Oracle America, Inc. v. Google Inc.

Filing 504

EXHIBITS re #503 Declaration in Support, (Exhibits G through K) filed by Oracle America, Inc.. (Attachments: #1 Exhibit H, #2 Exhibit I, #3 Exhibit J, #4 Exhibit K)(Related document(s) #503 ) (Muino, Daniel) (Filed on 10/7/2011) Modified on 10/11/2011 (wsn, COURT STAFF).

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ROBERT A. VAN NEST (SBN 84065)
[e-mail]
CHRISTA M. ANDERSON (SBN 184325)
[e-mail]
KEKER & VAN NEST LLP
710 Sansome Street
San Francisco, CA 94111-1704
Telephone: [phone]
Facsimile: [phone]

SCOTT T. WEINGAERTNER (Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
[e-mail]
KING & SPALDING LLP
1185 Avenue of the Americas
New York, NY 10036-4003
Telephone: [phone]
Facsimile: [phone]

DONALD F. ZIMMER, JR. (SBN 112279)
[e-mail]
CHERYL A. SABNIS (SBN 224323)
[e-mail]
KING & SPALDING LLP
101 Second Street – Suite 2300
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

IAN C. BALLON (SBN 141819)
[e-mail]
HEATHER MEEKER (SBN 172148)
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
GOOGLE 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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19 ORACLE AMERICA, INC.

Case No. 3:10-cv-03561-WHA

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Honorable Judge William Alsup

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Plaintiff,
v.

22 GOOGLE INC.
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DEFENDANT GOOGLE INC.’S
RESPONSES TO PLAINTIFF’S
INTERROGATORIES, SET FOUR

Defendant.

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EXHIBIT I

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Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendant Google Inc.

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(“Google”), through its attorneys, responds to Plaintiff’s Interrogatories to Defendant Google

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Inc., Set Four (“Plaintiff’s Fourth Interrogatories”), served by plaintiff Oracle America, Inc.

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(“Plaintiff” or “Oracle”) on June 29, 2011, as follows.

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GENERAL OBJECTIONS

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1.

Google responds generally that its investigations of the facts relevant to this

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litigation are ongoing. Google’s responses herein are given without prejudice to Google’s right

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to amend or supplement in accordance with Rule 26(e) of the Federal Rules of Civil Procedure,

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the Civil Local Rules, the Court’s Supplemental Order to Order Setting Initial Case Management

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Conference, any applicable Standing Orders, and the Case Management Order entered by the

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Court.

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2.

Google generally objects to Plaintiff’s Fourth Interrogatories, and the “Definitions

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and Instructions” related thereto, to the extent they are inconsistent with or impose obligations

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beyond those required by the Federal Rules of Civil Procedure, the Civil Local Rules, the Patent

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Local Rules, the Court’s Supplemental Order to Order Setting Initial Case Management

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Conference, any applicable Standing Orders, and the Case Management Order entered by the

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Court. In responding to each Interrogatory, Google will respond as required under Rule 33 of the

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Federal Rules of Civil Procedure.

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3.

Google generally objects to Oracle’s definition of “Java Platform” on the grounds

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that the definition is overbroad and misleading to the extent it purports to include “the Java

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programming language,” as to which Oracle does not own proprietary rights. When used in

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Google’s responses, the phrase “Java Platform” shall not include “the Java programming

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language” and, without acknowledging or agreeing that Oracle owns any proprietary rights in

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any elements thereof, shall have the meaning ascribed to that phrase in paragraph 9 of Oracle’s

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Amended Complaint, namely “a bundle of related programs, specifications, reference

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implementations, and developer tools and resources that allow a user to deploy applications

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written in the Java programming language on servers, desktops, mobile devices, and other

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devices,” including but not limited to the Java compiler, the Java Virtual Machine, the Java
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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET FOUR
CIVIL ACTION NO. CV 10-03561-WHA

EXHIBIT I

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Development Kit, the Java Runtime Environment, the Just-In-Time compiler, Java class

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libraries, Java application programming interfaces, and Java specifications and reference

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implementations.

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4.

Google generally objects to Oracle’s definition of “Android” as vague,

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ambiguous, overly broad, unduly burdensome, and not reasonably calculated to lead to the

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discovery of admissible evidence to the extent it includes “related public or proprietary source

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code, executable code, and documentation.”

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5.

Google generally objects to Plaintiff’s Fourth Interrogatories to the extent (a) they

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are not reasonably calculated to lead to the discovery of admissible evidence that is relevant to

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any claim or defense of any party; (b) they are unreasonably cumulative or duplicative; (c) they

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seek information that is obtainable from some other source that is more convenient, less

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burdensome, or less expensive; or (d) the burden or expense of the proposed discovery

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outweighs any likely benefit.

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6.

