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Oracle v. Google - Google Requests One-Week Delay
Monday, March 19 2012 @ 07:30 AM EDT

Google lead attorney Robert A. Van Nest has filed the motion asking for a brief delay in the trial starting date, a motion the judge permitted him to file, but with a notation that it was likely not going to happen. Van Nest asks for a delay of only a few days:
PLEASE TAKE NOTICE that Defendant Google Inc. (“Google”) hereby moves to continue the April 16, 2012 trial date to April 23, 2012. This Motion is based on the following memorandum of points and authorities in support, the Declaration of Robert A. Van Nest in support thereof, the entire record in this matter, and on such evidence as may be presented at any hearing of this Motion, on a date and at a time to be determined by the Court.
Van Nest tells the court that he was able to get a Texas judge to advance the starting date of another trial Van Nest is handling, as well as proposing to the parties of a second one the judge is handling there to reschedule it a couple of weeks later to accomodate this case, and if that all pans out, a one-week continuance in the Oracle v. Google trial date could make it all work.

There are a number of documents listed on the docket. These deal primarily with unsealing various documents filed with respect to the latest damages reports from the experts, the challenges to those damage reports, and the responses to the challenges. Since those issues have been decided, we have not converted all of those documents to html. However, if there are previously redacted sections of particular interest, we will try to add them later.

Google has also asked Oracle to withdraw the Oracle motion to amend the infringement contentions pertinent to the '205 patent since that patent has now been withdrawn with prejudice from the suit. (812 [PDF])


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

Docket

03/15/2012 - 797 - MOTION to Strike ORACLE AMERICA, INC.S NOTICE OF MOTION AND MOTION TO EXCLUDE PORTIONS OF THE SUPPLEMENTAL EXPERT REPORT OF DR. ALAN J. COX [PUBLIC REDACTED VERSION] filed by Oracle America, Inc.. Responses due by 3/29/2012. Replies due by 4/5/2012. (Attachments: # 1 Exhibit Dearborn Declaration, Ex. A, # 2 Exhibit Dearborn Declaration, Ex. B)(Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 798 - MOTION to Strike ORACLE AMERICA, INC.S MOTION TO STRIKE PORTIONS OF GREGORY LEONARDS SUPPLEMENTAL REPORT [PUBLIC REDACTED VERSION] filed by Oracle America, Inc.. Responses due by 3/29/2012. Replies due by 4/5/2012. (Attachments: # 1 Exhibit Richardson Declaration, Ex. A, # 2 Exhibit Richardson Declaration, Ex. C)(Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 799 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal ORACLE AMERICA, INC.S NOTICE OF MOTION AND MOTION TO EXCLUDE PORTIONS OF THE SUPPLEMENTAL EXPERT REPORT OF DR. ALAN J. COX by Oracle America, Inc.. (Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 800 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal ORACLE AMERICA, INC.S MOTION TO STRIKE PORTIONS OF GREGORY LEONARDS SUPPLEMENTAL REPORT by Oracle America, Inc.. (Attachments: # 1 Exhibit Richardson Declaration, Ex. D, # 2 Exhibit Richardson Declaration, Ex. E, # 3 Exhibit Richardson Declaration, Ex. G, # 4 Exhibit Richardson Declaration, Ex. H)(Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 801 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal ORACLE AMERICA, INC.S OPPOSITION TO GOOGLES MOTION TO STRIKE PORTIONS OF THIRD EXPERT REPORT BY IAIN COCKBURN AND EXPERT REPORT BY STEVEN SHUGAN by Oracle America, Inc.. (Attachments: # 1 Exhibit Norton Declaration, Ex. E, # 2 Exhibit Norton Declaration, Ex. G, # 3 Exhibit Norton Declaration, Ex. H)(Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 802 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal ORACLE AMERICA, INC.S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF GREGORY K. LEONARDS SUPPLEMENTAL REPORT by Oracle America, Inc.. (Holtzman, Steven) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 803 - MOTION to Strike 789 Order on Administrative Motion to File Under Seal MOTION TO STRIKE COCKBURN AND SHUGAN EXPERT REPORTS [PUBLIC VERSION] filed by Google Inc.. Responses due by 3/29/2012. Replies due by 4/5/2012. (Van Nest, Robert) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 804 - MOTION to Continue The Trial Date From April 16, 2012 to April 23, 2012 filed by Google Inc.. (Attachments: # 1 Declaration, # 2 Proposed Order)(Van Nest, Robert) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 805 - EXHIBITS re 719 Declaration in Support,, of Motion to Strike Cockburn and Shugan (Exhibit A) filed byGoogle Inc.. (Attachments: # 1 Exhibit B, # 2 Exhibit D, # 3 Exhibit F, # 4 Exhibit G)(Related document(s) 719 ) (Purcell, Daniel) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 806 - REPLY (re 803 MOTION to Strike 789 Order on Administrative Motion to File Under Seal MOTION TO STRIKE COCKBURN AND SHUGAN EXPERT REPORTS [PUBLIC VERSION] ) REPLY IN SUPPORT OF MOTION TO STRIKE COCKBURN AND SHUGAN EXPERT REPORTS [PUBLIC VERSION] filed byGoogle Inc.. (Attachments: # 1 Exhibit EX. A to Mullen Decl. [PUBLIC], # 2 Exhibit EX. B to Mullen Decl. [PUBLIC], # 3 Exhibit EX. C to Mullen Decl. [PUBLIC], # 4 Exhibit EX. D to Mullen Decl. [PUBLIC], # 5 Exhibit EX. E to Mullen Decl. [PUBLIC])(Purcell, Daniel) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 807 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal MOTION TO STRIKE COCKBURN AND SHUGAN EXPERT REPORTS by Google Inc.. (Attachments: # 1 Exhibit EX. A to Zimmer Declaration, # 2 Exhibit EX. H to Zimmer Declaration, # 3 Exhibit EX. I to Zimmer Declaration, # 4 Exhibit EX. J to Zimmer Declaration, # 5 Exhibit EX. K to Zimmer Declaration)(Purcell, Daniel) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 808 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal REPLY IN SUPPORT OF MOTION TO STRIKE COCKBURN AND SHUGAN EXPERT REPORTS by Google Inc.. (Attachments: # 1 Exhibit EX A to Mullen Declaration, # 2 Exhibit EX B to Mullen Declaration, # 3 Exhibit EX C to Mullen Declaration, # 4 Exhibit EX D to Mullen Declaration, # 5 Exhibit EX E to Mullen Declaration)(Purcell, Daniel) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/15/2012 - 809 - DOCUMENT E-FILED UNDER SEAL re 789 Order on Administrative Motion to File Under Seal OPPOSITION TO MOTION TO STRIKE LEONARD SUPPLEMENTAL EXPERT REPORT by Google Inc.. (Attachments: # 1 Exhibit EX F to Zimmer Declaration)(Purcell, Daniel) (Filed on 3/15/2012) (Entered: 03/15/2012)

