decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
Day 1 of Patent Phase in Oracle v. Google & Google Opp. Re Schwartz, as text ~pj
Monday, May 07 2012 @ 11:11 AM EDT

Lots of busy lawyers over the weekend in the Oracle v. Google trial. Today, the jury tries again to reach a verdict, but one way or another, we expect the patent phase of the trial to begin today. So the parties are in court right now arguing about who can testify about what. This is a normal part of trials. Motions in limine are about who can testify and/or about what.

Google has filed its opposition [PDF] to Oracle's so-called motion in limine to prevent certain testimony by Jonathan Schwartz. I have it as text for you. Mark has all the filings for you here as PDFs. Also he has Oracle's witness list. And the parties have responded to each other's proposed findings of fact.

Caleb Garling at Wired asked a lawyer about APIs and what the judge is likely to do about whether or not they can be copyrighted, and here's part of what he wrote:

Ronald Abramson, a lawyer with... the international firm Hughes, Hubbard, and Reed, believes Alsup is unlikely to rule that APIs can be copyrighted. Id be surprised, at the end of the day, if that copyright survives. Functionality has always been the boundary point, he says, referring to the way an API functions, as opposed to the code used to build it.
In case you read somewhere that APIs are already copyrightable in the US, now you know better. Putting a copyright notice on something doesn't make it so, you know. Even registering with the US Copyright Office doesn't prove ownership, although it's a plus. But remember SCO? They registered copyrights with the Copyright Office, but in the end, after trial, it turned out they didn't own what they claimed.

Here's Google's Opposition to Oracle's "motion in limine" to muzzle Jonathan Schwartz, as text:

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[email]
CHRISTA M. ANDERSON - # 184325
[email]
MICHAEL S. KWUN - # 198945
[email]
[address]
[phone]
[fax]

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

KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[address]
[phone]
[fax]

IAN C. BALLON - #141819 [email]
HEATHER MEEKER - #172148 [email]
GREENBERG TRAURIG, LLP [address]
[phone]
[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'S OPPOSITION TO ORACLE
AMERICA, INC.'S MOTION IN LIMINE
CONCERNING TESTIMONY BY
JONATHAN SCHWARTZ

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

(1)

I. INTRODUCTION

This motion is Oracle's attempt to shut the barn door after the horse has already gone. Despite its title, it is not a motion in limine at all. Instead, it is a belated motion to strike and request for a curative instruction involving testimony that entered the record more than a week earlier, and that Google expressly relied on in its closing argument. Not only is the motion untimely, but the Court should also deny it because of the prejudice Google would suffer if the requested relief were granted now.

Obviously, Oracle would like to entirely disclaim Jonathan Schwartz's actions and decisions during years he was Sun's CEO, because Sun and Schwartz publicly announced and pursued policies and strategies that are inconsistent with restrictions that Oracle (the so-called "new sheriff in town") now wants to impose. But nothing about Oracle's about-face makes the affirmative decisions and actions of Sun's former CEO any less relevant, or somehow demotes them to being merely "personal" rather than corporate decisions and actions.

In this case, the fact that Sun's CEO made an affirmative decision not to sue Google, in conjunction with his public announcement and private confirmation of Sun's support for Android, is highly relevant to Google's equitable defenses. Google is also entitled to argue that his decision as CEO supports findings in its favor on non-infringement, damages and willfulness in Phases 2 and 3 just as Google has already argued to the jury, without any objection from Oracle, that those decisions and comments support findings in its favor on copyright issues. With regard to Mr. Schwartz's additional testimony that "[w]e didn't feel we had any grounds" to pursue litigation against Google, nothing in that statement reflects or discloses communications from Sun's legal counsel about the merits of the action Oracle has now brought. Mr. Schwartz could, as a layperson, easily conclude the common sense view that Sun would have no grounds to sue Google for using precisely what Sun had actively encouraged the world to use, including the Java language and its APIs.

For all the above reasons, Oracle's motion should be denied.