Google generally objects to Plaintiff’s Fourth Interrogatories to the extent they

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seek information, documents, and/or things protected from discovery by the attorney-client

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privilege, the work product doctrine, the common-interest privilege, and/or any other applicable

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privilege, immunity, or protection. Nothing contained in Google’s responses is intended to be, or

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in any way shall be deemed, a waiver of any such applicable privilege or doctrine.

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7.

Google generally objects to Plaintiff’s Fourth Interrogatories to the extent they

20 request information, documents, and/or things not within the possession, custody, or control of
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Google generally objects to Plaintiff’s Fourth Interrogatories on the grounds that

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Google objects that Oracle has already exhausted its exceeded its allowable

27 number of Interrogatories because it propounded Interrogatories No. 3 through 16, which Google
28 treated as containing two distinct sub-parts. Oracle stated in writing that it was seeking a total of
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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET FOUR
CIVIL ACTION NO. CV 10-03561-WHA

EXHIBIT I

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42 distinct interrogatories with those numbered 3 through 16, seeking “Google’s factual and

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legal bases for its defense known to it as of October 4, 2010, November 10, 2010, and now.”

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(January 12, 2011 Letter, Jacobs to Weingaertner.) Notwithstanding the foregoing and the fact

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that reading each interrogatory as two separate interrogatories exceeds the limits of Rule 33,

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Google responded with respect to when it filed its operative pleading in the case, namely Google

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Inc.’s Answer to Plaintiff’s Amended Complaint for Patent and Copyright Infringement and

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Amended Counterclaims on November 10, 2010 (Doc. #51) (“Answer and Counterclaims”), as

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well as its bases for its defenses generally, subject to Google’s general objection that discovery

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has just begun, and Google is still developing its defenses. In view of the Court’s admonition

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that “no enlargements of the limitations on discovery in the Federal Rules of Civil Procedure will

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be allowed until after counsel have demonstrated that they will behave reasonably in the

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discovery already authorized,” Google objects to what Oracle has labeled as Interrogatory Nos.

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20-25 as being improperly served without seeking permission from the Court to enlarge the

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scope of discovery. Google expressly reserves its right to move for a protective order on

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Interrogatory Nos. 20-25 and any response herein is not a waiver of that right.

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10.

Google incorporates by reference these General Objections into the specific

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objections and responses set forth below. While Google may repeat a General Objection for

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emphasis or some other reason, the failure to specifically refer to any General Objection does not

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constitute a waiver of any sort. Moreover, subject to the requirements of Rule 33 of the Federal

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Rules, Google reserves the right to alter or amend its objections and responses set forth herein as

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additional facts are ascertained and analyzed.

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11.

Google has conducted a reasonable inquiry sufficient to comply with any

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obligations with respect to these Interrogatories and makes no representation that these responses

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include an exhaustive list of all facts responsive and relevant to these Interrogatories.

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12.

Google remains willing to meet and confer with respect to any of its objections to

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assist Plaintiff in clarifying or narrowing the scope of the requested discovery, and reserves the

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right to move for a protective order if agreement cannot be reached.

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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET FOUR
CIVIL ACTION NO. CV 10-03561-WHA

EXHIBIT I

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part due to industry demand for an NDK by application developers), which allows developers to

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write code for Android applications in a programming language other than Java that can be

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compiled to machine code and natively executed by Android-based devices.

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With respect to the copyrights-in-suit, the allegedly copied elements are not

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copyrightable, and thus Google’s implementation is a non-infringing alternative. Moreover, to

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the extent that the accused Android API packages incorporate or were derived from Apache

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Harmony API libraries, Google’s use of those libraries is licensed under the Apache 2.0 open

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source license, and is thus a non-infringing alternative. Likewise, to the extent that the accused

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Android API packages incorporate or were derived from other third party API libraries, Google’s

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use of those libraries is licensed under open source licenses, and is thus a non-infringing

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alternative. Google also independently developed its own Android API packages, and thus those

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are a non-infringing alternative. (See, e.g., Rough Transcript of the July 22, 2011 Deposition of

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Dan Bornstein at 171-178.)

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Google further states that to the extent this Interrogatory seeks information that is more

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properly the subject matter of expert testimony, it will be addressed in Google’s non-

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infringement expert reports.

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Pursuant to Fed. R. Civ. P. 33(d), Google incorporates by reference the documents and

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deposition testimony cited in this Interrogatory response.

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INTERROGATORY NO. 21:

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Identify and describe in detail each modification made by third parties to the allegedly-

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infringing portions of Android source code and documentation identified by Oracle’s copyright

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and patent infringement contentions, including the author of, date of, and basis for each such

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modification.

