Oracle America, Inc. v. Google Inc.

Filing 525

Proposed Pretrial Order CORRECTED Joint Proposed Pretrial Order by Oracle America, Inc.. (Attachments: #1 Appendix A (Joint Trial Exhibit List), #2 Appendix B (Oracle Witness List), #3 Appendix C (Google Witness List))(Muino, Daniel) (Filed on 10/13/2011)

Appendix B

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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - #84065
[e-mail]
CHRISTA M. ANDERSON - #184325
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415.391.5400
Facsimile:
415.397.7188

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[e-mail]
CHERYL A. SABNIS - #224323
[e-mail]
101 Second St., Suite 2300
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

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

IAN C. BALLON - #141819
[e-mail]
HEATHER MEEKER - #172148
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: [phone]
Fax: [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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Case No. 3:10-cv-03561-WHA

ORACLE AMERICA, INC.,
Plaintiff,

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v.

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GOOGLE INC.,

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GOOGLE’S TRIAL WITNESS
DISCLOSURE PURSUANT TO FED. R.
CIV. P. 26(A)(3)
Judge:

Hon. William Alsup

Date Comp. Filed:

October 27, 2010

Trial Date:

Defendant.

October 31, 2011

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584161.01

GOOGLE’S 26(A)(3) DISCLOSURE
CASE NO. 3:10-cv-03561-WHA

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Pursuant to Fed. R. Civ. P. 26(a)(3) and the Court’s Guidelines for Trial and Final

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Pretrial Conference in Civil Jury Cases, Google discloses the following witnesses for the trial of

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this matter. As required by the Guidelines, Google has identified non-cumulative testimony in

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the summaries below by italicizing that testimony.
1. Google presently intends to call the following witnesses at the trial of this matter,
subject to Google’s right to modify this list according to developments in the case and rulings of
the Court. Contact information has already been provided in this matter.

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Name
Allison, Dennis

Manner of
Presentation
Live

August, David

Live

Dr. August is an expert retained by Google to testify
regarding the non-infringement of U.S. Patent Nos.
RE38,104 and 6,910,205. He will testify on the matters
disclosed in his expert report of August 25, 2011.

Astrachan,
Owen

Live

Dr. Astrachan is an expert retained by Google to testify
regarding the copyright infringement assertions made by
Oracle. He will testify on the matters disclosed in his
expert reports of July 29, August 12 and August 19, 2011.

Bloch, Joshua

Live

Mr. Bloch is expected to testify regarding the Java and
Android platforms; work performed by Mr. Bloch for the
Android team; open source generally; the Apache
Harmony project; and contributions made by Google to
Java. He also may testify concerning documents on the
exhibit list that are either authored by or were sent to him.

Bornstein, Dan

Live

Mr. Bornstein is expected to testify regarding his work on
development of the Android platform and for Google’s
Android team, and his observations derived therefrom;
discussions between Google and Sun regarding a possible
technology partnership and the technical aspects thereof;
other virtual machines and/or platforms considered by
Google when developing the Android platform; how the
Android platform, including components such as the
Dalvik Virtual Machine and the dx tool, works;
alternatives available to Google in designing the Android
platform in order to avoid alleged infringement of the
patents-in-suit and/or the copyrights-in-suit; an
explanation of the technical issues that accompany
designing the Android platform in the first instance; and
issues that would accompany re-designing the Android
platform based on the current design of the Android

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Substance of Trial Testimony
Dr. Allison is an expert retained by Google to testify
regarding the invalidity of U.S. Patent Nos. RE38,104 and
7,426,720. He will testify on the matters disclosed in his
expert reports of August 8 and September 1, 2011.

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Name

Manner of
Presentation

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platform. He also may testify concerning documents on
the exhibit list that are either authored by or were sent to
him, or on the subject matter of declarations submitted in
this case.

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Brady, Patrick

Live

Mr. Brady is expected to testify regarding the manner in
which Google distributes Android source code; and
Google’s knowledge, or lack thereof, regarding how users
of that source code may modify it for use in their devices.
He also may testify concerning documents on the exhibit
list that are either authored by or were sent to him, or on
the subject matter of declarations submitted in this case.

Bray, Tim

Live

Mr. Bray is expected to testify regarding the development
of applications for the Android platform by third-party
developers. He also may testify concerning documents on
the exhibit list that are either authored by or were sent to
him.

