Oracle America, Inc. v. Google Inc.
Filing
146
ORDER SCHEDULING HEARING ON COMPETITIVE DECISION MAKERS. Signed by Judge Donna M. Ryu on 5/20/11. (dmrlc2, COURT STAFF) (Filed on 5/20/2011)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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ORACLE AMERICA, INC.,
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Plaintiff(s),
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GOOGLE INC.,
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ORDER SCHEDULING HEARING ON
COMPETITIVE DECISION MAKERS
v.
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No. C-10-03561 WHA (DMR)
Defendant(s).
___________________________________/
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On May 18, 2011, the parties filed a joint letter [Docket No. 145] regarding a dispute as to
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whether four Oracle in-house attorneys are involved in "competitive decision-making" for purposes
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of determining whether they may review information designated as "HIGHLY CONFIDENTIAL --
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ATTORNEYS' EYES ONLY" under the Stipulated Protective Order entered in this case. [Docket
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No. 66].
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The question of whether an individual is involved in competitive decision-making must be
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determined on a case-by-case basis. U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed.
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Cir. 1984). The Stipulated Protective Order defines competitive decision-making as "decision-
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making relating to any and all decisions made in light of or that take into account information
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regarding a competitor or potential competitor, including but not limited to such decisions regarding
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contracts, marketing, employment, pricing, product or service development or design, product or
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service offerings, research and development, or licensing, acquisition or enforcement of intellectual
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property rights (other than this action), provided, however, that this phrase shall be interpreted in
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accordance with the relevant case law." Stipulated Protective Order, Docket No. 66 at ΒΆ 7.4(a)(1).
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As described by a leading case, "[t]he phrase [competitive decision-making] would appear
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serviceable as shorthand for a counsel's activities, association, and relationship with a client that are
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such as to involve counsel's advice and participation in any or all of the client's decisions (pricing,
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product design, etc.) made in light of similar or corresponding information about a competitor."
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U.S. Steel Corp., 730 F.2d at 1468 n.3.
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By May 26, 2011, Plaintiff Oracle America, Inc. shall file detailed, substantial, factual and
non-conclusory declarations by each of the four Oracle counsel at issue in this matter. The
declarations shall set forth counsel's background, as well as his/her duties, activities, associations
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For the Northern District of California
United States District Court
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and relationships as they relate to the definition of competitive decision-making set forth above.
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The Court shall conduct a hearing on this matter on May 31, 2011 at 11:30 a.m.
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IT IS SO ORDERED.
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Dated: May 20, 2011
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DONNA M. RYU
United States Magistrate Judge
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