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To read comments to this article, go here
Oracle v. Google - You Can't Make This Stuff Up (or maybe you can)
Thursday, October 13 2011 @ 10:00 AM EDT

If it weren't for the potentially serious economic and technological ramifications of this case, some of the filings would be worth their weight in gold with respect to their entertainment value. Such is the case when reading Google's response (519 [PDF; text below]) to Oracle's précis letter seeking leave to file a Daubert motion regarding the Google damage expert reports of Drs. Leonard and Cox (See document 511). As I said yesterday, we only read Oracle's side of the story, and I expected Google's to be quite different. It is.

Oracle complained that Drs. Cox and Leonard have no technical background and, instead, relied upon Google employees for technical interpretations. As Google points out, this is the same thing Oracle has done. Pot, meet kettle.1 Google further points out that it intends to make all of those Google employees upon which Drs. Leonard and Cox relied available for questioning at trial before putting either of the doctors on the stand. So Oracle will have ample opportunity to question the merits of the technical observations.

Finally, on this same issue of technical experts, Oracle asserted that Google never identified two of the individuals, Rizzo and Bray, as witnesses. Not so, says Google. Google says it identified Rizzo early on (that should be easy enough to verify) and that it was Oracle that identified Bray as a potential witness. Oops!

Oracle had also argued that Google failed to make the documents available upon which Drs. Leonard and Cox relied. Not so, says Google - all of the documents were made available. Just check your records, Oracle.

Google further contends that, contrary to Oracle's assertions, the good doctors followed the law in preparing their damage reports, including identifying potential copyright damages. The fact that they also pointed out that Google could have made just as much profit absent the alleged infringement is not contrary to the law but, in fact, a requirement of the law.

The real poke in the eye comment is Google's fifth response. Oracle had argued that Drs. Cox and Leonard had failed to base their opinions on factual information, but only on their own prior conclusions (hence, the reference to ipse dixit - an unsupported statement that rests solely on the authority of the individual who makes it). As Google sarcastically asserts, the Oracle précis letter itself is ipse dixit because it is neither grounded in law or fact.

We should see a fairly quick turnaround on this issue by Judge Alsup.

The only other significant filing of the day is Google's proposed motion (513 [PDF; text below]) to retain the confidential nature of the Lindholm emails at least until Judge Alsup decides on the pending motion challenging the prior ruling of the magistrate (that the emails are not privileged).

_________________________

1 A reference to the old saying, "That's like the pot calling the kettle black." The saying suggests that a party making an accusation is guilty of the very thing of which they accuse the other party.


Skip to Comments


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

Docket

513 – Filed and Effective: 10/11/2011
MOTION
Document Text: MOTION to Retain Confidentiality Designations filed by Google Inc.. Motion Hearing set for 11/17/2011 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 10/25/2011. Replies due by 11/1/2011. (Attachments: # 1 Proposed Order)(Van Nest, Robert) (Filed on 10/11/2011) (Entered: 10/11/2011)

514 – Filed and Effective: 10/11/2011
Declaration
Document Text: Declaration of Mark Francis in Support of 513 MOTION to Retain Confidentiality Designations filed byGoogle Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit B)(Related document(s) 513) (Van Nest, Robert) (Filed on 10/11/2011) (Entered: 10/11/2011)

515 – Filed and Effective: 10/11/2011
ORDER
Document Text: *** FILED IN ERROR. PLEASE SEE DOCKET # 516 *** STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO FILE JURY INSTRUCTIONS, VERDICT FORMS, AND TRIAL BRIEFS by Oracle America, Inc.. (Norton, William) (Filed on 10/11/2011) Modified on 10/12/2011 (wsn, COURT STAFF). (Entered: 10/11/2011)

516 – Filed and Effective: 10/12/2011
Proposed Stipulation
Document Text: STIPULATION STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO FILE JURY INSTRUCTIONS, VERDICT FORMS, AND TRIAL BRIEFS by Oracle America, Inc. (Norton, William) (Filed on 10/12/2011). CORRECTION OF DOCKET # 515 . Modified on 10/12/2011 (wsn, COURT STAFF). (Entered: 10/12/2011)

