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| Oracle v. Google - Continuance Denied; Trial to Start April 16 |
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Wednesday, March 21 2012 @ 08:15 AM EDT
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Not surprisingly, the Court has denied Google's motion for a one-week continuance for the beginning of the trial. (820 [PDF; Text]) Google's motion never stood a chance, but Oracle wanted to make sure it had no chance since Oracle's trial counsel also have full schedules.
As pointed out in their opposition to Google's motion for continuance (819 [PDF; Text]), Michael Jacobs, co-lead trial counsel for Oracle, has a trial scheduled to begin May 31, and David Boies, Oracle's other co-lead trial counsel, has trials set to begin June 3, June 18, and June 25 (one has to wonder how any trial attorney can effectively represent clients at trials scheduled so closely together, but that's for Mr. Boies and his clients to worry about). As Oracle states in its brief: "Normally, Oracle would not hesitate to agree to a brief continuance to accommodate the
schedule of opposing counsel. Professional as well as personal commitments frequently require that
counsel ask for, as well as grant, such courtesies." You never know when you are going to be on the other end of a scheduling issue, so trial counsel generally try to accommodate each other. The problem here is the length of this trial and the robust trial practices of the various lead counsel. Not that he was inclined to change his mind, but this pretty much sealed the issue for Judge Alsup.
The Court has scheduled a short pretrial conference for the morning of March 28 to see if there is any way to further streamline this case, and Judge Alsup has asked the parties to prepare a joint statement containing their respective streamlining proposals (don't expect a lot of agreement here from opposing counsel).
In the only other matter raised by the Court, the Court is anxious to see. (821 [PDF; Text]) It is due to be submitted today anyway, but Judge Alsup wants to make sure that happens.
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Docket
03/19/2012 - 819 - RESPONSE
(re 804 MOTION to Continue The Trial Date From April 16, 2012 to April
23, 2012 ) ORACLE AMERICA, INC.S OPPOSITION TO GOOGLE, INC.S REQUEST FOR
CONTINUANCE [DKT. NO. 804] filed by Oracle America, Inc.. (Attachments:
# 1 Declaration
DECLARATION OF DAVID BOIES IN SUPPORT OF ORACLE AMERICA, INC.S
OPPOSITION TO GOOGLES MOTION TO CONTINUE TRIAL DATE (DKT. NO. 804),
# 2 Declaration
DECLARATION OF MICHAEL A. JACOBS IN SUPPORT OF ORACLE AMERICA, INC.S
OPPOSITION TO GOOGLES MOTION TO CONTINUE TRIAL DATE (DKT. NO.
804)(Holtzman, Steven) (Filed on 3/19/2012) (Entered: 03/19/2012)
03/20/2012 - 820
- ORDER DENYING MOTION FOR CONTINUANCE by Hon. William Alsup denying 804
Motion to Continue.(whalc1, COURT STAFF) (Filed on 3/20/2012) (Entered:
03/20/2012)
03/20/2012 - 821 - REQUEST
FOR DR. KEARL'S REPORT. Signed by Judge Alsup on March 20, 2012.
(whalc1, COURT STAFF) (Filed on 3/20/2012) (Entered: 03/20/2012)
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Documents
819
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 telephone fax]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[email address telephone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email]
FRED NORTON (Bar No. 224725)
[email address telephone fax]
ALANNA RUTHERFORD (Admitted Pro Hac Vice)
[address telephone fax]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[email]
DEBORAH K. MILLER (Bar No. 95527)
[email]
MATTHEW M. SARBORARIA (Bar No. 211600)
[email address telephone 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 AMERICA, INC.’S OPPOSITION TO
GOOGLE, INC.’S REQUEST FOR
CONTINUANCE [DKT. NO. 804]
Dept.: Courtroom 8, 19th Floor
Judge: The Honorable William H. Alsup
Oracle submits this opposition to Google’s request for a one week continuance of the trial in this
matter, from April 16 to April 23. (Dkt. No. 804.)
