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]
FRED NORTON (Bar No. 224725)
[email address telephone fax]
ALANNA RUTHERFORD (Admitted Pro Hac Vice)
[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.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE, INC.
Defendant.
Case No. CV 10-03561 WHA
ORACLE AMERICA, INC.’S OPPOSITION TO
GOOGLE, INC.’S REQUEST FOR
CONTINUANCE [DKT. NO. 804]
Dept.: Courtroom 8, 19th Floor
Judge: The Honorable William H. Alsup
Oracle submits this opposition to Google’s request for a one week continuance of the trial in this
matter, from April 16 to April 23. (Dkt. No. 804.)
I. Introduction
Normally, Oracle would not hesitate to agree to a brief continuance to accommodate the
schedule of opposing counsel. Professional as well as personal commitments frequently require that
counsel ask for, as well as grant, such courtesies. Unfortunately, both Michael Jacobs and David Boies,
Oracle’s co-lead trial counsel in this case, as well as other key members of the Oracle trial team, also
have other trial commitments that would be threatened if the trial were delayed even a week. In
particular, Mr. Jacobs has a trial set to begin May 31, and Mr. Boies has trials set to begin June 4, June
18, and June 25. As a result, changing the trial date to accommodate the schedule of Mr. Van Nest and
other members of the Google trial team would necessarily cause equally significant conflicts for Mr.
Jacobs, Mr. Boies, and other members of the Oracle trial team.
Further, it appears that a continuance would threaten to cause, rather than resolve, a conflict for
Mr. Van Nest. If trial of Oracle v. Google is delayed one week, and lasts eight weeks, it will end on
Friday, June 15. As stated in Google’s motion, Mr. Van Nest is to commence trial in the Genentech
matter before Judge Koh on Monday, June 11. Although Judge Koh has requested that the parties in
that case agree to a two-week continuance, the defendant in that case has objected on the grounds that
its own trial counsel from Irell & Manella are to begin yet another trial in Florida on July 2.
It thus appears that the only eight-week window when Mr. Van Nest currently has no other trial
commitments is the one that begins April 16. An April 16 trial date provides the best opportunity for
lead counsel and other counsel for both parties to fulfill existing June commitments set by other courts
in other cases; an April 23 start date does not. Google’s motion for a continuance should be denied.
II. Background
Oracle’s co-lead trial counsel in this case are Michael Jacobs and David Boies. (Declaration of
Michael Jacobs (“Jacobs Decl.”) at ¶ 3; Declaration of David Boies (“Boies Decl.”) at ¶ 3.)
Michael Jacobs’s Trial Commitments
As disclosed in the parties’ joint pretrial conference statement, Mr. Jacobs is lead counsel in In
the Matter of Certain Electronic Digital Media Devices and Components Thereof, Investigation No.
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337-TA-796, before the ITC. That matter is set for trial from May 31 to June 6. (Dkt. No. 644, at 4;
Jacobs Decl. ¶ 4.)
Mr. Jacobs is also lead trial counsel in Apple Inc. v. Samsung Electronics Co., Ltd., et. al., Case
No. 11-cv-01846-LHK, in this district, which is scheduled for trial beginning on July 30. That trial is
expected to last 3 to 4 weeks. (Jacobs Decl. ¶ 5.)
David Boies’s Trial Commitments
Mr. Boies is lead trial counsel for the defendant in Invista B.V., et al. v. E.I du Pont de Nemours
and Company, 08 Civ. 3063 (SHS) (S.D.N.Y.). On September 27, 2011, Judge Stein set that case for
trial starting on June 4, 2012, and that trial is expected to continue until July. (Boies Decl. at ¶ 6;
Invista B.V., et al. v. E.I du Pont de Nemours and Co., 08 Civ. 3063, Dkt. No. 156.)
Mr. Boies is also lead trial counsel for Oracle in another case proceeding in this District, Oracle
USA, Inc. v. SAP AG, No. C07-1658-PJH, before Judge Hamilton. On February 28, 2012, Judge
Hamilton scheduled that case for trial on June 18, 2012; it will likely last two to three weeks. (Boies
Decl. at ¶ 7; Oracle USA, Inc. v. SAP AG, No. C07-1658-PJH, Dkt. No 1110.) Oracle had objected to
the proposed June 18 trial date, specifically citing this Court’s direction to keep April 16 to late June
free for trial of this case. (See Oracle USA, Inc. v. SAP AG, No. C07-1658-PJH, Dkt. No. 1109, at 1–2.)
The trial team in that matter includes Steven C. Holtzman, Fred Norton, and Beko Reblitz-Richardson,
each of whom is a key member of the trial team in this case as well. Judge Hamilton has agreed that the
SAP trial will trail the previously scheduled DuPont trial. (Boies Decl. at ¶ 7.)
