mr. Page participated in
discussions with Sun and
then Oracle regarding Java and Android, but when asked what he knew
about those
conversations, he replied: "Not a lot." Mr. Page, of course, would know.
Mr. Page is not an
improper "apex" deposition; he has important, unique information about
decisionmaking and
negotiations that are directly relevant to this case, as is clear from
the documents that have been
produced by Google, which evidence his ongoing, personal and direct
involvement in the matters
at issue. Indeed, Google's objection to the deposition of Mr. Page is
manifestly inconsistent with
its own deposition notice to Oracle's CEO, Mr. Ellison.3Google's objection is particularly
3
Honorable Donna M. Ryu
July 14, 2011
Page 4 of 8
misplaced given Mr. Page's clear (and unique) personal involvement
for six years or more in the
issues in the case.
The same is true for the other three witnesses Oracle seeks to
depose.
Mr. Nishar was responsible for Google's mobile strategy as a
whole, and Google
documents make clear that Mr. Nishar participated in important strategy
decisions regarding the
interaction between Android and Google's larger mobile and non-mobile
business. Mr. Rubin,
in contrast, had no responsibility for Google's non-Android mobile
efforts. Mr. Rubin's
testimony is therefore not a substitute for Mr. Nishar's testimony.
The documents produced by Google confirm that Mr. Lee, like
Mr. Nishar, is a highly
relevant witness in this matter, and that he is likely to have relevant
testimony on the
development of the infringing Android libraries. The fact that Mr.
Bornstein will testify as a
30(b)(6) witness on certain technical issues is not a substitute for Mr.
Lee's testimony.
Google does not deny that Mr. Lindholm participated in the
negotiations with Sun, and
Google instead contends that Mr. Lindholm should not be deposed because
"Mr. Rubin is the
most knowledgeable person at Google concerning the negotiations between
Sun and Google and
is set to be deposed again at the end of the month." Despite the fact
that when questioned before
about who participated in the negotiations with Sun, Mr. Rubin did not
even mention Mr.
Lindholm, Google's documents confirm Mr. Lindholm's participation, and
Oracle should be
permitted to question Mr. Lindholm about those documents and the other
relevant documents
produced by Google. In addition, Mr. Lindholm is a former Sun employee
with potential
knowledge relating to the Java technology at issue in this litigation.
This is a complex case, and Mr. Rubin cannot be expected to
and based on his
testimony already has shown he cannot single-handedly cover all of the
relevant issues.
Moreover, the fact that Mr. Rubin may, according to Google's counsel, be
the "most
knowledgeable" about a given topic is not a legitimate basis for denying
Oracle the opportunity
for deposition discovery of these four individuals.
The fundamental problem with Google's argument is that it
ignores, and would have the
Court ignore, Google's own evidence, positions, and conduct in this
litigation: -
Google resists the deposition of its CEO, Larry Page,
while having noticed the
deposition of Oracle's CEO, Larry Ellison;
- Google argues that Oracle has dragged its feet in
discovery, while not mentioning
that it is the one that is seeking an extension into
August for document
production, has been slow to produce witnesses, and has
at each turn taken the
maximum time to prepare responses to Oracle's joint
letters regarding discovery
disputes;
4
Honorable Donna M. Ryu
July 14, 2011
Page 5 of 8
- Google argues that deposing Andy Rubin is a
substitute for deposing higher-level
executives, while arguing elsewhere that Oracle should
be confined to just a one
day deposition of Mr. Rubin, despite having put Rubin
up as a Rule 30(b)(6)
witness in addition to Oracle's notice of Rubin's
deposition in his individual
capacity;
- Google argues that ten individual depositions
and fifteen Rule 30(b)(6)
depositions (for many of which it offers the same
person as the corporate
representative) is adequate in this case, while listing
nearly one hundred witnesses
in its initial disclosures, including twenty new
individuals on July 5, just over
three weeks before the end of fact discovery;
- Google argues that the four additional deponents
are irrelevant to the litigation,
while having produced in discovery numerous documents
that show their personal
involvement in the acquisition of Android, the
negotiations that took place with
Sun and then Oracle for a license, and the formulation
of key business strategies
relating to the use of the infringed intellectual
property.
