Oracle America, Inc. v. Google Inc.

Filing 497

Declaration of DANIEL PURCELL in Support of #496 MOTION in Limine No. 5, #494 MOTION in Limine No. 3, #492 MOTION in Limine No. 1, #493 MOTION in Limine NO. 2, #495 MOTION in Limine No. 4 filed byGoogle Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40)(Related document(s) #496 , #494 , #492 , #493 , #495 ) (Kamber, Matthias) (Filed on 10/7/2011)

EXHIBIT 17

HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY
Page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

----------------------ORACLE AMERICA, INC.,
Plaintiff,
vs.

)
)
) No. CV 10-03561 WHA

GOOGLE, INC.,
Defendant.

)
)

-----------------------

-- HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY --

Videotaped deposition of JONATHAN SCHWARTZ,
taken at the Law Office of Keker & Van Nest LLP,
710 Sansome Street, San Francisco, California,
commencing at 9:40 a.m., on Wednesday, July 20,
2011, before Leslie Rockwood, RPR, CSR No. 3462.

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A. Yes.
Q. So it was a lot more than just a license of
technology?
A. Yes.
Q. Was there actual discussion about Sun
12:16:51
engineers and Android engineers working together?
A. Yes.
Q. At the end of the day, was Sun willing to do
whatever it was that Google was offering?
A. At the end of the day, we would have done the 12:17:03
deal for free, had they elected to use Sun technology.
We might have even paid for the privilege to participate.
Q. Why is that?
A. Because the net effect of being engaged with
a handset platform that we knew would be globally
12:17:18
successful would have a considerable halo effect for Sun
just in our own brand image, leaving aside access to
carriers to talk about how we could create, you know,
alternatives and variations for them.
Q. So had the negotiations continued,
12:17:35
Mr. Schwartz, your view is that Sun would have been
willing to license all of Java and provide support and so
on either for free or including some payment to Google?
MS. RUTHERFORD: Objection.
THE WITNESS: Yes, to the extent that you
12:17:55

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THE WITNESS: Yes.
Q. BY MR. VAN NEST: Did you ever discuss
financial terms with Mr. Gupta for such an arrangement?
A. We seemed to have what was on the one hand an
ongoing dialogue that, on the other, was just kind of
12:19:31
abruptly terminated. I don't think the complexity
surrounding the deal was ever the monetary terms.
Q. But again -- but again, Mr. Schwartz, your
view as the CEO at the time was in terms of a negotiation
with Google to participate in Android, that had enough
12:19:54
value to Sun that Sun would have been willing to pay
money for it?
MS. RUTHERFORD: Objection. Are you talking
about the actual terms of the contract or what it was in
Mr. Schwartz's mind?
12:20:09
MR. VAN NEST: I'll let the question stand.
You may answer.
THE WITNESS: It would have been of
significant strategic value for Sun to be on stage with
Google announcing Android. That had value, potentially
12:20:19
significant value. To not be on stage was not as
valuable.
So would the 10 million, which if I recall
was year one payment from Google to Sun, would that have
changed in any way our financial destiny? No. So would 12:20:39

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recall if the choice is -- and I believe I actually
stated this at the time -- better Java than Brew. Better
our Java than whatever they deliver.
So it comes down to a very simple decision.
If you're included, you have a seat at the table and an
12:18:15
access to the marketplace. If you're not included, then
you have no similar -- you know, no such access to the
marketplace.
The middle ground is they used technologies
that amplify the same technologies that we build, we can 12:18:31
at least be a part of that dialogue.
Q. BY MR. VAN NEST: And I take it you would
have been the ultimate decision maker on any particular
deal with Google at this level?
A. Had economic terms been the determinant of
12:18:44
whether we could do a deal, yes.
Q. In other words, as CEO, you would have had
the final say on anything Mr. Gupta was proposing with
Google; correct?
A. Yes, yes.
12:19:00
Q. And it's your view that had Google been
willing to do it, Sun would have been willing to pay for
the right to participate in a technology partnership with
Google over Android?
MS. RUTHERFORD: Objection.
12:19:14