I. Introduction
Normally, Oracle would not hesitate to agree to a brief continuance to accommodate the
schedule of opposing counsel. Professional as well as personal commitments frequently require that
counsel ask for, as well as grant, such courtesies. Unfortunately, both Michael Jacobs and David Boies,
Oracle’s co-lead trial counsel in this case, as well as other key members of the Oracle trial team, also
have other trial commitments that would be threatened if the trial were delayed even a week. In
particular, Mr. Jacobs has a trial set to begin May 31, and Mr. Boies has trials set to begin June 4, June
18, and June 25. As a result, changing the trial date to accommodate the schedule of Mr. Van Nest and
other members of the Google trial team would necessarily cause equally significant conflicts for Mr.
Jacobs, Mr. Boies, and other members of the Oracle trial team.
Further, it appears that a continuance would threaten to cause, rather than resolve, a conflict for
Mr. Van Nest. If trial of Oracle v. Google is delayed one week, and lasts eight weeks, it will end on
Friday, June 15. As stated in Google’s motion, Mr. Van Nest is to commence trial in the Genentech
matter before Judge Koh on Monday, June 11. Although Judge Koh has requested that the parties in
that case agree to a two-week continuance, the defendant in that case has objected on the grounds that
its own trial counsel from Irell & Manella are to begin yet another trial in Florida on July 2.
It thus appears that the only eight-week window when Mr. Van Nest currently has no other trial
commitments is the one that begins April 16. An April 16 trial date provides the best opportunity for
lead counsel and other counsel for both parties to fulfill existing June commitments set by other courts
in other cases; an April 23 start date does not. Google’s motion for a continuance should be denied.
II. Background
Oracle’s co-lead trial counsel in this case are Michael Jacobs and David Boies. (Declaration of
Michael Jacobs (“Jacobs Decl.”) at ¶ 3; Declaration of David Boies (“Boies Decl.”) at ¶ 3.)
Michael Jacobs’s Trial Commitments
As disclosed in the parties’ joint pretrial conference statement, Mr. Jacobs is lead counsel in In
the Matter of Certain Electronic Digital Media Devices and Components Thereof, Investigation No.
1
337-TA-796, before the ITC. That matter is set for trial from May 31 to June 6. (Dkt. No. 644, at 4;
Jacobs Decl. ¶ 4.)
Mr. Jacobs is also lead trial counsel in Apple Inc. v. Samsung Electronics Co., Ltd., et. al., Case
No. 11-cv-01846-LHK, in this district, which is scheduled for trial beginning on July 30. That trial is
expected to last 3 to 4 weeks. (Jacobs Decl. ¶ 5.)
David Boies’s Trial Commitments
Mr. Boies is lead trial counsel for the defendant in Invista B.V., et al. v. E.I du Pont de Nemours
and Company, 08 Civ. 3063 (SHS) (S.D.N.Y.). On September 27, 2011, Judge Stein set that case for
trial starting on June 4, 2012, and that trial is expected to continue until July. (Boies Decl. at ¶ 6;
Invista B.V., et al. v. E.I du Pont de Nemours and Co., 08 Civ. 3063, Dkt. No. 156.)
Mr. Boies is also lead trial counsel for Oracle in another case proceeding in this District, Oracle
USA, Inc. v. SAP AG, No. C07-1658-PJH, before Judge Hamilton. On February 28, 2012, Judge
Hamilton scheduled that case for trial on June 18, 2012; it will likely last two to three weeks. (Boies
Decl. at ¶ 7; Oracle USA, Inc. v. SAP AG, No. C07-1658-PJH, Dkt. No 1110.) Oracle had objected to
the proposed June 18 trial date, specifically citing this Court’s direction to keep April 16 to late June
free for trial of this case. (See Oracle USA, Inc. v. SAP AG, No. C07-1658-PJH, Dkt. No. 1109, at 1–2.)
