Oracle America, Inc. v. Google Inc.

Filing 1875

ORDER OVERRULING RULE 26(a) NON-DISCLOSURE OBJECTION TO STEFANO MAZZOCCHI AS WITNESS. Signed by Judge Alsup on 5/12/16. (whalc1, COURT STAFF) (Filed on 5/12/2016)

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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 No. C 10-03561 WHA Plaintiff, v. GOOGLE INC., Defendant. / ORDER OVERRULING RULE 26(a) NON-DISCLOSURE OBJECTION TO STEFANO MAZZOCCHI AS WITNESS 16 At the final pretrial conference, the subject of trial witnesses undisclosed under Rule 17 26(a) came up. Google wanted to present a witness (Simon Phipps) on a topic not disclosed 18 under Rule 26(a), and the Court allowed Google to do so contingent on presenting him for a 19 two-hour deposition. For its part, Oracle wanted to present a witness (Stefano Mazzocchi) 20 never disclosed by name under Rule 26(a) and the Court was about to allow it subject to a 21 deposition when Google said it didn’t want or need a deposition given the witness now worked 22 for Google (such that a private interview would suffice). 23 24 25 No order was made on Mazzocchi, however, because the Court received the impression that this detail would be worked out between counsel. Evidently, that was hoping for too much. Then at the outset of trial, Google objected to any reference in Oracle’s opening to 26 Mazzocchi and an email he wrote about how “illegal” the Apache Harmony Project was, 27 arguing again that he had not been disclosed under Rule 26(a). By this point, the judge had 28 forgotten what had happened at the final pretrial conference, so the judge ordered Oracle to 1 delete the Mazzocchi reference from the opening and said the Rule 26(a) issue would be 2 resolved later. 3 Now that the judge has gone back and read the transcript from the final pretrial 4 conference and had his memory refreshed, it is evident that Google is seeking to have it both 5 ways. Google won the opportunity to present a witness previously undisclosed on the trial topic 6 on condition of a two-hour deposition but opposes Oracle getting the same relief. The judge 7 would have granted Oracle such relief at the final pretrial conference had Google asked for a 8 deposition, but it didn’t need it since the witness now happened to be a Google employee. 9 Moreover, it is evident that little prejudice will flow from the nondisclosure since everyone has 11 For the Northern District of California United States District Court 10 known about the Apache email Mazzocchi will be asked to authenticate. The Rule 26(a) disclosure objection is OVERRULED and Stefano Mazzocchi will not be 12 excluded on that ground. Oracle, however, still must properly subpoena him. If it is true that 13 Google has taken it upon itself to advise Mazzocchi that he can disregard the subpoena, then 14 Mazzocchi needs separate counsel. This order reserves on the issue whether the Mazzocchi 15 document is self-authenticating. 16 17 IT IS SO ORDERED. 18 19 Dated: May 12, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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