Oracle America, Inc. v. Google Inc.

Filing 211

Declaration in Support of #196 Administrative Motion to File Under Seal DECLARATION OF MATTHEW SARBORARIA IN SUPPORT OF GOOGLE, INC.S ADMINISTRATIVE MOTION TO FILE UNDER SEAL PORTIONS OF GOOGLES DAUBERT REPLY BRIEF filed byOracle America, Inc.. (Attachments: #1 Proposed Order [PROPOSED] ORDER SEALING ORACLE AMERICA, INC.S CONFIDENTIAL INFORMATION FROM GOOGLE, INC.S DAUBERT REPLY BRIEF)(Related document(s) #196 ) (Holtzman, Steven) (Filed on 7/12/2011)

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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]
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]
ALANNA RUTHERFORD
575 Lexington Avenue, 7th Floor, New York, NY 10022
Telephone: [phone] / Facsimile: [phone] (fax)
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.

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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.

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Plaintiff,

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v.

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GOOGLE, INC.

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Defendant.

Case No. CV 10-03561 WHA
DECLARATION OF MATTHEW
SARBORARIA IN SUPPORT OF
GOOGLE, INC.’S ADMINISTRATIVE
MOTION TO FILE UNDER SEAL
PORTIONS OF GOOGLE’S DAUBERT
REPLY BRIEF
Dept.: Courtroom 9, 19th Floor
Judge: Honorable William H. Alsup

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SARBORARIA DECL. ISO GOOGLE’S ADMIN MOTION TO SEAL PORTIONS OF DAUBERT REPLY
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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198), along with Google’s Administrative Motion to File Under Seal (Dkt. No. 196) and its supporting

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I have reviewed Google’s Reply Brief regarding its Daubert Motion (“Reply”) (Dkt. No.

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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

papers.

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4.

The redacted material on page 8:12 through 8:14 of the Reply refers to a document that

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Google attached to its Daubert motion as Exhibit H to the Weingaertner Declaration In Support Of

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Google, Inc.’s Daubert Motion (hereinafter “Weingaertner Decl.”): Oracle’s Form CO to the European

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Commission discussing its acquisition of Sun. As I described in my previous Declaration, (see

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Declaration of Matthew Sarboraria In Response To Google’s Administrative Motion To Seal

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(hereinafter “First Sarboraria Decl.”) ¶ 8 (Dkt. No. 184)), 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 attached to its Daubert motion has not been made public. I understand that this

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Court has already held that this document should remain under seal. (Dkt. Nos. 186, 203.) However,

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the sentences that Google has redacted contain only very general information derived from this

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document, and making those sentences public would not jeopardize Oracle’s confidential information.

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Therefore, Oracle does not request that redacted material on page 8:12 through 8:14 remain redacted

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from its Reply, although Oracle does not waive its claim to the confidentiality of the underlying

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document. Oracle would not object to an order requiring Google to unredact these two sentences from

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its Reply.

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5.

The redacted material on page 8:14 through 8:17 of the Reply refers to a document that

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Google attached to its Daubert motion as Exhibit I to the Weingaertner Declaration. As I previously

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described, Exhibit I is a proprietary Oracle spreadsheet setting forth the contract terms with

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manufacturers licensing Java as well as related financial forecasts and business strategies. (First

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Sarboraria Decl. ¶ 6 (Dkt. No. 184).) Oracle does not make these kinds of documents public in the
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SARBORARIA DECL. ISO GOOGLE’S ADMIN MOTION TO SEAL PORTIONS OF DAUBERT REPLY
CASE NO. CV 10-03561 WHA

documents, and therefore requests that the redacted material on page 8:14 through 8:17 of the Reply

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remain under seal.

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6.

The redacted material on page 8:18 through 8:20 of the Reply refers to the Report of

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186.) Oracle believes that the redacted sentences refer to the specific information contained in these

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understand that this Court has already held that this document should remain under seal. (Dkt. No.

