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Oracle v. Google Assigned to Judge William Alsup, the Apple v. Psystar Judge
Thursday, September 23 2010 @ 01:42 PM EDT

Google has appeared in the Oracle v. Google litigation and they have extra time to file an answer to Oracle's complaint. Meanwhile, they've added some more lawyers to the team and informed the court they decline to have the case handled by a magistrate judge, so it's been assigned to the Hon. William Alsup. What are the odds? That's the same judge who presided over the Apple v. Psystar case.

One thing we saw with him in covering that case: he doesn't much like shenanigans by parties or their lawyers. He's already issued instructions [PDF] to the parties on what he expects of them in discovery and in general, and you can see that he didn't just fall off a turnip truck.

Here's a taste:

11. The following paragraphs on discovery provide counsel and the parties with views and guidelines of Judge Alsup so that they can plan accordingly. For good cause, the parties are invited to propose any modifications in their joint case management conference statement. Unless and until modified, however, the following provisions shall supplement the requirements of the Federal Rules of Civil Procedure and the local rules.

12. In responding to requests for documents and materials under FRCP 34, all parties shall affirmatively state in a written response the full extent to which they will produce materials and shall, promptly after the production, confirm in writing that they have produced all such materials so described that are locatable after a diligent search of all locations at which such materials might plausibly exist. It is not sufficient to state that “responsive” materials will be or have been produced. Such a response leaves open the distinct possibility that other responsive materials have not been produced.

13. In searching for responsive materials in connection with FRCP 34 requests or for materials required to be disclosed under FRCP 26(a)(1), parties must search computerized files, e-mails, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there. The Court has found that certain basic information normally learned by counsel anyway should be made available to the other side at the time of production, as if it were a response to a standing interrogatory, as follows. At the time of the production, the responding party should provide a written list to the requesting party setting forth in detail each specific source and location searched. The list must also identify, by name and position, all persons conducting the search and their areas of search responsibility. The producing party shall also provide a list describing the specific source for each produced item as well as for each item withheld on a ground of privilege, using the unique identifying numbers to specify documents or ranges. Materials produced in discovery should bear unique identifying control numbers on each page.

He wants more than a hand over the heart that they searched everywhere. He'd like them to tell each other exactly who searched, where they searched, what they searched for, and as to what they found, where they found it, and if they hold something back, specifics on why they believe it's privileged. You know how you got sick to your stomach watching the SCOfolk prance around the courtrooms? Well, judges get sick of lawyers too, as you can see, after a while. Judges, of course, know that lawyers' jobs are to fight for the client, so they factor that in, but experienced judges do set limits, because litigators are a special breed. They'll keep going and going and going, if left to themselves, and if they are of the type that thinks all that matters is winning, by hook or by crook, you do need limits.

In the SCO v. IBM litigation, now on hiatus because of SCO's apparently eternal Chapter 11 bankruptcy, we watched the education of the Magistrate Judge Brooke Wells, if you recall, as she began with an endearing trust that everyone would act like gentlemen. But she eventually realized some just won't, and then it was a different ball game, with the result that SCO's side was sanctioned for discovery gaming.

Judge Alsup already has his diploma in that subject, I gather. So he's letting the lawyers know in advance, fair and square, that he's serious about discovery obligations. But notice he allows them to point out a need for adjustments to his rules, for good cause, and he'll listen. He's not unreasonable. We saw that too. But I remember him getting really annoyed at both Apple and Psystar, and it definitely cost Psystar in the end.

Here's Rule 26(a)(1), so you know what he's talking about:

(a) Required Disclosures.

(1) Initial Disclosures.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

And here's Rule 34, which is the rule about letting the other side get copies, or come on to the property and inspect or whatever. That's the start of a lawsuit, discovery. The purpose is to establish the evidence so the court, and the parties, know if the case has legs and if so, have the proof on hand for trial. And each side would rather not produce anything, if they could avoid it, and that is where you find shenanigans sometimes. Discovery is what really costs the money in litigation, by the way, and that's part of why parties like to do the least they can get away with. The judge has a different interest. He wants a fair fight and in the end a case decided on the merits, not on sleight of hand.