It would be unfair and deeply prejudicial to Oracle to be
confined to the minimum
number of depositions in this complex case, and thereby be deprived of
the depositions of
Google's higher-level executives and other key individuals. Oracle
therefore respectfully
requests that the Court grant it leave to take the four additional
depositions it seeks.
Google's Statement
As Judge Alsup predicted several months ago, Oracle comes to
this Court "gnashing [its]
teeth" with an eleventh-hour attempt to cram extra depositions into the
last couple weeks of the
discovery period.4 In
November of 2010, the Court ordered that the parties live within the
number of depositions permitted under the Federal Rules of Civil
Procedure (i.e., ten individual
depositions), and stated that it would enlarge that number only where
counsel demonstrated that
they behaved "reasonably" in authorized discovery.5 Three months later, upon learning that
Oracle had yet to take any depositions, the Court warned all parties in
February to "get cracking"
in taking depositions so as to avoid the need to return to the Court for
discovery relief later.6
Yet Oracle failed to get cracking. It did not take its first
deposition until April and now,
with the end of discovery approaching in less than three weeks, it wants
to cram four additional
and unnecessary depositions into an already-crowded schedule.7Oracle should not be permitted
to do so.
5
Honorable Donna M. Ryu
July 14, 2011
Page 6 of 8
As an initial matter, Google notes that it has planned its
case to abide by the requirements
of the Case Management Order and has worked to stay within the
deposition limits set by this
Court. Oracle, on the other hand, has not provided a sufficient basis
for increasing the deposition
limit at this late date. Instead, it seeks additional discovery that is
unnecessary and addresses
subject matter that will be addressed if it has not already been
addressed in depositions
scheduled within the limit. Burdening the schedule with these additional
depositions would only
compound the already-existing problems resulting from Oracle's
unreasonable conduct in
discovery.8
If Oracle would only abide by the discovery limits and the
depositions already noticed
(individual as well as Rule 30(b)(6) depositions), it would learn the
information it supposedly
seeks through these four proposed additional depositions. For example,
Oracle claims to need to
depose Bob Lee because he "led the core library development for Android"
and has "knowledge
of Sun's licensing practices." However, Oracle has deposed and will
depose again in a Rule
30(b)(6) capacity Dan Bornstein. Mr. Bornstein, employed by Google
since 2005, is the
primary architect of the Dalvik Virtual Machine and core libraries.
Oracle has also deposed
and will depose again in his individual and Rule 30(b)(6) capacity
Google's Vice President of
Android, Andy Rubin. Mr. Rubin is considered the "father" of Android, is
responsible for
overall strategy for the mobile platform, and led Google's negotiations
with Sun concerning Java
licensing. Accordingly, he appropriately was designated as Google's
representative on and
testified at length regarding Oracle's Rule 30(b)(6) topic concerning
any "discussions between
Google . . . and Sun or Oracle . . . concerning Android or the
development or licensing of
platform technology for mobile devices at any time between 2005 and the
filing of this lawsuit . .
. ." Mr. Lee, in contrast, is only one of a number of current or former
Google employees who
may have some subset of information on these topics, but that is not
enough to justify expanding
the current discovery limits.
Similarly, Oracle claims to need to depose former Google
employee, Dipchand Nishar,
because he was "involved with strategic decisions relating to Google's
mobile efforts and
Android" and was "involved" with negotiations between Google and Sun.
Yet, Oracle has
deposed other Google representatives with far more knowledge regarding
this subject matter. As
discussed above, Andy Rubin was Google's lead on all such discussions
with Sun, headed up the
development of Android, and is now the head of Google's mobile division.