The trial team in that matter includes Steven C. Holtzman, Fred Norton, and Beko Reblitz-Richardson,
each of whom is a key member of the trial team in this case as well. Judge Hamilton has agreed that the
SAP trial will trail the previously scheduled DuPont trial. (Boies Decl. at ¶ 7.)
Mr. Boies is also lead trial counsel for plaintiffs in Rincon EV Realty LLC, et. al. v. CP III
Rincon Towers, Inc., et. al., No. CGC 10-496887, in California state court in San Francisco. On
February 24, 2012, the court in that matter set that case to commence trial on June 25, 2012, rejecting
plaintiffs’ request for a trial beginning in July. That trial will likely last two to three weeks. (Boies
Decl. at ¶ 8.)
Mr. Boies is also lead trial counsel for the defendants in Capital One Financial Corp. v. Kanas,
No. 1:11-cv-750 (LO/TRJ) (E.D. Va.). That case is set for trial on July 23, 2012 and is likely to last one
week to two weeks. (Boies Decl. at ¶ 9.)
//
2
Mr. Van Nest’s Trial Commitments
As stated in Google’s brief, Mr. Van Nest is lead counsel for plaintiffs in the matter of
Genentech Inc. v. Trustees of the University of Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK
(PSG). As the Court is aware, Judge Koh has suggested to the parties in that case that their trial be
delayed two weeks, from June 11 to June 18. Google’s brief states that, “[a]ssuming the Genentech
trial is in fact delayed two weeks, there would exist an available eight-week window from April 23 to
June 15 in which the Court could try this case.” (Mot., at 2, Dkt. No. 804.) The defendant in the
Genentech case, however, has since informed Judge Koh that it cannot agree to the two week deferral
of that trial, because its own trial counsel, from Irell & Manella, are to begin yet another trial on July 2,
2012 in the Middle District of Florida. (See Genentech Inc. v. Trustees of the University of
Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK (PSG), Dkt. No. 522.)
Accordingly, it appears that maintaining this case’s current start date of April 16 would allow
Mr. Van Nest to appear at each of the three trials he has committed to, in their entirety, even if the trial
of this case lasts a full eight weeks. If the start of this trial is delayed until April 23, and the trial lasts
the full eight weeks that the Court has allotted, Mr. Van Nest must either miss the end of this trial or the
start of the Genentech trial.
III. Argument
All of the lead counsel in this case have very busy trial calendars. It is simply not possible for
the Court to change the trial date to avoid inconvenience to Mr. Van Nest and other Google trial team
members without causing a still greater inconvenience to Mr. Jacobs, Mr. Boies, and other members of
the Oracle trial team.1
If this trial begins on April 16 and last eight weeks, it will conclude on June 8, the Friday before
Mr. Van Nest is to begin the Genentech trial, assuming that trial is not continued. But if the trial begins
on April 23 and lasts eight weeks, it will conclude on June 15, the Friday before Mr. Boies, Mr.
Holtzman, Mr. Norton, and Mr. Reblitz-Richardson are to begin the Oracle v. SAP trial. (Boies Decl. ¶
_______________________________________
1 Google cites a single case in support of its motion, Felder v. Puthuff, C-93-20303-RPA (EAI), 1995
WL 16821 (N.D. Cal. Jan. 13, 1995). In Felder, however, the attorney with a conflicting trial
commitment submitted a declaration stating that no other attorney from his law firm could become
sufficiently familiar with the case in order to replace him as trial counsel by the date set for trial. Id. at
*3.
3
7.) Google’s motion would not eliminate the problem of successive trials – it would simply shift some
of the burden from one of Google’s lawyers to four of Oracle’s lawyers.