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we have waived that for ultimately being a premier
technology partner alongside Google? I believe we would
have. I didn't have that option.
Q. BY MR. VAN NEST: But had you had that
option, you certainly would have approved it?
12:20:53
A. Yes.
Q. And as CEO, again, you had the authority to
do that?
A. Yes.
Q. Now, when Google first announced the Android 12:21:02
software developers kit in 2007, did Sun in effect
embrace it publicly?
A. Yes, we did.
Q. What did you say about it in the market?
A. That we were -- you know, I think what I said 12:21:20
internally was better that than Brew. Brew was a
completely variant platform that had no real benefit to
Sun, built by Qualcomm, and that at least they were using
the Java programming language. They would -- you know,
we would be able to interact by providing technologies
12:21:42
that would support it and hopefully continue to engage in
dialogues with customers and partners.
Q. So do you remember congratulating Google on
the launch of Android?
A. I do.
12:21:57

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STATE OF CALIFORNIA ) ss:
COUNTY OF MARIN
)
I, LESLIE ROCKWOOD, CSR No. 3462, do hereby
certify:
That the foregoing deposition testimony was
taken before me at the time and place therein set forth
and at which time the witness was administered the oath;
That testimony of the witness and all
objections made by counsel at the time of the examination
were recorded stenographically by me, and were thereafter
transcribed under my direction and supervision, and that
the foregoing pages contain a full, true and accurate
record of all proceedings and testimony to the best of my
skill and ability.
I further certify that I am neither counsel
for any party to said action, nor am I related to any
party to said action, nor am I in any way interested in
the outcome thereof.
IN WITNESS WHEREOF, I have subscribed my name
this 24th day of July, 2011.

__________________________________
LESLIE ROCKWOOD, RPR, CSR NO. 3462

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DEPOSITION EXHIBITS
JONATHAN SCHWARTZ
GOOGLE EXHIBITS DESCRIPTION
Exhibit 52

CNET News, internet printout, 40
6/22/11, GOOGLE-00-00000516
- 519
Exhibit 53
Sun Reveals a Slew of Moves 45
at JavaOne, GOOGLE-0000000520 - 522
Exhibit 54
Email from Jonathan Schwartz 57
to Jeet Kaul, 12/5/08,
OAGOOGLE0003901182
Exhibit 55
Newsmaker: Sun's Open Source 61
Odyssey, GOOGLE-00-00000494
- 497
Exhibit 56
eWeek, Sun's Schwartz Opens Up 65
About Sun's Open-Source Java,
5/16/06, GOOGLE-00-00000504
- 506
Exhibit 57
Sun Microsystems CEO Jonathan 68
Schwartz on What's Next for
OpenSource, 3/23/09, GOOGLE-0000000490- 491

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INDEX
WEDNESDAY, JULY 20, 2011
WITNESS

EXAMINATION

JONATHAN SCHWARTZ
By Mr. Van Nest
By Ms. Rutherford

5, 213
174

IDENTIFIED

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DEPOSITION EXHIBITS (Continued)
GOOGLE EXHIBITS DESCRIPTION
IDENTIFIED
Exhibit 58
Email from Jonathan Schwartz 72
to Marten Mickos, 1/12/08,
OAGOOGLE0004648998 - 001
Exhibit 59
Email from Jonathan Schwartz 76
to John Fowler, 3/4/08,
OAGOOGLE0004651963 - 64
Exhibit 60
Letter to Jonathan Schwartz 82
from Edward Cobb, et al.,
6/22/07, GOOGLE-14-00042922
- 23
Exhibit 61
Executive Committee Meeting 86
Summary, for 4 - 5 December,
2007, GOOGLE-00-00000507 - 11
Exhibit 62
Jonathan's Blog, 10/24/07,
93
GOOGLE-00-00000514- 515
Exhibit 63
Free Advice for the Litigious, 97
5/15/07, GOOGLE-00-00000513
Exhibit 64
The Legal Thing, by Mike Dillon, 98
6/26/08, GOOGLE-00-00000498
Exhibit 65
eWeek, Linux Open Source and 101
Ubuntu News, 5/23/07,
GOOGLE-00-00000492 - 93

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