There is no need to
expand the deposition limit to permit Oracle to depose Mr. Nishar, who
is far less knowledgeable
than other witnesses deposed within the limits.
The same is true for Oracle's harassing demand to depose
Google's Chief Executive
Officer and co-founder, Larry Page. Aside from the fact that this would
be an improper "apex"
6
Honorable Donna M. Ryu
July 14, 2011
Page 7 of 8
deposition,
9 the deposition of Mr. Page
is superfluous given the testimony already available
through other witnesses noticed within the discovery limits. Oracle
claims that it needs to
depose Mr. Page because he made the decision to acquire Android and
participated in Google's
negotiations with Sun. Yet, as Android's Chief Executive Officer prior
to joining Google and as
Google's Vice President of Android, Mr. Rubin is far more knowledgeable
regarding the facts
surrounding Google's acquisition of Android. And he was the lead on
Google's negotiations
with Sun. Accordingly, the deposition of Mr. Page would be unnecessarily
duplicative of
testimony already available through other witnesses, and would only
serve Oracle's goal of
harassing Google's most senior executive.10
Finally, Oracle claims that it needs to depose Mr. Lindholm
because he constructed a
Java virtual machine at Sun, supposedly "came to Google with intimate
knowledge of the Java
platform architecture," and participated in negotiations between Google
and Sun. However, as
Oracle is aware, Mr. Lindholm neither was an inventor on any of the
Asserted Patents, nor
worked on the accused Dalvik virtual machine (or any aspect of Android)
while at Google. In
contrast, Oracle has already deposed (and will depose again on Rule
30(b)(6) topics) Google's
lead architect on the Dalvik virtual machine, Dan Bornstein. Mr.
Bornstein is Google's most
knowledgeable representative concerning the Dalvik virtual machine and
the individuals who
worked on developing it. Further, as discussed above, Mr. Rubin is the
most knowledgeable
person at Google concerning the negotiations between Sun and Google and
is set to be deposed
again at the end of the month. Mr. Lindholm is only one of many Google
employees who
participated in some way in parts of those discussions, and his
involvement was minimal. There
is no basis for expanding the discovery limits to permit the deposition
of Mr. Lindholm.
********
The Court's Case Management Order made clear that the parties
were to carefully plan
their discovery efforts, seek to depose only truly important witnesses,
and not try to depose every
witness who may have additional knowledge on a particular topic. Both
Google and Oracle
could identify numerous other individuals both party employees and
third employees who
may have some relevant information. The purpose of the Case Management
Order, however,
was to encourage the parties to focus their energies on the most
important witnesses, and not on
those whose knowledge would for the most part be limited or duplicative
of the knowledge of the
individuals already deposed.
7
Honorable Donna M. Ryu
July 14, 2011
Page 8 of 8
Oracle has made no showing warranting an almost fifty percent
increase to the deposition
limit in these last few weeks of discovery. The parties are busy
finishing dozens of depositions
that must be completed by July 29. Google has worked diligently to live
within the limits and
thereby avoid coming to this Court for an increase in those limits.11Given that none of the four
witnesses demanded by Oracle have special or unique relevance, that
Oracle has not been
diligent in timely pursuing the allotted depositions, and that Oracle
has not acted reasonably in
discovery, Oracle should not be permitted at this late date to increase
the deposition limit to
depose these four individuals.12
Respectfully submitted,
BOIES, SCHILLER AND FLEXNER LLP |
KEKER & VAN NEST, LLP |
/s/ Steven C. Holtzman
Steven C. Holtzman |
/s/ Robert A. Van Nest
Robert A. Van
Nest |
1
Even were they relevant to the issues raised by Oracle's request for
four additional depositions, which they are not,
the arguments contained in Google's footnote are misplaced and
misleading. Oracle provided the requested contact
information for the witness that Google now complains about, and the
parties are scheduling that deposition.
