Oracle America, Inc. v. Google Inc.

Filing 413

ORDER SETTING ASSIGNMENT FOR RULE 706 EXPERT re #407 Proposed Order filed by Oracle America, Inc.. Signed by Judge Alsup on September 9, 2011. (whalc1, COURT STAFF) (Filed on 9/9/2011)

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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.

Case No. CV 10-03561 WHA

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Plaintiff,
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v.
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GOOGLE, INC.
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Defendant.

[PROPOSED] ORDER RE RULE 706
EXPERTS
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Dept.:
Courtroom 9, 19th Floor
Judge:
Honorable William Alsup
Date Comp. Filed: October 27, 2010
Trial Date:
October 31, 2011

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[PROPOSED] ORDER RE RULE 706 EXPERTS
CASE NO. 3:10-cv-03561-WHA

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By an order dated August 30, 2001, this Court appointed Dr. James R. Kearl, pursuant to Rule

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706 of the Federal Rules of Evidence, to serve as an independent expert on the issue of damages

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claimed by plaintiff Oracle America in this action. Mr. John L. Cooper of Farella, Braun + Martel LLP

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was appointed to serve as counsel to Dr. Kearl on a pro bono basis. The purpose of Dr. Kearl’s

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appointment is to provide an independent professional analysis and view to inform the jury, in the event

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liability is found, on the issue of damages on the claims asserted in this action. Dr. Kearl is to use his

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professional judgment to determine the magnitude of work required to meet the purpose of this

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appointment. Dr. Kearl’s assignment will include, but not be limited to, and will be subject to the

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following:

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1. Dr. Kearl may review any and all materials necessary for him to be personally and thoroughly

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informed as to all aspects of the damages claims and analyses of the parties in this action. Dr. Kearl

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may use assistants in conducting his work, which assistants shall be compensated as provided in

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paragraph 9 of this Order. To the extent they have not already done so, Mr. Cooper, Dr. Kearl, and any

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of Dr. Kearl’s staff who will have access to confidential material of either party will sign the

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undertaking required under the Protective Order in this case regarding access to and review of

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confidential and highly confidential material. Mr. Cooper will assist Dr. Kearl in obtaining from

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counsel for the parties any material Dr. Kearl seeks to review. The full, non-privileged record in this

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matter will be available to Dr. Kearl as he requests.

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2. The parties have already provided to Mr. Cooper the expert damages report submitted by Dr.

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Iain M. Cockburn in May 2011, the parties’ briefing on Google’s Daubert motion regarding that report,

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the transcript of the July 21, 2011 hearing on that motion, and the order of this court dated July 22,

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2011 resolving that motion. The parties will immediately produce to Mr. Cooper the following

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additional materials to be conveyed to Dr. Kearl: a) a list of all depositions taken in this matter,

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including notices of all Rule 30(b)(6) depositions and the identity of the responding witnesses; b) a

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description by category of all documents produced by each party; c) copies of all substantive motions

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filed by the parties; d) copies of all documents filed in conjunction with any Markman hearings; e)

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copies of all expert reports filed in this matter; f) copies of all answers to interrogatories submitted by

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the parties; and g) copies of all responses to requests for admissions submitted by the parties.
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[PROPOSED] ORDER RE RULE 706 EXPERTS
CASE NO. 3:10-cv-03561-WHA

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3. Dr. Kearl may review each party’s expert reports and all supporting materials submitted by each

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party’s damages expert or experts. When the parties serve expert reports on the other party, they will

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serve copies of those reports and all supporting materials on Mr. Cooper to be conveyed to Dr. Kearl.

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The parties will make available to Dr. Kearl through Mr. Cooper the full record of materials on which

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their experts relied in preparing their reports and testimony.

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4. By November 14, 2011, Dr. Kearl will prepare and submit a separate expert report which will

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independently a) critique the damages expert reports submitted by each side, b) provide his assessment

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of any or all issues raised or presented in the damages expert reports of the parties, and c) address each

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additional issue he believes should be evaluated in order to provide the jury with a complete and

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independent view of damages in this case. Mr. Cooper will be available to provide whatever assistance

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Dr. Kearl needs to obtain information and prepare his report.

