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To read comments to this article, go here
Oracle v. Google - Copyright Fight Moves To Trial; Oracle Gains Some Depos
Tuesday, November 15 2011 @ 10:05 AM EST

Not surprisingly, Google disagreed (615 (PDF; Text]) with Oracle's characterization that Google was refusing to produce witnesses for depositions. (See, Google Files Writ; Oracle Complains About Production of Witnesses) However, in the end it doesn't make any difference because Judge Alsup has made the call. (617 [PDF; Text]) Google had offered to make two of the witnesses available to Oracle for deposition (Bray and Rizzo), but Google refused to produce the other five (Agarwal, Bornstein, Rubin, Swetland, and Yellin).

Judge Alsup, in what appears to be a more and more frequent use of the "split the baby" approach, has granted Oracle the right to depose any three of the seven. Oracle may depose those three for up to two hours each, but only on their testimony related to the Leonard and Cox damage reports.

More importantly, Judge Alsup has rejected Google's proposed approach on the issue of copyright, which would have had the judge deciding numerous issues of law on the copyright infringement claims prior to trial. Instead, Judge Alsup has essentially adopted the Oracle position to leave all of the issues on the table for trial. That means each side will be arguing drastically different theories of copyright protection and infringement in front of a jury after which the judge will say, "Regardless of what the parties have argued about the law, here are the fact issues you are to decide." The approach being adopted by Judge Alsup will undoubtedly prove cumbersome, inefficient, and, in all likelihood, biased in favor of Oracle. Why? Because Oracle's approach on the copyright infringement issue has a certain level of histrionics about it. For example, the repeated use of terms like: "spoon-fed;" copying of "thousands of names, classes, subclasses, interfaces, fields, methods, and exceptions" regardless of whether such items rise to the level of copyright protection; and "massive wholesale copying" despite the fact that what was allegedly copied represents a relatively small portion of Java. Rather than limiting the jury to hearing about the alleged infringement of copyright-protected code, this approach will have the jury hearing about copying, period, whether the code is protected by copyright. This can only lead to confusion on a significant scale.

Judge Alsup has also set the date of the final pretrial conference - December 21. Just in time for the holidays. (616 [PDF; Text])

We also show below the text of the order coming from the Federal Circuit directing Oracle to respond by November 28 to Google's petition for a writ of mandamus. (619 (PDF; Text])


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

Docket

615 – Filed and Effective: 11/13/2011
RESPONSE
Document Text: RESPONSE to re 614 Letter in Opposition to Oracle's Letter re 5 Depositions by Google Inc.. (Van Nest, Robert) (Filed on 11/13/2011) (Entered: 11/13/2011)

616 – Filed and Effective: 11/14/2011
ORDER
Document Text: ORDER SETTING FINAL PRETRIAL CONFERENCE. Signed by Judge Alsup on November 14, 2011. (whalc1, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)

617 – Filed and Effective: 11/14/2011
ORDER
Document Text: ORDER COMPELLING DEPOSITIONS AND PRODUCTION OF MATERIALS re 614 Letter filed by Oracle America, Inc., 615 Response ( Non Motion ) filed by Google Inc.. Signed by Judge Alsup on November 14, 2011. (whalc1, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)

618 – Filed and Effective: 11/10/2011
Notice of Appeal
Document Text: USCA for the Federal Circuit Case Number: Misc. No. 106, U.S. Court of Appeals for the Federal Circuit. Petition for writ of mandamus. (wsn, COURT STAFF) (Filed on 11/10/2011) (Entered: 11/14/2011)

619 – Filed and Effective: 11/10/2011
ORDER
Document Text: ORDER of USCA for the Federal Circuit: Oracle America, Inc. is directed to respond no later than November 28, 2011. Misc. No. 106. (wsn, COURT STAFF) (Filed on 11/10/2011) (Entered: 11/14/2011)

620 – Filed and Effective: 11/14/2011
ORDER
Document Text: ORDER DENYING LEAVE TO FILE MOTION REGARDING COPYRIGHTABILITY re 601 Letter filed by Google Inc., 611 Response ( Non Motion ) filed by Oracle America, Inc.. Signed by Judge Alsup on November 14, 2011. (whalc1, COURT STAFF) (Filed on 11/14/2011) (Entered: 11/14/2011)


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

Documents

615

[Keker & Van Nest LLP letterhead]

November 13, 2011

The Honorable William Alsup
U.S. District Court, Northern District of California
Courtroom 9, 19th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

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

Dear Judge Alsup:

Google responds to Oracle’s November 11, 2011 letter seeking the Court’s “guidance” on whether Google should be required to produce five witnesses for depositions regarding their interviews with Google’s damages experts Dr. Gregory Leonard and Dr. Alan Cox. Google has already addressed this issue in its opposition to Oracle’s Daubert motion. For the reasons stated in that brief, the Court should reject Oracle’s untimely discovery demand.