517 – Filed and Effective: 10/12/2011
ORDER
Document Text: ORDER APPROVING STIPULATED REQUEST FOR SECOND EXTENSION OF TIME FOR PRETRIAL FILINGS re 516 Stipulation filed by Oracle America, Inc.. Signed by Judge Alsup on October 12, 2011. There will be no more extensions. (whalc1, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)

518 – Filed and Effective: 10/12/2011
ORDER
Document Text: ORDER CONTINUING MOTION HEARING AND SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Alsup on October 12, 2011. (whalc1, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)

519 – Filed and Effective: 10/12/2011
Letter
Document Text: Letter from Robert Van Nest PRECIS OPPOSING REQUEST TO FILE DAUBERT MOTIONS. (Van Nest, Robert) (Filed on 10/12/2011) (Entered: 10/12/2011)


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

Documents

513

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

DEFENDANT GOOGLE INC.’S NOTICE
OF MOTION AND MOTION TO RETAIN
CONFIDENTIALITY DESIGNATIONS

Hearing Date: November 17, 2011
Time of Hearing: 8 a.m.
Judge: Hon. William Alsup

Date Comp. Filed: October 27, 2010
Trial Date: October 31, 2011

NOTICE OF MOTION AND RELIEF REQUESTED

PLEASE TAKE NOTICE that on November 17, 2011 at 8:00 a.m., or as soon thereafter as counsel may be heard, Defendant Google Inc. (“Google”) will, and hereby does, respectfully move to maintain the confidentiality designations of particular documents produced pursuant to this Court’s Orders [Dkt. Nos. 354 and 361], which bear the production numbers GOOGLE-12- 100000001 - GOOGLE-12-100000011. Google brings this Motion pursuant to the Joint Stipulated Protective Order entered in this case [Dkt. Nos. 66 and 68], and it is based on the following memorandum of points and authorities in support, the Declaration of Mark Francis and accompanying exhibits, the entire record in this matter and on such evidence as may be presented at a hearing on this Motion.

I. INTRODUCTION

On August 25 and August 26, 2011, Magistrate Judge Ryu ordered Google to produce certain documents in the litigation (“Lindholm Documents”). [Dkt. Nos. 354 and 361.] Google promptly did so, but Oracle challenged Google’s designation of those documents as “Highly Confidential - Attorneys’ Eyes Only” (“AEO”) under the Stipulated Protective Order in this case, [Dkt. No. 66 at ¶ 2.8], and requested that Google re-designate the document “Confidential,” rather than AEO. See Declaration of Mark Francis in Support of Defendant Google Inc.’s Motion to Retain Confidentiality Designations (“Francis Decl.”), Exh. A. Pursuant to the Court’s order, [Dkt. No. 462], the parties held a telephonic meet-and-confer pursuant to ¶ 6.2 of the Protective Order on September 28, 2011, and Oracle’s counsel confirmed that the meet and confer process did not resolve the parties’ dispute by e-mail dated October 3, 2011. Francis Decl. ¶3 & Exh. B.1 Google brings this motion to defend the AEO designations on the documents in question, which bear the production numbers GOOGLE-12-100000001 - GOOGLE-12-100000011.

________________________

1 During the meet-and-confer, the possibility of sharing the Lindholm Documents with a limited number of Oracle in-house counsel and executives was discussed. Francis Decl. ¶3. Google, however, has a pending motion for review of Magistrate Judge Ryu’s ruling that the Lindholm Documents are not privileged, and for that reason stated that it could not agree to the proposed compromise. Id.

1

II. DISCUSSION

A. The Lindholm documents should be designated AEO at least until the privilege dispute is resolved.

This is not the run-of-the-mill protective order designation disagreement. The primary reason these documents merit AEO designation is because there is a pending dispute over whether those documents are privileged, and therefore should not have been ordered produced in the first instance. [See Dkt. Nos. 441 and 472.] Any decisions relating to the confidentiality designation of the Lindholm Documents should therefore be reserved until at least the privilege issue has been resolved. Cf. Laethem Equip. Co. v. Deere & Co., 2007 WL 2897851 (E.D. Mich. Sept. 28, 2007) (magistrate judge entered but stayed execution of order de-classifying documents because “it would be prudent to permit [the judge] to rule on plaintiffs’ objections [to an earlier magistrate order] before enter[ing] an order regarding declassification of documents. . . .”). This approach would be consistent with the Court’s previous granting of motions to seal regarding information related to the Lindholm Documents “[o]ut of an abundance of caution.” [Dkt. No. 477; see also Dkt. No. 460].

B. The Lindholm documents were properly designated as AEO, even assuming they are not privileged.

Moreover, even without the privilege issue these documents qualify for AEO status under the Stipulated Protective Order. That order permits AEO designation for documents containing “extremely sensitive ‘Confidential Information or Items,’ disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.” [Dkt. No. 66 at ¶ 2.8.] As reflected in the declaration Google has previously submitted in connection with briefing on the privilege issue, Lindholm was tasked with “gather[ing] information for Google’s lawyers and management to consider in evaluating technology issues related to Oracle’s infringement claims.” [Dkt. No. 316 at ¶ 7.] A technology analysis related to a highly competitive business area meets the AEO standard. Moreover, Google does not publicly disclose its internal deliberations and evaluations of threats of litigation or the merits of such claims asserted against it, its potential responses to threats of litigation, or its strategic approach to litigation generally. [Dkt. No. 443 at ¶ 2.]

2

III. CONCLUSION

For the foregoing reasons, Google’s motion should be granted, and the challenged documents should retain their AEO designations.

Dated: October 11, 2011

Respectfully submitted,
KEKER & VAN NEST LLP

By: s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.

3


514

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

DECLARATION OF MARK FRANCIS IN
SUPPORT OF DEFENDANT GOOGLE
INC'S MOTION TO RETAIN
CONFIDENTIALITY DESIGNATIONS

Hearing Date: November 17, 2011
Time of Hearing: 8 a.m.
Judge: Hon. William Alsup

Date Comp. Filed: October 27, 2010
Trial Date: October 31, 2011

I, Mark H. Francis, state:: 1. I am an associate in the law firm of King & Spalding LLP, counsel for defendant Google Inc. ("Google") in this case. I submit this declaration in support of Google's Motion To Retain Confidentiality Designations. I make this declaration based on my own personal knowledge. If called as a witness, I could and would testify competently to the matters set forth herein.

2. Attached hereto as Exhibit A is a true and correct copy of email correspondence - between outside counsel for Oracle and for Google, regarding Google's designation of GOOGLE-12-100000001 - GOOGLE-12-100000011 "Highly Confidential- Attorney's Eyes Only" under the Stipulated Protective Order in this matter. I was copied on this correspondence as a member of the "dalvik-KS" email grouplist.

3. Pursuant to the Court's order, I conducted a telephonic meet and confer regarding this dispute with Oracle's outside counsel, Alanna Rutherford, on September 28,2011. During that call, the parties discussed whether Google would permit, as a condition of resolving the dispute, to allow the documents at issue to be shared with a limited number of Oracle in-house counsel and executives despite the AEO designation. Attached as Exhibit B is a true and correct copy of email correspondence memorializing the parties' discussion, Google's indication that it could not agree to the proposal, and Oracle's confirmation that it still wished to challenge Google' s designations for the documents at issue.

I declare under penalty of perjury that the foregoing is true and correct. Executed on October 11,2011.

By: /s/ Mark H. Francis
MARK H. FRANCIS

1


517

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

STIPULATION AND
ORDER TO EXTEND TIME TO
FILE JURY INSTRUCTIONS,
VERDICT FORMS, AND TRIAL
BRIEFS

Judge: Hon. William Alsup

STIPULATION

WHEREAS, pursuant to the Court’s scheduling order, and the Court’s Order of October 6, 2011, the parties are to file joint jury instructions, briefing on any disputed instructions, proposed verdict forms, proposed voir dire, and a joint pre-trial order, on October 12, 2011;

WHEREAS, the parties have been meeting and conferring in an attempt to work out their differences in the various components of the filing;

WHEREAS, the attorney for Oracle with primary responsibility for negotiating and briefing the jury instructions, who also shares responsibility for the trial brief, is unexpectedly unavailable due to a family medical emergency;

WHEREAS, the Court has indicated that the pre-trial conference that was scheduled for October 17, 2011, will be moved to the afternoon of October 24, 2011; and

WHEREAS, the parties acknowledge and agree that a limited extension of time to file joint jury instructions, briefing on any disputed instructions, proposed verdict forms, and trial briefs will not affect, delay, or push back any other deadlines in this case.

NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE that:

1. The parties will continue to meet and confer over the next several days to resolve issues that can be resolved and narrow areas of dispute, and thereafter file the joint jury instructions, briefing on any disputed instructions, proposed verdict forms, and trial briefs on October 14, 2011.

2. No other deadlines in this case will be affected by the foregoing extensions. The parties will file proposed voir dire questions and the joint pre-trial order on October 12, 2011. The parties will not use these extensions to argue for a delay of the trial date or any other deadlines in this case.

ORDER

The foregoing stipulation is approved, and IT IS SO ORDERED.

No more extensions will be granted.

Date: October 12, 2011.

/s/William Alsup
Honorable William Alsup
Judge of the United States District Court

1

Dated: October 11, 2011

MORRISON & FOERSTER LLP

By: /s/Fred Norton

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]
[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.

2

Dated: October 11, 2011

KEKER & VAN NEST LLP

By: /s/Matthias A. Kamber

KEKER & VAN NEST LLP
ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN184325)
[email]
[address telephone fax]

KING & SPALDING LLP
SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email]
[address telephone fax]

KING & SPALDING LLP
DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
[address telephone fax]

GREENBERG TRAURIG, LLP
IAN C. BALLON (SBN 141819)
[email]
HEATHER MEEKER (SBN 172148)
[email]
[address telephone fax]

Attorneys for Defendant
GOOGLE INC.

3


518

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 CONTINUING MOTION
HEARING AND SETTING CASE
MANAGEMENT CONFERENCE

Due to a congested law-and-motion calendar and an ongoing patent trial, the motion hearing previously set for October 13 is CONTINUED to a special setting at 9:30 A.M. ON WEDNESDAY, OCTOBER 19, 2011. A case management conference will be held concurrently. Counsel should be prepared to address the following issues:

1. How much time the Rule 706 expert will require to complete his work. In particular, a time estimate for completing an independent damages study as opposed to only critiquing the studies provided by the parties’ damages experts.

2. The possibility of severing the copyright claim from the patent claims and first conducting a shorter trial on the copyright claim.

3. The possibility of general postponement and how best to use any intervening time, for example with respect to motion practice.

For the benefit of counsel, please be alerted there is a strong possibility that the final pretrial conference set for October 24 will have to be postponed. The Court will try to provide counsel with more scheduling information at the October 19 hearing and conference.

IT IS SO ORDERED.

Dated: October 12, 2011.

/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

2


519

[Keker & Van Nest LLP letterhead]

October 12, 2011

The Honorable William Alsup
United States District Court, Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102

Re: Oracle America, Inc. v. Google Inc., No. 3:10-CV-03561-WHA (N.D. Cal.)

Dear Judge Alsup:

The Court should deny Oracle’s request to file a motion to strike portions of the reports of Google’s damages experts Gregory Leonard and Alan Cox. Oracle’s request is meritless on its face. All of Oracle’s complaints are either factually mistaken, irrelevant to the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or both.

First, Oracle complains that Dr. Leonard and Dr. Cox lack technical qualifications, but offer technical opinions anyway. Oracle is wrong. Neither Dr. Leonard nor Dr. Cox offers a single opinion about a technical engineering issue. They rely on the opinions of Google’s technical experts for background supporting their damages opinions, which Oracle’s experts also have done. Indeed, Oracle’s experts also relied on the work of ordinary Oracle employees who have conducted flawed benchmarking studies. An expert is entitled to offer opinion testimony based on any materials of a type reasonably relied on by experts in a given field. See Fed. R. Civ. 703. It is routine, and entirely proper, for a damages expert in a technical patent case to rely on a technical expert for background, and Oracle cites no authority to the contrary.

