Monday, August 29, 2011

Oracle v. Google: Halloween trial date may be postponed

[Update on 08/30/2011] A subsequent order (on the appointment of a damages expert by the court) provided further information on scheduling. There will be a separate, later trial to determine a damages award. That additional information is discussed in a new section at the end of this post. [/Update]

Judge William Alsup of the United States District Court for the Northern District of California, the judge presiding over Oracle v. Google, just issued an order suggesting the trial date, which is currently scheduled for October 31 (Halloween), may be postponed:


In the event the second large criminal trial does not begin as scheduled on October 17, then jury selection in the instant civil action shall occur on October 19 and the opening day of trial will remain October 31. In the event the second large criminal trial does go forward as scheduled, then jury selection and trial for this action will have to be postponed.

So there's a large criminal trial that's scheduled for October 17 in the same federal judicial district, and presumably Judge Alsup will be involved with it. Even though Judge Alsup's order starts with the scenario in which the Oracle v. Google trial date would remain unchanged, it seems to me that a postponement of this date is more likely than not to happen.

The order doesn't indicate by how long the trial would be postponed. Several months ago Judge Alsup argued that one of his clerks was now particularly knowledgeable about the technical issues related to this case but would leave the court later this year, and Judge Alsup wanted a trial to take place while that clerk is still available. If Judge Alsup wants a successor of that clerk to familiarize himself with this case, there could be a significant delay given the learning curve involved.

After siding with Oracle on the Lindholm email issue, this potential postponement could be meant to put some pressure on Oracle to adjust its demands in order to enable a settlement in the very near term. Probably neither the judge nor any of the parties really wants a trial -- but I believe that Oracle's and Google's positions are likely so far apart that this case may have to go to trial no matter how much everyone would rather avoid it. Oracle isn't in need of a short-term cash infusion. I can't imagine that the prospect of a delay will get Oracle to reduce its demands to the point where an agreement with Google is realistically achievable.

There will be two trials: one on liability and a subsequent one on damages

On August 30 (one day after the order that indicated a possible postponement of the trial), Judge Alsup announced the appointment of Brigham Young University professor of economics James R. Kearl as the independent damages expert. The order doesn't say which of the two parties proposed him, but whoever did so, he will be impartial (and will be paid by the court). Long before the court made this appointment, Google had failed to reduce the role of the independent expert to that of a mere adviser to the court as opposed to an expert who will present his findings to the jury.

The order concerning this so-called "FRE 706 expert" (FRE = Federal Rules of Evidence) says that Dr. Kearl requested "more time", and in order to accomodate that request, "the damages issues will not be tried on the current schedule". Instead of one trial that determines whether Google is liable at all and then (if Google is liable, which I guess itis to some degree, though the extent remains to be seen) determines a damages award, there will be two trials. Judge Alsup stresses that "[t]his bifurcation would not change the total amount of trial time available; the allotted time simply would be divided between the two trials". Since it's not clear whether the current schedule will be kept, Judge Alsup's order outlines two alternative scenarios:

  • If the large criminal trial mentioned in the first part of this post stays on schedule, the entire trial in the Oracle v. Google case "will be delayed considerably". The word "considerably" is somewhat vague, but the fact that Judge Alsup doesn't even indicate the length of such a delay, I guess (and it's really only a guess) the trial will then slip (at least) well into next year, or even beyond if Judge Alsup then decides to await the outcome of the reexaminations of Oracle's patents-in-suit by the US Patent & Trademark Office.

  • If that criminal trial is postponed, "then the liability portion of [Oracle v. Google] l will go forward on October 31 as scheduled, with all damages issues reserved for a second trial. The damages trial would trail by at least a month, beginning in early December at the earliest. [...] The same jury would hear both the liability trial and the damages trial."

So how likely is that criminal trial, which would delay Oracle v. Google "considerably", to stay on schedule? The last sentence of Judge Alsup's new order mentions "uncertainty":

"Due to the uncertainty regarding the criminal trial, Dr. Kearl's assignment should be planned such that it can be completed by early December in preparation for a possible damages trial at that time."

I'm sure this judge wouldn't ask the parties to prepare the independent damages expert for a trial date that's very unlikely. But he has previously made remarks that reflect the mere fact that those two litigants have vastly greater resources than the court, so he won't feel too bad about asking for this.

After all, what the judge wants more than anything else is for the parties to settle. By creating scheduling uncertainty, he may hope to increase the pressure. Google has to fear that this case may still go ahead on schedule, and with the aforementioned decision on the Lindholm email, the outcome could be catastrophic for Google. At the same time, Oracle doesn't know whether it may have to wait until next year or even beyond before the trial takes place.

If Oracle's and Google's positions weren't as far apart as I'm pretty sure they are, this uncertainty could serve as productive pressure that gets them to bridge their differences and agree on the terms of a settlement. But under the actual circumstances, I guess this uncertainty just means that the parties, their lawyers, the expert witnesses and all of us watching this case are simply held in suspense without an appreciably higher likelihood of a near-term settlement.

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