(2)

II. ARGUMENT

A. This Motion is a Disguised Motion to Strike, and Is Therefore Untimely.

As the Supreme Court has noted, the term "motion in limine" is used "in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. U.S., 469 U.S. 38, 40 at n.2 (1984) (emphasis). As a result, despite its title, Oracle's motion is not a motion in limine, but rather an untimely motion to strike, because the evidence at issue is already part of the trial record and indeed has already been offered to the jury in closing argument in the copyright phase, without any objection from Oracle.

Any evidence received in Phase 1 is automatically part of the trial record for later phases and thus may be referenced in any subsequent openings and closings:

Evidence and stipulations presented in an earlier phase will count as part of the trial record for all later phases and may be referenced in openings and closings for later phases . . . . Witnesses will not be permitted to return to a subsequent phase to repeat testimony already given by them in an earlier phase. The jury will have already heard it.

Final Pretrial Order (ECF# 675) at 3:11-15.

Oracle suggests that some of the evidence at issue entered the record through a partially non-responsive answer to an otherwise unobjectionable question, but if that were the case, Oracle's only recourse would have been a motion to strike. See Rutter Group Prac. Guide Fed. Civ. Trials & Ev. Ch. 8 at 8:4671 ("A motion to strike is the only remedy available where testimony is given before a proper objection can be made or ruled upon. For example: . . Witness gives nonresponsive answer to otherwise unobjectionable question (i.e., witness volunteers information not asked).") It is far too late for Oracle to seek that relief.

Under the Federal Rules of Evidence, a party can preserve a claim of error as to the admission of evidence only if the party "timely objects or moves to strike." Fed. R. Evid. 103 (emphasis added). A motion to strike is waived unless it is made at the earliest possible opportunity after the ground for objection becomes apparent. See Durham v. U.S., 403 F.2d 190, 197 & n.15 (9th Cir. 1968) ("Failure to object as soon as the applicability of the objection is known is said to constitute a waiver of the objection, which thereafter may be properly

(3)

denied. . . . A motion to strike is governed by this rule where the evidence involved should have been objected to when offered, as was the case here.") (Citations omitted); see also San Antonio Cmty. Hosp. v. So. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1238 (9th Cir.1997) (concluding that the failure to raise a hearsay objection until the close of direct examination waived the objection).

Here, Oracle's request for relief is manifestly untimely. It did not seek relief the moment Mr. Schwartz gave the testimony in question, as it should have, or at any point during his examination, or before the Court released him from Google's subpoena and excused him from further testimony, or even when Google referred to his testimony in its closing argument. Instead, it waited more than a week after Mr. Schwartz had left the stand to bring its motion. This constitutes a waiver. "The requirement of timely and specific objections serves to ensure that the nature of the error [is] called to the attention of the judge, so as to alert him [or her] to the proper course of action and enable opposing counsel to take corrective measures." Jerden v. Amstutz, 430 F.3d 1231, 1236 (9th Cir. 2005) (internal citations and quotations omitted; alterations in original).

Had Oracle raised any of its objections to Mr. Schwartz's testimony at the time and had the Court sustained those objections Google could have counteracted any negative impression a curative instruction might have had on the jury by conducting further questioning to reinforce the points that Mr. Schwartz, as Sun's CEO, had full authority to decide that it was not in Sun's best interest to pursue litigation against Google as a business matter, that he made that affirmative decision on Sun's behalf, and that he did not require permission from Sun's board of directors, Scott McNealy, or anyone else to do so. Instead of moving to strike, Oracle chose to cross- examine Mr. Schwartz to attempt to establish that he was not qualified to give a legal assessment of the strength of any potential legal claims, and that his decisionmaking was driven by judgments about what would be best for Sun as a matter of business strategy, rather than assessments of the strengths of any potential legal claims. RT at 2014:7-18. Oracle then allowed the testimony to enter the record and even sat by without objection as Google relied on that

(4)

evidence in its closing argument. RT at 2519:4-25. Having featured that evidence in its Phase 1 closing, Google would be severely prejudiced if the Court were to instruct the jury to disregard that evidence now.

This motion is untimely and the Court should deny it for that reason alone.