Most fundamentally, Oracle’s motion is based on a false premise—that these witnesses somehow provided information to Google’s experts that was “neither disclosed nor tested through discovery.” But each of the five witnesses at issue was well known to Oracle, and four of them were actually deposed by Oracle on the subject matter of their interviews with Google’s experts, often for multiple days. Taking those witnesses one at a time:

  • Oracle has deposed Andy Rubin for three days in this case—for two full days on April 5, 2011 and July 27, 2011, each in his personal capacity and as a Rule 30(b)(6), and then for one more day on Rule 30(b)(6) topics on August 18, 2011. Oracle exhaustively covered the subject matter of Rubin’s interview with Google’s experts—the existence of noninfringing alternatives with Rubin. April 5, 2011 Rubin Dep. at 37:1-38:23, 62:5-64:4. Rubin’s interviews with Drs. Leonard and Cox took place on July 15, 2011, before two of Rubin’s three depositions.
  • Oracle deposed Dan Bornstein for two days in this case—for a full day in his personal capacity on May 16, 2011, and then for a further full day as a Rule 30(b)(6) designee on July 22, 2011. Not only did Oracle examine Bornstein thoroughly about the subject matter of Bornstein’s interview with Google’s experts (Google’s non-infringing alternatives), May 16, 2011 Bornstein Dep. at 48:14-52:19, 114:3-116:6; July 22, 2011

    The Honorable William Alsup
    November 13, 2011
    Page 2

    Bornstein Dep. at 149:5-157:8, 164:2-165:9, 171:13-174:11, Bornstein was Google’s corporate designee on that topic. July 22, 2011 Bornstein Dep. at 168:25-169:12. The experts interviewed Bornstein on July 15, 2011, before his Rule 30(b)(6) deposition.

  • Oracle deposed Brian Swetland for a full day on July 7, 2011. Oracle questioned him thoroughly about the subject matter of Swetland’s interview with Google’s experts— Google’s non-infringing alternatives and the addition of the allegedly infringing functionality to Android. Swetland Dep. at 43:24-47:2, 92:1-94:21, 150:3-152:16.
  • Oracle deposed Aditya Agarwal for a half day on April 8, 2011. Agarwal is a financial analyst for Android and was Google’s Rule 30(b)(6) designee on Android finances. Agarwal Dep. at 7:14-21, 10:12-11:3. Agarwal is not cited at all in the Leonard report and is cited only once in the Cox report, for the single, uncontroversial factual proposition that “[t]he Engineering category on Google’s Android Profit and Loss statements include costs that are entirely and directly attributable to the Android platform.” Cox Report at 32 n.117. Given the limited scope of the interview, Oracle’s complaint that Dr. Cox did not take extensive notes of the interview is bizarre.
  • Frank Yellin is the only one of the five witnesses who has not yet been deposed, but that is only because Oracle made the decision not to depose him. Yellin is a former Sun employee and the lead named inventor on the ‘520 patent-in-suit, so Oracle has always known that Yellin had potentially relevant information. Further, Yellin is not cited at all in the Cox report and just twice in the Leonard report. Both times, he is cited as one of several sources to support the same proposition—that Sun never incorporated the functionality of the ‘520 patent into its Java ME platform. Leonard Report at 21 n.61 & 77 n.262. As far as Google knows, the issue is not in dispute. Oracle has never offered any evidence that Sun incorporated the ‘520 functionality into Java ME. In fact, Oracle’s counsel conceded during discovery that “Oracle cannot locate an Oracle witness to testify based on personal knowledge as to ‘actual use’ of the” ‘520 patent. “ August 3, 2011 Muino e-mail to Francis. At his deposition, Dr. Leonard testified that he spoke to Yellin for only about five or ten minutes. Leonard Depo. at 313. It is thus no surprise that Dr. Leonard took only minimal notes of this interview.

Oracle’s other complaints are similarly nonsensical. Oracle objects that it was not able to depose the witnesses about the statements they made to Google’s experts, or the procedure through which the interviews were arranged. (In reality, Oracle deposed Mr. Rubin twice and Mr. Bornstein once after their sole interviews with the experts on July 15, 2011.) But Oracle certainly was able to, and did, ask Dr. Leonard and Dr. Cox those questions. Oracle suggests that Google’s experts should have only reviewed deposition excerpts, rather than conducting interviews, but nothing in any rule or case law imposes this limitation. Oracle raises the specter

The Honorable William Alsup
November 13, 2011
Page 3

of inconsistencies between the interviews and deposition testimony, but Oracle tellingly fails to identify a single actual discrepancy. Oracle remains free to cross-examine all Google percipient and expert witnesses with their prior testimony or documents from the case record.

