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Oracle v. Google - Mediation and Jury Selection
Monday, September 12 2011 @ 08:15 AM EDT

As is not uncommon in patent infringement cases like this, the judge has asked the parties to make one more attempt at settlement, this time through court ordered mediation. The big issue has been who would participate in the mediation for each of the parties.

Oracle put forward Safra Catz, President of Oracle Corporation, and Thomas Kurian, Executive Vice President of Oracle Product Development. 401 [PDF] Google countered with Andrew Rubin, Senior Vice President, Mobile (and former head of Android before its acquisition by Google) and Kent Walker, Vice President and General Counsel of Google. 402 [PDF] Both Rubin and Walker report to the Google CEO. On the face of it, these would appear to be reasonably matched teams. Google notes that Rubin is fully empowered to settle the matter, and both Catz and Rubin have been parties to the prior settlement discussions.

But Oracle believes it should be able to dictate who Google sends to the mediation. 404 [PDF] Oracle complains that Rubin is not senior enough, even though he, like Catz, reports to the CEO of his company. Oracle also complains that Rubin was a party to the earlier failed mediation attempts while failing to recognize that the reason those prior mediation attempts may have failed was because Catz was representing Oracle in them. Who knows. But it takes a lot of chutzpah to try to dictate the other side's negotiating team.

In response to all of this Judge Alsup appointed a magistrate 405 [PDF] to serve as the mediator and strongly recommended the magistrate order Larry Ellison of Oracle and Larry Page of Google to directly participate in the mediation along with the officers identified by the parties. And, right on cue, the magistrate has ordered both to appear. 416 [PDF] Oh, brother!

The first thing you should understand about a mediation is that it is non-binding. Parties can choose to be as cooperative or uncooperative as they wish to be. A skilled mediator will quickly learn early in the session whether the parties are serious about trying to settle the case even if they are leagues apart on what they believe is an appropriate settlement.

The second thing is whatever is said during a mediation/settlement conference is confidential and may not be brought up at trial. This encourages candor during the discussions, but it also means that anything short of a complete settlement really does not resolve anything. In other words, if during the settlement discussions the parties agree on some of the underlying issues, the fact that they agree cannot be raised during the trial unless both parties are willing to go on the record, e.g., in a stipulation, that they agree. So don't look for resolution of any of the important underlying issues, e.g., copyright infringement, the applicability of Sec. 271(f) of the Patent Act, etc., coming out of this session.

I can tell you from personal experience in mediation the last person you want in the room is the CEO. That is a recipe for disaster. For a mediation to have a chance, the representatives need to be able to check their egos at the door, listen to the other side and the mediator, and provide the CEO of the company the flexibility to make a call on settlement without having to be personally present. Unfortunately, with this move Judge Alsup and the magistrate have almost assured another failed mediation.

The mediation/settlement conference is scheduled to occur on Monday, September 19, 2011. So expect this case to go to trial if for no other reason than the fact that the expectation of what would constitute a reasonable settlement by the two parties is likely so far apart as to not be resolvable short of trial. There are simply too many open issues (copyright and Sec. 271(f) alone) at this time that, should they be decided before trial, would make it far more likely the parties could reach a settlement agreement.

Speaking of going to trial, Judge Alsup had indicated he would hold over the jury pool from a criminal trial in October to serve as the jury pool for this case if the criminal trial does not go forward as scheduled. 376 [PDF] Google objected (on the grounds that the jury pool would have been sufficiently narrowed for reasons pertinent to a criminal trial that the pool would no longer be sufficiently representative for a civil trial. Judge Alsup, while acknowledging that Google may prove correct in the end, overruled 400 [PDF] Google's objection on the ground that Google cannot presently demonstrate any lack of a fair cross section of the community in that prospective jury pool. Whether that gives Google the right to reassert its objection later is not clear.