Catz, Safra

Live

Ms. Catz is expected to testify about negotiations and
communications leading to Oracle’s acquisition of Sun,
including communications about either Java or Android;
Oracle’s valuation of Java; Oracle’s business plans with
regard to Java, both pre- and post-acquisition; Oracle’s
management of Java post-acquisition; Oracle’s efforts in
the mobile computing space; pre-lawsuit communications
with Google regarding Android; and Oracle’s
communications to the public, Google, and third parties
about Android, open sourcing and/or about Oracle’s
defensive use of patents and copyrights. She also may
testify concerning documents on the exhibit list that are
either authored by or were sent to her.

Cox, Alan

Live

Dr. Cox is an expert retained by Google to testify
regarding the alleged damages suffered by Oracle as a
result of alleged copyright infringement. He will testify on
the matters disclosed in his expert report of October 3,
2011.

Davidson, Jack

Live

Dr. Davidson is an expert retained by Google to testify
regarding the non-infringement of U.S. Patent No.
7,426,720. He will testify on the matters disclosed in his
expert report of August 25, 2011.

Dewar, Robert

Live

Dr. Dewar is an expert retained by Google to testify
regarding the invalidity of U.S. Patent No. 6,061,520. He
will testify on the matters disclosed in his expert reports of
August 8 and September 1, 2011.

Ellison, Larry

Live

Mr. Ellison is expected to testify about negotiations and
communications relating to Oracle’s acquisition of Sun,
including communications about either Java or Android;
Oracle’s valuation of Java; Oracle’s business plans with
regard to Java, both pre- and post-acquisition; Oracle’s
management of Java post-acquisition; Oracle’s efforts in
the mobile computing space; Oracle’s participation in and

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Substance of Trial Testimony

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Name

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communications with the Java Community Process; his
and Oracle’s communications to the public, Google and
third parties about Android, open sourcing and/or
Oracle’s defensive use of patents and copyrights; and
communications with Google regarding Android. He also
may testify concerning documents on the exhibit list that
are either authored by or were sent to him.

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Gupta, Vineet

Live or by
deposition

Mr. Gupta is expected to testify regarding Sun’s Java
licensing business model, strategies, and practices;
negotiations between Sun and Google regarding a
potential technology partnership to develop the Android
platform; and communications concerning Android and
the Dalvik VM. He also may testify concerning
documents on the exhibit list that are either authored by or
were sent to him.

Leonard,
Gregory

Live

Dr. Leonard is an expert retained by Google to testify
regarding the alleged damages suffered by Oracle as a
result of alleged patent infringement. He will testify on the
matters disclosed in his expert report of October 3, 2011.

Levine, John

Live

Dr. Levine is an expert retained by Google to testify
regarding the invalidity of U.S. Patent Nos. 5,966,702 and
6,910,205. He will testify on the matters disclosed in his
expert reports of August 8 and September 1, 2011.

Mazières,
David

Live

Dr. Mazières is an expert retained by Google to testify
regarding the non-infringement and invalidity of U.S.
Patent Nos. 6,125,447 and 6,129,476. He will testify on
the matters disclosed in his expert reports of August 8,
August 25, and September 1, 2011.

Parr, Terence

Live

Dr. Parr is an expert retained by Google to testify
regarding the non-infringement of U.S. Patent Nos.
5,966,702 and 6,061,520. He will testify on the matters
disclosed in his expert report of August 25, 2011.

Poore, Noel

Live

Mr. Poore is an Oracle engineer who performed work
relating to alleged benchmarks of the ’520 and ’702
patents. He is expected to testify regarding his work in
that regard, as set forth in his August 8, 2011 report; other
Oracle analysis of, and experimentation with, the Android
platform; Sun’s efforts in the mobile computing space,
including market perceptions of Java and the potential use
of all or part of the Android platform. He also may testify
concerning documents on the exhibit list that are either
authored by or were sent to him.

Risvi, Hasan

Live or by
deposition

Mr. Risvi is expected to testify regarding Sun’s (and now
Oracle’s) Java business model, strategies, practices, and
finances; Oracle’s acquisition of Sun; and Oracle’s
negotiations with Google regarding Android and
intellectual property issues related thereto. He also may
testify concerning documents on the exhibit list that are
either authored by or were sent to him.

