Oracle America, Inc. v. Google Inc.

Filing 184

Declaration of MATTHEW SARBORARIA in Support of #170 Administrative Motion to File Under Seal filed byOracle America, Inc.. (Related document(s) #170 ) (Holtzman, Steven) (Filed on 6/21/2011)

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MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[e-mail]
MARC DAVID PETERS (Bar No. 211725)
[e-mail]
DANIEL P. MUINO (Bar No. 209624)
[e-mail]
755 Page Mill Road
Palo Alto, CA 94304-1018
Telephone: [phone] / Facsimile: [phone]

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C A L I F O R N I A

S C H I L L E R
B O I E S ,

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BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[e-mail]
333 Main Street
Armonk, NY 10504
Telephone: [phone] / Facsimile: [phone]
STEVEN C. HOLTZMAN (Bar No. 144177)
[e-mail]
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone: [phone] / Facsimile: [phone]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[e-mail]
DEBORAH K. MILLER (Bar No. 95527)
[e-mail]
MATTHEW M. SARBORARIA (Bar No. 211600)
[e-mail]
500 Oracle Parkway
Redwood City, CA 94065
Telephone: [phone] / Facsimile: [phone]
Attorneys for Plaintiff
ORACLE AMERICA, INC.
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.

Case No. CV 10-03561 WHA

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Plaintiff,
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v.
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DECLARATION OF MATTHEW
SARBORARIA IN RESPONSE TO
GOOGLE’S ADMINISTRATIVE MOTION
TO SEAL

GOOGLE, INC.
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Defendant.

Dept.: Courtroom 9, 19th Floor
Judge: Honorable William H. Alsup

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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA

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I, MATTHEW SARBORARIA, declare as follows:

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Counsel and I represent Oracle in the above-captioned matter.
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3.

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Daubert Motion (“Weingaertner Declaration”) (Dkt. No. 172), the Declaration of Gregory K. Leonard,

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I have reviewed the Declaration of Scott T. Weingaertner in Support of Google Inc.’s

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I make this declaration based on my own personal knowledge. If called as a witness, I

could and would testify competently as to the matters set forth herein.

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B O I E S ,

I am in-house counsel for Oracle America, Inc. (“Oracle”). My title is Senior Patent

Ph.D. (“Leonard Declaration”) (Dkt. No. 175), and Google, Inc.’s Brief in Support of Daubert Motion

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(Dkt. No. 171).

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4.

Oracle believes that Exhibits A, H–J, L, M, P, Q, R, and W which Google attaches to the

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Weingaertner Declaration, and the redactions in paragraphs 16 and 20 and footnotes two and three of

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the Leonard Declaration, should be filed under seal along with reference to confidential portions of

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these materials currently redacted in Google’s Brief as set forth below. These materials either are or

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reference materials properly designated Confidential or Highly Confidential – Attorneys’ Eyes Only

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pursuant to the Order Approving Stipulated Protective Order Subject to Stated Conditions entered in

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this case. (Dkt. No. 68.)
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Oracle was not consulted by Google prior to Google’s decision to attach these documents

to Google’s Motion and Declaration, and therefore played no role in the documents selected.
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Google has attached and has referenced confidential contractual information between

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Oracle and companies with whom Oracle does business. Specifically, Exhibit I is a proprietary Oracle

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spreadsheet setting forth the contract terms with manufacturers licensing Java as well as related

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financial forecasts and business strategies, Exhibit M is Oracle’s proprietary document detailing Java

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prices, and Exhibits P and Q are Technology Compatibility Kit licensing agreements from Oracle.

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Oracle takes pains to preserve the confidentiality of this information, which is not shared with third

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parties during the normal course of business. Disclosure of agreement terms and discussion of the same

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Below, each exhibit to the Weingaertner Declaration will be references as “Exhibit” or “Ex.” while each
paragraph and footnote to the Leonard Declaration will be referenced as “¶” and “FN” respectively.

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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA

material that is competitively sensitive for Oracle’s customers, and may also damage the customers’

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competitive advantage as their competitors would now have information about some of their costs.