Oracle's counsel acted promptly, first seeking to determine whether the
three individuals would be represented by
counsel, and then providing contact information. Oracle has adequately
prepared each of its 30(b)(6) witnesses, and
those witnesses were in fact far more prepared than Google's own
30(b)(6) witnesses. Oracle recently discovered
some additional documents, and it is making those documents available to
Google. In turn, Google just this week
requested that Oracle agree to permit Google to continue producing
documents into August. Google also just
recently served amended disclosures that identify for the first time 20
additional individuals, and Google's counsel
has indicated that it will produce more documents for some of those
custodians. Oracle remains willing to continue
these discussions with Google's counsel, and to try to reach reasonable
solutions that work for both parties, but
Google should not in the same breath complain that Oracle's request for
these additional depositions is untimely,
unduly burdensome, or improper.
2
One article note that Mr. Page was the one who "latched on to the
idea" of acquiring Android.
3
Google's decision to not identify Mr. Page in its initial disclosures,
and its efforts to otherwise prevent the
deposition of Eric Schmidt, do not provide any basis for its opposition
to Mr. Page's deposition. Google has
recognized, as it must, that Mr. Page has relevant documents by agreeing
to produce his documents. The decision
not to identify Mr. Page under Rule 26 can hardly be taken as grounds
for resisting Mr. Page's deposition. A high-
level executive with relevant adverse information or documents for his
employer would be an unlikely candidate for
inclusion in Rule 26 disclosures of witnesses with information the party
may use to support its claims, but is an
excellent candidate for deposition under Rule 30.
4 Transcript of Hearing on
2/9/11, Dkt. No. 87 at 6.
5 Case Management Order,
Dkt. No. 56 at 6.
6 Transcript of Hearing on
2/9/11, Dkt. No. 87 at 6.
7 Between remaining
individual depositions and Rule 30(b)(6) topical depositions, the
parties have dozens of
depositions to complete by July 29.
8 While it is not possible
to address in this joint letter all of the ways in which Oracle has
behaved unreasonably in
discovery, they include refusing to provide contact information for a
key witness, failing to properly prepare its Rule
30(b)(6) witnesses for deposition, producing substantial volumes of
non-responsive documents while withholding
relevant and responsive documents, and recently announcing that it has
hundreds of boxes of additional relevant
information that it knew existed months ago and only now is starting to
review for production.
9 Were Oracle to issue a
notice of deposition for Mr. Page, Google would move for a protective
order in connection
with that notice given that it violates the prohibitions against
improper "apex" depositions.
10Google notes that Mr.
Page is in a different category from Mr. Ellison of Oracle. Mr. Page is
not identified in
Google's disclosures under Rule 26. Oracle has listed Mr. Ellison in its
disclosures, and Google has offered to
withdraw its notice to depose Mr. Ellison if Oracle does not intend to
call him as a witness at trial and the parties
reached a similar agreement as to Google's Mr. Schmidt. Oracle has
declined to so agree. The fact that documents
from Mr. Page's files have been produced also does not justify a
deposition; both parties have produced and are
continuing to produce documents from large numbers of custodians far
more than could reasonably be deposed.
11
Google disagrees with Oracle's statement that Google "is seeking an
extension into August for document
production." In a recent conversation, lawyers for the parties compared
notes on the status of the parties' respective
ongoing production of documents, and jointly agreed that it may be
helpful to agree to complete certain document
production after July 29. Discussion of that topic is continuing, but
Google is not unilaterally "seeking an
extension."
12
Google notes that it is not opposed to allowing an additional
deposition where a legitimate and compelling basis
has been established by a party, and remains willing to discuss such
instances with Oracle. However, here none of
these witnesses compel such an increase.
8
ATTESTATION OF
FILER
I, Steven C. Holtzman, have obtained Robert A. Van Nest's
concurrence to file this
document on his behalf.
Dated: July 14, 2011
BOIES, SCHILLER & FLEXNER LLP
By:
/s/ Steven C. Holtzman
Steven C. Holtzman
Attorneys for Plaintiff
ORACLE AMERICA, INC.
|