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Oracle v. Google - Another Transcript (July 21, 2011 Hearing on Depositions)
Friday, November 11 2011 @ 08:30 AM EST

Thanks to Steve we have another transcript [PDF], this one of the July 21 hearing pertaining to the July 14 joint letter from the parties regarding additional depositions. (215 [PDF; Text]) This hearing was before the magistrate trying to sort out whether Oracle would be allowed to depose additional Google employees, specifically Larry Page, Dipchand Nishar, Bob Lee, and Tim Lindholm (of the now famous Lindholm emails).

In the end the magistrate allowed the depositions of Page, Lee, and Lindholm. (228 [PDF] and 229 [PDF; Text]) What is interesting from the transcript is the limited information about and difference in characterization (by Oracle and Google) of the actual involvement of these individuals in the decisions made by Google at the time Android was acquired versus opinions or assessments of those decisions some four years later in 2010.


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

The transcript of the telephonic hearing held before
Magistrate Judge Donna M. Ryu on the morning of July 21, 2011:

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

PAGES 1 - 36

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE DONNA M. RYU, MAGISTRATE JUDGE

ORACLE AMERICA, INC.,

PLAINTIFF,

VS.

GOOGLE, INC.,

DEFENDANT.

___________________

NO. C-10-3561 WHA (DMR)

THURSDAY, JULY 21, 2011

OAKLAND, CALIFORNIA

REPORTER'S TRANSCRIPT OF TELEPHONIC PROCEEDINGS

APPEARANCES:

FOR PLAINTIFF:
BOIES SCHILLER & FLEXNER LLP
[address]
BY: STEVEN C. HOLTZMAN, ESQUIRE

BY: MORRISON & FOERSTER
[address]
BY: MICHAEL A. JACOBS, ESQUIRE

ORACLE CORPORATION
[address]
BY: MATTHEW M. SARBORARIA, ESQUIRE

(APPEARANCES CONTINUED ON NEXT PAGE)

REPORTED BY: DIANE E. SKILLMAN, CSR 4909, RPR, FCRR
OFFICIAL COURT REPORTER

FOR DEFENDANT:
KEKER & VAN NEST LLP
[address]
BY: ROBERT VAN NEST, ESQUIRE
CHRISTA M. ANDERSON, ESQUIRE

KING & SPALDING LLP
[address]
BY: BRUCE W. BABER, ESQUIRE
CHRISTOPHER C. CARNAVAL, ESQUIRE

GOOGLE, INC.
[address]
BY: RENNY F. HWANG, ESQUIRE

THURSDAY, JULY 21, 2011 11:35 A.M.

P R O C E E D I N G S

THE CLERK: CALLING CIVIL CASE C-10-3561 WHA, ORACLE AMERICA INCORPORATED VERSUS GOOGLE, INCORPORATED.

COUNSEL, PLEASE STATE YOUR APPEARANCES.

MR. HOLTZMAN: FOR ORACLE AMERICA, STEVE HOLTZMAN, BOIES, SCHILLER & FLEXNER.

MR. JACOBS: MICHAEL JACOBS, MORRISON & FOERSTER.

MR. SARBORARIA: AND MATT SARBORARIA IN-HOUSE COUNSEL FOR ORACLE.

THE COURT: GOOD MORNING.

MR. VAN NEST: AND FOR GOOGLE IT'S BOB VAN NEST AND CHRISTA ANDERSON WITH KEKER & VAN NEST. BRUCE BABER AND CHRIS CARNAVAL WITH KING & SPALDING. WE HAVE RENNY HWANG FROM GOOGLE ON THE LINE AS WELL.

GOOD MORNING.

THE COURT: GOOD MORNING.

GOODNESS, YOU'VE GOT THE WHOLE GANG HERE OR AT LEAST A GOOD CHUNK OF THE WHOLE GANG.

ALL RIGHT. SO I DID REVIEW THE JULY 14TH JOINT LETTER AND I READ IT CAREFULLY. I DON'T NEED ANYTHING REPEATED.

WHAT I AM GOING TO DO IS GO THROUGH DEPONENT BY DEPONENT. AND I HAVE QUESTIONS FOR ORACLE COUNSEL SO THAT I CAN GET A BIT MORE DETAIL ABOUT WHAT IT IS THEY THINK IS

(3)

IMPORTANT TO LEARN FROM THESE PARTICULAR DEPONENTS. I WILL THEN GIVE A TENTATIVE AND I WILL ALLOW ARGUMENT ON BOTH SIDES.

SO, I AM GOING TO TAKE THEM IN ORDER THAT YOU LISTED THEM IN THE JOINT LETTER STARTING WITH MR. PAGE. SO THESE QUESTIONS ARE DIRECTED TO ORACLE.

ORACLE SAYS THAT MR. PAGE WAS INVOLVED IN NEGOTIATIONS FOR THE JAVA LICENSE. HOW MUCH TIME DID MR. PAGE SPEND IN THOSE NEGOTIATIONS APPROXIMATELY AND WHAT WAS HIS ROLE?

MR. HOLTZMAN: YOUR HONOR, STEVE HOLTZMAN FOR ORACLE.

MR. PAGE, WE UNDERSTAND, HAD A NUMBER OF CONVERSATIONS AT THE HIGHEST LEVEL WITH ORACLE. AND I ACTUALLY DON'T HAVE AN ESTIMATE FOR YOU AS TO EXACTLY HOW MUCH TIME THOSE CONSUMED. THERE WERE, I BELIEVE, A NUMBER OF CONVERSATIONS.

WE WANTED TO ASK ABOUT THAT. WE, OF COURSE, ALSO WANT TO ASK HIM ABOUT THE INTERNAL GOOGLE SIDE OF DELIBERATIONS AND DISCUSSIONS REGARDING THOSE CONVERSATIONS AND NEGOTIATIONS OVER A SEVERAL YEAR PERIOD, AMONG OTHER THINGS.

THE COURT: HOW LONG DID THOSE NEGOTIATIONS LAST?

MR. HOLTZMAN: THERE WERE SEVERAL ITERATIONS OF THE NEGOTIATIONS. THE FIRST ITERATION SPANNED PROBABLY EIGHT OR NINE MONTHS BETWEEN 2005 AND 2006. THEN THERE WERE ONE OR TWO ADDITIONAL ITERATIONS IN 2008 AND 2009. AND THEN IN THE MONTHS

(4)

PRIOR TO THE FILING OF THIS LAWSUIT IN AUGUST OF 2010, THERE WERE SOME ADDITIONAL NEGOTIATIONS AND DISCUSSIONS.

THE COURT: OKAY. NOW ORACLE ALSO SAYS THAT MR. PAGE REPORTEDLY MADE THE DECISION TO ACQUIRE ANDROID, INCORPORATED. HOW IS THAT RELEVANT TO THIS CASE?

MR. HOLTZMAN: THE IMPORTANCE OF ANDROID AND ITS TECHNOLOGY AND THE VALUE OF THAT TECHNOLOGY ARE OF INTEGRAL IMPORTANCE TO THIS CASE, PARTICULARLY WITH REGARD TO ISSUES OF DAMAGES. AND A LARGE PORTION OF THE VALUE, WE UNDERSTAND, OF ANDROID WAS ITS STRATEGIC VALUE TO GOOGLE'S BUSINESS AS A WHOLE. THAT'S WHY MR. PAGE, AMONG OTHERS, WAS DEEPLY INVOLVED IN THAT.

SO THE DISCUSSIONS AND DECISIONS RELATING TO THE ACQUISITION OF ANDROID, WE THINK, WILL INFORM THESE ISSUES.

THE COURT: OKAY. SO THE REASON YOU THINK IT'S RELEVANT TO ASK MR. PAGE ABOUT THE DECISION TO ACQUIRE ANDROID REALLY HAS TO DO WITH DAMAGES.

MR. HOLTZMAN: YES, I THINK SO. CERTAINLY FIRST AND FOREMOST, IT IS ENTIRELY POSSIBLE, WE DON'T KNOW UNTIL WE HAVE HIS TESTIMONY, THAT ISSUES RELATING TO -- AT THE TIME SUN'S INTELLECTUAL PROPERTY AND WHETHER ANDROID RAN INTO ANY PROBLEMS WITH SUN'S INTELLECTUAL PROPERTY COULD HAVE BEEN DISCUSSED.

THE COURT: SORRY FOR THE PAUSES. I AM TRYING TO TAKE GOOD NOTES AS WE GO ALONG.

(PAUSE IN THE PROCEEDINGS.)

(5)

NOW, WITH RESPECT TO MR. NISHAR, WHAT WAS MR. NISHAR'S JOB TITLE AT THE TIME -- WELL, NISHAR IS DESCRIBED BY ORACLE AS A FORMER GOOGLE EMPLOYEE WHO STARTED AND MANAGED GOOGLE'S MOBILE INITIATIVES WORLDWIDE FROM 2005 TO 2007.

SO, FILL ME IN ON WHAT NISHAR'S TITLE AND POSITION WITHIN THE COMPANY WAS AND WHAT TIME FRAME WE ARE TALKING ABOUT.

MR. HOLTZMAN: SURE.