Moreover, both Mr. Jacobs and Mr. Boies have other trials that are scheduled to begin during
the eight-week period of this trial. These trial dates were set in 2011, before this Court’s admonition to
keep April through June free for trial of this case. (See Jacobs Decl. ¶ 4; Boies Decl. ¶ 6.) If the Oracle
v. Google trial begins on April 16, it is possible, consistent with the time limits previously established
by the Court, and allowing time for jury deliberations, that all three phases of trial in this case would
conclude in time for Mr. Jacobs to appear for the first day of trial in his ITC matter on May 31, for Mr.
Boies to appear for the first day of trial in the Invista matter on June 4, and for Mr. Van Nest to appear
for the first day of trial in the Genentech matter on June 11. If the trial is delayed a week, it is all but
impossible for Mr. Jacobs to avoid a trial conflict, and it is significantly more likely that Mr. Boies and
Mr. Van Nest will find themselves double-booked as well.
IV. Conclusion
For the reasons stated above, Oracle respectfully requests that the Court deny Google’s motion
for a continuance.
Dated: March 19, 2012
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Steven C. Holtzman
Steven C. Holtzman
Attorneys for Plaintiff
ORACLE AMERICA, INC.
4
820
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 DENYING MOTION
FOR CONTINUANCE
The motion for continuance is DENIED. Ordinarily the Court would help counsel with
their schedules but in this case, taking into account Oracle’s own schedule problems, the overall
best fit is to leave the April 16 date in place. Judge Leonard Davis in Texas has graciously
assisted Google’s counsel by advancing the April trial. Judge Lucy Koh has not yet been able,
however, to relieve the pressure on the June end of our schedule.
There will be a short pretrial conference at 7:30 A.M. ON WEDNESDAY, MARCH 28 to see
if counsel have found ways to streamline the case. Please do not file more in limine motions.
Please bring the stipulated timeline (to be provided to the jury) to the conference. A joint
five-page statement of practical trial streamlining proposals is requested the day before. This
conference date can be moved if needed but let the judge know soon.
IT IS SO ORDERED.
Dated: March 20, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
821
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
REQUEST FOR
DR. KEARL’S REPORT
Dr. James Kearl is requested to file a copy of his report with the Court. The report’s
exhibits may be excluded if too voluminous.
Dated: March 20, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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| Authored by: nsomos on Wednesday, March 21 2012 @ 08:29 AM EDT |
Please post any corrections to this article in this thread.
It may be helpful to summarize in the title.
Thnks -> Thanks[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 21 2012 @ 08:52 AM EDT |
If they could wait to start, to until after the patent review,
then could save MORE TIME overall.
It's too bad that the judge can't see the logic of putting the
horse before the cart (in this case).
[ Reply to This | # ]
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- Long shot bet, anyone? Settlement a week before. - Authored by: Anonymous on Wednesday, March 21 2012 @ 09:26 AM EDT
- Google's looking to send a message... - Authored by: Anonymous on Wednesday, March 21 2012 @ 09:42 AM EDT
- Long shot bet, anyone? Settlement a week before. - Authored by: Anonymous on Wednesday, March 21 2012 @ 10:00 AM EDT
- Long shot bet? Not so long... - Authored by: hardmath on Wednesday, March 21 2012 @ 10:08 AM EDT
- Another bet; copyright claims dismissed by summary judgment - Authored by: Anonymous on Wednesday, March 21 2012 @ 10:16 AM EDT
- Long shot bet, anyone? Settlement a week before. - Authored by: Anonymous on Wednesday, March 21 2012 @ 10:28 AM EDT
- Long shot bet, anyone? Settlement a week before. - Authored by: Anonymous on Wednesday, March 21 2012 @ 10:43 AM EDT