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Substance of Trial Testimony

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Name

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Rubin, Andrew

Manner of
Presentation
Live

Schwartz,
Jonathan

Live or by
deposition

Mr. Schwartz is expected to testify regarding negotiations
between Sun and Google for a potential technology
partnership in the mobile computing space; his own and
Sun’s representations to the public, Google, and third
parties concerning Java, the licensing of Java, Android,
and Sun’s intention of using its copyrights and patents
only for defensive purposes; Sun’s actions and/or inaction
relating to enforcement of its patents and copyrights;
Sun/Oracle’s position with regard to open sourcing;
Oracle’s positions with regard to Java licensing; the Java
ecosystem generally; his own and Sun’s representations to
the public, Google and third parties regarding Android;
Sun’s knowledge of Android; his own and Sun’s
expectations regarding Android’s effect on the Java
ecosystem; negotiations and communications relating to
Oracle’s acquisition of Sun. He also may testify
concerning documents on the exhibit list that are either
authored by or were sent to him.

Wojcicki,
Susan

Live

Ms. Wojcicki is expected to testify about Google’s
background, history, product development, advertising
business, revenues, and potential sharing of revenues;
factors that have driven revenue and profitability in
Google’s search and advertising business; and the
relationship, if any, between that business and the mobile
technology business and/or Android. She also may testify
concerning documents on the exhibit list that are either
authored by or were sent to her.

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Substance of Trial Testimony
Mr. Rubin is expected to testify about the efforts and costs
incurred in developing and ultimately open sourcing the
Android platform; open source generally; Google’s efforts
to develop a mobile platform, and Google’s business
model and goals in the mobile market; Google’s business
and marketing strategies concerning Android; the
adoption of the Android platform and factors that have
driven demand for it; alternative platforms available to
Android; Google’s discussions with Sun regarding
Android and regarding a potential partnership; and
Google’s discussions with Oracle concerning Android. He
also may testify concerning documents on the exhibit list
that are either authored by or were sent to him.

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2. Google may also call the following witnesses, contact information for whom has
already been provided:
Name
Buccholz,
Martin

Manner of
Presentation
Live

Substance of Trial Testimony
Mr. Buccholz may testify in regard to communications
between Google and Sun; open source generally; and
contributions made by Google to Java. He also may
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Name

Manner of
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testify concerning documents on the exhibit list that are
either authored by or were sent to him.
Cizek, Leo

Live or by
deposition

Mr. Cizek may testify about Sun’s communications and
business relationships with Google, and about Sun’s
practices concerning enforcement of Sun’s alleged
intellectual property rights. He also may testify
concerning documents on the exhibit list that are either
authored by or were sent to him.

Cockburn, Iain

Live

Dr. Cockburn is an expert retained by Oracle. Google
may call him to testify as to opinions set forth in his expert
reports of May 21, 2011 and September 12, 2011.

Eustace, Alan

Live

Mr. Eustace may testify about communications between
Oracle and Google concerning Oracle’s allegations of
infringement. He also may testify concerning documents
on the exhibit list that are either authored by or were sent
to him.

Fresko, Nedim

Live or by
deposition

Mr. Fresko, a named inventor on U.S. Patent Nos.
7,426,720 and 5,966,702, may testify regarding the
content of those patents and/or his work that led to the
issuance of those patents. He also may testify concerning
documents on the exhibit list that are either authored by or
were sent to him.

Gering, Craig

Live

Mr. Gering may testify concerning Sun’s analysis of the
Android platform. He also may testify concerning
documents on the exhibit list that are either authored by or
were sent to him.

Goldberg,
Benjamin

Live

Dr. Goldberg is an expert retained by Oracle. Google
may call him to testify as to opinions set forth in his expert
report of August 25, 2011.

Gries, David

Live

Dr. Gries is a professor at Cornell University, and the
author of Compiler Construction for Digital Computers
(John Wiley & Sons, 1971). He may testify regarding the
content of that work and the concepts that it contains.

Greisemer,
Robert

Live

Dr. Griesemer is a Google employee, and a named
inventor on U.S. Patent No. 6,910,205. Google may call
him to testify regarding the content of that patent; his work
that led to the issuance of that patent; and/or the
incorporation of the patented technology into any versions
of Java.

Harris, Steven

Live or by
deposition

Mr. Harris may testify concerning Oracle’s conduct
relating to open sourcing of Java from 2000 to the
present. He also may testify concerning documents on the
exhibit list that are either authored by or were sent to him.