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Materials reflecting Oracle’s contemporary business strategies and operational information

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protect those customers’ confidential information. Release of these documents would also disclose

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disclose the identity or the terms of its contracts with of its customers without permission, in order to

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of the agreements and the pricing for each other customer. Moreover, Oracle typically does not

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would provide an unfair advantage to Oracle’s counterparties and competitors by disclosing the terms

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should also be sealed, because that material is competitively sensitive and disclosure of it would cause

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great and undue harm to Oracle’s business. Exhibit L is Oracle’s proprietary spreadsheet detailing Java

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billings costs through 2011; Exhibit R is Oracle’s proprietary Java Sales Review PowerPoint, which

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contains information about Oracle’s 2011 Java business strategy; and footnotes 2 and 3 of the Leonard

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Declaration reference Oracle’s proprietary memorandum regarding software sales. Disclosure of

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Oracle’s cost information, and pricing and internal discussions regarding the same, would provide an

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unfair advantage to Oracle’s competitors. These documents are not publicly disclosed and are in fact

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safeguarded by the company to preserve competition and prevent predatory conduct. Disclosure of

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these sensitive pricing documents could have lasting effects on the competitive landscape.

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8.

Likewise, Oracle’s business strategy related to its acquisition of Sun Microsystems, Inc.

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(“Sun”) should be sealed. Exhibit H is Oracle’s Form CO to the European Commission discussing its

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acquisition of Sun; Exhibit W is Oracle CEO Larry Ellison’s letter to the Sun board offering to buy

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software assets; ¶ 20 of the Leonard Declaration references information from Oracle’s Form CO; and

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footnote 3 references Oracle’s valuation of Sun. The European Commission employs special

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confidentiality procedures to protect the information of the companies seeking merger review, and the

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version that Google has attached to its Daubert motion has not been made public. See Ex. H, p. 1

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(noting, in bold caps on the first page, “CONFIDENTIAL: CONTAINS BUSINESS SECRETS”).

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Disclosure of Oracle’s acquisition-related materials would reveal the company’s strategies and

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projections regarding business growth and other contemporary plans related to Sun assets, compromise

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its data sources, and provide an unfair advantage to Oracle’s competitors and acquisition targets.

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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA

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Both Google and Oracle have contracted with third parties to provide competitive analysis

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analysis that they provide, and Oracle has promised to maintain that confidentiality with the Duff &

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Phelps report that Google has attached to its Daubert motion. (See, e.g., Ex. J., at 97 (noting that,

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companies generally require that their clients maintain the confidentiality of the information and

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Daubert motion, reference information from the Duff & Phelps report. Those third-party valuation

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with Oracle. Paragraph 13 of the Leonard Declaration, as well as redacted portions of Google’s

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and review. Ex. J is a confidential report to Oracle from Duff & Phelps valuing Sun prior to its merger

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“Unless required by law, you shall not provide such report to any third party requiring this Fair Value

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analysis, or refer to us or our services without our prior written consent.”) Oracle had to contact Duff &

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Phelps prior even to producing the data in this case and was permitted to do so only in accordance with

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the Attorneys’ Eyes Only provision of the Protective Order. Third-party valuation information is often

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used by businesses to understand the market and obtain necessary inputs in developing new business

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strategies. Failure to maintain the confidentiality of the information, with resulting breach of the

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confidentiality provisions that Oracle has promised to uphold, could possibly lead to those third parties’

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refusal to sell Oracle valuable industry data in the future, and could cause competitive harm as Oracle’s

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competitors learn the sensitive valuation process that goes into Oracle’s decision to enter into a

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multibillion-dollar merger and acquisition transaction.

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10. Finally, the expert report of Professor Ian Cockburn (Ex. A) should be sealed. Professor

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Cockburn’s report integrates material designated by either Oracle or Google as Confidential or Highly

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Confidential – Attorneys’ Eyes Only under the Protective Order. The underlying documents reflect

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competitively sensitive information referenced in each of the categories above, including documents

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relating to contemporary business strategies for Oracle, Oracle’s business data and projections that are

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sensitive and should not be disclosed to competitors, and third-party data and contracts subject to

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confidentiality and nondisclosure agreements and provisions. While the parties could provide a version

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of the document with their respective confidential and highly confidential information redacted, the

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final document would likely be unreadable due to the extensive integration of Confidential or Highly

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Confidential – Attorneys’ Eyes Only information into almost every paragraph.