03/16/2012 - 810 - MOTION to Strike Cockburn and Shugan Expert Reports (PUBLIC VERSION) filed by Google Inc.. Responses due by 3/30/2012. Replies due by 4/6/2012. (Van Nest, Robert) (Filed on 3/16/2012) (Entered: 03/16/2012)

03/16/2012 - 811 - Statement re 705 Order (Joint) Update Re Third Damage Report Costs by Google Inc.. (Van Nest, Robert) (Filed on 3/16/2012) (Entered: 03/16/2012)

03/16/2012 - 812 - RESPONSE (re 782 MOTION to Amend/Correct Oracle's '205 Patent Infringement Contentions and Supplement Expert Reports ) filed byGoogle Inc.. (Francis, Mark) (Filed on 3/16/2012) (Entered: 03/16/2012)

03/16/2012 - 813 - Declaration of Mark H. Francis in Support of 812 Opposition/Response to Motion to Amend/Correct Oracle's '205 Patent Infringement Contentions and Supplement Expert Reports filed byGoogle Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 812 ) (Francis, Mark) (Filed on 3/16/2012) (Entered: 03/16/2012)


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

Documents

804

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
DANIEL PURCELL - # 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)
[address telephone fax]

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

IAN C. BALLON - #141819
[email]
HEATHER MEEKER - #172148
[email]
GREENBERG TRAURIG, LLP
[address telephone fax]

Attorneys for Defendant
GOOGLE INC.

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

GOOGLE INC.’S MOTION TO
CONTINUE THE TRIAL DATE FROM
APRIL 16, 2012 TO APRIL 23, 2012

Dept: Courtroom 8, 19th Flr.
Judge: Hon. William Alsup


NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL

PLEASE TAKE NOTICE that Defendant Google Inc. (“Google”) hereby moves to continue the April 16, 2012 trial date to April 23, 2012. This Motion is based on the following memorandum of points and authorities in support, the Declaration of Robert A. Van Nest in support thereof, the entire record in this matter, and on such evidence as may be presented at any hearing of this Motion, on a date and at a time to be determined by the Court.