YOUR HONOR, I ACTUALLY DON'T HAVE HIS TITLE IN FRONT OF ME. I APOLOGIZE FOR THAT. OUR UNDERSTANDING IS THAT HE WAS IN CHARGE OF GOOGLE'S MOBILE BUSINESS, AT LEAST FOR THIS PERIOD 2005 TO 2007 AS REFERRED TO IN HIS LINKEDIN PROFILE.

THE MOBILE BUSINESS AT GOOGLE IS SOMETHING THAT PRECEDED THE ACQUISITION OF ANDROID, BUT SOMETHING THAT ANDROID FIT INTO. AND THE INTERACTION BETWEEN THE ANDROID BUSINESS AND GOOGLE'S OTHER MOBILE BUSINESS AND MOBILE STRATEGY IS SOMETHING THAT'S IMPORTANT IN A NUMBER OF RESPECTS IN THIS CASE.

MR. NISHAR, AMONG OTHER THINGS, MADE JOINT PRESENTATIONS REGARDING ANDROID AND THE IMPORTANCE OF ANDROID AND STRATEGY RELATING TO INTELLECTUAL PROPERTY IN ANDROID TO THE HIGHEST EXECUTIVES OF GOOGLE, ALONG WITH MR. RUBIN WHO HAD COME IN AND BECAME HEAD OF THE ANDROID BUSINESS.

THE COURT: NOW WITH RESPECT TO MR. NISHAR'S INVOLVEMENT IN THE NEGOTIATIONS FOR A JAVA LICENSE, AGAIN, WHAT WAS HIS ROLE IN THAT? WAS HE SOMEBODY WHO WAS A KEY TO THE

(6)

NEGOTIATION TABLE OR SOMEBODY WHO WAS MORE TANGENTIAL?

MR. HOLTZMAN: HIS NAME COMES UP AND IT'S COME UP IN DOCUMENTS RELATING TO THE NEGOTIATIONS, BUT IT'S MORE -- TO BE HONEST, THAT'S MORE OF A QUESTION MARK FOR US. WHAT HIS INVOLVEMENT WAS IN PARTICULARLY THE GOOGLE SIDE OF THOSE DELIBERATIONS AND THE INTERNAL GOOGLE SIDE. I DON'T HAVE A GOOD SENSE OF THAT.

THE COURT: SO YOU DO KNOW THAT HE WAS INVOLVED IN THE NEGOTIATIONS BUT YOU HAVE NO IDEA WHETHER IT WAS ONE MEETING OR WHETHER HE WAS CONSTANTLY AT THE TABLE?

MR. HOLTZMAN: NO, I DON'T HAVE A SENSE OF THAT.

I AM NOT RECALLING RIGHT NOW ANY QUANTIFICATION OF THAT THAT WE HAVE GOTTEN FROM SUN OR ORACLE PEOPLE WHO WE HAVE BEEN ABLE TO TALK TO. RECOGNIZE THAT SOME OF THESE NEGOTIATIONS, AS I SAID BEFORE, TOOK PLACE A NUMBER OF YEARS AGO AND SOME OF THE PEOPLE INVOLVED IN THEM ON THE SUN SIDE ARE NO LONGER WITH ORACLE.

THE COURT: CAN YOU FOCUS FOR THE MOMENT ON THE THEORY AROUND WILLFULNESS. TO WHAT EXTENT DO YOU BELIEVE MR. NISHAR HAS INFORMATION THAT ORACLE BELIEVES IS RELEVANT TO WILLFUL INFRINGEMENT?

MR. HOLTZMAN: I BELIEVE, ALTHOUGH I WOULD HAVE TO -- TO BE ABSOLUTELY SURE, I WOULD HAVE TO LOOK BACK AT THE DOCUMENT, BUT I BELIEVE SOME OF THE PRESENTATION DOCUMENTS THAT I REFERRED TO EARLIER ON WHICH MR. NISHAR IS A CO-AUTHOR REFER

(7)

TO THE NEED FOR A LICENSE AND THE EXTENT TO WHICH THE INTELLECTUAL PROPERTY INVOLVED IN JAVA INCLUDING THE PATENTS AND THE COPYRIGHTS IN SUIT WERE CORE, WERE CRITICAL, WERE CENTRAL TO ANDROID.

THE COURT: OKAY.

MR. HOLTZMAN: THESE ARE RECOGNITIONS BEFORE THE INFRINGEMENT BEGAN, AND THAT'S HOW IT RELATES TO WILLFULNESS.

THE COURT: I SEE. SO JUST TO RECAP HERE TO MAKE SURE I UNDERSTAND.

IT'S YOUR REPRESENTATION TO THE COURT THAT MR. NISHAR WAS INVOLVED IN PRESENTATIONS AT THE HIGHEST EXECUTIVE LEVELS IN WHICH HE -- THE PRESENTATION REPRESENTED THAT THERE WAS A NEED FOR LICENSES FOR THIS PARTICULAR PIECE OF THE MOBILE BUSINESS?

MR. HOLTZMAN: YES. AND I WANT TO BE CAREFUL NOT TO UNWITTINGLY MISREPRESENT ANYTHING.

THERE ARE A NUMBER OF PRESENTATIONS. I DON'T HAVE THEM IN FRONT OF ME RIGHT NOW. SOME OF THEM HAVE NAMES ON THEM SPECIFICALLY, INCLUDING MR. NISHAR'S, AND OTHERS DON'T. SO WE DON'T KNOW WHO ALL THE AUTHORS OF THOSE PRESENTATIONS ARE. AND IT IS THIS COLLECTION OF PRESENTATIONS THAT RAISE THE ISSUES I DESCRIBED.

THE COURT: DO YOU HAVE ANYTHING TO SUPPORT THAT MR. NISHAR WAS, IN FACT, PART OF THESE PRESENTATIONS WHERE THAT REPRESENTATION WAS MADE?

(8)

MR. HOLTZMAN: THE CONNECTION BETWEEN THOSE SPECIFIC REPRESENTATIONS WITH REGARD TO THE NEED FOR A LICENSE AND HIS NAME IS WHAT I AM UNCERTAIN ABOUT. WE DO HAVE CONCRETE EVIDENCE ON THE FACE OF THE DOCUMENTS THAT HE WAS ONE OF THE AUTHORS OF SOME OF THESE PRESENTATIONS.

THE COURT: HOW MANY OTHER AUTHORS ARE WE TALKING ABOUT?

MR. HOLTZMAN: ONE.

THE COURT: WHO'S THAT?

MR. HOLTZMAN: MR. RUBIN.

THE COURT: OKAY. BUT IT'S JUST THE TWO OF THEM THAT MADE THESE JOINT PRESENTATIONS AT WHICH THE PARTICULAR REPRESENTATION WAS MADE ABOUT LICENSING?

MR. HOLTZMAN: AS I SAID, SOME OF THE PRESENTATIONS DON'T HAVE IDENTIFYING INFORMATION IN TERMS OF WHO THE AUTHORS WERE.

THE COURT: ARE THEY IN THE SAME TIME PERIOD?

MR. HOLTZMAN: YES.

THE COURT: LET'S TURN TO MR. LEE.

MR. LEE IS DESCRIBED IN YOUR PAPERS AS A FORMER GOOGLE EMPLOYEE, A SENIOR SOFTWARE ENGINEER AT THE TIME WHO LED CORE LIBRARY DEVELOPMENT FOR ANDROID. SO, FIRST, LET ME CONFIRM WHEN HE WAS AT GOOGLE, WAS HIS TITLE SOMETHING LIKE SENIOR SOFTWARE ENGINEER?

MR. HOLTZMAN: THAT'S MY UNDERSTANDING YOUR HONOR.

(9)

THE COURT: WHAT IS THE TIME FRAME THAT HE WAS AT GOOGLE?

MR. HOLTZMAN: I DON'T HAVE A SPECIFIC TIME FRAME HERE. WE HAVE SEEN NUMEROUS E-MAILS WITH HIS NAME ON THEM, BOTH AUTHORED AND RECEIVED, THAT SPAN A NUMBER OF YEARS. I CAN SAY THAT, BUT I DON'T HAVE A START AND END DATE.

THE COURT: CAN YOU GIVE ME A ROUGH ESTIMATE? I WON'T HOLD YOU TO IT, BUT I DON'T KNOW IF YOU ARE TALKING ABOUT THE '90S, OR IN THE 2000'S, OR WHAT?

MR. HOLTZMAN: BETWEEN 2005 AND 2010.

THE COURT: OKAY. SO THE DESCRIPTION LETTER IS FAIRLY VAGUE. ORACLE CLAIMS THAT HE WAS INVOLVED IN QUOTE "CERTAIN ANDROID LIBRARIES" AND THAT DOCUMENTS REFLECT COMMUNICATIONS BY OR FROM HIM THAT QUOTE "RELATE TO OTHER MATTERS THAT ARE RELEVANT TO THE CLAIMS AND ISSUES IN THIS CASE".

MR. HOLTZMAN: RIGHT.

THE COURT: SO YOU'RE GOING TO HAVE TO GIVE ME MORE THAN THAT FOR ME TO BE ABLE TO ASSESS THIS.

