Oracle America, Inc. v. Google Inc.

Filing 499

Second MOTION in Limine to Exclude Evidence or Argument That Google Relied on Legal Advice in Making Its Decisions to Develop and Release Android (MIL No. 2) filed by Oracle America, Inc.. Motion Hearing set for 10/24/2011 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 10/21/2011. Replies due by 10/28/2011. (Attachments: #1 Google Opposition)(Muino, Daniel) (Filed on 10/7/2011)

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1 2 3 4 5 6 ROBERT A. VAN NEST - #84065 CHRISTA M. ANDERSON - #184325 KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 7 DONALD F. ZIMMER, JR. (SBN 112279) 8 CHERYL A. SABNIS (SBN 224323) 9 KING & SPALDING LLP 10 101 Second Street – Suite 2300 San Francisco, CA 94105 11 Telephone: (415) 318-1200 Facsimile: (415) 318-1300 12 13 14 SCOTT T. WEINGAERTNER (Pro Hac Vice) ROBERT F. PERRY BRUCE W. BABER (Pro Hac Vice) KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: (212) 556-2100 Facsimile: (212) 556-2222 IAN C. BALLON (SBN 141819) HEATHER MEEKER (SBN 172148) GREENBERG TRAURIG, LLP 1900 University Avenue East Palo Alto, CA 94303 Telephone: (650) 328-8500 Facsimile: (650) 328-8508 Attorneys for Defendant GOOGLE INC. 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 ORACLE AMERICA, INC. 19 20 21 Plaintiff, v. GOOGLE INC. 22 Defendant. 23 Case No. 3:10-cv-03561-WHA GOOGLE’S OPPOSITION TO ORACLE’S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OR ARGUMENT THAT GOOGLE RELIED ON LEGAL ADVICE IN MAKING ITS DECISIONS TO DEVELOP AND RELEASE ANDROID 24 Judge: 25 Date Comp. Filed: 26 Trial Date: October 31, 2011 27 28 Hon. William Alsup October 27, 2010 1 Oracle moves in limine for the Court to preclude Google from generally relying on advice 2 of counsel to rebut allegations of willful patent and copyright infringement and intent to induce 3 patent infringement, but then leaps to the conclusion that the Court should broadly exclude any 4 evidence or argument whatsoever that Google relied on any legal advice in deciding to develop 5 and release Android. Such a categorical request disregards the Court’s September 2, 2011 Order 6 Regarding Pretrial Filings (Dkt. No. 384), which unambiguously states that the parties’ motions 7 in limine “must be directed at excluding specific items of evidence; categorical motions and 8 disguised summary judgment motions are highly disfavored.” Regardless, Oracle’s motion far 9 exceeds requesting the exclusion of “specific items of evidence” relating to issues of willfulness 10 11 and inducement. Accordingly, Oracle’s Motion In Limine No. 2 should be denied. A. 12 Oracle’s motion should be denied as moot because Google does not rely on an advice-of-counsel defense with respect to willfulness or inducement 13 At least with respect to its allegations of willfulness and inducement, Oracle’s Motion In 14 Limine No. 2 should be denied as moot. There is no evidence to suggest that Google even relies 15 on advice of counsel as a defense to willful patent infringement or inducing patent 16 infringement.1 (And lest there be any confusion—Google does not.) Thus, there’s no related 17 evidence to exclude. 18 19 20 B. Oracle seeks to expand Patent Local Rule 3-7 to exclude any evidence of any advice of counsel related to the development of Android Oracle asks this Court not just to exclude evidence regarding advice of counsel to defend 21 a willfulness or inducement charge, but to exclude all evidence concerning any advice of 22 counsel. Specifically, Oracle relies on Patent L.R. 3-7, which provides for the production of any 23 written advice and documents and written summaries of any oral advice and related documents 24 for which the attorney-client and work product protection have been waived. But Oracle points 25 to no evidence for which it believes Google’s privilege assertions would have been waived on 26 27 28 1 In fact, Google never had a reason to seek advice of counsel prior to July 209, 2010, as that was the first time Oracle gave Google notice of those patents 1 GOOGLE’S OPPOSITION TO ORACLE’S MOTION IN LIMINE NO. 2 CASE NO. CV 10-03561-WHA 1 account of potential reliance on advice of counsel to defend against the willfulness and 2 inducement charges. 3 To the contrary, the cases cited by Oracle provide no support for entirely and 4 categorically precluding Google from demonstrating that Google operated based on the advice of 5 counsel in connection with other issues—i.e., the general development of Android—having 6 nothing to do with Google’s rebuttal of Oracle’s willfulness and inducement allegations. Indeed, 7 even Oracle acknowledges that the cases that it cites solely relate to reliance on advice of counsel 8 with respect to issues of willfulness and/or inducement; they do not support such a blanket and 9 categorical exclusion of evidence related to advice of counsel generally. 10 C. 11 In the face of the Court’s Order Regarding Pretrial Filings, which strongly discouraged Conclusion 12 “categorical motions and disguised summary judgment motions,” Oracle has presented a motion 13 in limine that seeks to broadly preclude Google from presenting at trial an entire category of 14 evidence. Google has not relied on the advice of counsel as a defense to willfulness and 15 inducement because it is clear from the record that Google had no notice of the specific asserted 16 patents and no knowledge that its activities constituted infringement of the patents- and 17 copyrights-in-suit (for which it would have sought such advice) until just weeks before the 18 lawsuit. Oracle’s improper attempt to extend a moot point to categorically preclude Google’s 19 overall reliance on advice of counsel in the overall development of Android is unwarranted and 20 should be denied. 21 22 23 24 Dated: October 4, 2011 KEKER & VAN NEST LLP By: s/ Robert A. Van Nest ROBERT A. VAN NEST Attorneys for Defendant GOOGLE INC. 25 26 27 28 2 GOOGLE’S OPPOSITION TO ORACLE’S MOTION IN LIMINE NO. 2 CASE NO. CV 10-03561-WHA

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