Oracle America, Inc. v. Google Inc.

Filing 505

EXHIBITS re #503 Declaration in Support, (Exhibits L through R) filed by Oracle America, Inc. (Attachments: #1 Exhibit M, #2 Exhibit N, #3 Exhibit O, #4 Exhibit P, #5 Exhibit Q, #6 Exhibit R)(Related document(s) #503 ) (Muino, Daniel) (Filed on 10/7/2011) Modified on 10/11/2011 (wsn, COURT STAFF).

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

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

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)

vs.

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GOOGLE, INC.,

)

Defendant.

No. CV 10-03561 WHA

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

-- HIGHLY CONFIDENTIAL, ATTORNEYS' EYES ONLY --

Videotaped Federal Rule 30(b)(6) deposition of
DANIEL R. BORNSTEIN, taken at

the Law Office of

King & Spalding LLP, 333 Twin Dolphin Drive,
Suite 400, Redwood Shores, California, commencing
at 9:34 a.m., on Friday, July 22, 2011,
before Leslie Rockwood, RPR, CSR No. 3462.

PAGES 1 - 222
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EXHIBIT R

HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY
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MR. KAMBER: Object to the form. Beyond the
scope.
THE WITNESS: Not to my knowledge.
MR. PETERS: All right. Let's go to 285.
(Exhibit PX285 was marked for
identification.)
MR. KAMBER: Yeah, we're going to actually
claw back this document as unintentionally produced
privileged material.
MR. PETERS: I will object to that because as 17:54:49
I understand it, was this -- were you there, Bruce? Was
this read in open court yesterday?
MR. BABER: It was, and that has no bearing
on whether it's privileged or not. The protective order,
I believe, as soon as we give you notice, the basis is
17:55:02
that this was prepared at the request of counsel as part
of activities in anticipation of litigation, and we are
giving you notice under the protective order right now
that we are clawing it back.
Under the protective order, Marc, I believe
17:55:12
you are required to not use it, and you know what the
other consequences are under the protective order.
MR. PETERS: I do, and I will follow the
protective order for the time being, but I will ask, did
you make an objection about privilege yesterday?
17:55:28

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the specified information and any copies it has and may
not sequester, use, or disclose the information until the
claim is resolved.
Just so in fairness to you, I wanted to make
sure you understood that's what the order said.
17:56:36
MR. PETERS: So in that case, please hand
that one back.
MR. BABER: And while we're at it, I'll just
make another statement on the record, which is it's my
understanding as a result of our investigation following
17:56:58
Mr. Holtzman's violation of the protective order
yesterday, that there are several other iterations of
this same document, which is a draft of an internal email
that was supposed to have a privilege legend on it, that
had also been produced, and we'll be providing to you
17:57:11
shortly the production numbers of the other iterations,
and the clawback notice applies to those as well.
Sorry, Marc. I wanted to make it as clear as
we could make it.
MR. PETERS: I think it's very clear, as I
17:57:30
said, because I wasn't at the hearing yesterday. It's
clearly something that we'll have to resolve off-line.
(Exhibit PX285 was clawed back.)
MR. PETERS: Sometimes it is exciting, and if
this is what passes for excitement, you know.
17:58:03

Page 186
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MR. BABER: I don't believe -- no, we did not
know what Mr. Holtzman had in the courtroom. He did not
give us notice under the protective order, as he was
required to. That's been the subject of a separate
notice we've already provided to Oracle, which was a
17:55:42
violation of the protective order itself in the first
instance.
So we did not have an opportunity to know
what he was going to use with the Judge, nor to
investigate whether it was something that was
17:55:50
inadvertently produced.
We have determined that since the hearing
yesterday, and we are giving you notice right now under
paragraph 13 of the protective order.
MR. PETERS: Given that notice, I think we
17:56:00
will have to work this out off-line, and since we are
doing that, can we remove the exhibit stamp from that so
it's not in the -MR. KAMBER: Sure.
MR. BABER: Just so there's no
17:56:12
misunderstanding, I know you don't have the protective
order in front of you right now, but paragraph 13 under
the protective order does provide that after being
notified of the claim of privilege, which we have just
notified you of, a party must promptly return or destroy 17:56:23

Page 188
MR. KAMBER: I'm not sure this excites him

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much.

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MR. PETERS: We need to get out more.

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Pressing forward. 285.

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(Exhibit PX285 was marked for

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identification.)
Q. BY MR. PETERS: Mr. Bornstein, do you

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remember discussions between Google and a company called

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Skelmir, which is referred to in this email?

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A. If you don't mind, I'll take a moment to read

17:59:12

the document.

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Q. Please.

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A. Okay.

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Q. Do you remember working -- sorry, do you

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remember discussions between Google and a company called

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Skelmir?

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18:00:29

A. In general, yes.
Q. And what was Google looking to buy from
Skelmir?

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MR. KAMBER: Object to the form.

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THE WITNESS: So to be clear, I'm a technical

18:00:39

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guy, not a business guy. I was involved with discussions

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at a technical level with at least one of the guys from

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Skelmir. I was not in on the business discussions.

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Q. BY MR. PETERS: Did you evaluate Skelmir's

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18:01:04

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