Oracle America, Inc. v. Google Inc.
Filing
1803
ORDER RE GOOGLE MOTION IN LIMINE RE EXPERT VOUCHING FOR PREFERRED VERSION OF DISPUTED FACT (ECF NO. 1697) [re #1697 MOTION in Limine Google's #1 Summary MIL to Preclude Expert Testimony that is Recitation of a Preferred Version of Disputed Facts and Oracle's Opposition filed by Google Inc.]. Signed by Judge William Alsup on 5/3/2016. (Attachments: #1 Appendix Draft Jury Instruction on Expert Witnesses)(whasec, COURT STAFF) (Filed on 5/3/2016)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ORACLE AMERICA, INC.,
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For the Northern District of California
United States District Court
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Plaintiff,
No. C 10-03561 WHA
v.
ORDER RE GOOGLE MOTION
IN LIMINE RE EXPERT VOUCHING
FOR PREFERRED VERSION OF
DISPUTED FACT (ECF NO. 1697)
GOOGLE INC.,
Defendant.
/
Google is correct that an expert should never purport to tell the jury which side’s fact
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witnesses are credible or vouch for whose fact scenario is correct — that is entirely for the jury.
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Nor should an expert ever attempt to tell the jury what someone intended or was thinking.
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The mental state of the characters in our story on trial is for the jury to decide, never for experts
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to speculate about. No after-the-fact expert could possibly have firsthand knowledge anyway.
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No expert is a mind reader. These are clear-cut prohibitions.
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That said, subject to the other rules of evidence, it will be permissible for experts to quote
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from fact testimony or emails, memos, letters or other documents which are part of the res gestae
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of the case and then to explicitly assume that they accurately reflect the relevant circumstances
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and then, based thereon, apply their specialized expertise to render opinions beyond the ken of
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our lay jury. This will be allowed even if a document (or testimony) reveals a mental state (like
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an intent to “make enemies”). Under such a procedure, there will be no vouching because the
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expert will make clear that he or she is simply assuming the document or testimony to have been
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accurate. The expert, however, cannot embellish on the content of the evidentiary material in
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violation of the strict prohibitions set forth above. On cross-examination, the other side may
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clobber the expert’s assumption with documents or testimony going the other way. Within the
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limits of Rule 403, the Court will allow this for both sides unless and until it gets out of hand.
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As a matter of respect for the ability and role of juries, the Court would have preferred
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that experts truncate the “fact advocacy” part of their testimony down to their core factual
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assumptions and then, based thereon, explain their opinions to the jury. Both sides in this case,
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however, seemed primed to argue their fact cases through experts, so it is hopeless to try to
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regulate the problem further than to say the judge will vigilantly enforce the two principles stated
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For the Northern District of California
United States District Court
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above, even to the extent of interrupting and striking testimony sua sponte.
Furthermore, to protect the integrity of the process and to help the jury evaluate “expert
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testimony,” the Court will give the jury the instruction appended hereto, subject to hearing
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counsel’s objections (due by NOON ON MAY 7).
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Google’s motion is DENIED.
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Please note that other orders in limine will address Witnesses Kemerer, Jaffe and
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Malackowski and the denial in this order is without prejudice to restrictions elsewhere.
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IT IS SO ORDERED.
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Dated: May 3, 2016.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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