**************

Docket

393 – Filed and Effective: 09/06/2011
PROPOSED ORDER
Document Text: Proposed Order RE RULE 706 EXPERTS by Google Inc.. (Purcell, Daniel) (Filed on 9/6/2011) (Entered: 09/06/2011)

394 – Filed and Effective: 09/06/2011
ORDER
Document Text: ORDER REGARDING PROPOSED ASSIGNMENT ORDER FOR RULE 706 EXPERT re 393 Proposed Order filed by Google Inc.. Signed by Judge Alsup on September 6, 2011. (whalc1, COURT STAFF) (Filed on 9/6/2011) (Entered: 09/06/2011)

396 – Filed and Effective: 09/06/2011
RESPONSE
Document Text: RESPONSE (re 260 MOTION for Summary Judgment on Count VIII of Plaintiff Oracle America's Amended Complaint) UNREDACTED VERSION filed byOracle America, Inc.. (Kuwayti, Kenneth) (Filed on 9/6/2011) (Entered: 09/06/2011)

397 – Filed and Effective: 09/06/2011
DECLARATION EXHIBITS
Document Text: EXHIBITS re 341 Declaration in Support, Unredacted Versions of Exhibits 1 and 2 to the Declaration of John C. Mitchell in Support of Oracle's Opposition to Google's Motion for Summary Judgment on Count VIII of Oracle's Second Amended Complaint filed byOracle America, Inc.. (Attachments: # 1 Exhibit 2)(Related document(s) 341) (Kuwayti, Kenneth) (Filed on 9/6/2011) (Entered: 09/06/2011)

398 – Filed and Effective: 09/06/2011
DECLARATION EXHIBITS
Document Text: EXHIBITS re 343 Declaration in Opposition,, Unredacted Versions of Exhibits 1, 2, 3, 4, 5, 8, 9, 11, 12, and 13 to the Declaration of Roman A. Swoopes in Support of Oracle's Opposition to Google's Motion for Summary Judgment on Count VIII of Oracle's Second Amended Complaint filed byOracle America, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 8, # 7 Exhibit 9, # 8 Exhibit 11, # 9 Exhibit 12, # 10 Exhibit 13)(Related document(s) 343) (Kuwayti, Kenneth) (Filed on 9/6/2011) (Entered: 09/06/2011)

399 – Filed and Effective: 09/06/2011
NOTICE
Document Text: NOTICE of Appearance by Rudolph Kim for Oracle (Kim, Rudolph) (Filed on 9/6/2011) (Entered: 09/06/2011)

400 – Filed and Effective: 09/07/2011
ORDER
Document Text: ORDER OVERRULING OBJECTIONS TO JURY SELECTION PROCEDURE re 392 Objection filed by Google Inc.. Signed by Judge Alsup on September 7, 2011. (whalc1, COURT STAFF) (Filed on 9/7/2011) (Entered: 09/07/2011)

401 – Filed and Effective: 09/07/2011
RESPONSE
Document Text: RESPONSE to re 386 Order ORACLES COMMENT ON ORDER REGARDING MEDIATION [Dkt. 386] by Oracle America, Inc.. (Jacobs, Michael) (Filed on 9/7/2011) (Entered: 09/07/2011)

402 – Filed and Effective: 09/07/2011
RESPONSE
Document Text: RESPONSE to re 386 Order Re Mediation by Google Inc.. (Sabnis, Cheryl) (Filed on 9/7/2011) (Entered: 09/07/2011)

403 – Filed and Effective: 09/07/2011
NOTICE
Document Text: NOTICE of Appearance by John L. Cooper Regarding Counsel for Rule 706 Expert (Cooper, John) (Filed on 9/7/2011) (Entered: 09/07/2011)

404 – Filed and Effective: 09/07/2011
RESPONSE
Document Text: RESPONSE to re 386 Order Oracle's Supplemental Comment on Order regarding Mediation by Oracle America, Inc.. (Jacobs, Michael) (Filed on 9/7/2011) (Entered: 09/07/2011)

405 – Filed and Effective: 09/08/2011
ORDER
Document Text: ORDER OF REFERENCE TO MAGISTRATE JUDGE FOR MEDIATION. Signed by Judge Alsup on September 8, 2011. (whalc1, COURT STAFF) (Filed on 9/8/2011) (Entered: 09/08/2011)

407 – Filed and Effective: 09/08/2011
PROPOSED ORDER
Document Text: Proposed Order re 394 Order [PROPOSED] ORDER RE RULE 706 EXPERTS by Oracle America, Inc.. (Holtzman, Steven) (Filed on 9/8/2011) (Entered: 09/08/2011)

408 – Filed and Effective: 09/08/2011
MOTION (STRICKEN)
Document Text: *** STRICKEN PER DKT. NO. 412 *** MOTION for Relief from Nondispositive Pretrial Order of Magistrate Judge re 361 Order filed by Google Inc.. Responses due by 9/22/2011. Replies due by 9/29/2011. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, #5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(Van Nest, Robert) (Filed on 9/8/2011) Modified on 9/9/2011 (whalc1, COURT STAFF). (Entered: 09/08/2011)