Kearl, James

Live

Dr. Kearl is an expert appointed by the Court under
Federal Rule of Evidence 706 to testify as to damages
issues. He may testify as to the opinions disclosed in his
expert report, which has not yet been served.

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Substance of Trial Testimony

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Name

2

Kehring, Doug

Manner of
Presentation
Live or by
deposition

Kessler, Peter

Live or by
deposition

Landau, Erez

Live

Lee, Bob

Live or by
deposition

Mr. Lee may testify regarding regarding the Java and
Android platforms; open source generally; and work
performed by Mr. Lee for the Android team. He also may
testify concerning documents on the exhibit list that are
either authored by or were sent to him.

Lindholm, Tim

Live

Mr. Lindholm may testify in response to evidence offered
by Oracle concerning willfulness, and the scope of his
testimony will depend upon the outcome of Google’s
challenges to the admissibility of the Lindholm email.

Lockheimer,
Hiroshi

Live

Mr. Lockheimer may testify about the process of
developing Android, including his work on development of
the Android platform and for Google’s Android team; how
Android works; other alternatives considered by or
available to Google when developing Android; and issues
relating to designing or re-designing the Android platform.
He also may testify concerning documents on the exhibit
list that are either authored by or were sent to him.

Lord, Peter

By deposition
designation

Mr. Lord may testify as to Oracle’s involvement in the
Java Community Process prior to its acquisition of Sun
Microsystems; or prior efforts by Oracle to convince Sun
Microsystems to provide a license to Java allowing Java
to be used in an open source manner free of field-of-use
restrictions. He also may testify concerning documents on
the exhibit list that are either authored by or were sent to
him.

Magnusson,
Peter

Live

Dr. Magnusson, the author of the article Partial
Translation, SICS Technical Report T93:05 (Oct. 1993),
may testify as to the content of that article and the work
that led up to its publication; and his personal experience
in the field of designing solutions to speed up simulators
and interpreters.

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Substance of Trial Testimony
Mr. Kehring may testify concerning Oracle’s negotiations
and communications, and financial analyses, regarding its
acquisition of Sun’s intellectual property rights concerning
Java as part of the acquisition of Sun. He may also testify
concerning documents on the exhibit list that are either
authored by or were sent to him.
Mr. Kessler may testify concerning Oracle’s alleged
conception, reduction to practice, and use of U.S. Patent
Nos. 6,910,205 and RE38,104, including but not limited to
in the JDK; and Oracle’s benchmarking tests and related
Android and Java source code modifications. He may also
testify concerning documents on the exhibit list that are
either authored by him or were sent to him.
Mr. Landau is an Oracle engineer who performed work
relating to alleged benchmarks of the ’720 patent. Google
may call him to testify regarding his work in that regard,
as set forth in his August 8, 2011 report.

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Name

2

McFadden,
Andy

Manner of
Presentation
Live

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Live

Dr. Mitchell is an expert retained by Oracle. Google may
call him to testify as to opinions set forth in his expert
reports of July 29, August 8, August 12, August 19, and
September 1, 2011.

Morton,
Geoffrey

Live or by
deposition

Mr. Morton may testify regarding the licensing history for
Java. He may also testify concerning documents on the
exhibit list that are either authored by or were sent to him.

Nishar,
Dipchand

Live

Mr. Nishar may testify regarding the role of the mobile
market in Google’s strategy for developing Android; and
Google’s practices in negotiating intellectual property
licenses and distribution agreements. He also may testify
concerning documents on the exhibit list that are either
authored by or were sent to him.

Page, Larry

Live

Mr. Page may testify about Google’s acquisition of
Android; negotiations between Sun and Google for a
potential technology partnership in the mobile computing
space; Google’s efforts to develop a mobile platform, and
Google’s business model and goals in the mobile market;
communications with Sun and/or Oracle regarding
Android; and Google’s background, history, product
development, advertising business, and revenues. He also
may testify concerning documents on the exhibit list that
are either authored by or were sent to him.

Palay, Andrew

Live

Dr. Palay, a named inventor on United States Patent No.
5,613,120, may testify as to the content of that patent and
the work that led up to the issuance of the patent; and his
experience in the field of designing solutions that minimize
the memory required for combined files created from
separate files that contain duplicative constants.