MR. HOLTZMAN: OKAY. THE -- SO HE, AS WE DESCRIBE IN THE LETTER, MR. LEE LED CORE LIBRARY DEVELOPMENT FOR ANDROID. AND AS WE EXPLAINED IN THE LETTER, I GRANT YOU GENERALLY, THE COPYRIGHT CLAIMS IN THIS CASE HAVE TO DO WITH GOOGLE'S COPYING OF CORE CLASS LIBRARIES THAT ARE PART OF JAVA. THEY'RE JAVA CLASS LIBRARIES.

(10)

SO TO THE EXTENT THAT MR. LEE LED CORE LIBRARY DEVELOPMENT, IT IS NATURAL TO CONCLUDE, CERTAINLY ASSUME THAT HE HAS AWARENESS, AS THE LEADER OF THAT EFFORT, OF ISSUES RELATING TO THE INFRINGEMENT IN THE COPYING OF CORE CLASS LIBRARIES FROM JAVA.

NOW, AS I MENTIONED BEFORE, HIS NAME ALSO APPEARS ON A LARGE NUMBER OF DOCUMENTS DISCUSSING A VARIETY OF ISSUES RELATING TO BOTH COPYRIGHT AND I BELIEVE THE PATENT INFRINGEMENT CLAIMS. NOW, I DON'T HAVE A LIST OR QUOTES IN FRONT OF ME TODAY, BUT I CAN REPRESENT THAT THERE'S A SIGNIFICANT CORPUS OF MATERIAL THAT RELATE TO DAMAGES AND LIABILITY ISSUES IN THE CASE.

THE COURT: CAN YOU BE MORE SPECIFIC THAN THAT? IN WHAT WAYS DO THEY -- WHAT IS THE MEAT OF THE -- THAT YOU WOULD BE QUESTIONING HIM ABOUT?

MR. HOLTZMAN: DISCUSSIONS OF THE VALUE OF JAVA TECHNOLOGY GENERALLY AND CLASS LIBRARIES SPECIFICALLY, SO GOING TO DAMAGES, AND OTHER ISSUES RELATING TO AWARENESS OF THE NEED FOR A LICENSE OR THE AWARENESS OF INTELLECTUAL PROPERTY ISSUES. THAT'S PROBABLY AS SPECIFIC TO BE TRUTHFUL AS I CAN BE. AGAIN, I DON'T WANT TO MISREPRESENT ANYTHING.

THE COURT: LET ME ASK YOU FURTHER ABOUT YOUR LAST STATEMENT ABOUT QUESTIONING LEE ABOUT HIS AWARENESS OF THE NEED FOR LICENSES.

YOU DID WRITE IN YOUR LETTER THAT DOCUMENTS QUOTE

(11)

"EVIDENCE INTIMATE KNOWLEDGE OF SUN'S LICENSING PRACTICES WHICH IS RELEVANT TO CLAIMS OF WILLFUL INFRINGEMENT".

AGAIN, I AM NOT REALLY SURE WHAT THAT MEANS, BUT I AM GOING TO GIVE YOU AN OPPORTUNITY TO EXPLAIN THAT TO ME.

MR. HOLTZMAN: SURE.

SUN, AT THE TIME BEFORE IT WAS ACQUIRED BY ORACLE, HAD A VARIETY OF TYPES OF LICENSES FOR INTELLECTUAL PROPERTY RELATING TO JAVA. FOR EXAMPLE, ONE OF THOSE WAS WHAT'S KNOWN -

THE COURT: I'M SORRY, MR. HOLTZMAN, WE ARE ACTUALLY HAVING THIS REPORTED, SO OUR REPORTER NEEDS YOU TO SLOW DOWN A LITTLE BIT AND ESPECIALLY WHEN YOU COME TO THINGS LIKE THOSE NAMES.

MR. HOLTZMAN: I APOLOGIZE.

THE COURT: PLEASE RESTATE THEM.

MR. HOLTZMAN: IT'S THE GPL, NEW PUBLIC LICENSE, IF I HAVE THAT RIGHT, AND THERE ARE QUESTIONS INTERNAL TO GOOGLE AS TO WHETHER IT WOULD BE ACCEPTABLE AS A BUSINESS MATTER TO TAKE A LICENSE TO JAVA TECHNOLOGY PURSUANT TO THE TERMS OF THE GPL.

THE PROBLEM FOR GOOGLE, AS WAS DISCUSSED INTERNALLY, WAS THAT THE GPL CARRIED WITH IT RESTRICTIONS ON WHAT COULD BE DONE SORT OF DOWNSTREAM WITH THE TECHNOLOGY. AND THAT MADE IT UNACCEPTABLE TO GOOGLE, AS GOOGLE INTERNALLY CONCLUDED, INCLUDING DISCUSSIONS INVOLVING MR. LEE TO TAKE A LICENSE UNDER

(12)

THAT REGIME.

THIS, IN TURN, OF COURSE, RELATES TO ISSUES OF WILLFULNESS AND AWARENESS OF THE NEED FOR A LICENSE.

THE COURT: YOU ARE SAYING THAT THAT CORPUS OF DOCUMENTS THAT HAS TO DO WITH THIS GPL POINTS VERY CLEARLY AND SIGNIFICANTLY AT MR. LEE'S INVOLVEMENT IN THESE QUESTIONS?

MR. HOLTZMAN: I BELIEVE SO, YOUR HONOR.

THE COURT: LET ME ASK ABOUT MR. LINDHOLM NOW WHO IS DESCRIBED AS A FORMER SUN MICRO SYSTEMS EMPLOYEE AND A CURRENT ANDROID SOFTWARE ENGINEER.

SO, WHEN WAS HE AT SUN AND WHEN DID HE COME OVER TO ANDROID?

MR. HOLTZMAN: AGAIN, SITTING HERE TODAY I DON'T KNOW THE EXACT TIME. I BELIEVE IT WAS IN THE, I WANT TO SAY 2004-2005 TIME FRAME. THAT MAY BE OFF.

THE COURT: OKAY. BUT AROUND THEN YOU THINK HE MOVED OVER TO ANDROID?

MR. HOLTZMAN: TO GOOGLE. I AM HAPPY TO STAND CORRECTED IF ANYONE ELSE ON THE CALL KNOWS THE ANSWER TO THAT.

THE COURT: WHEN HE -- SO YOUR LETTER SAYS THAT MR. LINDHOLM WAS INVOLVED IN THE GOOGLE/SUN LICENSE DISCUSSIONS. AGAIN, WHAT WAS HIS ROLE AT THE TIME BY WAY OF JOB TITLE AND WHAT WAS HIS ROLE IN THOSE NEGOTIATIONS?

MR. HOLTZMAN: I DON'T KNOW HIS EXACT JOB TITLE. HIS INVOLVEMENT, I BELIEVE, GOES TO THOSE EIGHT OR NINE MONTHS

(13)

IN 2005 AND 2006 JUST PRIOR TO THE TIME THE INFRINGEMENT BEGAN. AND I BELIEVE HIS INVOLVEMENT, BASED ON TALKING TO PEOPLE AT ORACLE AND THE DOCUMENTS THAT WE HAVE SEEN, HAD TO DO WITH THE NATURE OF THE LICENSE AND COLLABORATION FROM A TECHNICAL STANDPOINT THAT THE PARTIES CONTEMPLATED ENTERING INTO.

SO HIS TESTIMONY IN THIS COULD GO TO, YOU KNOW, WILLFULNESS ISSUES. THEY COULD GO TO INFRINGEMENT ISSUES, AS WELL AS DAMAGES ISSUES TO THE EXTENT THOSE DISCUSSIONS COMBINE BUSINESS ISSUES HAVING TO DO WITH, FOR EXAMPLE, THE AMOUNT OR STRUCTURE OF A LICENSE AS WELL AS THE TECHNICAL ASPECT OF HOW JAVA TECHNOLOGY WOULD BE USED BY ANDROID.

THE COURT: OKAY. SO JUST TO SUMMARIZE, YOU BELIEVE THAT HIS INVOLVEMENT IN THOSE NEGOTIATIONS WAS CONFINED TO THE EIGHT-MONTH, 2005, 2006 DISCUSSIONS THAT HE -- HIS ROLE WAS AS A TECHNICAL SORT OF ENGINEER WHO WAS LOOKING AT THE ASPECTS OF THE LICENSE THAT WAS BEING DISCUSSED?

MR. HOLTZMAN: YES, YOUR HONOR. BUT I -- THAT WAS NOT -- THE QUESTIONS WE HAVE FOR HIM -- WE WOULD HAVE FOR HIM WOULD NOT BE CONFINED TO THAT PERIOD OF TIME.

HE IS SOMEONE WHO HAS ALSO PARTICIPATED IN VERY HIGH-LEVEL DISCUSSIONS WITHIN GOOGLE AS WE UNDERSTAND IT FROM THE DOCUMENTS RELATING TO ISSUES SUCH AS WHETHER GOOGLE HAD VIABLE NONINFRINGING ALTERNATIVES TO THE PATENTS AND COPYRIGHTS AT ISSUE.

