Oracle America, Inc. v. Google Inc.

Filing 702

ORDER CONDITIONALLY ALLOWING DR. COCKBURN A THIRD DAMAGES REPORT re #700 Response ( Non Motion ) filed by Oracle America, Inc., #701 Response filed by Google Inc., #698 Response ( Non Motion ) filed by Oracle America, Inc., #697 Response filed by Google Inc.. Signed by Judge Alsup on January 20, 2012. (whalc1, COURT STAFF) (Filed on 1/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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No. C 10-03561 WHA

ORACLE AMERICA, INC.,
Plaintiff,
v.

ORDER CONDITIONALLY
ALLOWING DR. COCKBURN A
THIRD DAMAGES REPORT

GOOGLE INC.,
Defendant.
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The piecemeal approach suggested by Oracle as a trial alternative will not be adopted.

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The docket simply does not permit that luxury. Counsel are unfortunate in having drawn a judge

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assigned to the massive MS-13 gang prosecution, which has resulted in four lengthy trials,

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including one underway now, without any relief from the remainder of his normal caseload. This

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has led to a backlog of trial-ready cases waiting their turn. Between today and June 30, the Court

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has 28 cases already set for trial, including two patent cases (other than this one) and five other

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criminal cases, not counting trials set thereafter. In the instant case, the damages methodology

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must be sorted out before the case will even be trial-ready. Until then, there is no point in setting

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a firm trial date. If matters go smoothly herein and if other trial settings fall away, the instant

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case could still possibly be tried starting mid-April and all counsel and witnesses should reserve

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for that possibility, failing which it will likely occur sometime during the last four months of the

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year. This order, however, gives no assurances as to when the case can be tried. If Oracle wishes

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to voluntarily dismiss any damages claim, it will have to do so with prejudice; otherwise, a

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dismissal is nothing more than an invitation to piecemeal litigation.

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On the following conditions, as to the items previously stricken, Dr. Ian Cockburn may

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have a third try to calculate damages so long as his methodology conforms to the prior rulings

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herein. For the items stricken in the recent order (Dkt. No. 685), he may try any methodology he

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wishes consistent with the prior rulings but whatever method he selects will, of course, be subject

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to further Daubert challenge. Here are the conditions:
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His full revised report, together with all supporting material, must be served no

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For the Northern District of California

United States District Court

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later than NOON ON FEBRUARY 3, 2012. He may revise only those items stricken

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by the recent order and the studies referred to in paragraph 4 below (Dkt. No. 685).

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be deposed by Google’s counsel for seven hours.

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Within seven calendar days after service of the revised report, Dr. Cockburn may

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Within seven calendar days of the deposition (or the end of the seven-day

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deposition period if no deposition is taken), the revised damages reports for

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Google shall be served. Only revisions directly responsive to new material by

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Dr. Cockburn will be allowed. To streamline matters, no deposition shall be taken

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of Google’s experts, Oracle may not serve a further reply report, and Oracle will

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not be allowed to present Dr. Cockburn as a rebuttal witness on the new material.

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Both sides may, of course, cross-examine the opposing experts and the Rule 706

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Expert at trial.

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4.

By noon on the same deadline, Google must file any Daubert motion to the

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revisions by Dr. Cockburn including to the “econometric” and “conjoint” studies

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not previously addressed, to be heard on a shortened track as follows: Oracle’s

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opposition shall be filed seven calendar days after the motion is served and the

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reply shall be filed four calendar days thereafter. Filings are due at noon. The

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Court will announce a hearing date (if one is needed). Since Google will be
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allowed to challenge the “econometric” and “conjoint” studies, Dr. Cockburn may

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strengthen and revise those aspects in his revised report as well as the items

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already stricken, to be done on the same schedule above, namely no later than

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February 3 at noon.

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5.

Within seven calendar days of receipt of the revisions to Google’s expert reports,

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Oracle may file its own Daubert motions challenging Google’s revision, said

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motion to be heard on a shortened track similar to the above but later in time. If

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Oracle waives any such challenge, then it should so advise promptly.

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6.

All of the above reports, motions, and responses shall be served on the Rule 706
Expert James Kearl. He shall promptly proceed with his analysis and drafting of

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For the Northern District of California

United States District Court

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his own report (without awaiting the outcome of the above Daubert proceedings)

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but shall not release any report or opinion until ordered to do so. If his report

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becomes authorized, Dr. Kearl may then be deposed on the timeline previously

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contemplated and either or both sides may bring prompt motions to challenge his

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analysis. Note well that Dr. Kearl will have no need to comment on damages

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issues excluded by order from Oracle’s damages case (and will not be authorized

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to do so), so neither side should gamble on the prospect of somehow being able to

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fall back on the analysis of the Rule 706 Expert.

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7.

All fees and expenses reasonably incurred by Dr. Kearl in responding to the

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revisions by Dr. Cockburn shall ultimately be borne by Oracle, as follows:

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Dr. Kearl shall track his time in such a way as to make this segregation possible.

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Dr. Kearl shall continue to divide his billings as before and Google shall continue

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to pay its share to him, but Google may demand and recover prompt

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reimbursement from Oracle for the portion identified by Dr. Kearl as attributable

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to Dr. Cockburn’s third report.

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8.

All attorney’s fees, expert fees, and other expenses reasonably incurred by Google

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as a result of allowing a third damages study by Oracle, including all expense and

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time discussed above, shall be reimbursed by Oracle. Google shall track such
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items separately and invoice them to Oracle within 14 calendar days of the close of

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a calendar month and Oracle shall pay them within another 14 calendar days.

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These reimbursement amounts shall not be recoverable costs that Oracle may

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recover back in the event it prevails in this action.

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9.

The extent of which Dr. Cockburn may be impeached at trial by his track record of

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rejected methodologies will be decided between Phase Two and Phase Three. At

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this late hour, Oracle may not substitute a different damages expert or add a

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different damages expert. Except as above authorized, Dr. Cockburn may not

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make further revisions.
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If the foregoing conditions are acceptable to Oracle, then Oracle shall so state

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promptly and the above plan shall be effective. If the foregoing conditions are

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unacceptable to Oracle, then Dr. Cockburn and Oracle shall be granted no further

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opportunity to revise the damages report and the case shall proceed to trial without

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the stricken material and Oracle will suffer whatever prejudice flows from the

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corresponding lack of proof. By NOON ON JANUARY 24, 2012, Oracle shall file an

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unequivocal and unconditional statement advising whether it will take advantage

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of this third opportunity provided by this order or whether it declines to do so.

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Please do not negotiate over the conditions or insinuate assumptions into the

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statement; please file either a clear “yes” or a clear “no.”

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Oracle should be required to make the reimbursements described above as a condition of a

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third try because it would be unfair to impose on Google the fees and expenses necessary to

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respond to the third effort. Oracle has already had two full and fair opportunities and has

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overreached on both. Oracle has behaved unreasonably and should bear the burden of the

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consequences. Apart from reasonableness or not, allowing a third try of this magnitude is rare in

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federal litigation and the party responsible for the need for a third try should bear the full burden
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thereof. A district court is not required to allow a third try at all, therefore, it is certainly allowed

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to impose fee and cost reimbursement as a condition of allowing a third opportunity.

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Although in the past the Court has suggested possible starting points and inquired about

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possible methodologies (without requiring them), this order emphasizes that Dr. Cockburn may

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try any methodology he wishes to replace the stricken items so long as the methodology is true to

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the rulings previously made herein, subject to challenge by Google. No prior suggestion or

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question by the Court should be taken as a blessing of any particular approach, including any of

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the approaches referenced by Oracle in its recent filings.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: January 20, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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