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)

Exhibit A

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DONALD F. ZIMMER, JR. (SBN 112279)
[e-mail]
CHERYL A. SABNIS (SBN 224323)
[e-mail]
KING & SPALDING LLP
101 Second Street – Suite 2300
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

IAN C. BALLON (SBN 141819)
[e-mail]
HEATHER MEEKER (SBN 172148)
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]

SCOTT T. WEINGAERTNER (Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
[e-mail]
KING & SPALDING LLP
1185 Avenue of the Americas
New York, NY 10036-4003
Telephone: [phone]
Facsimile: [phone]

ROBERT A. VAN NEST (SBN 84065)
[e-mail]
CHRISTA M. ANDERSON (SBN 184325)
[e-mail]
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, CA 94111-1704
Telephone: [phone]
Facsimile: [phone]

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
Honorable Judge William Alsup
DEFENDANT GOOGLE INC.’S
THIRD SUPPLEMENTAL RESPONSES
TO PLAINTIFF’S INTERROGATORIES,
SET TWO

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CONFIDENTIAL

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Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendant Google Inc.

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(“Google”), through its attorneys, supplements its response to Plaintiff’s Interrogatories to

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Defendant Google Inc., Set Two (“Plaintiff’s Second Interrogatories”), served by plaintiff Oracle

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America, Inc. (“Plaintiff” or “Oracle”) on March 10, 2011, as follows.

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GENERAL OBJECTIONS
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Google responds generally that discovery is ongoing and its investigations of the

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facts relevant to this litigation are ongoing. Google’s responses herein are given without

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prejudice to Google’s right to amend or supplement in accordance with Rule 26(e) of the Federal

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Rules of Civil Procedure, the Civil Local Rules, the Court’s Supplemental Order to Order Setting

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Initial Case Management Conference, any applicable Standing Orders, and the Case

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Management Order entered by the Court.

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2.

Google generally objects to Plaintiff’s Second Interrogatories, and the

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“Definitions and Instructions” related thereto, to the extent they are inconsistent with or impose

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obligations beyond those required by the Federal Rules of Civil Procedure, the Civil Local Rules,

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the Patent Local Rules, the Court’s Supplemental Order to Order Setting Initial Case

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Management Conference, any applicable Standing Orders, and the Case Management Order

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entered by the Court. In responding to each Interrogatory, Google will respond as required under

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Rule 33 of the Federal Rules of Civil Procedure.

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3.

Google objects to Oracle’s definition of “Java Platform” on the grounds that the

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definition is overbroad and misleading to the extent it purports to include “the Java programming

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language,” as to which Oracle does not own proprietary rights. When used in Google’s

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responses, the phrase “Java Platform” shall not include “the Java programming language” and,

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without acknowledging or agreeing that Oracle owns any proprietary rights in any elements

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thereof, shall have the meaning ascribed to that phrase in paragraph 9 of Oracle’s Amended

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Complaint, namely “a bundle of related programs, specifications, reference implementations, and

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developer tools and resources that allow a user to deploy applications written in the Java

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programming language on servers, desktops, mobile devices, and other devices,” including but

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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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not limited to the Java compiler, the Java Virtual Machine, the Java Development Kit, the Java

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Runtime Environment, the Just-In-Time compiler, Java class libraries, Java application

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programming interfaces, and Java specifications and reference implementations.

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4.

Google generally objects to Oracle’s definition of “Android” as vague,

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ambiguous, overly broad, unduly burdensome, and not reasonably calculated to lead to the

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discovery of admissible evidence to the extent it includes “related public or proprietary source

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code, executable code, and documentation.”

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5.

Google generally objects to Plaintiff’s Second Interrogatories to the extent (a)

they are not reasonably calculated to lead to the discovery of admissible evidence that is relevant

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to any claim of defense of any party; (b) they are unreasonably cumulative or duplicative; (c)

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they seek information that is obtainable from some other source that is more convenient, less

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burdensome, or less expensive; or (d) the burden or expense of the proposed discovery

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outweighs any likely benefit.

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6.