409 – Filed and Effective: 09/08/2011
MOTION
Document Text: MOTION for Summary Judgment Motion for Partial Summary Judgment and/or Summary Adjudication Re: Google's Non-Liability Under 35 U.S.C. § 271(f) filed by Google Inc.. Motion Hearing set for 10/13/2011 08:00 AM before Hon. William Alsup. Responses due by 9/22/2011. Replies due by 9/29/2011. (Attachments: # 1 Declaration Declaration of Patrick Brady, # 2 Proposed Order)(Van Nest, Robert) (Filed on 9/8/2011) (Entered: 09/08/2011)

410 – Filed and Effective: 09/08/2011
MOTION
Document Text: MOTION to Strike Portions of the Mitchell Patent Report filed by Google Inc.. Motion Hearing set for 9/29/2011 08:00AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 9/15/2011. Replies due by 9/22/2011. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Sabnis, Cheryl) (Filed on 9/8/2011) (Entered: 09/08/2011)

411 – Filed and Effective: 09/08/2011
PROPOSED ORDER
Document Text: Proposed Order Granting Defendant Google Inc.'s 410 Motion to Strike Portions of the Mitchell Patent Report by Google Inc. (Sabnis, Cheryl) (Filed on 9/8/2011) Modified on 9/9/2011 (wsn, COURT STAFF). (Entered: 09/08/2011)

412 – Filed and Effective: 09/09/2011
ORDER
Document Text: ORDER STRIKING UNAUTHORIZED RULE 72 MOTION by Judge Alsup striking 408 Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge (whalc1, COURT STAFF) (Filed on 9/9/2011) (Entered: 09/09/2011)

413 – Filed and Effective: 09/09/2011
ORDER
Document Text: ORDER SETTING ASSIGNMENT FOR RULE 706 EXPERT re 407 Proposed Order filed by Oracle America, Inc.. Signed by Judge Alsup on September 9, 2011. (whalc1, COURT STAFF) (Filed on 9/9/2011) (Entered: 09/09/2011)

414 – Filed and Effective: 09/09/2011
MINUTE ENTRY
Document Text: Minute Entry: Telephonic Pre-Settlement conference held. Court to issue scheduling order. (Date Filed: 9/9/2011). (Court Reporter FTR: (10:01 to 10:21.) (ofr, COURT STAFF) (Date Filed: 9/9/2011) (Entered: 09/09/2011)

416 - Filed and Effective: 09/09/2011
ORDER
Docket Text: ORDER RE: SETTLEMENT CONFERENCE: Pre-Conference Tutorial Hearing as to Oracle set for 9/14/2011 09:30 AM in Courtroom 5, 4th Floor, San Jose. Pre-Conference Tutorial Hearing as to Google set for 9/14/2011 01:30 PM in Courtroom 5, 4th Floor, San Jose. Settlement Conference set for 9/19/2011 09:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul S. Grewal. Signed by Judge Paul S. Grewal on 9/9/2011. (ofr, COURT STAFF) (Filed on 9/9/2011) (Entered: 09/09/2011)


**************

Documents

400

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

ORDER OVERRULING OBJECTIONS TO JURY SELECTION PROCEDURE

On August 30, the parties were informed that the Court is pre-clearing a large number of venire persons for a multi-month criminal trial, and that these same venire persons would be used for this civil case in the event the criminal trial had to be postponed. Objections to using the pre-cleared pool for this civil case were due on September 6. Oracle America, Inc. filed no objections, but Google Inc. did.

Google notes that many potential jurors “who ordinarily would be available to serve on a three-week civil trial” may have “significant personal or professional commitments” that would prevent them from serving in a multi-month criminal trial. Accordingly, Google predicts that the pre-cleared pool will be “less diverse” and “less representative” than the group that otherwise would be used. “To maximize the size and diversity of the venire, enhance the qualify [sic] of the jury-selection process, and increase the likelihood that the jury eventually selected will provide the parties with a fair cross section of the community, Google respectfully requests that the Court not use the pre-clearance process” (Dkt. No. 392).

Google’s predictions about the composition of the pre-cleared pool may prove accurate, but Google has not identified any cognizable right that would be violated by using such a pool. Google cites the statutory declaration of jury policy: “It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. 1861. This policy does not require maximizing the diversity of a jury pool as Google requests; it only requires that the pool constitute “a fair cross section of the community.” Google has not shown that the pre-cleared pool would not be a fair cross section of the community.

“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). Google has not identified a “distinctive” group that would be excluded from the pre-cleared pool. Groups that have been recognized as distinctive for purposes of this analysis typically are defined by race, ethnicity, gender, or some other discrete characteristic. Google cites no authority showing that individuals with “significant personal or professional commitments” have been or should be recognized as a distinctive community group. Google’s objections to using the pre-cleared pool are OVERRULED.

IT IS SO ORDERED.

Dated: September 7, 2011.

/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

2

401

MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email]
[address, phone, fax]

BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[email]
[address, phone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email]
[address, phone fax]

ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[email]
DEBORAH K. MILLER (Bar No. 95527)
[email]
MATTHEW M. SARBORARIA (Bar No. 211600)
[email]
[address, phone, fax]

Attorneys for Plaintiff
ORACLE AMERICA, INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

____________________

ORACLE AMERICA, INC.

Plaintiff,

v.

GOOGLE INC.

Defendant.

________________

Case No. CV 10-03561 WHA

ORACLE’S COMMENT ON ORDER
REGARDING MEDIATION
[Dkt. 386]

Oracle concurs with the Court’s view that an additional attempt at settlement of the case through mediation before a United State Magistrate Judge is warranted. Oracle has found previous efforts at settlement, including private discussions between the parties, frustrating for lack of follow-through, and believes that those efforts have not exhausted the possibilities for resolving the case.

As suggested by the Court, Oracle considers it essential that both parties bring top-level executives. Accordingly, Oracle’s executive representatives in the mediation before the Magistrate Judge will be Safra Catz, President of Oracle Corporation, and Thomas Kurian, Executive Vice President of Oracle Product Development.

Oracle will strive to make its representatives available as necessary and proposes that the mediation occur before the end of September.

Dated: September 7, 2011

MICHAEL A. JACOBS
MARC DAVID PETERS
DANIEL P. MUINO
MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs
Michael A. Jacobs

Attorneys for Plaintiff ORACLE AMERICA, INC.

By: /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff ORACLE AMERICA, INC.

402

ROBERT A. VAN NEST - #84065
[email]
CHRISTA M. ANDERSON - #184325
[email]
KEKER & VAN NEST LLP
[address, phone, fax]

DONALD F. ZIMMER, JR. - #112279
[email]
CHERYL A. SABNIS - #224323
[email]
KING & SPALDING LLP
[address, phone, fax]

SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
KING & SPALDING LLP
[address, phone, fax]

IAN C. BALLON - #141819
[email]
HEATHER MEEKER - #172148
[email]
GREENBERG TRAURIG, LLP
[address, phone, fax]

Attorneys for Defendant
GOOGLE INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

_________________

ORACLE AMERICA, INC.,

Plaintiff,

v.

GOOGLE INC.,

Defendant.

___________________

Case No. 3:10-cv-03561-WHA

Honorable William Alsup

GOOGLE INC’S RESPONSE TO
ORDER REGARDING
MEDIATION

Google welcomes the Court’s suggestion that the parties participate in a mediation of this case before a Magistrate Judge. Google does not object to participating in a mediation before a Magistrate Judge who is not otherwise involved in this case.

Google recognizes the importance of having top executives of the parties attend the Court-ordered mediation. Google proposes that Andrew Rubin, who is Senior Vice President, Mobile and reports directly to the Chief Executive Officer, attend for Google together with Kent Walker, Vice President and General Counsel of Google. Mr. Rubin’s executive responsibilities include all of Google’s mobile business, of which the Android business is a part. Mr. Rubin is knowledgeable regarding the issues in this case and he is fully empowered to resolve this matter on reasonable terms.

Google also understands from counsel for Oracle that they propose that Safra Catz and Thomas Kurian attend on behalf of Oracle -- and Google agrees with this choice. Ms. Catz is one of two Presidents of Oracle who, like Mr. Rubin, reports directly to Oracle's Chief Executive Officer. Mr. Rubin and Ms. Catz were involved in previous discussions involving the subject matter at issue in this case.