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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA

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11. Oracle states no position as to whether disclosure of materials marked by Google as
Confidential or Highly Confidential – Attorneys’ Eyes Only material would cause harm to Google.
12. Google’s redactions are a slightly different matter. Although Google has largely properly

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party, and isolated terms such as “multi-billion.” Some of this information, such as Oracle’s Form 10-

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redacted certain material that is in the public domain, certain information that is not sensitive to either

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Confidential or Highly Confidential – Attorneys’ Eyes Only, Google has also, as it did with its précis,

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redacted information contained in documents that either Google or Oracle has designated as

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K filing with the Securities Exchange Commission (see Motion at 5), and the fact that Google engaged

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in licensing negotiations with Oracle, have almost always been public information. Other items, such

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as the Qualcomm-Nokia agreement, are not proprietary or confidential to any party in this suit. (See

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Motion at 23.) Google has also again repeatedly redacted the total damages claimed by Oracle in this

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matter, and any and all reference to the word “billion.” As stated in its Opposition to Google’s Motion

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to Seal its Précis (Dkt. No. 178), Oracle’s damages claims are based on both accepted methodology and

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a wealth of concrete evidence, and there is no reason now to redact the total damages figures (even

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though Google has repeatedly misrepresented those figures) from public view, particularly after they

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have been filed unredacted in Google’s précis. Should the Court so decide, Oracle would not object to

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an order requiring Google to file a properly redacted public version that is more narrowly tailored to the

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material that is truly confidential.

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13. In conclusion, Oracle does not oppose Google’s Administrative Motion or proposed Order

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Granting Defendant Google Inc.’s Administrative Motion to File Under Seal (Dkt. No. 170) to the

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extent that they seek to seal Exs. A, H–J, L, M, P, Q, R, and W to the Weingaertner Declaration, ¶¶ 16

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and 20 and footnotes two and three of the Leonard Declaration, and related references in Google’s Brief

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Google’s Brief at 5:8-17 (discussion of Exs. H and I), 5:28-6:1 (“$36.7 million” derived from to Ex. J),

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6:5-8 (discussion of Ex. L), 6:10-17 (discussion of Ex. M), 6:20-23 (discussion of confidential materials

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referenced in Ex. A), 13:24-28 (discussion of Ex. M), 17:6-13 (discussion of Ex. R and confidential

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materials referenced in Ex. A), 18:22-23 (discussion of Ex. H), 18:25-27 (discussion of Ex. W), 19:4-9

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(discussion of Ex. W), 19:19 (“$36.7 million” derived from to Ex. J), 19:22-20:2 (discussion of

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confidential materials referenced in Ex. A), 20:12-15 (discussion of Exs. P & Q), 21:28-22:2
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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA

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(discussion of Ex. H), 22:16-21 (discussion of Ex. M and confidential materials referenced in Ex. A),

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23:1-8 (discussion of Ex. M), 23:26-24:3 (discussion of confidential materials referenced in Ex. A).

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Disclosure of this material would cause Oracle undue and irremediable competitive harm.

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Defendant Google Inc.’s Administrative Motion to File Under Seal (Dkt. No. 170).
I declare under penalty of perjury that the foregoing is true and correct and that this declaration
was executed on June 21, 2011 at Redwood Shores, California.

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14. Oracle accordingly requests that the Court grant Google’s Proposed Order Granting

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By: /s/ Matthew Sarboraria
Matthew Sarboraria

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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA

ATTESTATION OF FILER

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The signatory to this document is Matthew Sarboraria. I, Steven C. Holtzman, have obtained
Mr. Sarboraria’s concurrence to file this document on his behalf.

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Dated: June 21, 2011

BOIES, SCHILLER & FLEXNER LLP
By: /s/ Steven C. Holtzman
Steven C. Holtzman
Attorneys for Plaintiff
ORACLE AMERICA, INC.

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DECLARATION OF MATTHEW SARBORARIA IRT GOOGLE’S ADMINISTRATIVE MOTION TO SEAL
CASE NO. CV 10-03561 WHA