Oracle America, Inc. v. Google Inc.

Filing 138

Letter from Plaintiff Oracle America, Inc. Regarding Discovery Master. (Jacobs, Michael) (Filed on 5/9/2011)

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May 9, 2011

MORRISON & FOERSTER LLP
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The Honorable William H. Alsup
Judge of the United States District Court
Northern District of California
450 Golden Gate Ave., Courtroom 9, 19th Floor
San Francisco, CA 94102
Re:

Oracle America, Inc. v. Google, Inc., Case No. 3:10-cv-03561-WHA
Oracle’s Request for a Special Discovery Master to Resolve Motion For In-House
Counsel Access to AEO Information and Other Discovery Disputes

Dear Judge Alsup:
Oracle seeks to provide its designated in-house litigation counsel with access to
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, a request that
Google has refused. Mindful of the Court’s heavy docket, Oracle proposes the appointment
of a Special Master to handle this dispute, certain other discovery disputes that are ripe and
as to which Oracle may be filing a motion shortly, and any future discovery disputes that
may arise. Oracle believes the appointment of a Special Master will help address the Court’s
concerns regarding judicial resources and time, as expressed in this morning’s notice of case
management conference. We will be prepared to discuss this and other case management
issues on Wednesday morning.
It is within the Court’s discretion to appoint a Special Master to assist with discovery
issues. Fed. R. Civ. P. 53(a) (“a court may appoint a master . . . [to] address pretrial and
posttrial matters that cannot be effectively and timely addressed by an available district judge
or magistrate judge of the district”); see Minor v. Christie's, Inc., 2011 U.S. Dist. LEXIS
9219 (N.D. Cal. Jan. 28, 2011) (Special Master appointed to resolve dispute). The parties
have a substantial amount of fact discovery to complete in the final few months before the
cut-off on July 29, including completion of document productions, taking of additional
depositions, and supplementing written discovery responses. Having a Special Master will
enable the rapid resolution of any discovery disputes that may arise, without placing an
undue burden on the Court in the midst of its current trial duties.
Oracle made this proposal to Google and specifically suggested Martin Quinn of
JAMS to serve as the Special Master. Google declined. Oracle requests that the Court
exercise its discretion to appoint a Special Master for the sole purpose of resolving
discovery-related disputes in this case.

pa-1462130

Hon. William Alsup
May 9, 2011
Page Two

If the Court is not inclined to appoint a Special Master, Oracle seeks leave to file a
motion for permission to provide Oracle’s designated in-house litigation counsel with access
to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information (“AEO
information”), as permitted by the Stipulated Protective Order. As required, Oracle has
presented Google with information establishing the qualifications of four Oracle in-house
attorneys (Dorian Daley, Deborah Miller, Matthew Sarboraria, and Andrew Temkin) to see
AEO information. Google has objected to all four designees, leaving Oracle without a single
in-house attorney privy to AEO information. Given Google’s refusal to permit access,
Oracle is forced to seek the Court’s assistance.
Oracle’s four designees are directly responsible for overseeing and managing this
litigation. Given the fast pace of the case, access to AEO information is critical to enable inhouse counsel to: (1) expeditiously make informed decisions and provide feedback to
outside counsel; (2) advise Oracle’s senior management (who are not permitted to receive
AEO information) on case decisions; and (3) engage in meaningful settlement discussions.
Oracle is entitled to have its in-house litigators fully engaged in this case, subject to the
safeguards imposed by the Stipulated Protective Order. Oracle’s request is particularly
urgent in light of the mediation that the parties have scheduled for May 17, 2010. Without
access to full information, Oracle may be unable to properly evaluate the case for settlement
discussion purposes.
Google’s objection to Oracle’s four designees is based on the mistaken assumption
that the designees are involved in competitive decision-making at Oracle. As Oracle has
explained to Google, they are not. Oracle’s designees are lawyers with solely legal
responsibilities – they are not business personnel charged with competitive decision-making.
The issue of whether Ms. Daley is a competitive decision-maker was previously evaluated by
Judge Charles Legge, sitting as a Special Master in Oracle Corp, et al. v. SAP AG, et al.,
Case No. 07-1658 (N.D. Cal.). Judge Legge concluded that Ms. Daley is not involved in
competitive decision-making in her capacity as General Counsel, Senior Vice President, and
Secretary at Oracle (the same positions that she holds today). Likewise, Oracle’s other three
designees – all litigation attorneys who directly or indirectly report to Ms. Daley – are not
involved in competitive decision-making.
Oracle has met and conferred at length with Google in an effort to resolve this issue:
(1) on April 6, 2011, Oracle sent a letter identifying its designees and providing detailed
information on their background and job responsibilities; (2) on April 20, 2011, Google
objected to all four designees, stating that their job duties make them competitive decisionmakers; (3) on April 22, 2011, the parties conferred telephonically, with Oracle’s outside
counsel explaining that the designees’ responsibilities are solely legal; (4) on April 25, 2011,
Oracle sent a letter providing further information about Ms. Daley’s job duties and

pa-1462130

Hon. William Alsup
May 9, 2011
Page Three
highlighting Judge Legge’s conclusion in the SAP case that Ms. Daley was not involved in
competitive decision-making; and (5) on April 27, 2011, Google refused, without exception,
to grant Oracle’s designees access to AEO information.
Under the Stipulated Protective Order, Google bears the burden of proving that the
risk of harm resulting from disclosure of AEO information to Oracle’s in-house litigation
attorneys outweighs the attorneys’ need to receive that information. Google cannot meet this
burden. Disclosure of AEO information to Oracle’s designees would pose no risk of harm to
Google: (1) as experienced litigators, the designees are fully cognizant of their duties under
the Protective Order and would strictly abide by its requirements; and (2) as lawyers not
involved in competitive decision-making, there would be no risk of information being
inadvertently used for competitive purposes. If the Court chooses not to appoint a Special
Master, Oracle respectfully requests permission to file a substantive motion with the Court
on the AEO access issue.
Respectfully submitted,
/s/ Michael A. Jacobs
Michael A. Jacobs
Counsel for Plaintiff Oracle America, Inc.
cc:

Counsel for Google Inc.

pa-1462130