THE COURT: SORRY, WHETHER GOOGLE HAD VIABLE

(14)

NONINFRINGING -

MR. HOLTZMAN: ALTERNATIVES.

THE COURT: WHEN WERE THOSE DISCUSSIONS?

MR. HOLTZMAN: AT LEAST IN THE MONTHS PRIOR TO THE FILING OF THIS LAWSUIT IN 2010.

THE COURT: OKAY. GIVE ME A MOMENT. I AM GOING TO REVIEW MY NOTES. I WILL GIVE YOU MY THINKING AND THEN I WILL ALLOW ARGUMENT.

(PAUSE IN THE PROCEEDINGS.)

THE COURT: OKAY. HERE IS MY TENTATIVE.

WITH RESPECT TO -- SO, I WOULD ALLOW ALL FOUR DEPOSITIONS, BUT FOR LIMITED PERIODS OF TIME -- SORRY, LIMITED AMOUNT OF TIME FOR THE DEPOSITION AND ON LIMITED SUBJECTS.

SO FOR MR. PAGE, MY TENTATIVE IS FOUR HOURS -- NONE OF THESE ARE COUNTING BREAKS. SO FOUR HOURS EXCLUSIVE OF BREAKS ON THE TOPICS OF WILLFULNESS AND ALSO THE VALUE OF ANDROID TO GOOGLE.

WITH RESPECT TO MR. NISHAR, FOUR HOURS ON THE ISSUE OF WILLFULNESS. SO QUESTIONS ABOUT THE JOINT PRESENTATIONS THAT HAVE TO DO WITH SOME INDICATION THAT GOOGLE BELIEVED THAT IT NEEDED A LICENSE.

WITH MR. LEE, SAME THING, FOUR HOURS ON WILLFULNESS AND ALSO ON THE VALUE OF THIS PARTICULAR TECHNOLOGY. TWO HOURS ON MR. LINDHOLM ON THE ISSUE OF WILLFULNESS AND WHETHER THAT'S ABOUT THE 2005, 2006

(15)

NEGOTIATIONS OR THE MORE RECENT DISCUSSIONS AT GOOGLE ABOUT WHETHER GOOGLE HAD VIABLE NONINFRINGING ALTERNATIVES.

THAT'S MY TENTATIVE, BUT I WILL NOW HEAR ARGUMENT.

SO, MR. VAN NEST?

MR. VAN NEST: THANK YOU, YOUR HONOR. I WILL TAKE THE FOUR IN ORDER, BUT I WANT TO MAKE A COUPLE OF GENERAL COMMENTS FIRST.

AND ONE IS THAT I DON'T WANT THE COURT TO LOSE SIGHT OF THE FACT THAT THEY HAVE ALREADY HAD TEN INDIVIDUAL DEPOSITIONS AND 15 ADDITIONAL DEPOSITIONS ON 30(B)(6) TOPICS.

THE COURT: MR. VAN NEST, I PROMISE YOU THAT I READ THE LETTER VERY CAREFULLY, AND I AM AWARE OF THE CONTEXT.

MR. VAN NEST: FAIR ENOUGH.

THE COURT: AND THE RULES -- I HAVE ALSO READ, GONE BACK AND READ RULE 30(A)(2). I HAVE READ JUDGE ALSUP'S ORDER. THERE ARE PRESUMPTIVE LIMITS, BUT THERE'S LEEWAY TO ALLOW MORE DEPOSITIONS, BOTH UNDER THE FEDERAL RULE AND UNDER JUDGE ALSUP'S ORDER. BUT I AM REQUIRING A HIGHER SHOWING BECAUSE IT HAS TO BE CONSISTENT WITH RULE 26(B)(2) AND THAT IT NOT BE UNREASONABLY CUMULATIVE OR DUPLICATIVE.

SO THOSE WERE THE CONCEPTS I HAD IN MIND AS I WAS LISTENING TO THE PRESENTATION AND AS I READ THE LETTER.

MR. VAN NEST: FAIR ENOUGH.

THE COURT: PLEASE BEGIN.

MR. VAN NEST: LET ME TALK ABOUT MR. PAGE FIRST.

(16)

WE MENTIONED, OBVIOUSLY, HE'S THE CEO OF GOOGLE. WE'D ASKED FOR APEX BRIEFING ON HIM, WHICH WASN'T POSSIBLE TO DO WITHIN A TWO-PAGE LIMIT, BUT WHAT I DO KNOW ABOUT MR. PAGE IS THIS: HE WAS NOT AN ACTIVE PARTICIPANT IN ANY OF THESE DISCUSSIONS. HE HAS BEEN A SENIOR PERSON AT GOOGLE THROUGHOUT.

AS YOUR HONOR NOTED, THE ACQUISITION OF ANDROID IS HARDLY RELEVANT TO THESE PATENT CLAIMS. AND WHAT I HEARD MR. HOLTZMAN SAY WAS HE'S PRIMARILY RELEVANT TO DAMAGES IN THAT HE EVALUATED PURCHASING ANDROID AND THE LIKE.

WE NOW HAVE THEIR DAMAGES REPORT, THEIR EXPERT REPORT. THERE'S NO MENTION IN THERE OF THE VALUE OF THE ANDROID FRANCHISE OR ANY DELIBERATIONS THAT MR. PAGE MAY HAVE PARTICIPATED IN. IT'S A LENGTHY, EXTENSIVE EXPERT REPORT. THERE IS SIMPLY NOTHING IN IT ABOUT MR. PAGE OR THE PURCHASE OF ANDROID, OR ANYTHING LIKE THAT.

AND WITH RESPECT TO LICENSE NEGOTIATIONS, AS YOUR HONOR CAN IMAGINE, THOSE WERE ALWAYS LED BY MR. RUBIN, WHOM THEY HAVE ALREADY DEPOSED FOR A DAY, AND HAVE ASKED FOR YET ANOTHER DAY, AND MR. PAGE WAS NOT AN ACTIVE PARTICIPANT IN THOSE, ALTHOUGH I AM SURE HE WAS KEPT APPRISED OF THE DETAILS.

SO IF THE POINT OF PAGE IS TO VALUATION OF ANDROID, THAT'S SIMPLY NOT SOMETHING THAT'S ANYWHERE NEAR THEIR EXPERT REPORT, NOT SOMETHING THAT IS COMMENTED UPON BY COCKBURN, IT'S IRRELEVANT. AND GIVEN WHO HE IS, IF YOUR HONOR WOULD BE INCLINED TO ALLOW IT, WE WOULD LIKE TO HAVE A CHANCE TO DO SOME

(17)

APEX BRIEFING.

I HAVEN'T SEEN ANY OF THE DOCUMENTS THAT MR. HOLTZMAN IS REFERRING TO. I DON'T THINK HE IDENTIFIED ANY DOCUMENTS PARTICULARLY RELEVANT TO MR. PAGE, AND AS TO HIM, I THINK THEY HAVEN'T MET EVEN THE MINIMAL BURDEN TO GET AT SOMEONE'S CEO.

THE COURT: ARE YOU SAYING -- WHEN YOU CALL HIM NOT AN ACTIVE PARTICIPANT, I AM NOT SURE WHAT THAT MEANS. ARE YOU SAYING HE DIDN'T PARTICIPATE AT ALL, ZERO?

MR. VAN NEST: NO. I AM SAYING I DON'T THINK HE WAS INVOLVED IN ANY FACE-TO-FACE NEGOTIATIONS EITHER ON THE SUN PART OF IT IN '05 OR '06, OR '08 OR '09. I AM NOT SURE ABOUT THE ORACLE DISCUSSIONS IN 2010. BUT THOSE OCCURRED, YOU KNOW, WITHIN A COUPLE OF WEEKS OR SO BEFORE THE LAWSUIT WAS FILED. SO, THAT'S HARDLY THE CORE OF RELEVANCE.

I AM NOT AWARE THAT MR. PAGE WAS INVOLVED IN ANY NEGOTIATIONS WITH SUN IN '05, '06, '08 OR '09. HE MAY HAVE BEEN KEPT APPRISED OF WHAT WAS HAPPENING. I AM NOT EVEN SURE OF THAT, BUT I AM NOT AWARE THAT HE WAS INVOLVED IN ANY OF THE NEGOTIATIONS THEMSELVES.

AND, AGAIN, WHILE HE MAY HAVE BEEN INVOLVED IN MAKING THE ULTIMATE DECISION TO ACQUIRE ANDROID, THAT'S JUST NOT A FACTOR THAT'S PLAYED ANY ROLE IN THEIR EXPERT'S DAMAGE REPORT.

THE COURT: OKAY. SO WHAT I WILL DO ON PAGE, I AM

(18)

STILL GOING TO ALLOW IT. I DON'T NEED APEX BRIEFING. I HAVE READ THE APEX CASES. I AM GOING TO CONFINE IT TO TWO HOURS. AND, YOU KNOW, IT WILL BE SHORTER IF IT TURNS OUT THAT -- THEY MAY NOT NEED ALL TWO HOURS IF IT TURNS OUT HE REALLY HAS VERY LITTLE TO SAY ABOUT HIS KNOWLEDGE OF THE NEGOTIATIONS. BUT TO THE EXTENT HE WAS BEING KEPT APPRISED, I THINK THIS DOES GO TO WILLFULNESS. IF THERE IS A CLAIM THAT GOOGLE KNEW IT SHOULD HAVE GOTTEN A LICENSE AND HAD BEEN THINKING ABOUT THAT ALL ALONG AND DECIDED TO GO FORWARD WITHOUT ONE, THAT IS -- THAT'S RELEVANT.

