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OraGoogle - The Jockeying for Position Begins in Earnest with Dueling Protective Orders - Updated: the Order
Tuesday, December 14 2010 @ 10:22 AM EST

The Oracle v. Google Java litigation now begins in earnest, with each side offering a proposed protective order, along with a handy table of the disputed provisions. Say, I think Groklaw has a claim for prior art on that kind of table.

: D

Here are the issues the parties met and discussed but couldn't resolve without the judge's help:

Pursuant to the Court’s November 19, 2010 Case Management Order (Dkt. No. 56), a form of protective order was to be submitted by December 10, 2010. The parties met and conferred in good faith and reached agreement on all but two issues: whether any in-house counsel would have access to information of the highest designation, and whether a prosecution bar would attach to persons accessing designated information. The parties respectfully request the Court’s assistance in resolving these issues.
That last one is about a paragraph Google wants included but Oracle apparently is fighting, a restriction in its proposed order that anyone who gets to view highly confidential information, as in "attorneys eyes only" or source code, can't be involved in prosecuting patents or applications for patents involving Java, Android, mobile platforms and devices, or virtual machines before any US or foreign agency for two years thereafter unless the person gets written permission.

Google didn't just fall off a turnip truck, y'all. It clearly realizes that there is a mobile phone war afoot, that companies like Microsoft and Apple want to crowd out Android with patents, and it knows that a lot of information can be obtained in discovery in litigation, which is sometimes the reason people file lawsuits. And it knows that sometimes parties with a common interest work together behind the scenes in ways Google is a tad sick of and would like to prevent happening further, so it wants protection not only from public disclosure but "from use for any purpose other than prosecuting this litigation". Google never forgets, or at least I never would if I were Google, that Apple's CEO and Oracle's are best buds.

Here are the filings:

12/10/2010 - 64 - NOTICE by Google Inc., Oracle America, Inc. Joint Notice Regarding Proposed Protective Orders (Attachments: # 1 Exhibit A - Oracle's proposed protective order, # 2 Exhibit B - Google's proposed protective order, # 3 Exhibit C - table of disputed provisions)(Peters, Marc) (Filed on 12/10/2010) (Entered: 12/10/2010)

Here's the paragraph Google wants included:

Absent written consent from the Producing Party, any individual who receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of patents or patent applications relating to Java, Android, mobile platforms and devices, or virtual machines, including without limitation the patents asserted in this action and any patent or application claiming priority to or otherwise related to the patents asserted in this action, before any foreign or domestic agency, including the United States Patent and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does not include representing a party challenging a patent before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or inter partes reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information is first received by the affected individual and shall end two (2) years after final termination of this action.

And the other restriction Google wants is that in-house counsel can't have access to the most confidential stuff at all. On Oracle's side, it wants up to five in-house counsel to be able to view the most confidential stuff. Google doesn't want any of Oracle's in-house counsel to view it ever. If you recall, there was no such restriction in the first SCO v. IBM protective order, but once IBM was ordered to hand over source code a few months later, a restriction on SCO employees, including in-house counsel, was included in an amendment to the protective order. In SCO v. Novell, on the other hand, in-house counsel were allowed to view confidential material. That makes sense, the difference, in that originally, the case wasn't about source code at all, just a contractual dispute. Much later, when Novell wanted to use some IBM discovery materials, the parties in SCO v. Novell stipulated that it could be used by the parties, but once again in-house counsel couldn't view it. So what Google is asking for isn't unique. It could mean somebody doesn't trust somebody, but it's not such a rare thing that it has to mean quite that much.

But what's interesting to me is that Oracle isn't agreeing to the restriction. In the IBM and Novell cases, the protective orders were reached by stipulation. Here, Oracle is refusing to agree. I take that as a warning sign, personally, that Oracle has something in mind it would like to do not just immediately in this litigation but down the road maybe. And if I were Google, I'd never agree to anything with Boies Schiller on the other side. Just saying. I'd assume the worst kind of hard ball too, and that is what I suspect we are seeing a hint of in this picture.

Update: Here's the judge's order:

12/14/2010 - 65 - ORDER RE PROPOSED PROTECTIVE ORDERS re 64 Notice (Other), Notice (Other) filed by Google Inc., Oracle America, Inc.. Signed by Judge Alsup on December 14, 2010. (whalc1, COURT STAFF) (Filed on 12/14/2010) (Entered: 12/14/2010)

Google wins on the issue of in-house counsel. The judge says he sees no need for in-house counsel to "review any source code belonging to the other party, much less have five in-house counsel do so", the latter being Oracle's request. On Google's request for a restriction of anyone prosecuting patents related to Java, Android, etc., the judge thinks the bar is too broad, but he leaves the door open for either side to file an official motion so the matter can be looked at further. I do expect Google to do so, because while the judge agrees there should be a prosecution bar, and that Google's proposed one is too broad, he doesn't seem to set a narrower one, unless I'm missing something, which is always possible. It's way more likely that I'd make a mistake, not the judge. But as it reads to me, I don't see any way Google won't push the matter forward. Meanwhile, we'd have to say Google is off to a good start.

Here is the order as text:








No. C 10-03561 WHA


Pursuant to the Case Management Scheduling Order, the parties were to submit a jointly agreed protective order by December 10, 2010. On that date, the parties filed a submission indicating that they had reached an impasse regarding two provisions of the protective order: (1) whether any in-house counsel would have access to information of the highest designation; and (2) whether a prosecution bar would attach to persons accessing designated information. The parties requested the Court’s assistance in resolving these issues.

With respect to the first dispute, the Court is of the view that neither party has any need to have in-house counsel review any source code belonging to the other party, much less have five in-house counsel do so. Instead, the experts can review source code from both parties and make any necessary comparisons. If and when any settlement discussions require final sign-off or input from in-house-counsel based on the other party’s source code, the court would consider making an ad hoc exception at that time. With respect to the second dispute, there should be a prosecution bar, but the one proposed by Google Inc. seems overbroad in that it applies to all patents or patent applications “relating to Java, Android, mobile platforms and devices, or virtual machines.”

The Court understands the need to keep source code confidential, but both sides should be aware that overclassification of documents produced in discovery may lead to declassification of large swathes of improperly classified material.

The views set forth in this order have been made based upon the Court’s experience in similar cases. If either party cannot live with these rulings, however, a formal motion may be made on the compressed schedule set forth below, and the Court will give the motion fresh consideration with a full record. In the meantime, no discovery should be withheld on the ground of the parties’ inability to agree to a protective order, and all source code shall be maintained in strict confidentiality as “Attorneys’ Eyes Only” material, meaning only outside counsel of record may access and view it.

If the parties will acquiesce in the Court’s rulings, they shall submit a revised jointly agreed protective order by NOON ON DECEMBER 17, 2010.

If the parties still cannot resolve these issues, a party desiring to add a provision to the jointly agreed protective order may file a motion to do so and notice a hearing on the motion for 8:00 A.M. ON JANUARY 6, 2011.

Any such motion must be filed by NOON ON DECEMBER 20, 2010. Any opposition to such motion must be filed by NOON ON DECEMBER 27, 2010. Any reply in support of such motion must be filed by NOON ON DECEMBER 30, 2010.


Dated: December 14, 2010.


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