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Oracle v. Google - Oracle Names Final Three Deponents
Friday, November 18 2011 @ 09:25 AM EST

On Monday of this week Judge Alsup settled the issue of whether Oracle would be permitted to depose any or all of the technical witnesses on which Drs. Leonard and Cox relied in preparing their damages reports by granting Oracle the right to depose any three of seven such witnesses. (Copyright Fight Moves To Trial; Oracle Gains Some Depos) Oracle had already identified Tim Bray and John Rizzo as two of those deponents, and Google had agreed to produce them. So what the judge's ruling really did was to limit Oracle to one additional deponent out of the remaining five witnesses. Oracle has decided that deponent will be Dan Bornstein, a witness Oracle has already deposed for two full days.

The remaining issue to be settled was when to schedule these depositions. Given that the trial has been delayed, time isn't an issue, but timing is. Bornstein is readily available and the parties quickly agreed to a November 21 deposition date for him. The problem arose with Bray and Rizzo. Bray is out of the country on an extended business trip and Rizzo is not a Google employee. The court had set a deadline for these depositions of November 21, but Bray and Rizzo are not available on or before that date.

To resolve this problems Oracle and Google have stipulated to a November 30 deposition date for Bray and Rizzo and requested the court's consent. (623 [PDF; Text]). There is no reason the judge would not grant this mutual request.

Almost all of the pending motions have now been acted upon by Judge Alsup with the exception of Oracle's motion to exclude portions of the Leonard and Cox reports. (Document 558 [PDF; Text]) Given that the depositions discussed above relate to that motion, it is possible that Judge Alsup will await the outcome of those depositions before ruling. However, the judge's action on that motion does not rely on any further filing by Oracle. The only remaining document filing permitted in relation to that motion is a sur-reply by Google, Oracle already having filed the original motion, Google an opposition, and Oracle a reply to that opposition.

Once Oracle's motion to strike regarding Leonard/Cox is resolved everything will be in line for the pretrial conference on December 21, except for the lingering matter of Google's interlocutory appeal of the court's rulings on the Lindholm emails. Oracle has a November 28 deadline by which it needs to respond to Google's petition for a writ of mandamus pending before the Federal Circuit.

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

Docket

623 – Filed and Effective: 11/17/2011
ORDER
Document Text: STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME FOR DEPOSITIONS OF TIMOTHY BRAY AND JOHN RIZZO by Google Inc.. (Purcell, Daniel) (Filed on 11/17/2011) (Entered: 11/17/2011)


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

Documents

623

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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

CASE NO. CV 10-03561 WA (DMR)

STIPULATION AND [PROPOSED]
ORDER TO EXTEND TIME FOR
DEPOSITIONS OF TIMOTHY
BRAY AND JOHN RIZZO

Dept.: Courtroom 8, 19th Floor
Judge: Honorable William Alsup

STIPULATION

WHEREAS, the Court’s order of November 14, 2011 (Dkt. No. 617) required that Oracle designate three interviewees for deposition, and that those three depositions be completed by November 22, 2011; and

WHEREAS, on November 15, 2011, Oracle informed Google that it wanted to take the depositions of Timothy Bray, John Rizzo, and Dan Bornstein; and

WHEREAS, on November 16, 2011, Google offered Mr. Bornstein for deposition on Monday, November 21, 2011; and

WHEREAS, on November 17, 2011, Oracle accepted that offer and agreed take Mr. Bornstein’s deposition on November 21, 2011; and

WHEREAS, prior to the Court’s November 14, 2011 order, the parties had scheduled the interviews of Google employee Timothy Bray and third party John Rizzo for November 30, 2011; and

WHEREAS, Mr. Bray is currently traveling in Asia and will not be returning to the United States until after the Court’s deadline of November 22, 2011; and

WHEREAS, because Mr. Rizzo is not a Google employee, his day-to-day availability for proceedings in this case is not subject to Google’s control, but Mr. Rizzo had voluntarily agreed to accept service of a deposition subpoena and sit for deposition on November 30, 2011, and Oracle had issued a deposition subpoena to Mr. Rizzo for that date; and

WHEREAS, accordingly, on November 16, 2011, Google proposed to Oracle that, subject to Court approval, the depositions of Mr. Bray and Mr. Rizzo should take place on the previously agreed date of November 30, 2011; and

WHEREAS, on November 17, 2011, Oracle agreed to accommodate Mr. Bray’s and Mr. Rizzo’s schedules by deposing those witnesses on November 30, 2011; and

WHEREAS, the parties acknowledge and agree that a limited extension of time to depose Mr. Bray and Mr. Rizzo will not affect, delay, or push back any other deadlines in this case or cause any prejudice to either Google or Oracle.

1

NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE that:

1. The deadline for completing the depositions of Timothy Bray and John Rizzo should be extended from November 22, 2011 to November 30, 2011.

2. No other deadlines in this case will be affected by the foregoing extension. The parties will not use this extension to argue for a delay of any other deadlines in this case.


[PROPOSED] ORDER

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


Date:__________________________


_________________________________
Honorable William Alsup
Judge of the United States District Court

2

Dated: November 17, 2011

BOIES, SCHILLER & FLEXNER LLP

By: /s/ Steven C. Holtzman
DAVID BOIES (Admitted Pro Hac Vice)
[email address telephone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email]
FRED NORTON (Bar No. 224725)
[email address telephone fax]
ALANNA RUTHERFORD (Admitted Pro Hac Vice)
[address telephone fax]

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]

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.

3

Dated: November 17, 2011

KEKER & VAN NEST LLP

By: /s/ Daniel Purcell
KEKER & VAN NEST LLP
ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN 184325)
[email]
DANIEL PURCELL (SBN 191424)
[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.

4

ATTESTATION

I, Daniel Purcell, am the ECF User whose ID and password are being used to file this STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME FOR DEPOSITIONS OF TIMOTHY BRAY AND JOHN RIZZO. In compliance with General Order 45, X.B., I hereby attest that Steven C. Holtzman has concurred in this filing.

Date: November 17, 2011

/s/ Daniel Purcell
DANIEL PURCELL

5


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