Mr. Boies is also lead trial counsel for plaintiffs in Rincon EV Realty LLC, et. al. v. CP III
Rincon Towers, Inc., et. al., No. CGC 10-496887, in California state court in San Francisco. On
February 24, 2012, the court in that matter set that case to commence trial on June 25, 2012, rejecting
plaintiffs’ request for a trial beginning in July. That trial will likely last two to three weeks. (Boies
Decl. at ¶ 8.)
Mr. Boies is also lead trial counsel for the defendants in Capital One Financial Corp. v. Kanas,
No. 1:11-cv-750 (LO/TRJ) (E.D. Va.). That case is set for trial on July 23, 2012 and is likely to last one
week to two weeks. (Boies Decl. at ¶ 9.)
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Mr. Van Nest’s Trial Commitments
As stated in Google’s brief, Mr. Van Nest is lead counsel for plaintiffs in the matter of
Genentech Inc. v. Trustees of the University of Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK
(PSG). As the Court is aware, Judge Koh has suggested to the parties in that case that their trial be
delayed two weeks, from June 11 to June 18. Google’s brief states that, “[a]ssuming the Genentech
trial is in fact delayed two weeks, there would exist an available eight-week window from April 23 to
June 15 in which the Court could try this case.” (Mot., at 2, Dkt. No. 804.) The defendant in the
Genentech case, however, has since informed Judge Koh that it cannot agree to the two week deferral
of that trial, because its own trial counsel, from Irell & Manella, are to begin yet another trial on July 2,
2012 in the Middle District of Florida. (See Genentech Inc. v. Trustees of the University of
Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK (PSG), Dkt. No. 522.)
Accordingly, it appears that maintaining this case’s current start date of April 16 would allow
Mr. Van Nest to appear at each of the three trials he has committed to, in their entirety, even if the trial
of this case lasts a full eight weeks. If the start of this trial is delayed until April 23, and the trial lasts
the full eight weeks that the Court has allotted, Mr. Van Nest must either miss the end of this trial or the
start of the Genentech trial.
III. Argument
All of the lead counsel in this case have very busy trial calendars. It is simply not possible for
the Court to change the trial date to avoid inconvenience to Mr. Van Nest and other Google trial team
members without causing a still greater inconvenience to Mr. Jacobs, Mr. Boies, and other members of
the Oracle trial team.1
If this trial begins on April 16 and last eight weeks, it will conclude on June 8, the Friday before
Mr. Van Nest is to begin the Genentech trial, assuming that trial is not continued. But if the trial begins
on April 23 and lasts eight weeks, it will conclude on June 15, the Friday before Mr. Boies, Mr.
Holtzman, Mr. Norton, and Mr. Reblitz-Richardson are to begin the Oracle v. SAP trial. (Boies Decl. ¶
_______________________________________
1 Google cites a single case in support of its motion, Felder v. Puthuff, C-93-20303-RPA (EAI), 1995
WL 16821 (N.D. Cal. Jan. 13, 1995). In Felder, however, the attorney with a conflicting trial
commitment submitted a declaration stating that no other attorney from his law firm could become
sufficiently familiar with the case in order to replace him as trial counsel by the date set for trial. Id. at
*3.
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7.) Google’s motion would not eliminate the problem of successive trials – it would simply shift some
of the burden from one of Google’s lawyers to four of Oracle’s lawyers.
Moreover, both Mr. Jacobs and Mr. Boies have other trials that are scheduled to begin during
the eight-week period of this trial. These trial dates were set in 2011, before this Court’s admonition to
keep April through June free for trial of this case. (See Jacobs Decl. ¶ 4; Boies Decl. ¶ 6.) If the Oracle
v. Google trial begins on April 16, it is possible, consistent with the time limits previously established
by the Court, and allowing time for jury deliberations, that all three phases of trial in this case would
conclude in time for Mr. Jacobs to appear for the first day of trial in his ITC matter on May 31, for Mr.
Boies to appear for the first day of trial in the Invista matter on June 4, and for Mr. Van Nest to appear
for the first day of trial in the Genentech matter on June 11. If the trial is delayed a week, it is all but
impossible for Mr. Jacobs to avoid a trial conflict, and it is significantly more likely that Mr. Boies and
Mr. Van Nest will find themselves double-booked as well.
IV. Conclusion
For the reasons stated above, Oracle respectfully requests that the Court deny Google’s motion
for a continuance.
Dated: March 19, 2012
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Steven C. Holtzman
Steven C. Holtzman
Attorneys for Plaintiff
ORACLE AMERICA, INC.
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