Second, again without citing any authority, Oracle objects to Dr. Leonard’s and Dr. Cox’s reliance on interviews with Google employees. This is also meritless. Experts may rely on interviews with percipient witnesses in forming an opinion. See Scott v. Ross, 140 F.3d 1275,

The Honorable William Alsup
October 12, 2011
Page 2

1286 (9th Cir. 1998); Lang v. Cullen, 725 F. Supp. 2d 925, 953 & n.51 (C.D. Cal. 2010). Google has identified all the interviewees and provided Oracle with every page of Dr. Leonard’s and Dr. Cox’s interview notes. Google intends to present each of the interviewees as a trial witness to testify from personal knowledge, so the jury may hear and evaluate their testimony before Dr. Leonard and Dr. Cox testify. With respect to nearly all the interviewees, Oracle either has taken their depositions or chosen not to. Oracle has deposed all of Google’s technical experts.

Oracle’s complaint focuses on two witnesses who it claims were never disclosed—John Rizzo and Tim Bray. As to Rizzo, Oracle is wrong. Google’s original initial disclosures, served on December 2, 2010, disclosed all members of the Java Community Process Executive Committee, a group that Oracle’s own website describes as including Rizzo. On July 6, 2011, Google disclosed Rizzo individually. Oracle chose not to depose him. To the extent Oracle claims that disclosure was not timely, Oracle has amended its own disclosures multiple times since July 6 to add witnesses it intends to present at trial. Oracle is also wrong about Bray, who was one of Google’s document custodians; in fact, Oracle identified Bray to Google in a March 1, 2011 letter. Google then produced Bray’s documents. On June 3, 2011, Oracle amended its disclosures to add all Google’s document custodians (including Bray), and on July 6, 2011, Google added its custodians (including Bray). In contrast, Oracle’s trial witness list includes witnesses never previously mentioned in Oracle’s disclosures, including two employees whose benchmarking studies are the foundation of Oracle’s damages case. Further, Dr. Leonard and Dr. Cox didn’t rely on Bray for “core” technical propositions—only for the factual point that most top-selling Android applications are written in languages other than Java. Google is willing to make Bray available for deposition before the damages trial, if the Court so directs.

The Honorable William Alsup
October 12, 2011
Page 3

Third, Oracle falsely argues that Google’s experts relied on material that Google did not produce in discovery. In reality, every page of the “33 agreements” and “Google ‘dashboards’” that Oracle cites has been produced—and Oracle must know that. They were given to Google’s experts shortly before production, prior to being stamped with production numbers, but Oracle has had all of them for months. (Actually, each document is also separately listed in the reports under its eventual production number.) Likewise, Google did not improperly “filter” any data. This Court recently ruled that Oracle’s patent damages case is limited to U.S. sales of the eight accused models identified in Oracle’s infringement contentions. Google provided Dr. Leonard with U.S. activation data for those models so he could apply the Court’s specified parameters. In any event, Oracle never requested any handset activation data during discovery.

Fourth, Oracle raises several cross-examination points, such as Dr. Leonard’s evaluation of the academic literature on conjoint studies. This is not a Daubert issue. Oracle distorts Dr. Cox’s damages opinion, falsely claiming he opines that Oracle’s copyright damages should be zero, when Dr. Cox offers a range of potential damages—as high as $39.6 million of Google’s profits, $5.9 million in lost profits, and $6.44 million for the lost value of a fair-market license. Oracle also quarrels with Dr. Cox’s opinion reducing Oracle’s damages because Google could have earned as much from Android without any alleged infringement, but this is exactly what the law required Dr. Cox to do: identify Google’s profits not attributable to the alleged infringement.

Fifth, Oracle accuses Dr. Leonard and Dr. Cox of making ipse dixit factual assertions, but doesn’t offer a single example. In other words, its ipse dixit accusation is itself ipse dixit.

For all the above reasons, there is no point in allowing Oracle to file a Daubert motion.

Sincerely, /s/ Robert A. Van Nest



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