Pampuch, John

Live or by
deposition

Mr. Pampuch may testify about Oracle’s alleged practice
of U.S. Patent No. 5,966,702, including by JavaOS; source
code and documents relating to JavaOS; and Oracle’s
retention and production of such documents. He may also
testify concerning documents on the exhibit list that are
either authored by or were sent to him.

Purdy, Alan

Live

Mr. Purdy is an expert retained by Oracle. Google may
call him to testify as to opinions set forth in his expert
reports of July 29 and August 19, 2011.

Reinhold, Mark

Live or by
deposition

Mr. Reinhold may testify about Sun’s practices and
policies relating to alleged Java intellectual property
rights; Sun’s communications with Apache and/or

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Mr. McFadden may testify about the development of
Android, including his work on development of the
Android platform and for Google’s Android team; how
Android works; other alternatives considered by or
available to Google when developing Android; and issues
relating to designing or re-designing the Android platform.
He also may testify concerning documents on the exhibit
list that are either authored by or were sent to him.

Mitchell, John

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Substance of Trial Testimony

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Name

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communications concerning Apache Harmony; Sun’s
policies and practices with respect to licensing and open
sourcing Java-related software and platforms; the Java
Community Process; and alleged “fragmentation” or
“forking.” He also may testify concerning documents on
the exhibit list that are either authored by or were sent to
him.

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Ripley, Lisa

Live or by
deposition

Ms. Ripley may testify about Oracle’s policies and
practices involving the preservation and production of
documents and other evidence by Oracle, in general and
with regard to documents relevant to this case; and
Oracle’s destruction of otherwise discoverable evidence.
She also may testify concerning documents on the exhibit
list that are either authored by or were sent to her.

Rizzo, John

Live

Mr. Rizzo may testify regarding Sun’s negotiation
practices regarding Java licenses; Sun’s development of
one-off versions of its Java ME platform for customers;
open source generally; the Apache Harmony project; and
fragmentation of the Java ecosystem. He also may testify
concerning documents on the exhibit list that are either
authored by or were sent to him.

Schmidt, Eric

Live

Mr. Schmidt may testify about communications between
Sun and Google concerning a potential technology
partnership in the mobile computing space; Google’s
efforts to develop a mobile platform, and Google’s
business model and goals in the mobile market;
communications with Sun and Oracle regarding Android;
Google’s background, history, product development,
advertising business, and revenues; and Sun’s
communications to the public and third parties about
Sun’s position on copyrightability, licensing and
enforcement of alleged intellectual property rights. He
also may testify concerning documents on the exhibit list
that are either authored by or were sent to him.

Screven,
Edward

Live or by
deposition

Mr. Screven may testify concerning government reports
concerning Oracle’s acquisition of Sun’s intellectual
property rights concerning Java as part of the acquisition
of Sun. He may also testify concerning documents on the
exhibit list that are either authored by or were sent to him.

Singh, Param

Live or by
deposition

Mr. Singh may testify concerning the business model and
marketing strategy for Java, including the alleged
importance of preventing so-called “fragmentation” of
Java. He may also testify concerning documents on the
exhibit list that are either authored by or were sent to him.

Vandette,
Robert

Live

Mr. Vandette is an Oracle engineer who performed work
relating to alleged benchmarks of the ’104 and ’205
patents. Google may call him to testify regarding his
work in that regard, as set forth in his August 8, 2011
report.

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Substance of Trial Testimony

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Name
Visnick, Marc

Manner of
Presentation
Live

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Oracle’s
Custodian of
Records

Live

Substance of Trial Testimony
Mr. Visnick is an expert retained by Oracle. Google may
call him to testify as to opinions set forth in his expert
report of July 29, 2011.
Oracle’s custodian of records may be called to testify as to
the authenticity and/or business records status of
documents on exhibit list (in the event of a dispute among
the parties over authenticity or business records status).

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In addition to the witnesses identified above, Google may call witnesses for rebuttal and
may call witnesses identified on Oracle’s witness list. Google will counter-designate testimony
of various witnesses designated by Oracle pursuant to Judge Alsup’s Guidelines for Trial and

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Final Pretrial Conference in Civil Jury Cases. Should Oracle introduce any deposition testimony

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it has designated for witnesses not at trial, Google will, in rebuttal, introduce the testimony they

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have counter-designated.

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Respectfully submitted,
Dated: October 7, 2011

KEKER & VAN NEST LLP

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By: /s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.

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