Google generally objects to Plaintiff’s Second Interrogatories to the extent they

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seek information, documents, and/or things protected from discovery by the attorney-client

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privilege, the work product doctrine, the common-interest privilege, and/or any other applicable

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privilege, immunity, or protection. Nothing contained in Google’s responses is intended to be, or

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in any way shall be deemed, a waiver of any such applicable privilege or doctrine.

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7.

Google generally objects to Plaintiff’s Second Interrogatories to the extent they

20 request information, documents, and/or things not within the possession, custody, or control of
21 Google, that are as readily available to Plaintiff as to Google, or that are otherwise in the
22 possession of Plaintiff, on the grounds that such requests are unduly burdensome.
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Google objects that Oracle has already exhausted its exceeded its allowable

24 number of Interrogatories because it propounded Interrogatories No. 3 through 16, which Google
25 treated as containing two distinct sub-parts. Oracle stated in writing that it was seeking a total of
26 42 distinct interrogatories with those numbered 3 through 16, seeking “Google’s factual and
27 legal bases for its defense known to it as of October 4, 2010, November 10, 2010, and now.”
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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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(January 12, 2011 Letter, Jacobs to Weingaertner.) Notwithstanding the foregoing and the fact

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that reading each interrogatory as two separate interrogatories exceeds the limits of Rule 33,

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Google responded with respect to when it filed its operative pleading in the case, namely Google

4 Inc.’s Answer to Plaintiff’s Amended Complaint for Patent and Copyright Infringement and
5 Amended Counterclaims on November 10, 2010 (Doc. #51) (“Answer and Counterclaims”), as
6 well as its bases for its defenses generally, subject to Google’s general objection that discovery
7 has just begun, and Google is still developing its defenses. In view of the Court’s admonition
8 that “no enlargements of the limitations on discovery in the Federal Rules of Civil Procedure will
9 be allowed until after counsel have demonstrated that they will behave reasonably in the
10 discovery already authorized,” Google objects to what Oracle has labeled as Interrogatory No. 17
11 as being improperly served without seeking permission from the Court to enlarge the scope of
12 discovery. Google expressly reserves its right to move for a protective order on this
13 Interrogatory No. 17 or any interrogatories subsequently served and any response herein is not a
14 waiver of that right.
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9.

Google further objects to what Oracle has labeled as Interrogatory No. 17 as

16 containing ten distinct sub-parts exceeding Oracle’s allotted number of Interrogatories for this
17 additional reason.
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10.

Google incorporates by reference these General Objections into the specific

19 objections and responses set forth below. While Google may repeat a General Objection for
20 emphasis or some other reason, the failure to specifically refer to any General Objection does not
21 constitute a waiver of any sort. Moreover, subject to the requirements of Rule 33 of the Federal
22 Rules, Google reserves the right to alter or amend its objections and responses set forth herein as
23 additional facts are ascertained and analyzed.
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11.

Google remains willing to meet and confer with respect to any of its objections to

25 assist Plaintiff in clarifying or narrowing the scope of the requested discovery, and reserves the
26 right to move for a protective order if agreement cannot be reached.
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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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SPECIFIC OBJECTIONS AND RESPONSES

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Google’s responses to Plaintiff’s Second Interrogatories are based upon Google’s current

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information and belief as a result of reasonable searches and inquiries. Google reserves its right

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to amend and supplement its responses as it learns additional facts.

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INTERROGATORY NO. 17:

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Please state the total amount of your actual and (as applicable) projected unit sales,

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revenues, gross profits, and operating profits, separately for each month January 2005 through

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December 2011, relating to or derived from each of (i) Android application developers’

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registration fees, (ii) Android application transaction fees (regardless of whether application

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downloads or transactions were conducted using Android Market), (iii) Android Market

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application downloads or other transactions, (iv) in-app billing on Android devices, (v)

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advertising on or through Android devices, (viii) any other product or service sold, licensed,

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downloaded, or otherwise offered in connection with Android, (ix) advertising on or through

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each mobile platform other than Android, and (x) any other product or service sold, licensed,

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downloaded, or otherwise offered in connection with any mobile platform other than Android.