1

DATED: September 7, 2011

KING & SPALDING LLP
By: /s/ Scott T. Weingaertner

SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email]
[address, phone, fax]

ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN 184325)
[email]
KEKER & VAN NEST LLP
[address, phone, fax]

DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
KING & SPALDING LLP
[address, phone, fax]

IAN C. BALLON (SBN 141819)
[email]
HEATHER MEEKER (SBN 172148)
[email]
GREENBERG TRAURIG, LLP
[address, phone, fax]

ATTORNEYS FOR DEFENDANT
GOOGLE INC.

2


404

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.

Case No. CV 10-03561 WHA

ORACLE’S SUPPLEMENTAL COMMENT ON ORDER REGARDING MEDIATION

Oracle submits these supplemental comments in response to Google’s proposal that Andrew Rubin and Kent Walker represent Google in court-ordered mediation (Dkt. No. 402).

The Court’s mediation plan is the last chance to resolve this case before a major investment of time and resources by the parties and the Court. The Court’s September 2, 2011 Order appropriately directs the parties to identify “top corporate executives” to participate in the mediation. Oracle believes the prospects for a successful mediation will be far greater if Google’s executive-level representative is a superior to Mr. Rubin, who is the architect of Google’s Android strategy—the strategy that gives rise to this case.

The suggestion in Google’s filing today that Mr. Rubin and Ms. Catz are comparable high-level executives merely because they both report to their respective CEOs ignores important differences in their roles. Mr. Rubin is a Senior Vice-President with responsibility only for Google’s mobile strategy. Indeed, Google itself does not identify Mr. Rubin as a top corporate executive in its own public disclosures to investors. See, e.g., http://investor.google.com/company/management.html. In contrast, Ms. Catz is Oracle’s President, CFO, and a member of its Board of Directors. She has company-wide responsibility for all financial and legal matters. See http://www.oracle.com/us/corporate/press/executives/index- 070733.html (describing Ms. Catz’s role on Oracle senior executive team).

Additionally, Mr. Rubin represented Google in several past discussions between the parties. So has Mr. Walker, including at the unsuccessful private mediation referenced in the Court’s Order. In light of the failure of these past attempts at resolution, Oracle believes it vital that both parties assign top corporate executives to the mediation. Oracle asks that the Court direct Google to assign a corporate representative to the mediation effort who meets this standard.

Dated: September 7, 2011

MICHAEL A. JACOBS
MARC DAVID PETERS
DANIEL P. MUINO
MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs
Attorneys for Plaintiff
ORACLE AMERICA, INC.


405

United States District Court
For the Northern District of California

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

ORDER OF REFERENCE TO MAGISTRATE JUDGE
FOR MEDIATION

This matter is hereby REFERRED to MAGISTRATE JUDGE PAUL SINGH GREWAL for mediation. In light of the October trial date, mediation sessions should take place this month. The Court strongly recommends that Judge Grewal order Larry Ellison of Oracle and Larry Page of Google as well as the officers identified by the parties at docket numbers 401 and 402 to attend all mediation sessions, but leaves this determination to his judgment.

IT IS SO ORDERED.

Dated: September 8, 2011.

(signature)

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


416

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE, INC.,
Defendant.

Case No.: C 10-03561 WHA

ORDER RE SETTLEMENT
CONFERENCE

Yesterday, the presiding judge referred this case to the undersigned for a settlement conference to occur no later than the end of this month.1 This morning, the parties appeared for a telephonic hearing. Having considered the arguments of counsel, IT IS HEREBY ORDERED that the parties shall appear for separate pre-conference tutorials on September 14, 2011.2 By their outside counsel, Oracle shall appear at 9:30AM and Google shall appear at 1:30PM. No party representatives need appear at the tutorial, although they are more than welcome to attend.

IT IS FURTHER ORDERED that no later than September 12, 2011, the parties shall lodge their respective confidential settlement conference statements with the Clerk's Office. The parties shall refer to the undersigned's settlement conference procedures available on the court's website.

IT IS FURTHER ORDERED that the settlement conference shall be held on September 19, 2011 at 9AM. The party representatives required to attend this and any further conferences include, but are not limited to, Larry Ellison of Oracle and Larry Page of Google.

IT IS FURTHER ORDERED that the parties and their counsel should be prepared for further conferences between September 20 and September 30, 2011.

IT IS SO ORDERED.

