Dr. James Kearl, the court-appointed damages expert in the Oracle v. Google Android-Java copyright infringement case, yesterday responded to Oracle's motion to disqualify him on the grounds that he is no longer impartial due to his work on Samsung's behalf in the Apple v. Samsung cases that went to trial last year.
Here's his filing (this post continues below the document):
I had a #facepalm moment when I read toward the bottom of the first page that he does "not believe it appropriate for [him] to oppose Oracle's motion" because he--untruthfully--says he does "not have an adversarial position vis-a-vis Oracle" and then read on. His filing is not just a declaration that serves to state some facts for the record. It simply is an opposition to Oracle's motion. Nothing more and nothing less. Anything to the contrary should be reserved for April Fools' Day.
Dr. Kearl's filing spans several pages but does not contain anything new, enlightening, surprising, or whatever else might add value to the motion process.
Oracle's motion makes clear what the concern is: he's closer to one side than to the other. For a judge who had concerns in 2012 about bloggers potentially influencing a court or a jury (if that had happened, he'd have read blogs like Groklaw that got the rules for copyrightability totally wrong), it should be a no-brainer to dismiss a court-appointed expert once there are facts that show more of a proximity to one party than to the other.
Oracle's motion didn't refer to the strawmen Dr. Kearl's filing puts up just to have something to tear down. It's undisputed that he did not provide expert testimony directly on Apple's infringement assertions against Android. He does not deny, however, that Samsung used his testimony to convince the jury (rightfully so) that Apple's damages claims in that case were not just outsized but downright irrational.
He denies that he or his firm received $5 million (Apple's lawyers told the jury that Samsung had spent $5 million on damages counterclaims of §6 million and that this fact showed Samsung's counterclaims were just about devaluing patents), but he does not say what he and his firm received instead. Also, he doesn't explain why Samsung's trial counsel didn't object to the $5 million claim.
He stresses that he "did not meet or speak with any Samsung corporate officer or employee at any time before, during or after the Apple v. Samsung trial, with the single exception that a Samsung in-house attorney was intermittently present during portions of my preparation that occurred over parts of three days leading up to my court testimony that lasted no more than 20 minutes." Samsung is not a party to Oracle v. Google anyway. But what does he say about Google?
"My communication and work was with counsel from the Quinn Emanuel law firm, which was the outside law firm for Samsung. Likewise, whatever the relationship between Google and Samsung, I had no communication before, during or after the trial with any Google corporate officer or employee. Google's role, if any, and its products and services were completely irrelevant to the work that I did. I was not provided with information regarding Google's role in Apple v. Samsung, nor did I inquire about such."
Quinn Emanuel also represented Google in the same case. Oracle's motion stressed the fact. Dr. Kearl doesn't deny it.
I don't know the man, so he may genuinely be, as he writes, "confident that [he] can assist the court as a neutral economic expert in the present action." But the question is not how he feels. The question is whether Oracle can rely on its chance to make its case on a level playing field. With him, Oracle has every reason to be concerned, no matter how honorable he may be as a person. The court should say "thanks, but no thanks" to his offer to remain involved.
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