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Please identify any and all documents that You used, consulted, or relied upon in preparing the

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response to this interrogatory.

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THIRD SUPPLEMENTAL RESPONSE:

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In addition to its General Objections, Google objects to this Interrogatory as vague and

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ambiguous as to its intended meaning of the phrases “any other product or service sold, licensed,

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downloaded, or otherwise offered in connection with Android,” “any other product or service

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sold, licensed, downloaded, or otherwise offered in connection with any mobile platform other

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than Android,” “actual and . . . projected unit sales,” “revenues,” “gross profits,” and “operating

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profits.” Google further objects to the phrase “relating to or derived from” as vague and

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ambiguous, which makes the scope of the interrogatory unclear. Google further objects to the

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phrases “registration fees,” “application transaction fees,” “other transactions,” “in-app billing,”

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and “offered in connection with” as vague and ambiguous.

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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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Google further objects to this Interrogatory to the extent that it seeks information not kept

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in the ordinary course of Google’s business and to the extent that it presumes that such figures, to

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the extent they can be understood, are recorded “separately for each month.” Google also

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objects to this Interrogatory as overly broad, unduly burdensome, not relevant to any claim or

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defense in this lawsuit, and not reasonably calculated to lead to the discovery of admissible

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evidence to the extent that it seeks information related to operations of Google outside of the

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United States having no connection with the United States and to the extent that it seeks

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information unrelated to the accused functionality of the accused instrumentalities as set forth in

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Plaintiff’s infringement contentions or unrelated to subject matter allegedly claimed in the

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asserted claims of the patents-in-suit.

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Subject to the foregoing objections and the General Objections, without waiver or

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limitation thereof, Google states that it has produced documents from which information

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responsive to this Interrogatory can be derived pursuant to Fed. R. Civ. P. 33(d). These

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documents bear production numbers GOOGLE-00303691 - GOOGLE-00303921, GOOGLE-

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00305018 - GOOGLE-00305267, GOOGLE-00395080 - GOOGLE-00396319, GOOGLE-

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003169626 - GOOGLE-03169629, GOOGLE-03349735 - GOOGLE-03350004, GOOGLE-

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03370330 - GOOGLE-03371555, GOOGLE-03393373 - GOOGLE-03393419, GOOGLE-00-

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00000060, GOOGLE-00-00000379, GOOGLE-00-00000477, GOOGLE-00-00000489, and

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GOOGLE-00-00001717. In particular, Google has produced three Android P&L statements

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bearing production numbers GOOGLE-00303710, GOOGLE-00395614, and GOOGLE-00-

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00001717, and a Mobile P&L statement bearing production number GOOGLE-00396319. The

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Android and mobile P&L statements reflect all material sources of worldwide revenue associated

23 with Android and mobile, respectively. Each of the documents explicitly referred to below
24 reflects worldwide data unless stated otherwise.
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Notwithstanding the above and consistent with this production, after reasonable inquiry

26 and as presently advised, and making no admission regarding any Google product, Google states
27 the following:
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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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Google does not receive any payment, fee, royalty, or other remuneration for its

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contributions to the Android platform. Google’s expenses for the Android platform include

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operating expenses, costs of operations and marketing expenses. (See, e.g., “Sales,”

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“Marketing,” “Co-Marketing,” “PM,” “Engineering,” “Legal” lines of GOOGLE-00303710,

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GOOGLE-00395614, and GOOGLE-00-00001717.)

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Google generates revenue from advertising on mobile devices, which includes Android

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devices as well as other mobile platforms. (See, e.g., “Revenue” line of GOOGLE-00396319,

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which includes all material worldwide revenue generated from both Android and non-Android

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mobile platforms.) Google generates mobile advertising revenues from the following sources:

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(1) advertising revenue from Google.com and other websites that users may access via mobile

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devices, which may include Android devices as well as other mobile platforms; and 2) revenue

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from in-app advertising on mobile devices, which may include Android devices as well as other

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mobile platforms.