AS TO THE STRATEGIC VALUE OF ANDROID, IT MAY OR MAY NOT PLAY INTO THE VALUATION OF THE DAMAGE REPORT. I THINK THAT'S GOING TO DEPEND A BIT ON WHAT HAPPENS IN YOUR HEARING THIS AFTERNOON IN FRONT OF JUDGE ALSUP. BUT I WILL ALLOW IT ON THOSE TOPICS, ONLY THOSE TOPICS, AND FOR NO MORE THAN TWO HOURS.

MR. VAN NEST: YOUR HONOR, MAY I JUST SAY ONE MORE -- MAKE ONE MORE COMMENT ON MR. PAGE?

THE COURT: OKAY.

MR. VAN NEST: AND THAT IS THAT I THINK APEX REQUIRES THAT TO GET SOMEONE AT THIS LEVEL, HE HAS TO HAVE UNIQUE KNOWLEDGE. AND CERTAINLY THERE'S NOTHING THAT HE KNOWS ON ANY OF THESE SUBJECTS THAT ISN'T KNOWN BY A NUMBER OF OTHER PEOPLE.

I MEAN, MR. RUBIN WAS ON THE FRONT LINE OF THE

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NEGOTIATIONS. AND I DON'T WANT YOUR HONOR TO UNDERSTAND THAT MR. PAGE KNEW ANYTHING UNIQUE OR DIFFERENT. HE DIDN'T.

AND SO IF THERE'S GOING TO BE A WILLFULNESS ARGUMENT, AND WE WILL BE TALKING ABOUT THAT LATER ON, I AM SURE, TOO, IT'S NOT THAT MR. PAGE HAD ANY UNIQUE KNOWLEDGE. AND I THINK THAT IS WHAT APEX REQUIRES. THAT'S ALL I WILL SAY ABOUT MR. PAGE.

THE COURT: OKAY. WELL, I AM ASSUMING THAT THESE WERE FAIRLY IMPORTANT DISCUSSIONS THAT PAGE WAS INVOLVED IN. IT MAKES SENSE TO ME THAT HE WOULD BE KEPT APPRISED OF THAT AND WOULD BE MAKING BUSINESS DECISIONS BASED ON THAT. I AM NOT ALLOWING -- I AM SETTING APPROPRIATE LIMITS. I AM FINDING THAT THE INFORMATION IS LIKELY -- HE LIKELY HAS UNIQUE INFORMATION ABOUT THESE HIGH LEVEL AND VERY IMPORTANT NEGOTIATIONS THAT LED TO DECISIONS THAT AFFECT THE CASE.

SO, LET'S TURN TO MR. NISHAR. MR. VAN NEST?

MR. VAN NEST: YES.

MR. NISHAR WAS, HIS TITLE WAS ACTUALLY SENIOR DIRECTOR FOR PRODUCTS IN ASIA PACIFIC. SO, HIS PRIMARY ROLE AT GOOGLE WAS NOT MOBILE. HIS PRIMARY ROLE WAS NOT IN THE U.S. HE MAY HAVE WORKED UNDER RUBIN EARLY ON IN MR. RUBIN'S CAREER AT GOOGLE, BUT HE CERTAINLY WAS NOT A MAJOR PLAYER. HE CERTAINLY WAS NOT A DECISION MAKER.

MR. HOLTZMAN SAYS HE HAS SEEN HIS NAME ON SOME PRESENTATIONS. I DON'T HAVE THOSE PRESENTATIONS, SO I AM NOT

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SURE WHAT HE IS REFERRING TO, BUT, AGAIN, MR. RUBIN LED THE NEGOTIATIONS. HE WAS THE ONE IN THE FACE-TO-FACE MEETINGS. I AM NOT SURE MR. NISHAR EVEN ATTENDED ANY MEETINGS. I HAVE NOT HEARD THAT.

SO, AS I UNDERSTAND IT FROM HIS JOB TITLE AND WHERE HE WORKED, NUMBER ONE, HE IS PERIPHERALLY RELEVANT, IF AT ALL. HE CERTAINLY WOULDN'T HAVE BEEN A MAJOR ACTOR. AND THE MAJOR ACTORS IN THE NEGOTIATIONS ARE ALREADY -- HAVE ALREADY BEEN DEPOSED. MR. RUBIN FOR ONE AND HE IS GOING TO BE DEPOSED AGAIN. SO I DON'T REALLY SEE THAT NISHAR HAS ANY KNOWLEDGE THAT WOULD BE PARTICULARLY RELEVANT, PARTICULARLY IMPORTANT.

AND, AGAIN, IF ALL THEY CAN COME UP WITH IS HIS NAME ON SOME PRESENTATIONS AND THAT'S ENOUGH, THERE ARE DOZENS AND DOZENS AND DOZENS OF PEOPLE WHOSE NAMES ARE ON PRESENTATIONS THAT HAVEN'T BEEN DEPOSED.

THE COURT: LET ME ASK YOU -

MR. VAN NEST: I HAVE NEVER -

THE COURT: SORRY TO INTERRUPT YOU, MR. VAN NEST.

MR. NISHAR THEY DESCRIBED AS SOMEBODY WHO WAS IN CHARGE OF THE MOBILE BUSINESS AND THAT APPEARS TO HAVE COME PERHAPS FROM, YOU KNOW, PUFFERY IN MR. NISHAR'S OWN LINKEDIN PAGE. BECAUSE WHAT I AM HEARING FROM YOU IS THAT THAT WASN'T HIS ROLE AT ALL; THAT HE WAS NOT IN CHARGE OF THE MOBILE BUSINESS DURING THAT TIME.

MR. VAN NEST: I DON'T BELIEVE SO. CERTAINLY NOT

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WHEN MR. RUBIN GOT THERE. AND I AM NOT SURE WHAT ROLE HE HAD IN MOBILE BEFORE THAT. BUT, AGAIN, BEFORE MR. RUBIN GOT THERE, THE MOBILE BUSINESS AT GOOGLE WAS NOT PARTICULARLY RELEVANT TO THIS.

MR. RUBIN BROUGHT ANDROID WITH HIM, AND THAT'S WHAT'S AT ISSUE.

THE COURT: WHEN DID -

MR. HOLTZMAN: YOUR HONOR, IF I MAY -

THE COURT: JUST A MINUTE. SORRY.

WHEN DID MR. RUBIN COME TO GOOGLE?

MR. VAN NEST: I BELIEVE 2005 OR '6. 2005.

RENNY, DO YOU KNOW THE ANSWER BETTER THAN I DO?

MR. BABER: HE SAYS THAT'S CORRECT.

MR. CARNAVAL: 2005, YES. JULY 2005.

MR. VAN NEST: 2005, YOUR HONOR. SO HE WAS THERE AND RUNNING MOBILE FROM THE DAY HE GOT THERE.

THE COURT: OKAY.

BECAUSE ORACLE HAS REPRESENTED, YOU KNOW, BASED ON WHAT THEY HAVE ACCESS TO, AND I REALIZE THAT'S LIMITED, THAT MR. NISHAR WAS IN CHARGE OF THE MOBILE BUSINESS FROM 2005 FORWARD, BUT IT SOUNDS LIKE GOOGLE'S POSITION IS THAT'S NOT TRUE; RUBIN WAS IN CHARGE AND CAME IN 2005, 2006, AND THAT NISHAR'S TITLE WAS SENIOR DIRECTOR FOR PRODUCTS IN ASIA PACIFIC.

IS THAT AN ACCURATE SUMMARY OF WHAT YOU JUST SAID?

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MR. VAN NEST: I THINK SO. I THINK IT IS, YOUR HONOR. I AM NOT SURE WHETHER OR NOT MR. RUBIN RAN ALL OF MOBILE OR NOT, BUT CERTAINLY ANY OF THE MOBILE BUSINESS THAT'S RELEVANT TO THIS LAWSUIT HE WAS IN CHARGE OF. THAT WAS ANDROID.

THE COURT: OKAY.

MR. HOLTZMAN: YOUR HONOR, THAT'S WHAT I WANTED TO CORRECT. STEVE HOLTZMAN HERE.

WE HAVE TESTIMONY, FOR EXAMPLE, FROM MR. MINOR, ONE OF THE OTHER CO-FOUNDERS OF ANDROID, INC. THAT MR. NISHAR, AS MR. MINOR PUT IT IN HIS DEPOSITION AT PAGE 149, "AT THE TIME OF OUR ACQUISITION HE WAS RESPONSIBLE FOR MOBILE INSIDE AT GOOGLE."

HE WAS NOT, AS MR. VAN NEST SUGGESTED, SOMEBODY WHO REPORTED TO MR. RUBIN AT THAT TIME. HE WAS A PRE-EXISTING PERSON WHO WAS RESPONSIBLE FOR MOBILE.