Two more lawyers from King & Spalding have been added to the Google team. Here's one of the lawyers Scott Weingaertner, a partner with King & Spalding. He's a patent specialist, and Google's used him before. He will be joined by Robert F. Perry, member of the IP group at King and Spalding, and manager of the New York office. The firm is headquartered in beautiful Atlanta. Perry has a degree in electrical engineering, incidentally, so he's the tech guy, I guess, or at least one of them. Both of them are no doubt currently getting their PhDs, so to speak, in Java and the GPL.

Weingaertner and Perry join Geoffrey Ezgar, also a partner at King & Spalding, Timothy Scott, Managing Partner of the Silicon Valley office, and Leo Spooner, an associate whose area of specialty is licensing and contract law. That should come in handy. But look how many partners from King & Spalding Google is sending in to battle. Here's a case where a number of these K & S lawyers worked together on Google's behalf, Netlist v. Google, as you can see from the header. Here's another where you find them, along with Spooner and Ezgar, again on Google's side, Textscape v. Google. So, I gather this is a team that works well together, each contributing something specific to the effort.

This is an experienced Team, then, with some very skilled lawyers. Here's what Weingaertner's bio lists as some recent wins:

Scott Weingaertner specializes in the litigation and trial of patent cases, representing industry leaders in courts across the country.

Over much of the past two decades Mr. Weingaertner’s experience has spanned a wide array of disputes and technologies. In recent years, his cases have focused mainly on computer and software technology, telecommunications systems, and medical devices, and his clients also include leaders in the fields of industrial automation technology, media, energy, semiconductors and financial services. In addition to handling contentious matters, he is regularly relied on by leading companies in matters of patent strategy, both offensive and defensive.

Mr. Weingaertner’s recent representative litigation experience includes:

  • Successful transfer of venue from the Eastern District of Texas to the Northern District of California in search technology case.

  • Lead counsel in ongoing defense of patent infringement charges in the Eastern District of Texas, concerning browser plug-in technology

  • Lead counsel in ongoing defense of patent infringement charges in the Northern District of California leveled at browser technology, successfully obtaining a stay of proceedings pending reexamination

  • Ongoing litigation concerning defense of patent infringement claims directed to memory module technology, in the Northern District of California

  • Amicus counsel to Google and Verizon in noted Federal Circuit appeal on the issue of the written description requirement

  • Successful quashing of a highly onerous subpoena and obtaining an award of sanctions against a litigant which, on the eve of briefing, voluntarily dismissed its own Ninth Circuit appeal against our client

  • Successful defense of Google in a series of patent infringement cases in the Eastern District of Texas directed to online applications, including lead and coordinating counsel roles

  • Successful trial defense of world-leading computer system and software manufacturer in Delaware case accusing network security systems

  • Representation of global leader in drug delivery device innovation in district court and ITC actions culminating in competitor essentially withdrawing the accused device from the market

  • Representation of a financial software developer in a contract dispute with a trading platform, securing millions of dollars in compensation for the client prior to arbitration

  • Disposing of a multimillion dollar damages claim in the telecommunications field for a nominal sum, less than one percent of the amount demanded, prior to answering the complaint
That last entry is beyond incredible. No wonder he was named a New York Super Lawyer for 2009 and 2010. Here are two articles he wrote, if you are willing to read about patent law. I've confessed before that I'm allergic to patent law, and I only read about it when I absolutely have no escape, and then I end up often snoozing audibly. But because the US Supreme Court didn't do right in In Re Bilski, I have to keep reading about patents.

I sooooo hate software patents. But one thing is for sure: we are going to get to watch some fabulous lawyering in this case if it doesn't settle before trial. It'll be Morrison & Foerster's Michael A. Jacobs on one side and King & Spalding's Scott Weingaertner on the other. Plus a cast of thousands, as they used to say about old movies. Seriously, though, it's going to be like a master class in patent law.

You don't get to be a partner at King & Spalding, I gather, unless you are courteous, and that's Jacobs' style also, and won't *that* be a relief? If Weingaertner has half of Jacobs's sense of humor, it'll be fun.

I was strongly wishing Oracle and Google would just settle and put this whole thing behind them. I still do hope for that. But it looks instead like they are suiting up, Goliath against Goliath.