B. Oracle's Objections Also Fail on Their Merits

Oracle's attempt to downplay the significance of Mr. Schwartz's actions and decisions runs counter to its CEO's own testimony. As Larry Ellison acknowledged, while Mr. Schwartz was Sun's CEO, he was ultimately responsible for all decisionmaking at Sun, setting corporate policy and also for deciding how the company would conduct its negotiations, including with companies like Google. RT 310:21-311:6. Although Oracle asserts that "the suggestion that Oracle had decided not to sue is clearly against the weight of the evidence presented in this case," Motion at 2:5-6, that statement is flatly contradicted by Mr. Schwartz's testimony that, as CEO, he made the decision that Sun would not pursue litigation against Google over Android. RT at 2002:5-7. As CEO, his decision certainly trumps that of a salesperson like Leo Cizek, even though the latter may have taken it upon himself to make remarks that he was in no position to carry out.

Oracle also incorrectly argues that the fact that Mr. Schwartz never communicated his decision to Google, and the fact that Sun engaged in negotiations with Google after the SDK release, somehow fatally undermine Google's defenses. That is not the case, however. In Baker Mfg. Co. v. Whitewater Mfg. Co., 430 F.2d 1008, 1013 (7th Cir. 1970), the Seventh Circuit reversed a district court's denial of a claim of laches, specifically noting that, "[t]he fact that Baker did not suggest that it was abandoning its claim of infringement is irrelevant. The important fact is that at no time did it notify Whitewater in any manner that it was pressing its claim." Id. at 1013 (emphasis added). Here, Sun and Google had numerous discussions after Android's release. None of these discussions involved Sun asserting infringement by Android and demanding payment without any further consideration being offered by Sun. Instead, each was a negotiation over further partnerships where Sun would offer its commercial products for

(5)

incorporation into Android. Nothing about such garden-variety business negotiations could have put Google on notice that Sun intended to assert legal claims against Android for the specific and narrow alleged intellectual property rights asserted in this case. Mr. Schwartz's testimony that he had decided not to sue Google because he had no basis for doing so is entirely consistent with his subsequent actions, and supports the conclusion that the totality of Sun's conduct and statements indicated a lack of intent to assert an infringement claim.

This evidence at issue is also relevant to Phase 2 and Phase 3 in other respects. Google is entitled to argue that the fact that Sun consciously considered and then decided not to sue for lack of grounds is evidence that Sun knew full well that the pending claims are indeed meritless as applied to Android or at a minimum (for willfulness purposes) do not present an objectively high likelihood of infringement. Again, it is no surprise that Sun and its CEO reached the conclusion that Sun had no grounds to sue given Sun's business strategy to make numerous aspects of the Java platform freely available for all to use in the hopes of spreading the adoption of the Java language, as well as Sun's repeated and direct encouragement of the distribution and use of the Android platform over the years.

Finally, Oracle is wrong to argue that Mr. Schwartz's statement that "[w]e didn't feel we had any grounds" either reflects privileged communications or impermissible legal opinion by a lay witness. At trial, Oracle had a chance to ferret out whether Mr. Schwartz's statement was based on privileged communications, but Oracle never asked those questions and never raised the issue in a timely fashion. Further, it would have been entirely reasonable for Mr. Schwartz to have concluded on Sun's behalf that Sun had no grounds to sue (regardless of any legal advice received) where Sun had "given Java to the world," made the Java language and Java APIs freely available, encouraged independent implementations of the Java platform and open sourced Sun's own implementation of the Java platform.1

(6)

III. CONCLUSION

For the foregoing reasons, Google respectfully requests that the Court deny Oracle's motion and refuse its request to excise from the jury trial evidence that is squarely and fairly before the jury on important issues in this case.

Dated: May 5, 2012

KEKER & VAN NEST LLP

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

Attorneys for Defendant
GOOGLE INC.

(7)

1 If Oracle is correct, however, that Mr. Schwartz's testimony implicates Sun's assertions of privilege, then it was even more incumbent on Oracle to protect that privilege with a timely objection or motion to strike.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )