Oracle America, Inc. v. Google Inc.

Filing 1133

RESPONSE (re #1129 MOTION TO ADMIT STATEMENT FROM GOOGLES INTERROGATORY RESPONSE ) filed byGoogle Inc.. (Attachments: #1 Exhibit A)(Van Nest, Robert) (Filed on 5/13/2012)

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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[e-mail]
CHRISTA M. ANDERSON - # 184325
[e-mail]
DANIEL PURCELL - # 191424
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[e-mail]
CHERYL A. SABNIS - #224323
[e-mail]
101 Second Street, Suite 2300
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
1185 Avenue of the Americas
New York, NY 10036
Tel: [phone]
Fax: [phone]

IAN C. BALLON - #141819
[e-mail]
HEATHER MEEKER - #172148
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ORACLE AMERICA, INC.,

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Plaintiff,

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v.

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GOOGLE INC.,

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Defendant.

Case No. 3:10-cv-03561 WHA
GOOGLE INC.’S OPPOSITION TO
ORACLE’S MOTION TO DEEM
ADMITTED A STATEMENT FROM
GOOGLE’S INTERROGATORY
RESPONSE
Dept.:
Judge:

Courtroom 8, 19th Floor
Hon. William Alsup

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GOOGLE’S OPPOSITION TO ORACLE’S DEEMING MOTION
Case No. 3:10-CV-03561 WHA
665279.01

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Oracle moves to “have deemed admitted” a single sentence, taken out of context, from

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Google’s three-page, ten-paragraph response to Oracle’s Interrogatory 17 (“Response”) (attached

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hereto as Exhibit A ). The Court should deny Oracle’s motion.

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First, an interrogatory response is never a binding admission. See Donovan v. Crisostomo,

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689 F.2d 869, 875 (9th Cir. 1982) (“Interrogatories do not supersede or supplement pleadings, nor

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do they bind parties as an allegation or admission in a pleading or pre-trial order”); Volterra

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Semiconductor Corp. v. Primarion, Inc., 796 F. Supp. 2d 1025, 1051-52 (N.D. Cal. 2011)

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(“Defendants are incorrect in their assertion that Volterra’s interrogatory responses are binding

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admissions”). Oracle does not cite any law to the contrary, because none exists. As for Oracle’s

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backup argument, that “the jury is entitled to hear” Google’s discovery responses, Oracle is

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certainly free to seek permission to read Google’s complete interrogatory response to the jury. If

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the Court grants such permission, Oracle may argue the response is persuasive evidence. See

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Fed. R. Civ. P. 33(c). Indeed, the Court’s Trial Guidelines specifically provide for designating

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interrogatory answers for use during trial. See Guidelines for Trial and Final Pretrial Conference

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in Civil Jury Cases Before the Honorable William Alsup at 11, ¶ 21. But Oracle has no basis for

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taking one sentence from the Response out of context as a binding factual admission.

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Second, the sentence Oracle moves to deem admitted, taken in isolation, is misleading and

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unfit even to be used as evidence because of its danger to mislead the jury and prejudice Google.

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At the tail end of a long and complex response to an objectionable compound interrogatory that

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included ten sub-questions relating to not just the Android platform but all other mobile platforms

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from which Google derived any revenue, Google stated:

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Although the motion is titled a “motion to admit” a statement from the interrogatory response,
the body of that motion seeks to “deem the statement . . . admitted.” Dkt. 1129 at 1.
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Google has redacted some sensitive, non-public sales data from the Response that is unrelated
to the basis of Oracle’s motion. Google will bring unredacted copies to Court.
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This is the general rule. See also Synopsys, Inc. v. Magma Design Automation, Inc., 2006 WL
825277 (N.D. Cal. March 30, 2006) (“answers were given in response to interrogatories, rather
than to requests for admissions and, consequently, are not binding”); Fort Hall Landowners
Alliance, Inc. v. Bureau of Indian Affairs, 2007 WL 2187256, at *2 (D. Idaho July 16, 2007)
(noting that answers to interrogatories “are not binding admissions in this circuit”) (citing
Donovan, 689 F.2d at 875, and Victory Carriers Inc. v. Stockton Stevedoring Co., 388 F.2d 955,
959 (9th Cir. 1968) (holding that answers to interrogatories are not binding factual admissions)).
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GOOGLE’S OPPOSITION TO ORACLE’S DEEMING MOTION
Case No. 3:10-CV-03561 WHA

665279.01

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Google did not track revenue generated in connection with mobile platforms as far
back as January 2005, and because the first Android device was publicly released
in 2008, Google generated no revenue in connection with the Android platform
prior to 2008. Google states that any financial data relating to mobile platforms
from prior to January 2009 that it may have maintained are inaccurate and
unreliable. (See, e.g., GOOGLE-03169629, GOOGLE-00-00000060, GOOGLE00-00000489.)

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Response at 4. Read in context, the last sentence refers to revenues associated with non-Android

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mobile devices. None of the three documents cited in that sentence as examples of unreliable

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financial data is an Android profit-and-loss statement—the document that both parties have relied

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on in this case to prove Google’s Android-related revenues and costs. Indeed, the overwhelming

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majority of the content in all three documents relates to revenues, not costs, and nothing in any of

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the three documents sets forth Android-specific costs. Particularly given that the documents

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cited in the Response do not discuss Android-specific costs at all, Oracle has no basis to leverage

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one sentence from that Response into a limitation on Google’s ability to prove such costs.
Moreover, because they are not relevant to the issue, Google will not offer any of the three

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documents to prove Android-related costs, in the event that becomes necessary. Instead, Google

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will explain that the Android cost items for 2008 in its Android P&L statements are based on a

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straightforward calculation of Android engineering headcount, payroll, and other expenses.

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Google is confident the jury will conclude that the cost figures in Google’s Android P&Ls are

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reliable—especially because Oracle will be relying on the revenue data in those same documents.

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Given the settled limitations on using interrogatory responses as evidence, the complexity

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of the interrogatory and response, and the context of the sentence at issue, it would be legally

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incorrect, misleading, and prejudicial to Google for the Court to deem the sentence to be any kind

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of binding admission.

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Dated: May 13, 2012

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KEKER & VAN NEST LLP
By:

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

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Because these documents are entirely comprised of sensitive, non-public Google financial data,
Google is not filing them along with this Opposition, but will bring copies of the cited documents
to Court in the event the Court would like to review them.
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GOOGLE’S OPPOSITION TO ORACLE’S DEEMING MOTION
Case No. 3:10-CV-03561 WHA

665279.01