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Oracle v. Google - Google decides to pack some heat
Monday, May 30 2011 @ 08:30 AM EDT

In a sign that it is doubling down and getting serious in the case brought by Oracle, Google has now retained [PDF] well known patent litigator Robert Van Nest of Keker & Van Nest, LLP. The Keker firm has represented Google in other cases in the past, but interestingly, they have also represented Oracle. At present Van Nest is representing HTC in its on-going battles with Apple. A tribute to Van Nest's abilities is his being named the Bet-The-Company litigator of the year for the San Francisco region by Best Lawyer. With the addition of Van Nest and his team from Keker, the Google litigation team now includes the firms of King & Spaulding and Greenberg, Traurig (GB attorneys: Ian Ballon, an experienced IP litigator and well-regarded expert on IP, and Heather Meeker, an expert on open source).

In other news from the Oracle v. Google case, the magistrate has scheduled [PDF] a hearing on the issue of "competitive decision makers." If you recall, this is the issue of whether four Oracle in-house counsel should be given access to highly sensitive Google disclosures in discovery, with Oracle arguing the four are just attorneys who are not involved in competitive decision making and Google arguing the converse. The hearing is scheduled for May 31st at 11:30 a.m. Prior to the hearing, Oracle has been directed to:
"file detailed, substantial, factual and non-conclusory declarations by each of the four Oracle counsel at issue in this matter. The declarations shall set forth counsel's background, as well as his/her duties, activities, associations and relationships as they relate to the definition of competitive decision-making set forth above."
The latest docket entries:

05/24/2011 - 148 - NOTICE of Appearance by Robert Addy Van Nest , Christa M. Anderson, Michael S. Kwun, Daniel Purcell, Eugene M. Paige, and Matthias A. Kamber (Van Nest, Robert) (Filed on 5/24/2011) (Entered: 05/24/2011)

05/26/2011 - 149 - Declaration of Dorian Daley in Support of 145 Letter, 146 Order setting hearing on Oracle's Request for Access to Attorneys' Eyes Only Information filed byOracle America, Inc.. (Attachments: # 1 Exhibit C - Special Master Report)(Related document(s) 145 , 146 ) (Muino, Daniel) (Filed on 5/26/2011) (Entered: 05/26/2011)

05/26/2011 - 150 - Administrative Motion to File Under Seal Exhibits A, B and D to Declaration of Dorian Daley 149 filed by Oracle America, Inc.. Motion Hearing set for 5/31/2011 11:30 AM in Courtroom 4, 3rd Floor, Oakland before Magistrate Judge Donna M. Ryu. (Attachments: # 1 Affidavit Declaration of Daniel Muino, # 2 Proposed Order)(Muino, Daniel) (Filed on 5/26/2011) (Entered: 05/26/2011)

The full text of the magistrate's order is provided below:

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff(s),
v.
GOOGLE INC.,
Defendant(s).
___________________________________/

No. C-10-03561 WHA (DMR)

ORDER SCHEDULING HEARING ON COMPETITIVE DECISION MAKERS

On May 18, 2011, the parties filed a joint letter [Docket No. 145] regarding a dispute as to whether four Oracle in-house attorneys are involved in "competitive decision-making" for purposes of determining whether they may review information designated as "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" under the Stipulated Protective Order entered in this case. [Docket No. 66].

The question of whether an individual is involved in competitive decision-making must be determined on a case-by-case basis. U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984). The Stipulated Protective Order defines competitive decision-making as "decisionmaking relating to any and all decisions made in light of or that take into account information regarding a competitor or potential competitor, including but not limited to such decisions regarding contracts, marketing, employment, pricing, product or service development or design, product or service offerings, research and development, or licensing, acquisition or enforcement of intellectual property rights (other than this action), provided, however, that this phrase shall be interpreted in accordance with the relevant case law." Stipulated Protective Order, Docket No. 66 at 7.4(a)(1). As described by a leading case, "[t]he phrase [competitive decision-making] would appear serviceable as shorthand for a counsel's activities, association, and relationship with a client that are such as to involve counsel's advice and participation in any or all of the client's decisions (pricing, product design, etc.) made in light of similar or corresponding information about a competitor." U.S. Steel Corp., 730 F.2d at 1468 n.3.

By May 26, 2011, Plaintiff Oracle America, Inc. shall file detailed, substantial, factual and non-conclusory declarations by each of the four Oracle counsel at issue in this matter. The declarations shall set forth counsel's background, as well as his/her duties, activities, associations and relationships as they relate to the definition of competitive decision-making set forth above.

The Court shall conduct a hearing on this matter on May 31, 2011 at 11:30 a.m.

IT IS SO ORDERED.

Dated: May 20, 2011

DONNA M. RYU
United States Magistrate Judge

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