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and competitors, and Oracle generally protects its customers’ confidential information. (Id.) I

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ordinary course of business, as doing so would provide an unfair advantage to Oracle’s counterparties

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Professor Iain Cockburn, and discusses proposed terms of a license that Oracle and Google negotiated

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in 2006. While Oracle continues to believe that Professor Cockburn’s report should be sealed, (see

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First Sarboraria Decl. ¶ 10 (describing reasons to seal report); Dkt. No. 186 (sealing report)), the first of

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the two redacted sentences is too general to jeopardize any Oracle confidential information. Moreover,

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it is public knowledge that Oracle and Google negotiated for a license for Android. (See First

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Sarboraria Decl. ¶ 10 (“the fact that Google engaged in licensing negotiations with Oracle [has] almost

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always been public information.”).) However, the last sentence in the paragraph refers to the proposed

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terms of the license that the parties negotiated, which reflects the parties’ demands and positioning in

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the negotiations. Oracle does not disclose this kind of information in the ordinary course of business,

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and Oracle believes that disclosure of that information would give an unfair advantage to Oracle’s

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negotiating counterparties. Oracle therefore requests that only the last sentence, reflected on page 8:19

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through 8:20, remain under seal. Oracle would not object to an order requiring Google to unredact the

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sentence found at page 8:18 through 8:19 from its Reply.

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7.

Google’s citations for the redacted material on page 8:26 through 8:28 make no sense.

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Although Google claims that the redacted information is derived from Oracle’s July 1, 2010 10-K form,

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which is obviously public, the figures it describes do not exist in that document. Instead, Google has

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cited to Exhibit J to the Weingaertner Declaration, which contains not Oracle’s 10-K filing but a sealed

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third-party accounting document. Paragraph 19 of the Weingaertner Declaration, which Google also

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cites, refers to an unrelated public website. To the best of Oracle’s ability to discern, the information

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that Google has redacted was contained in Weingaertner Declaration Exhibit J, a third-party accounting

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document from Duff & Phelps that Oracle commissioned in connection with its acquisition of Sun
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SARBORARIA DECL. ISO GOOGLE’S ADMIN MOTION TO SEAL PORTIONS OF DAUBERT REPLY
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Microsystems, Inc. As I previously described, Oracle has promised to keep this material confidential,

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and the material contained therein is competitively sensitive. (First Sarboraria Decl. ¶ 9.) I understand

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that this Court has already held that this document should remain under seal. (Dkt. No. 186.) Oracle

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therefore requests that the redacted material on page 8:26 through 8:28 remain under seal.

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The redacted material contained on page 9:2 through 9:9 refer to two different

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party valuation of Java that Oracle referred to in its Daubert opposition. (See Declaration of Matthew

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documents—an offer to purchase Sun’s software assets (Weingaertner Decl. Exh. W) and another third-

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Sarboraria In Support Of Oracle America, Inc.’s Administrative Motion to File Under Seal Portions Of

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Opposition To Google’s Daubert Motion at ¶ 5, 6.) I have explained why those third-party valuation

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documents are competitively sensitive. (Id.; see also First Sarboraria Decl. at ¶ 8, 9.) I understand that

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this Court has previously held those documents should remain under seal. (Dkt. Nos. 186, 203.) Once

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again, although Google characterizes the statements in Oracle’s public 10-K filing, it is mistaken. The

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information it refers to cannot be found in that public document. Oracle therefore requests that the

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redacted material on page 9:2 through 9:9 remain under seal.

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Finally, Google has redacted a single clause from page 13:3 through 13:4. That

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information obliquely refers to the licensing terms on which Oracle has licensed Java in the past, and

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thus should remain under seal for the reasons described above in paragraph 5.

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I declare under penalty of perjury that the foregoing is true and correct and that this declaration
was executed on July 12, 2011 at Redwood Shores, California

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By: /s/ Matthew Sarboraria
Matthew Sarboraria

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SARBORARIA DECL. ISO GOOGLE’S ADMIN MOTION TO SEAL PORTIONS OF DAUBERT REPLY
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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: July 12, 2011

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

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SARBORARIA DECL. ISO GOOGLE’S ADMIN MOTION TO SEAL PORTIONS OF DAUBERT REPLY
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