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)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
ORACLE AMERICA, INC.,

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

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

17

witnesses are credible or vouch for whose fact scenario is correct — that is entirely for the jury.

18

Nor should an expert ever attempt to tell the jury what someone intended or was thinking.

19

The mental state of the characters in our story on trial is for the jury to decide, never for experts

20

to speculate about. No after-the-fact expert could possibly have firsthand knowledge anyway.

21

No expert is a mind reader. These are clear-cut prohibitions.

22

That said, subject to the other rules of evidence, it will be permissible for experts to quote

23

from fact testimony or emails, memos, letters or other documents which are part of the res gestae

24

of the case and then to explicitly assume that they accurately reflect the relevant circumstances

25

and then, based thereon, apply their specialized expertise to render opinions beyond the ken of

26

our lay jury. This will be allowed even if a document (or testimony) reveals a mental state (like

27

an intent to “make enemies”). Under such a procedure, there will be no vouching because the

28

expert will make clear that he or she is simply assuming the document or testimony to have been

1

accurate. The expert, however, cannot embellish on the content of the evidentiary material in

2

violation of the strict prohibitions set forth above. On cross-examination, the other side may

3

clobber the expert’s assumption with documents or testimony going the other way. Within the

4

limits of Rule 403, the Court will allow this for both sides unless and until it gets out of hand.

5

As a matter of respect for the ability and role of juries, the Court would have preferred

6

that experts truncate the “fact advocacy” part of their testimony down to their core factual

7

assumptions and then, based thereon, explain their opinions to the jury. Both sides in this case,

8

however, seemed primed to argue their fact cases through experts, so it is hopeless to try to

9

regulate the problem further than to say the judge will vigilantly enforce the two principles stated

11
For the Northern District of California

United States District Court

10

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

12

testimony,” the Court will give the jury the instruction appended hereto, subject to hearing

13

counsel’s objections (due by NOON ON MAY 7).

14

Google’s motion is DENIED.

15

Please note that other orders in limine will address Witnesses Kemerer, Jaffe and

16

Malackowski and the denial in this order is without prejudice to restrictions elsewhere.

17
18

IT IS SO ORDERED.

19
20

Dated: May 3, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
2