Here's Google's Opposition to Oracle's "motion in limine" to muzzle Jonathan Schwartz, as text:
KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
MICHAEL S. KWUN - # 198945
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[fax]
KING & SPALDING LLP DONALD F. ZIMMER, JR. - #112279
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CHERYL A. SABNIS - #224323 [email]
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KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
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ROBERT F. PERRY
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BRUCE W. BABER (Pro Hac Vice)
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IAN C. BALLON - #141819 [email]
HEATHER MEEKER - #172148 [email]
GREENBERG TRAURIG, LLP [address]
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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
GOOGLE'S OPPOSITION TO ORACLE
AMERICA, INC.'S MOTION IN LIMINE
CONCERNING TESTIMONY BY
JONATHAN SCHWARTZ
Dept.: Courtroom 8, 19th Floor
Judge: Hon. William Alsup
(1)
I. INTRODUCTION
This motion is Oracle's attempt to shut the barn door after the
horse has already gone. Despite its title, it is not a motion in
limine at all. Instead, it is a belated motion to strike and
request for a curative instruction involving testimony that entered
the record more than a week earlier, and that Google expressly
relied on in its closing argument. Not only is the motion untimely,
but the Court should also deny it because of the prejudice Google
would suffer if the requested relief were granted now.
Obviously, Oracle would like to entirely disclaim Jonathan
Schwartz's actions and decisions during years he was Sun's CEO,
because Sun and Schwartz publicly announced and pursued policies
and strategies that are inconsistent with restrictions that Oracle
(the so-called "new sheriff in town") now wants to impose. But
nothing about Oracle's about-face makes the affirmative decisions
and actions of Sun's former CEO any less relevant, or somehow
demotes them to being merely "personal" — rather than
corporate — decisions and actions.
In this case, the fact that Sun's CEO made an affirmative
decision not to sue Google, in conjunction with his public
announcement and private confirmation of Sun's support for Android,
is highly relevant to Google's equitable defenses. Google is also
entitled to argue that his decision as CEO supports findings in its
favor on non-infringement, damages and willfulness in Phases 2 and
3 — just as Google has already argued to the jury, without
any objection from Oracle, that those decisions and comments
support findings in its favor on copyright issues. With regard to
Mr. Schwartz's additional testimony that "[w]e didn't feel we had
any grounds" to pursue litigation against Google, nothing in that
statement reflects or discloses communications from Sun's legal
counsel about the merits of the action Oracle has now brought. Mr.
Schwartz could, as a layperson, easily conclude the common sense
view that Sun would have no grounds to sue Google for using
precisely what Sun had actively encouraged the world to use,
including the Java language and its APIs.
For all the above reasons, Oracle's motion should be denied.
(2)
II. ARGUMENT
A. This Motion is a Disguised Motion to Strike, and Is
Therefore Untimely.
As the Supreme Court has noted, the term "motion in limine" is
used "in a broad sense to refer to any motion, whether made before
or during trial, to exclude anticipated prejudicial evidence
before the evidence is actually offered." Luce v.
U.S., 469 U.S. 38, 40 at n.2 (1984) (emphasis). As a result,
despite its title, Oracle's motion is not a motion in limine, but
rather an untimely motion to strike, because the evidence at issue
is already part of the trial record and indeed has already been
offered to the jury in closing argument in the copyright phase,
without any objection from Oracle.
Any evidence received in Phase 1 is automatically part of the
trial record for later phases and thus may be referenced in any
subsequent openings and closings:
Evidence and stipulations presented in an earlier phase will
count as part of the trial record for all later phases and may be
referenced in openings and closings for later phases . . . .
Witnesses will not be permitted to return to a subsequent phase to
repeat testimony already given by them in an earlier phase. The
jury will have already heard it.
Final Pretrial Order (ECF# 675) at 3:11-15.
Oracle suggests that some of the evidence at issue entered the
record through a partially non-responsive answer to an otherwise
unobjectionable question, but if that were the case, Oracle's only
recourse would have been a motion to strike. See Rutter
Group Prac. Guide Fed. Civ. Trials & Ev. Ch. 8 at § 8:4671
("A motion to strike is the only remedy available where testimony
is given before a proper objection can be made or ruled upon. For
example: . . Witness gives nonresponsive answer to otherwise
unobjectionable question (i.e., witness volunteers information not
asked).") It is far too late for Oracle to seek that relief.
Under the Federal Rules of Evidence, a party can preserve a
claim of error as to the admission of evidence only if the party
"timely objects or moves to strike." Fed. R. Evid. 103
(emphasis added). A motion to strike is waived unless it is made at
the earliest possible opportunity after the ground for objection
becomes apparent. See Durham v. U.S., 403 F.2d 190, 197
& n.15 (9th Cir. 1968) ("Failure to object as soon as the
applicability of the objection is known is said to constitute a
waiver of the objection, which thereafter may be properly
(3)
denied. . . . A motion to strike is governed by this rule where
the evidence involved should have been objected to when offered, as
was the case here.") (Citations omitted); see also San Antonio
Cmty. Hosp. v. So. Cal. Dist. Council of Carpenters, 125 F.3d
1230, 1238 (9th Cir.1997) (concluding that the failure to raise a
hearsay objection until the close of direct examination waived the
objection).
Here, Oracle's request for relief is manifestly untimely. It did
not seek relief the moment Mr. Schwartz gave the testimony in
question, as it should have, or at any point during his
examination, or before the Court released him from Google's
subpoena and excused him from further testimony, or even when
Google referred to his testimony in its closing argument. Instead,
it waited more than a week after Mr. Schwartz had left the stand to
bring its motion. This constitutes a waiver. "The requirement of
timely and specific objections serves to ensure that the nature of
the error [is] called to the attention of the judge, so as to alert
him [or her] to the proper course of action and enable opposing
counsel to take corrective measures." Jerden v. Amstutz, 430
F.3d 1231, 1236 (9th Cir. 2005) (internal citations and quotations
omitted; alterations in original).
Had Oracle raised any of its objections to Mr. Schwartz's
testimony at the time — and had the Court sustained those
objections — Google could have counteracted any negative
impression a curative instruction might have had on the jury by
conducting further questioning to reinforce the points that Mr.
Schwartz, as Sun's CEO, had full authority to decide that it was
not in Sun's best interest to pursue litigation against Google as a
business matter, that he made that affirmative decision on Sun's
behalf, and that he did not require permission from Sun's board of
directors, Scott McNealy, or anyone else to do so. Instead of
moving to strike, Oracle chose to cross- examine Mr. Schwartz to
attempt to establish that he was not qualified to give a legal
assessment of the strength of any potential legal claims, and that
his decisionmaking was driven by judgments about what would be best
for Sun as a matter of business strategy, rather than assessments
of the strengths of any potential legal claims. RT at 2014:7-18.
Oracle then allowed the testimony to enter the record and even sat
by without objection as Google relied on that
(4)
evidence in its closing argument. RT at 2519:4-25. Having
featured that evidence in its Phase 1 closing, Google would be
severely prejudiced if the Court were to instruct the jury to
disregard that evidence now.
This motion is untimely and the Court should deny it for that
reason alone.
B. Oracle's Objections Also Fail on Their Merits
Oracle's attempt to downplay the significance of Mr. Schwartz's
actions and decisions runs counter to its CEO's own testimony. As
Larry Ellison acknowledged, while Mr. Schwartz was Sun's CEO, he
was ultimately responsible for all decisionmaking at Sun, setting
corporate policy and also for deciding how the company would
conduct its negotiations, including with companies like Google. RT
310:21-311:6. Although Oracle asserts that "the suggestion that
Oracle had decided not to sue is clearly against the weight of the
evidence presented in this case," Motion at 2:5-6, that statement
is flatly contradicted by Mr. Schwartz's testimony that, as CEO, he
made the decision that Sun would not pursue litigation against
Google over Android. RT at 2002:5-7. As CEO, his decision certainly
trumps that of a salesperson like Leo Cizek, even though the latter
may have taken it upon himself to make remarks that he was in no
position to carry out.
Oracle also incorrectly argues that the fact that Mr. Schwartz
never communicated his decision to Google, and the fact that Sun
engaged in negotiations with Google after the SDK release, somehow
fatally undermine Google's defenses. That is not the case, however.
In Baker Mfg. Co. v. Whitewater Mfg. Co., 430 F.2d 1008,
1013 (7th Cir. 1970), the Seventh Circuit reversed a district
court's denial of a claim of laches, specifically noting that,
"[t]he fact that Baker did not suggest that it was abandoning its
claim of infringement is irrelevant. The important fact is that
at no time did it notify Whitewater in any manner that it was
pressing its claim." Id. at 1013 (emphasis added). Here,
Sun and Google had numerous discussions after Android's release.
None of these discussions involved Sun asserting infringement by
Android and demanding payment without any further consideration
being offered by Sun. Instead, each was a negotiation over further
partnerships where Sun would offer its commercial products for
(5)
incorporation into Android. Nothing about such garden-variety
business negotiations could have put Google on notice that Sun
intended to assert legal claims against Android for the specific
and narrow alleged intellectual property rights asserted in this
case. Mr. Schwartz's testimony that he had decided not to sue
Google because he had no basis for doing so is entirely consistent
with his subsequent actions, and supports the conclusion that the
totality of Sun's conduct and statements indicated a lack of intent
to assert an infringement claim.
This evidence at issue is also relevant to Phase 2 and Phase 3
in other respects. Google is entitled to argue that the fact that
Sun consciously considered and then decided not to sue for lack of
grounds is evidence that Sun knew full well that the pending claims
are indeed meritless as applied to Android — or at a minimum
(for willfulness purposes) do not present an objectively high
likelihood of infringement. Again, it is no surprise that Sun and
its CEO reached the conclusion that Sun had no grounds to sue given
Sun's business strategy to make numerous aspects of the Java
platform freely available for all to use in the hopes of spreading
the adoption of the Java language, as well as Sun's repeated and
direct encouragement of the distribution and use of the Android
platform over the years.
Finally, Oracle is wrong to argue that Mr. Schwartz's statement
that "[w]e didn't feel we had any grounds" either reflects
privileged communications or impermissible legal opinion by a lay
witness. At trial, Oracle had a chance to ferret out whether Mr.
Schwartz's statement was based on privileged communications, but
Oracle never asked those questions and never raised the issue in a
timely fashion. Further, it would have been entirely reasonable for
Mr. Schwartz to have concluded on Sun's behalf that Sun had no
grounds to sue (regardless of any legal advice received) where Sun
had "given Java to the world," made the Java language and Java APIs
freely available, encouraged independent implementations of the
Java platform and open sourced Sun's own implementation of the Java
platform.1
(6)
III. CONCLUSION
For the foregoing reasons, Google respectfully requests that the
Court deny Oracle's motion and refuse its request to excise from
the jury trial evidence that is squarely and fairly before the jury
on important issues in this case.
Dated: May 5, 2012
KEKER & VAN NEST LLP
By: /s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.
(7)
If Oracle is
correct, however, that Mr. Schwartz's testimony implicates Sun's
assertions of privilege, then it was even more incumbent on Oracle
to protect that privilege with a timely objection or motion to
strike.