THE COURT: SORRY, I WISH THESE FACTS WERE IN FRONT OF ME, SO I AM JUST TRYING TO TAKE THEM DOWN AS YOU TELL ME.

MR. MINOR WAS DEPOSED. HE WAS A CO-FOUNDER OF ANDROID. MINOR TESTIFIED THAT NISHAR WAS RESPONSIBLE FOR MOBILE INSIDE AT GOOGLE.

MR. HOLTZMAN: THAT WAS A DIRECT QUOTE FROM MR. MINOR'S TESTIMONY.

THE COURT: BUT HE DIDN'T SAY ANYTHING MORE ABOUT HIS -- MR. NISHAR'S DUTIES OR SUPERVISORY ROLE WITH RESPECT TO

(23)

MR. RUBIN OR TIME FRAME, OR ANYTHING LIKE THAT?

MR. HOLTZMAN: HE DID TESTIFY THAT HE HAD BEEN AT GOOGLE PRIOR TO THE ACQUISITION OF ANDROID, INC. HE DID AGREE THAT HIS NAME WAS ON ONE OF THE PRESENTATIONS THAT I DISCUSSED.

THE COURT: DO YOU HAVE ANYTHING ELSE?

MR. VAN NEST: YOUR HONOR -

MR. BABER: YOUR HONOR, JUST SO IT'S CLEAR, THIS IS BRUCE BABER FOR GOOGLE.

WHEN MR. MINOR TESTIFIED ABOUT MR. NISHAR BEING IN CHARGE OF MOBILE WHEN ANDROID WAS ACQUIRED, THAT OBVIOUSLY RELATED TO THINGS OTHER THAN ANDROID. THINGS LIKE, IPHONES AND OTHER SMART PHONES, NOT THE ANDROID BUSINESS AT ALL BECAUSE IT WASN'T AT GOOGLE BEFORE THE ACQUISITION THAT MR. MINOR AND MR. RUBIN CAME IN THROUGH.

(SIMULTANEOUS COLLOQUY.)

THE COURT: STOP, PLEASE. HAVE MERCY ON OUR REPORTER. IT'S VERY HARD FOR HER TO TAKE THIS DOWN TELEPHONICALLY. SHE'S DOING A TERRIFIC JOB. BUT IF WE HAVE PEOPLE TALKING OVER EACH OTHER AND NOT IDENTIFYING WHO THEY ARE, AND IT'S ALREADY HARD FOR ME HAVING MULTIPLE PEOPLE ARGUING, IT'S GOING TO BE IMPOSSIBLE.

SO, PLEASE, EVERYBODY SPEAK SLOWLY, DON'T SPEAK OVER EACH OTHER, IDENTIFY CLEARLY WHO THE SPEAKER IS BEFORE YOU GO ON TO SPEAK.

MR. HOLTZMAN: MR. HOLTZMAN HERE. I APOLOGIZE.

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IT'S TRUE THAT MR. NISHAR PRECEDED THE ACQUISITION OF ANDROID AS I SAID AND WAS RESPONSIBLE FOR MOBILE OTHER THAN ANDROID.

HOWEVER, AS I SAID, HE PARTICIPATED IN PRESENTATIONS AT THE HIGHEST LEVEL RELATING TO THE IMPORTANCE OF ANDROID TO GOOGLE'S LARGER BUSINESS. AND, MOREOVER, THE ISSUE OF THE RELATIVE VALUE OF ANDROID AND APPLICATIONS SEARCH AND ADVERTISING ON ANDROID COMPARED TO THE VALUE OF PROVIDING IT ON OTHER MOBILE PLATFORMS, WHICH IS WHAT MR. NISHAR APPEARS TO HAVE BEEN IN CHARGE OF IS SQUARELY RELEVANT TO THIS CASE AND IT IS SOMETHING DISCUSSED AT LENGTH IN THE DAMAGES REPORT THAT ORACLE SUBMITTED.

AND BY THE WAY, THE SAME THING APPLIES TO MR. PAGE. I DISAGREE WITH MR. VAN NEST'S DESCRIPTION EARLIER THAT THE STRATEGIC VALUE OF ANDROID IS NOWHERE DISCUSSED IN MR. COCKBURN'S DAMAGES REPORT. IT IS EXTENSIVELY DISCUSSED.

THE COURT: OKAY. SO WHAT I AM HEARING WITH RESPECT TO NISHAR IS THAT THE INFORMATION THAT ORACLE HAS ABOUT MR. NISHAR'S ROLE IS NOT QUITE AS CLEAR AS PERHAPS ORACLE WOULD LIKE. AND SO IT'S NOT CLEAR AT ALL THAT NISHAR HAS INFORMATION RELEVANT TO THE WILLFULNESS ISSUE.

TO THE EXTENT THAT HE DOES HAVE INFORMATION THAT WOULD GO TO THE IMPORTANCE OF ANDROID FOR PURPOSES OF DAMAGES, I DON'T FIND THAT THAT IS COMPELLING ENOUGH TO GRANT ANOTHER DEPOSITION. SO NISHAR IS OFF.

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LET'S TURN TO LEE.

MR. VAN NEST: YOUR HONOR, WITH RESPECT TO MR. LEE, YOU IDENTIFIED HIM AS SOMEONE THAT WOULD -- OR ORACLE DID, SOMEONE HAVING TO DO WITH LICENSE, AND SO ON. THAT IS NOT THE CASE.

MR. LEE IS A TECHNICAL PERSON. HE WORKED FOR DAN BORNSTEIN IN BUILDING THE DALVIK VIRTUAL MACHINE. HE'S AN ENGINEER. HE MIGHT KNOW SOMETHING ABOUT LICENSING, BUT SO DOES EVERY ENGINEER THAT LIVES IN SILICON VALLEY. IT'S NOT UNIQUE. HE WAS NOT INVOLVED IN ANY OF THE LICENSE NEGOTIATIONS WITH SUN. AGAIN, HE WAS AN ENGINEER WORKING UNDER BORNSTEIN ON THE PROJECT.

THEY SAID SOMETHING ABOUT CORE LIBRARIES AND COPYING. WELL, OF THE 12 LIBRARIES THEY ARE ACCUSING, I BELIEVE EIGHT WERE FROM A THIRD PARTY, TWO WERE FROM GOOGLE, AND THEY WERE WRITTEN ESSENTIALLY BY A MAN NAMED JOSH BLOCK (PHONETIC), AND HE'S BEEN DEPOSED. TWO OTHERS WERE PART OF CODE THAT GOOGLE IMPORTED FROM INTEL.

SO, AS FAR AS I KNOW, MR. LEE HAS NEVER BEEN IDENTIFIED WITH ANY OF THE COPYRIGHT VIOLATIONS WE ARE TALKING ABOUT. HE'S NOT A LICENSING PERSON. HE'S NOT A BUSINESS EXECUTIVE. HE'S AN ENGINEER AND HE WORKED ON THE DALVIK VIRTUAL MACHINE.

SO THE IDEA THAT HE WOULD BE RELEVANT SOMEHOW BECAUSE HE'S SOMEHOW A DECISION-MAKER ON LICENSES OR WAS

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INVOLVED IN THE NEGOTIATIONS, THAT'S JUST NOT TRUE.

BOB LEE IS AN ENGINEER WORKING ON THE DALVIK TEAM UNDER MR. BORNSTEIN WHO WAS EXTENSIVELY DEPOSED AND TALKED ALL ABOUT THE DEVELOPMENT THERE. SO I DON'T SEE ANY REASON THAT MR. LEE SHOULD HAVE TO SUBMIT TO ANY DEPOSITION.

THE COURT: NOW ORACLE SAYS THAT LEE LED THE CORE LIBRARY DEVELOPMENT FOR ANDROID. IS THAT CORRECT, MR. VAN NEST?

MR. VAN NEST: BRUCE, THAT'S NEVER BEEN MY UNDERSTANDING. MY UNDERSTANDING IS THAT DAN BORNSTEIN RAN IT AND THAT MR. LEE WORKED FOR HIM.

THE COURT: MR. BABER, IS THAT -- WHAT IS YOUR UNDERSTANDING?

MR. BABER: IT IS OUR UNDERSTANDING THAT MR. LEE DID WORK UNDER MR. BORNSTEIN AND HE DID WORK ON THE CORE LIBRARIES. WE DON'T DISPUTE THAT. AND THERE ARE -- THE DALVIK VIRTUAL MACHINE WORKS WITH THE CORE LIBRARIES, BUT THEY ARE SEPARATE AND MR. LEE WAS INVOLVED WITH THE CORE LIBRARIES SORT OF GENERALLY.

THE COURT: HAS MR. BORNSTEIN BEEN DEPOSED?

MR. BABER: YES, AND HE HAS TESTIFIED AT LENGTH ABOUT THE CORE LIBRARIES AND WHAT LIBRARIES WERE INCLUDED AND WHAT SOURCES THEY CAME FROM, AND LOTS OF OTHER ISSUES. AND HE WILL BE DEPOSED AT LEAST FOR ANOTHER DAY AS A 30(B)(6) DESIGNEE ON SOME RELATED TOPICS.