- Nope - bets are they will both ride this bunny all the way to the Supreme Court. - Authored by: Anonymous on Wednesday, March 21 2012 @ 11:59 AM EDT
- Long shot bet, anyone? Settlement a week before. - Authored by: rsteinmetz70112 on Wednesday, March 21 2012 @ 01:45 PM EDT
- Oracle is getting backed up against the Wall in all of their Court battles. - Authored by: Anonymous on Wednesday, March 21 2012 @ 02:06 PM EDT
- settlement - Authored by: mcinsand on Wednesday, March 21 2012 @ 02:18 PM EDT
- Long shot bet, anyone? Settlement a week before. - Authored by: awkScooby on Wednesday, March 21 2012 @ 02:35 PM EDT
- Who knows what evil lurks in the hearts of men? - Authored by: jbb on Wednesday, March 21 2012 @ 05:10 PM EDT
- Long shot bet, anyone? Settlement a week before. - Authored by: GreenDuck on Wednesday, March 21 2012 @ 10:32 PM EDT
- Jonathan Schwarts laughed all the way to the bank - Authored by: argee on Wednesday, March 21 2012 @ 11:36 PM EDT
- OIN patent transfers - Authored by: Anonymous on Thursday, March 22 2012 @ 05:34 PM EDT
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| Authored by: Kilz on Wednesday, March 21 2012 @ 09:03 AM EDT |
| For all posts that are not on topic. [ Reply to This | # ]
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- Oracle "Loses Speed" - Authored by: sproggit on Wednesday, March 21 2012 @ 10:08 AM EDT
- Former Nokia Exec: Windows Phone Strategy Doomed... - Authored by: sproggit on Wednesday, March 21 2012 @ 01:51 PM EDT
- My aching condolences to Nokia, a once-great company - Authored by: Anonymous on Wednesday, March 21 2012 @ 08:30 PM EDT
- Lighten up - Authored by: Anonymous on Thursday, March 22 2012 @ 01:48 AM EDT
- A guy walks in to an Apple store... - Authored by: Gringo_ on Thursday, March 22 2012 @ 07:49 AM EDT
- Android converges to Linux - Authored by: mbouckaert on Thursday, March 22 2012 @ 07:17 PM EDT
- Google Defends The DMCA's Safe Harbors Against The MPAA's Attempts To Reinterpret Them - Authored by: Anonymous on Thursday, March 22 2012 @ 07:46 PM EDT
- IE9 TV advertising - Authored by: Jamis on Thursday, March 22 2012 @ 09:19 PM EDT
- TM Repository - Authored by: TiddlyPom on Friday, March 23 2012 @ 08:59 AM EDT
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| Authored by: Kilz on Wednesday, March 21 2012 @ 09:04 AM EDT |
| Please mention the news story's name in the title of the top post. [ Reply to This | # ]
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| Authored by: artp on Wednesday, March 21 2012 @ 11:26 AM EDT |
Comes transcriptions from the Comes v. MS trial can be
coordinated here. Email them to PJ, or leave here as ASCII
with HTML encoding in place.
See Comes v. MS link above for details.
---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?[ Reply to This | # ]
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| Authored by: Gringo_ on Wednesday, March 21 2012 @ 11:33 AM EDT |
| I protest! [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 21 2012 @ 02:57 PM EDT |
Easy peasy. Oracle drops all the patents with prejudice and
the API copyright stuff, leaving just the literally copied
files.
[ Reply to This | # ]
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| Authored by: GreenDuck on Wednesday, March 21 2012 @ 04:14 PM EDT |
As an outsider who learned almost everything I know about the
American justice system on Groklaw, I was almost certain this
would be rejected. The judge has consistently shown a strong
dislike for extensions...
Google's lawyers know far more than I do. So why would they
go this way? My best guess is they wanted to set even more
precedence that all attempts at delays are squashed in order
to make it a little harder for Oracle to delay in the future.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 21 2012 @ 07:02 PM EDT |
Interesting that the court's damages report was requested. Everything else I
remember from the court has the boilerplate "IT IS SO ORDERED". Is
there any pattern on when things are requested vs ordered, and when the requests
are thinly veiled orders?[ Reply to This | # ]
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