Here's the docket since last we looked, but I didn't get the documents except for the final one, because this is all still preliminary to the real action. When Google files an answer, we'll have it for you, and meanwhile you can see the details of what's been going on by looking at the entries:

09/14/2010 - 12 - NOTICE OF APPEARANCE OF COUNSEL OF ROBERT F. PERRY by Google Inc. (Ezgar, Geoffrey) (Filed on 9/14/2010) Modified on 9/15/2010 (cjl, COURT STAFF). (Entered: 09/14/2010)

09/14/2010 - 13 - CERTIFICATE OF SERVICE re 12 Notice of Appearance by Google Inc. (Ezgar, Geoffrey) (Filed on 9/14/2010) Modified on 9/15/2010 (cjl, COURT STAFF). (Entered: 09/14/2010)

09/14/2010 - 14 - Declination to Proceed Before a U.S. Magistrate Judge and Request for Reassignment to a United States District Judge by Google Inc. (Ezgar, Geoffrey) (Filed on 9/14/2010) Modified on 9/15/2010 (cjl, COURT STAFF). (Entered: 09/14/2010)

09/14/2010 - 15 - CERTIFICATE OF SERVICE by Google Inc. re 14 Declination to Proceed Before a U.S. Magistrate Judge and Request for Reassignment to a United States District Judge (Ezgar, Geoffrey) (Filed on 9/14/2010) (Entered: 09/14/2010)

09/14/2010 - 16 - Certificate of Interested Entities or Persons, Pursuant to Civil L.R. 3-16 by Google Inc. (Ezgar, Geoffrey) (Filed on 9/14/2010) Modified on 9/15/2010 (cjl, COURT STAFF). (Entered: 09/14/2010)

09/14/2010 - 17 - CERTIFICATE OF SERVICE by Google Inc. re 16 Certificate of Interested Entities or Persons, Pursuant to Civil L.R. 3-16 (Ezgar, Geoffrey) (Filed on 9/14/2010) (Entered: 09/14/2010)

09/14/2010 - 18 - Corporate Disclosure Statement (with jury demand) by Google Inc. (Ezgar, Geoffrey) (Filed on 9/14/2010) Modified on 9/15/2010 (cjl, COURT STAFF). (Entered: 09/14/2010)

09/14/2010 - 19 - CERTIFICATE OF SERVICE by Google Inc. re 18 Google Inc.'s Corporate Disclosure Statement. (Ezgar, Geoffrey) (Filed on 9/14/2010) Modified on 9/15/2010 (cjl, COURT STAFF). (Entered: 09/14/2010)

09/14/2010 - 20 - MOTION for leave to appear in Pro Hac Vice Re: Scott T. Weingaertner (Filing fee $210, receipt number 44611005697) filed by Google Inc. (Attachments: # 1 Proposed Order)(cjl, COURT STAFF) (Filed on 9/14/2010) (Entered: 09/14/2010)

09/14/2010 - 21 - CERTIFICATE OF SERVICE re 20 MOTION for leave to appear in Pro Hac Vice by Google Inc. (cjl, COURT STAFF) (Filed on 9/14/2010) (Entered: 09/14/2010)

09/15/2010 - 22 - CLERK'S NOTICE of Impending Reassignment to U.S. District Judge. (ls, COURT STAFF) (Filed on 9/15/2010) (Entered: 09/15/2010)

09/16/2010 - 23 - ORDER REASSIGNING CASE. Case reassigned to Judge Hon. William H. Alsup for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to the case. Signed by the Executive Committee on September 16, 2010. (cjl, COURT STAFF) (Filed on 9/16/2010) (Entered: 09/16/2010)

09/16/2010 - 24 - ORDER GRANTING PRO HAC VICE APPLICATION OF WEINGAERTNER by Judge Alsup granting 20 Motion for Pro Hac Vice (whalc1, COURT STAFF) (Filed on 9/16/2010) (Entered: 09/16/2010)

09/22/2010 - 25 - CLERKS NOTICE Scheduling Initial CMC on Reassignment. Case Management Conference set for 11/18/2010 11:00 AM. (dt, COURT STAFF) (Filed on 9/22/2010) (Entered: 09/22/2010)

09/22/2010 - 26 - SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 25 Clerks Notice. Signed by Judge William Alsup on 11/20/08. (dt, COURT STAFF) (Filed on 9/22/2010) (Entered: 09/22/2010)


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