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MR. JACOBS: YOUR HONOR, THIS IS MICHAEL JACOBS FROM MORRISON & FOERSTER.

MR. VAN NEST'S UNDERSTANDING OF THE ALLEGATIONS HERE ISN'T CORRECT, BOTH IN TERMS OF NUMEROSITY AND IN TERMS OF ROLE, BUT I HAVE THE ADVANTAGE OF SITTING IN FRONT OF A COMPUTER AS WE ARE TALKING.

IF YOU SEARCH ON BOB LEE, THE FIRST HIT YOU GET IS A CLAIM AS FOLLOWS. IT'S A TWITTER FEED.

"DALVIK'S DESIGN" -- DALVIK IS THE ANDROID VIRTUAL MACHINES THAT CORRESPONDS TO THE JAVA VIRTUAL MACHINE. HE SAYS:

"DALVIK'S DESIGN WAS DRIVEN BY TECHNICAL CONCERNS. "TMK", WHICH MEANS TO MY KNOWLEDGE, "IP WASN'T A FACTOR."

SO HE'S MAKING PUBLIC STATEMENTS ABOUT WHAT DROVE THE VARIOUS DESIGN CHOICES IN DALVIK AND HE'S DISCLAIMING ANY KNOWLEDGE OF INTELLECTUAL PROPERTY ISSUES IN PUBLIC. AND THAT, TO ME, MAKES HIM SORT OF CENTER OF THE BULL'S-EYE IN TERMS OF TAKING HIS DEPOSITION.

THE COURT: WELL, PEOPLE SAY ALL KINDS OF THINGS IN PUBLIC, WHETHER THEY SHOULD OR SHOULDN'T AND WHETHER THEIR ROLE IS CENTRAL OR TANGENTIAL.

MR. HOLTZMAN: YOUR HONOR, STEVE HOLTZMAN HERE.

AGAIN I WOULD URGE THE COURT TO JUXTAPOSE WHAT MR. JACOBS REFERRED TO PUBLICLY WITH AT LEAST ONE EXAMPLE OF AN INTERNAL DOCUMENT. THIS IS AN E-MAIL FROM MR. LEE TO ERIC

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SCHMIDT, THE CURRENT CEO OF GOOGLE.

AND IN THIS E-MAIL IN 2008 MR. LEE STATES:

"OBVIOUSLY DEPEND HEAVILY ON JAVA INTERNALLY."

SO YOU CAN SEE THE JUXTAPOSITION IN CONTRAST BETWEEN THOSE. THERE ARE NUMEROUS, AS I SAID BEFORE, THERE ARE NUMEROUS OTHER INTERNAL DOCUMENTS THAT MR. LEE AUTHORED INVOLVED IN DELIBERATION ABOUT THE IMPORTANCE OF THE INTELLECTUAL PROPERTY AT ISSUE.

MR. BABER: YOUR HONOR, IF I MAY, BRUCE BABER FOR GOOGLE.

THE COURT: OKAY.

MR. BABER: THERE IS NO QUESTION AT ALL THAT GOOGLE RELIES ON JAVA HEAVILY. JAVA IS A PROGRAMMING LANGUAGE THAT GOOGLE USES IN MANY DIFFERENT WAYS THROUGHOUT THE GOOGLE ENTERPRISE.

AND PLAINTIFFS CONTINUE TO CONFLATE A PROGRAMMING LANGUAGE AS TO WHICH MR. JACOBS IN OPEN COURT HAS SAID THERE IS NO CLAIM IN THIS LAWSUIT ABOUT THE PROGRAMMING LANGUAGE PERIOD. EVERYONE IS FREE TO USE IT.

AND WHEN MR. LEE SAYS THAT GOOGLE RELIES HEAVILY ON JAVA, IT DOES RELY ON JAVA, THE LANGUAGE; PARTS OF ANDROID ARE WRITTEN IN THE JAVA LANGUAGE, OTHER GOOGLE ACTS ARE WRITTEN IN THE JAVA LANGUAGE, INTERNAL GOOGLE PROGRAMS ARE WRITTEN IN THE JAVA LANGUAGE, BUT THAT HAS NOTHING TO DO WITH THE PATENT CLAIMS OR THE COPYRIGHT CLAIMS IN THIS LAWSUIT.

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MR. HOLTZMAN: WELL -- WELL -- STEVE HOLTZMAN AGAIN HERE, YOUR HONOR.

THEN CONSIDER A 2006 E-MAIL FROM MR. LEE TO ERIC SCHMIDT IN WHICH HE TALKS ABOUT -- HE SAYS, "SUN PUTS FIELD OF USE RESTRICTIONS IN THE JAVA SC TTK LICENSES WHICH PROHIBIT JAVA SC IMPLEMENTATIONS FROM RUNNING ON ANYTHING BUT A DESKTOP OR A SERVER," AND HE GOES ON.

THAT'S, OF COURSE, YOUR HONOR, EXACTLY WHAT'S AT ISSUE HERE, A MOBILE IMPLEMENTATION, NOT DESKTOP, NOT SERVER. SO THAT'S AN EXAMPLE OF AN E-MAIL THAT GOES SPECIFICALLY TO THE ISSUE OF THE NEED FOR A LICENSE AND THE LICENSING RESTRICTIONS THAT ARE AT ISSUE IN ANSWERING YOUR QUESTIONS EARLIER.

MR. VAN NEST: YOUR HONOR, THIS IS BOB VAN NEST.

JUST TO BRING IT BACK TO WHERE I STARTED, THEY TALKED ABOUT THIS AS A WILLFULNESS AND A LICENSING PERSON. HE'S NOT THAT. HE'S AN ENGINEER. HE WORKED ON THE DALVIK. HIS BOSS HAS BEEN DEPOSED EXTENSIVELY. NO ONE IS DISPUTING THAT HE HAD NO INVOLVEMENT IN THE NEGOTIATIONS WITH SUN.

AND THE IDEA THAT SOME ENGINEER AT GOOGLE OR ANYWHERE ELSE WOULD BE FAMILIAR WITH AND KNOW THE PUBLIC LICENSES THE JOB IS SUBJECT TO IS CERTAINLY NOT UNIQUE. THESE ARE PUBLIC LICENSES THAT HAVE BEEN OUT THERE FOR YEARS AND EVERYBODY KNOWS ABOUT THEM. THEY HAVEN'T JUSTIFIED THEIR NEED TO TAKE A DEPOSITION OF LEE.

THE COURT: OKAY. I AM GOING TO ALLOW TWO HOURS ON

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LEE AND ON THE ISSUE OF WILLFULNESS.

I UNDERSTAND THAT YOU'VE -- MR. BORNSTEIN HAS BEEN DEPOSED, WILL BE DEPOSED FURTHER, THAT HE'S THE KEY PERSON ON THE ACTUAL LIBRARIES, BUT I THINK HAVING -- IT APPEARS THAT MR. LEE, AS A TECHNICAL PERSON, HAS OPINED ABOUT WHERE -- YOU KNOW, WHAT IS NEEDED AND THAT WILL LEAD TO WHETHER OR NOT THERE WAS A NEED FOR LICENSES, WHICH I THINK DOES GET AT THE WILLFULNESS ISSUE.

I AM GOING TO LIMIT IT TO TWO HOURS AND IT WILL BE SOLELY ON THE TOPIC OF WILLFULNESS AND NOT ABOUT THE VALUE OF JAVA TECHNOLOGY OR ANYTHING THAT HAS TO DO WITH DAMAGES.

LET'S TURN FINALLY TO MR. LINDHOLM.

MR. VAN NEST: YOUR HONOR, WITH RESPECT TO MR. LINDHOLM, AGAIN, HE'S AN ENGINEER. HE DID COME TO GOOGLE FROM SUN SOMETIME AGO, BUT HE NEVER WORKED ON ANY ASPECT OF ANDROID AT ALL.

AND THE IDEA THAT HE WOULD BE A NONINFRINGING ALTERNATIVES PERSON IS JUST NOT CORRECT. HE'S AN ENGINEER THAT CAME OVER. HE WAS INVOLVED EARLY ON AT SUN WITH SOME OF THE JAVA DEVELOPMENT. THEY HAVE KNOWN, OBVIOUSLY, ABOUT MR. LINDHOLM FROM DAY ONE, BUT SINCE HE HAS BEEN AT GOOGLE HE HASN'T WORKED ON ANDROID. NOT PART OF THE ANDROID TEAM, NOT PART OF MR. BORNSTEIN'S TEAM, NOT PART OF THE NEGOTIATIONS. HE'S ON THE PERIPHERY OF THAT.

HE IS SOMEBODY THAT WORKED AT SUN AND HE IS SOMEBODY

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THAT WORKED ON JAVA AT SUN, BUT HE DIDN'T WORK ON ANDROID AT GOOGLE AND HE WASN'T INVOLVED IN NEGOTIATIONS.

THE COURT: SO -

MR. VAN NEST: WE DON'T SEE ANY BASIS EVEN FOR A TWO-HOUR EXAMINATION OF MR. LINDHOLM.

THE COURT: OKAY. LET ME -- MAYBE I NEED TO CLARIFY SOMETHING.

ORACLE HAS REPRESENTED THAT MR. LINDHOLM PARTICIPATED IN NEGOTIATIONS BETWEEN SUN AND GOOGLE. WAS HE WORKING FOR SUN OR GOOGLE AT THE TIME?

MR. HOLTZMAN: FOR GOOGLE, YOUR HONOR. THIS IS STEVE HOLTZMAN SPEAKING.

THE COURT: OKAY.

MR. HOLTZMAN: I THINK THAT THE -- HIS PRIOR EMPLOYMENT AT SUN IS ACTUALLY ALSO RELEVANT HERE. IT MAKES MR. LINDHOLM UNIQUELY QUALIFIED TO ADDRESS BOTH ISSUES OF WILLFULNESS AND TECHNICAL ISSUES, GIVEN THAT HE WORKED ON JAVA SPECIFICALLY AT SUN.

I ALSO DISAGREE WITH MR. VAN NEST ON THE ISSUE OF WHETHER HE, AS A FACTUAL MATTER, HAD ANY INVOLVEMENT IN EVALUATION OF TECHNICAL ALTERNATIVES TO THE INFRINGED TECHNOLOGY.

MR. JACOBS: YOUR HONOR, THIS IS MICHAEL JACOBS. IF I CAN AMPLIFY ON THAT SLIGHTLY.

I HAVE AN E-MAIL IN FRONT OF ME FROM MR. LINDHOLM TO

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MR. RUBIN FROM 2006 IN WHICH HE STARTS OFF: "I HAVE BEEN HELPING ANDY RUBIN WITH SOME ISSUES ASSOCIATED WITH HIS ANDROID PLATFORM. THIS IS MOSTLY TAKEN THE FORM OF HELPING NEGOTIATE WITH MY OLD TEAM AT SUN FOR A CRITICAL LICENSE."

THAT'S A 2006 MESSAGE. HIS INVOLVEMENT CONTINUES. IN 2010 HE WRITES, AND THIS HAS BEEN PRODUCED ON AN AEO BASIS, SO I'M GOING TO JUST ELIDE SOME OF THE LANGUAGE HERE.

"WE HAVE BEEN ASKED TO INVESTIGATE TECHNICAL ALTERNATIVES TO JAVA." AND HE GOES ON TO SAY, "THEY ALL SUCK."

SO HE'S KIND OF A BOOKEND IN TERMS OF THE TIME SPAN. AND THE TESTIMONY HE COULD GIVE, ESPECIALLY WHEN GOOGLE IS SO AGGRESSIVELY CHALLENGING THE VALUE OF THE INTELLECTUAL PROPERTY THAT'S AT ISSUE IN THE CASE, COULD BE VERY, VERY IMPORTANT.

MR. VAN NEST: AGAIN, YOUR HONOR, THIS IS VAN NEST.

THEY SAID HE WAS SOMEBODY THAT PARTICIPATED IN NEGOTIATIONS. I DON'T BELIEVE HE ATTENDED ANY NEGOTIATING SESSIONS. HE CERTAINLY WAS NOT LEADING THOSE. HE'S CERTAINLY NOT AT THE CENTER OF THOSE. AND, AGAIN, HE IS NOT SOMEONE WHO WAS ON BORNSTEIN'S DALVIK TEAM. HE HAD NO ROLE IN BUILDING THE ANDROID.

FOR THOSE REASONS, AGAIN, SINCE THEY ARE NOW BEYOND THEIR LIMIT, I DON'T SEE ANY REASON WHY HE SHOULD BE SUBJECTED TO ANOTHER -- TO EVEN A TWO-HOUR DEPOSITION.

THE COURT: WELL, THERE DOESN'T SEEM TO BE A LOT OF AGREEMENT HERE ABOUT WHAT HE -- WHETHER HE WORKED IN THE

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NEGOTIATIONS OR NOT, WHETHER HE EVALUATED THE NEED FOR LICENSES OR NOT.

I AM GOING TO ALLOW IT. I AM GOING TO ALLOW TWO HOURS, BUT SOLELY ON THE ISSUE OF WILLFULNESS AND NOT ON DAMAGE OR VALUE TO GOOGLE TYPES OF QUESTIONS.

MR. JACOBS: YOUR HONOR, THIS IS MICHAEL JACOBS AGAIN.

IN VIEW OF THE SPECIFIC E-MAIL IN WHICH HE SAID HE WAS EVALUATING TECHNICAL ALTERNATIVES AND WHETHER THEY ARE OF ANY QUALITY OR NOT, IT SEEMS TO ME THAT IT WOULD BE IMPORTANT TO BE ABLE TO ASK HIM ABOUT THAT MESSAGE, ABOUT THE ANALYSIS HE DID, AND WHY HE CONCLUDED THAT THE ALTERNATIVES DIDN'T EXIST IN ANDROID, WHICH IS WHAT THIS MESSAGE -

THE COURT: YES. NO, I THINK YOU SHOULD BE ALLOWED TO QUESTION HIM ON THAT. IN MY MIND, I GUESS THAT GOES, IN PART, TO WILLFULNESS, WHAT WERE THE ALTERNATIVES.

MR. BABER: YOUR HONOR, IF I MAY JUST A SECOND. BRUCE BABER FOR GOOGLE.

I DON'T HAVE THE EXACT E-MAIL IN FRONT OF ME THAT MR. JACOBS IS REFERRING TO, BUT IT'S MY UNDERSTANDING THAT THE ALTERNATIVES TO JAVA THAT MR. LINDHOLM WAS TALKING ABOUT WERE ALTERNATIVES TO THE LANGUAGE, I.E. COULD WE USE A DIFFERENT PROGRAMMING LANGUAGE.

MR. JACOBS: NO. THIS IS MICHAEL JACOBS AGAIN.

THIS IS VERY MUCH AN E-MAIL ABOUT NEGOTIATIONS,

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ABOUT NEGOTIATION STRATEGY, AND WHETHER IN THE CONTEXT OF A NEGOTIATION ABOUT ANDROID AND JAVA INTELLECTUAL PROPERTY, IT WOULD BE POSSIBLE FOR GOOGLE TO TELL ORACLE WE'VE GOT VIABLE ALTERNATIVES, AND THIS IS WHY THE PRICE SHOULD GO DOWN. LITERALLY IT SAYS THAT IN THE MESSAGE.

MR. HOLTZMAN: JUST TO COMPLETE THAT. THE TEXT OF THAT MESSAGE ALSO SAYS, "WE CONCLUDE THAT WE NEED TO NEGOTIATE A LICENSE FOR JAVA UNDER THE TERMS WE NEED."

THE COURT: OKAY. JUST ONE MOMENT.

(PAUSE IN THE PROCEEDINGS.)

OKAY. I AM GOING TO ALLOW IT. I THINK THERE'S ENOUGH QUESTION HERE SO THAT ORACLE SHOULD BE ABLE TO EXPLORE, BUT I AM LIMITING AGAIN, THE SUBJECT WILL BE ON WILLFULNESS, ISSUES GOING TO WILLFULNESS.

I AM ALLOWING THE THREE DEPOSITIONS, PAGE, LEE AND LINDHOLM TWO HOURS APIECE, NOT COUNTING BREAKS.

AND LET'S SEE. WITH RESPECT TO SUBJECT MATTER, MR. PAGE WENT A LITTLE BEYOND WILLFULNESS TO INCLUDE THE STRATEGIC VALUE OF ANDROID, SO THAT GOES A BIT TO DAMAGES.

OKAY. ANYTHING FURTHER?

MR. HOLTZMAN: NOT FROM ORACLE, YOUR HONOR.

MR. VAN NEST: AND NOT FROM GOOGLE.

THANK YOU, YOUR HONOR.

THE COURT: JUST SO YOU KNOW, I AM AWARE THAT THERE'S A JULY 1 JOINT LETTER REQUEST. I KNOW THERE WERE SOME

(35)

ISSUES ABOUT THE PARTIES NOT HAVING FILED IT CORRECTLY, BUT I HAVE REVIEWED IT.

AND I VIEW IT AS VERY CLOSELY TIED IN TO THE HEARING THAT YOU ARE GOING TO HAVE IN FRONT OF JUDGE ALSUP THIS AFTERNOON SINCE THE INFORMATION REQUESTED BY ORACLE IS DIRECTLY TIED TO THE COCKBURN EXPERT REPORT. SO I WILL BE WATCHING VERY CAREFULLY FOR JUDGE ALSUP'S ORDER ON THAT AND I PROMISE TO MOVE QUICKLY ONCE I HAVE ENOUGH INFORMATION TO THEN TAKE UP THE NEXT MATTER.

SO, IN OTHER WORDS, YOU DIDN'T FALL OFF THE RADAR. THERE WAS A REASON WE ARE HOLDING IT IN ABEYANCE.

MR. HOLTZMAN: THANK YOU, YOUR HONOR. WE APPRECIATE IT.

THE COURT: OKAY. THANK YOU.

MR. VAN NEST: THANK YOU, YOUR HONOR.

MR. BABER: THANK YOU, JUDGE.

(PROCEEDINGS ADJOUREND AT 12:30 P.M.)

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