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RESPONSE TO INTERROGATORY NO. 21:

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In addition to its General Objections, Google objects to this Interrogatory as vague and

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ambiguous by reason of its use of the phrases “third parties,” “allegedly-infringing portions,

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“documentation,” “identified by Oracle’s copyright and patent infringement contentions,” “basis

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for each such modification,” and as to the term “Android” as defined by Plaintiff. Google also
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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET FOUR
CIVIL ACTION NO. CV 10-03561-WHA

EXHIBIT I

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objects to this Interrogatory to the extent that it seeks information protected by the attorney-client

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privilege, the work-product doctrine, the common-interest privilege, and/or any other applicable

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privilege, immunity, or protection. Google also objects to this Interrogatory on the grounds that

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it seeks a legal conclusion or an expert opinion. Google further objects to this Interrogatory to

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the extent that it seeks information that is the confidential information of, or proprietary to, or the

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trade secret of, a third party and to the extent that it seeks information based on the subjective

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beliefs or opinions of third parties. Google further objects to this Interrogatory as overly broad

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and unduly burdensome to the extent that it is not reasonably calculated to lead to the discovery

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of admissible information. Google also objects to this Interrogatory to the extent that it seeks

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information not within Google’s possession, custody or control, to the extent that it is not limited

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to Google, and to the extent that it seeks information not kept in the ordinary course of Google’s

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business.

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Subject to the foregoing objections and the General Objections, without waiver or

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limitation thereof, Google states that it has no direct, specific knowledge with regard to how

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third parties modify the accused Android source code and documentation. Google releases

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Android source code to the public under the open source Apache License, Version 2.0. Any

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third party may freely modify Android source code subject to the terms of this license.

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INTERROGATORY NO. 22:

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Describe in detail the steps that Google and Android device manufacturers perform to

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retrieve, port, load, install, test, and/or execute Android on Android devices, including without

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limitation the person or entity that performs each step and the physical location where each step

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is performed.

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RESPONSE TO INTERROGATORY NO. 22:

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In addition to its General Objections, Google objects to this Interrogatory as vague and

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ambiguous by reason of its use of the phrases “Android device manufacturers,” “retrieve,”

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“port,” “load,” “install,” “test,” “execute,” “Android devices,” “the physical location where each

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step is performed,” and as to the term “Android” as defined by Plaintiff. Google further objects

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to this Interrogatory to the extent that it seeks information that is the confidential information of,
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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET FOUR
CIVIL ACTION NO. CV 10-03561-WHA

EXHIBIT I

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DATED: July 29, 2011

KING & SPALDING LLP

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By: /s/ Scott T. Weingaertner

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SCOTT T. WEINGAERTNER (Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
[e-mail]
1185 Avenue of the Americas
New York, NY 10036-4003
Telephone: [phone]
Facsimile: [phone]

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ROBERT A. VAN NEST (SBN 84065)
[e-mail]
CHRISTA M. ANDERSON (SBN 184325)
[e-mail]
KEKER & VAN NEST LLP
710 Sansome Street
San Francisco, CA 94111-1704
Telephone: [phone]
Facsimile: [phone]
DONALD F. ZIMMER, JR. (SBN 112279)
[e-mail]
CHERYL A. SABNIS (SBN 224323)
[e-mail]
KING & SPALDING LLP
101 Second Street – Suite 2300
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
IAN C. BALLON (SBN 141819)
[e-mail]
HEATHER MEEKER (SBN 172148)
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT
GOOGLE INC.

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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET FOUR
CIVIL ACTION NO. CV 10-03561-WHA

EXHIBIT I

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CERTIFICATE OF SERVICE

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I hereby certify that on this day, July 29, 2011, I served a true and correct copy of

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DEFENDANT GOOGLE INC.’S RESPONSES TO PLAINTIFF’S INTERROGATORIES, SET

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FOUR via e-mail on the following individuals:

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David Boies
Boies Schiller and Flexner
333 Main Street
Armonk, NY 10504
914-749-8201
Fax: [phone]
Email: [e-mail]
Deborah Kay Miller
Oracle USA, Inc Legal Department
500 Oracle Parkway
Redwood Shores, CA 94065
[phone]
Email: [e-mail]
Dorian Estelle Daley
500 Oracle Parkway
Redwood City, CA 94065
[phone]
Fax: [phone]
Email: [e-mail]
Marc David Peters
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
[phone]
Fax: [phone]
Email: [e-mail]

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Matthew M Sarboraria
Oracle Corporation
500 Oracle Parkway, 5OP7
Redwood Shores, CA 94065
650/ 506-1372
Email: [e-mail]
Michael A Jacobs
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
650-813-5600
Fax: [phone]
Email: [e-mail]
Daniel P. Muino
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
[phone]
Email: [e-mail]
Steven Christopher Holtzman
Boies, Schiller & Flexner LLP
1999 Harrison Street
Suite 900
Oakland, CA 94612
510-874-1000
Fax: [phone]
Email: [e-mail]

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Executed on July 29, 2011.
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/s/ Christopher C. Carnaval
Christopher C. Carnaval

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CERTIFICATE OF SERVICE

CIVIL ACTION NO. CV 10-03561

EXHIBIT I