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Google generates mobile advertising revenue from search advertising and display

15 advertising. Google can determine whether searches that generate advertising revenue are
16 originated from Android devices. (See, e.g., “--Revenue: Ads (Dist + Organic)” lines of
17 GOOGLE-00303710 and GOOGLE-00395614.) Google estimates display advertising revenues
18 originated from Android devices. (See, e.g., “--Revenue: Ads (AFMS),” “--Revenue: Ads
19 (AFMA),” and “--Revenue: Ads (AFMC)” lines of GOOGLE-00303710 and GOOGLE20 00395614.) The display advertising revenue estimates reflected in the Android P&L statements
21 include all material estimated worldwide display advertising revenue generated from Android
22 applications. Google’s expenses related to mobile advertising include traffic acquisition costs, as
23 well as operating expenses. (See, e.g., “TAC,” “Sales,” “Marketing,” “PM,” Engineering,”
24 Legal,” lines of GOOGLE-396319; e.g., “TAC: Dist/ Organic,” “TAC: AFMA/ AFMC/ AFMS,”
25 “Sales,” “Marketing,” “Co-Marketing,” “PM,” “Engineering,” “Legal” lines of GOOGLE26 00303710, GOOGLE-00395614, and GOOGLE-00-00001717.)
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Google generates revenues from application developer registration fees and from sales of
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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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maintained are inaccurate and unreliable. (See, e.g., GOOGLE-03169629, GOOGLE-00-

2 00000060, GOOGLE-00-00000489.)
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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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DATED: August 1, 2011

KING & SPALDING LLP

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By: /s/ Scott T. Weingaertner

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SCOTT T. WEINGAERTNER (Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
[e-mail]
1185 Avenue of the Americas
New York, NY 10036-4003
Telephone: [phone]
Facsimile: [phone]

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ROBERT A. VAN NEST - #84065
[e-mail]
CHRISTA M. ANDERSON - #184325
[e-mail]
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, CA 94111-1704
Telephone: [phone]
Facsimile: [phone]
DONALD F. ZIMMER, JR. (SBN 112279)
[e-mail]
CHERYL A. SABNIS (SBN 224323)
[e-mail]
KING & SPALDING LLP
101 Second Street – Suite 2300
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
IAN C. BALLON (SBN 141819)
[e-mail]
HEATHER MEEKER (SBN 172148)
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT
GOOGLE INC.
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CONFIDENTIAL
DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET TWO
CIVIL ACTION NO. CV 10-03561-WHA

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CERTIFICATE OF SERVICE

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I hereby certify that on this day, August 1, 2011, I served a true and correct copy of

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DEFENDANT GOOGLE INC.’S THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFF’S

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INTERROGATORIES, SET TWO via e-mail on the following individuals:

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David Boies
Boies Schiller and Flexner
333 Main Street
Armonk, NY 10504
914-749-8201
Fax: [phone]
Email: [e-mail]
Deborah Kay Miller
Oracle USA, Inc Legal Department
500 Oracle Parkway
Redwood Shores, CA 94065
[phone]
Email: [e-mail]
Dorian Estelle Daley
500 Oracle Parkway
Redwood City, CA 94065
[phone]
Fax: [phone]
Email: [e-mail]
Marc David Peters
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
[phone]
Fax: [phone]
Email: [e-mail]

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Matthew M Sarboraria
Oracle Corporation
500 Oracle Parkway, 5OP7
Redwood Shores, CA 94065
650/ 506-1372
Email: [e-mail]
Michael A Jacobs
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
650-813-5600
Fax: [phone]
Email: [e-mail]
Daniel P. Muino
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
[phone]
Email: [e-mail]
Steven Christopher Holtzman
Boies, Schiller & Flexner LLP
1999 Harrison Street
Suite 900
Oakland, CA 94612
510-874-1000
Fax: [phone]
Email: [e-mail]

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Executed on August 1, 2011.
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/s/ Christopher C. Carnaval
Christopher C. Carnaval

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CERTIFICATE OF SERVICE

CIVIL ACTION NO. CV 10-03561