Oracle’s argument that further depositions are justified because Google’s experts did not take sufficiently detailed interview notes is especially baseless. No authority requires an expert who interviews a witness to create a verbatim transcript of the interview. (Google did Oracle a favor by producing Dr. Leonard’s and Dr. Cox’s interview notes, when the parties had stipulated that draft reports would not be discoverable. Google produced the notes only because the experts referred to them in preparing their reports. Both experts testified they were unaware of any other interview notes and certainly did not use such notes in forming their opinions.)

It is routine for experts to rely on interviews of other experts or party witnesses. See, e.g., Int'l Adhesive Coating Co., Inc. v. Bolton Emerson Int'l Inc., 851 F.2d 540, 545 (1st Cir. 1988) (noting that “interviews with company personnel” is a “source[ ] of information normally and reasonably relied upon” by experts); Weinstein & Berger, 4 Weinstein’s Federal Evidence § 703.04[3] (2011) (interviews are one of the “sources on which experts in various fields of expertise might reasonably rely”). With respect to Oracle’s complaint about timing, it is always the case that expert reports incorporating material learned in interviews will be served, and experts will be deposed, after fact discovery closes. It is neither required by the Federal Rules nor a general practice to reopen fact discovery so the adverse party may depose the interviewees.

As Oracle concedes, Google has reasonably agreed to depositions of the two interviewees who were not previously subject to discovery—Google developer liaison Tim Bray and third party John Rizzo. Those depositions are set for November 30, 2011. Oracle is not entitled to anything more than that, and the Court should deny any request for further discovery.

Sincerely,

/s/ Robert Van Nest


616

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

ORDER SETTING FINAL
PRETRIAL CONFERENCE

_________________________________

The final pretrial conference will be held at 8:00 A.M. ON DECEMBER 21, 2011. Please file a brief joint statement two days before. Rule 706 expert Dr. Kearl or his counsel should attend. The Court understands Dr. Kearl’s work will be progressing on schedule and if there are obstacles they should be promptly brought to the attention of the Court.

IT IS SO ORDERED.

Dated: November 14, 2011.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


617

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

ORDER COMPELLING
DEPOSITIONS AND
PRODUCTION
OF MATERIALS

_________________________________

The November 11 letter from plaintiff’s counsel (Dkt. No. 614) is deemed a motion to compel depositions of the interviewees upon whom defendant’s “spoon-fed” damages experts relied. Having considered defendant’s response (Dkt. No. 615), the motion is GRANTED IN PART as follows.

All but one of the seven interviewees have been deposed or offered for deposition already, so there is less need for doing it again. Plaintiff may select a total of three of the seven interviewees and depose each for two hours without break. Defendant must produce at the deposition any materials used by the deponent in supplying information to the experts. No other materials need be produced. The questioning shall be limited to the subject of the interviews and the information provided to the expert and its accuracy.

By NOON ON NOVEMBER 15, 2011, plaintiff must designate the three individuals it will depose. By NOON ON NOVEMBER 17, 2011, defendant then must identify the times and locations where those individuals will be made available for deposition. The depositions must be completed by NOVEMBER 22, 2011. All depositions shall take place within the Bay Area.

IT IS SO ORDERED.

Dated: November 14, 2011.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


619

Note: This order is nonprecedential.


United States Court of Appeals
for the Federal Circuit

_______________________________

IN RE GOOGLE INC.
Petitioner.

_______________________________

Miscellaneous Docket No. 106

_______________________________

On Petition for Writ of Mandamus to the United States
District Court for the Northern District of California
in case no. 10-CV-3561 Judge William Alsup.

_______________________________

ON PETITION

_______________________________

O R D E R

Google Inc. submits a petition for a writ of mandamus
to direct the United States District Court for the Northern
District of California to (1) confirm that the August 6,
2010 email (and all drafts thereof) authorized by Tim
Lindholm are privileged, (2) grant all of the relief detailed
in its Proposed Order submitted below, (3) seal its Octo-
ber 20, 2011 order denying Rule 72(a) relief, and (4)
vacate its November 2, 2011 order stripping the Lindholm
email and drafts of their confidential designations.

Upon consideration thereof,

2

IN RE GOOGLE

It Is Ordered That:

Oracle America, Inc. is directed to respond no later
than November 28, 2011.

For The Court

NOV 08 2011
Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Robert A Van Nest, Esq.
David Boies, Esq.
Clerk, United States District Court for the Northern
District of California


620

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

ORDER DENYING
LEAVE TO FILE
MOTION REGARDING
COPYRIGHTABILITY

_________________________________

After considering each side’s fifteen-page supplemental précis regarding copyrightability, the Court is convinced that the best way to proceed is to rule on the copyrightability issues at the end of the copyright portion of the trial. The Court will give proper instructions to the jury on copyrightability at that time. Neither side has any right to an advance determination of these issues before trial. It is sufficient that the jury will be properly instructed before commencing deliberations on the copyright claims.

IT IS SO ORDERED.

Dated: November 14, 2011.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE



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