Dated: September 9, 2011

(signature)

PAUL S. GREWAL
United States Magistrate Judge

1 See Docket No. 405.
2 Under ADR L.R. 7-5, "any written settlement conference statements, anything that happened or was said, any position taken, and any view of the merits of the case expressed by any participant in connection with any settlement conference" is treated as confidential. As a result, the tutorials and settlement conference sessions will be closed sessions and not open to the public or the media.

  


Oracle v. Google - Mediation and Jury Selection | 44 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please, if needed
Authored by: tiger99 on Monday, September 12 2011 @ 08:31 AM EDT
Please remember to indicate the nature of the correction in the title of your
post to make it easier for Mark.

[ Reply to This | # ]

Off topic here please
Authored by: tiger99 on Monday, September 12 2011 @ 08:34 AM EDT
Please remember to make clickable links where possible, and test your post in preview to make sure any links work. Nothing on topic with respect to the main article should go here, otherwise I suspect that a severe punishment will follow.....

:-)

[ Reply to This | # ]

Ta.
Authored by: Anonymous on Monday, September 12 2011 @ 08:35 AM EDT
.

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Monday, September 12 2011 @ 08:36 AM EDT
Stuff that is in the broklaw newspicks ought to be discussed here. It is
considered to be useful to make a link to the article you are referrring to, so
that it can still easily be found long after it has scrolled off the page.

[ Reply to This | # ]

Comes comes here....
Authored by: tiger99 on Monday, September 12 2011 @ 08:37 AM EDT
If you are helping to transcribe the Comes evidence, which shows up M$ in a very
bad light indeed, you probably already know what to do.

[ Reply to This | # ]

CEO = Chief Ego Officer?
Authored by: hardmath on Monday, September 12 2011 @ 10:07 AM EDT
I don't know how well it applies to Larry Page, but it fits
my impression of Larry Ellison. Since it was Oracle that
moved to have the court dictate who would attend the
mediation, it's reasonable to ask if this was the sort of
outcome they wanted, and if so, why?

It can't be ruled out that this is a kind of "pox on both
your houses" outcome, that Oracle wanted a "higher level"
executive than Google's Rubin mainly because they suspect a
grip on the technical development of Android is antithetical
to an "it's just business" philosophy that would lead to a
face-saving licensing agreement.

After all the business model Oracle has is proprietary silo-
building, and there's hardly any company more threatened by
the open source community development model than Oracle.
(Okay, maybe Microsoft, esp. given the OOXML debacle.)

But if Oracle did intend to have the negotiation be Larry v.
Larry, then it is doubtless an idea Ellison himself has that
he should be able to steer a green/idealistic Page around to
the "reality" of old school market domination.

Personally I feel the tide has been running against Oracle
both because of the USPTO actions favorable to Google and
the strength I perceive in Google's motions for partial
summary judgement. On Oracle's side little success stands
out except the order for the "clawed back" Lindholm emails
to be produced in discovery.


---
At the moment CLIB is more suited for theorem provers, less useful for games.
This will change as soon as the game potential of theorem provers is recognized.

[ Reply to This | # ]

what if Page begged off?
Authored by: Anonymous on Monday, September 12 2011 @ 12:09 PM EDT
There's all kinds of business reasons why a CEO may petition for a re-schedule,
but it crosses my mind that this kind of harassment may be exactly what the
Plaintiff CEO has in mind.

In which case, what's to stop Respondent from filing a response stating as much?

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mediation conference is confidential and may not be brought up at trial. - I wouldnt bet on that
Authored by: SilverWave on Monday, September 12 2011 @ 03:40 PM EDT
Look who you are dealing with.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

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Not Likely to Succeed Anyway
Authored by: Anonymous on Monday, September 12 2011 @ 06:29 PM EDT
The CEOs may as well be present at the mediation, as any deal will have to be
approved by them anyway and Ellison is unlikely to agree to anything other than
unconditional surrender by Google. With Ellison present, the mediation can fail
sooner and the parties can get on with the lawsuit.

Mediation could succeed if Oracle was facing defeat and Ellison was looking for
a way to declare a "win-win proposition" face saving waffle. It's too
early at this stage however, and there are too many outstanding issues for this
to succeed.

I have to wonder if this is exactly what the judge had in mind when he made this
decision. The bit about using an existing jury pool sounds like he wants to push
the case through as quickly as possible.

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