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5. The parties will have the right to conduct discovery of Dr. Kearl to the same extent as any other

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expert witness. The parties will complete Dr. Kearl’s deposition by November 23, 2011, subject to a

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possible reasonable extension depending on the date on which the Court schedules the trial on damages.

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Mr. Cooper will participate in such deposition to represent the interests of Dr. Kearl. Communication

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between Mr. Cooper and Dr. Kearl will be privileged to the extent provided by Rule 26 of the Federal

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Rules of Civil Procedure. Oracle and Google, collectively, will have no fewer than 7 hours to question

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Dr. Kearl, with the precise amount of time to be determined after the parties have the opportunity to

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review the scope of Dr. Kearl’s expert report. Oracle and Google will divide the allotted time equally.

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Mr. Cooper will also have the opportunity to question Dr. Kearl at deposition. Following the

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completion of the deposition, Mr. Cooper will submit the transcript of the deposition to the Court and

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the Court may direct additional questions to Dr. Kearl. Following the Court’s questioning, the parties

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will have the opportunity to direct follow up questions to Dr. Kearl within the scope of any questions

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asked by the Court.

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6. Dr. Kearl will be permitted to attend the depositions of the parties’ damages experts in this

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matter, and Mr. Cooper, as Dr. Kearl’s counsel, will be permitted to question the parties’ damages

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experts at those depositions. The parties will meet and confer and seek the Court’s guidance regarding

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[PROPOSED] ORDER RE RULE 706 EXPERTS
CASE NO. 3:10-cv-03561-WHA

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the process, if any, by which Dr. Kearl, through Mr. Cooper, may submit proposed questions to the

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Court to be posed to the parties’ experts at trial.

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7. While Dr. Kearl is not to function as a mediator, the Court is interested in full disclosure and

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understanding by Dr. Kearl of all issues relating to damages in this action. In serving that interest, the

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parties are directed to agree to a procedure by which Dr. Kearl can communicate with each of the

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parties’ expert witnesses in an informal off-the-record manner to address any ambiguities he may wish

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to have clarified. Such informal communications will not be subject to discovery or admissible in

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court, and shall be solely between the experts.

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8. Dr. Kearl will testify at trial subject to the provisions of Rule 26 of the Federal Rules of Civil

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Procedure. The parties will meet and confer and seek the Court’s guidance regarding how Dr. Kearl’s

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role at trial will be described to the jury. Dr. Kearl will be presented in direct examination at trial by

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Mr. Cooper. Each party will be permitted to cross examine Dr. Kearl as though he were an adverse

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expert witness. The Court will direct questions to Dr. Kearl as it deems appropriate.

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9. Dr. Kearl will be compensated on a monthly basis. His professional fees and expenses will be

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paid to Mr. Cooper, one half by each party within in thirty days of receipt of each of his monthly

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invoices. Dr. Kearl will submit his invoices and supporting materials, which will include the invoices

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and supporting material of those persons assisting him, including the number of hours worked, the work

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performed, and the type of expenses incurred, to Mr. Cooper, who will forward them to counsel for the

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parties for payment in accordance with this order. The parties may contact Mr. Cooper to seek to

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negotiate reductions in Dr. Kearl’s billing as they deem necessary or appropriate.

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10. Neither Dr. Kearl nor any of his assistants will communicate directly with the parties or with the

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Court. All communication Dr. Kearl has with the parties and the Court will be conducted through Mr.

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Cooper. The communications discussed in paragraph 7 of this order will not be between the parties but

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will be professional communication between the experts off the record.

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[PROPOSED] ORDER RE RULE 706 EXPERTS
CASE NO. 3:10-cv-03561-WHA

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11. Neither Dr. Kearl nor any of his assistants will incur any liability to the parties as a result of
their work on this matter.

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IT IS SO ORDERED.

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Dated:______________________
September 8, 2011.
September 9, 2011.

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HON. WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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/s/ Steven C. Holtzman
Filer’s Attestation: Pursuant to General Order NO. 45,
Section X.B. regarding non-filing signatories, Steven C.
Holtzman hereby attests that he has obtained concurrence
from counsel for Google Inc. and Dr. James Kearl in the
filing of this proposed order.

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[PROPOSED] ORDER RE RULE 706 EXPERTS
CASE NO. 3:10-cv-03561-WHA