Dated: March 15, 2012

KEKER & VAN NEST LLP

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

1


MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The Court should continue the trial one week, from April 16, 2012 to April 23, 2012. There is good cause for a continuance because Google's lead trial counsel (along with several other attorneys on the Google trial team) is set for an April 2 trial in another case in the Eastern District of Texas. A one-week continuance would allow lead counsel to return from Texas in time for the start of this trial. A short continuance would not prejudice Oracle, and would leave open a full eight weeks of trial time in which to try this case. Google's motion should be granted.

II. BACKGROUND

Google's lead trial counsel is Robert Van Nest of Keker & Van Nest LLP. Declaration of Robert A. Van Nest ("Van Nest Decl.") ∂ 2. In a March 14, 2012 letter to the Court [Dkt. 792] Mr. Van Nest advised the Court of two pending trial commitments that conflicted with the April 16 trial date in this case. Since that letter was filed, Judge Davis has moved the Commonwealth Scientific and Industrial Research Organization v. Lenovo (United States) Inc., E.D. Tex. No. 6:09-cv-399 LED, trial from April 9, 2012 to April 2, 2012. And Judge Koh has issued an order proposing that the start of the Genentech Inc. v. Trustees of the University of Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK (PSG) trial be moved from June 11, 2012 to June 25, 2012.

Assuming the Genentech trial is in fact delayed two weeks,1 there would exist an available eight-week window from April 23 to June 15 in which the Court could try this case. Google therefore modifies its original request [Dkt. 792] to seek a one-week continuance of the trial date in this case, from April 16, 2012 to April 23, 2012. As stated in Google's March 14 letter to the Court, Mr. Van Nest would promptly advise the Court of any changes to the trial schedules in the above-referenced cases. Van Nest Decl. ¶ 6.

III. ARGUMENT

A court schedule may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b)(4); see also Civ. L.R. 6-3. There is good cause for a one-week continuance here because

2

Google's lead counsel (and other attorneys on the Google trial team) needs time to return from the Commonwealth Scientific trial in Texas and make final preparations for the start of the trial in this case. See, e.g., Felder v. Puthuff, C-93-20303-RPA (EAI), 1995 WL 16821 (N.D. Cal. Jan. 13, 1995) (granting a motion to continue trial date where counsel had an immovable trial conflict in another case). Accordingly, the Court should grant Google's motion.

Notwithstanding Judge Davis' order advancing the Commonwealth Scientific trial date by one week, a short continuance of the trial date in this case is necessary to ensure that Mr. Van Nest and several other members of the Google trial team are able to be prepared for and present at the start of this trial. Although the scope of this case has been significantly reduced as a result of pretrial proceedings, Oracle is still seeking nearly $1 billion in damages. The Commonwealth Scientific trial poses a potential conflict with the start of this trial for Mr. Van Nest and two other attorneys on Google's trial team who also are involved in the Commonwealth Scientific trial: namely, Christa Anderson and Matthias Kamber. Van Nest Decl. ¶ 3. The Commonwealth Scientific trial is now set to begin on April 2. Van Nest Decl. ¶ 4. The seven defendants in that case have estimated that trial will require ten days. Id. If the trial lasts ten days, juror deliberations may well continue past the April 16, 2012 trial date in this case. And even if juror deliberations conclude before April 16, Mr. Van Nest and the other attorneys on both trial teams still would need time to return from Texas and make final preparations for this trial. A one-week continuance would permit Mr. Van Nest to fulfill his professional obligations to his clients in the Commonwealth Scientific case, while still serving as lead trial counsel to Google for the entirety of this matter. Moreover, granting a continuance would not cause a conflict with Judge Koh's trial setting in the Genentech case, assuming that that trial is in fact delayed by two weeks as Judge Koh has proposed. This Court therefore would have an eight-week window -- April 23 to June 15 -- in which all counsel would be available to try this case. Accordingly, good cause exists for the requested continuance.

A one-week continuance will not prejudice Oracle. Android was first announced over four years ago and has now been on the market for over three years. The difference between an April 16 trial and an April 23 trial is insignificant. The motion to continue should be granted.

3

IV. CONCLUSION

For the foregoing reasons, Google respectfully requests that the Court continue the trial date from April 16, 2012 to April 23, 2012.

Dated: March 15, 2012

KEKER & VAN NEST LLP

/s/ Robert A. Van Nest
By: ROBERT A. VAN NEST

Attorneys for Defendant GOOGLE INC.

_______________
1 The parties in the Genentech case have until March 16 to respond to Judge Koh’s proposal.


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