Thursday, November 5, 2015

Oracle to court: Samsung's offense was also Google's defense in Apple case, expert not neutral anymore

In the Android-Java copyright infringement litigation in the Northern District of California, Oracle filed a reply Wednesday evening in support of its motion to disqualify the court-appointed damages expert Dr. James Kearl. In the meantime I had published and commented on Dr. Kearl's filing, which was a de facto opposition brief. Google formally opposes the motion, but I found nothing of interest in Google's opposition brief other than Google offering the prediction that Oracle's damages claim in next year's retrial would be substantially greater than the billion-dollar claim from 2012.

Here's Oracle's reply brief (this post continues below the document):

15-11-04 Oracle Reply in Support of Disqualification of Court Dr. Kearl by Florian Mueller

In the first section, Oracles notes, as I had after Dr. Kearl's filing, that a number of facts about Dr. Kearl's involvement with Apple v. Samsung on Samsung's and, by extension, Google's behalf are undisputed. One of those facts is that the law firm of Quinn Emanuel represented both Google and Samsung, with Google paying directly for some of QE's work:

"That Quinn Emanuel represented both Google and Samsung shows that the important strategic decisions—like asserting counterclaims—likely served the best interests of both companies. [...] It would have been impossible for Google's attorneys to participate in some parts of the litigation while only Samsung's attorneys handled other parts. Google's attorneys were Samsung's attorneys."

The paragraph quoted above is not wrong, but it is obviously a bit one-sided. First, Google was a beneficiary of the counterclaims Samsung brought (in order to discredit Apple's out-of-this-world damages claims in that case), but I doubt Google was involved in any of the decisions relating to those counterclaims, other than maybe as an informal advisor. Second, QE is a big firm and had (actually, still has) a huge team involved with Apple v. Samsung: not just the size of a soccer team but more attorneys than you see different plays in a World Cup semifinal. Such Texas-size teams are not manageable in any context unless there is some division of labor, and I guess different lawyers will have worked on the details of the various patents-in-suit.

That said, I do believe the fact that Dr. Kearl worked with QE in Apple v. Samsung, a case in which QE also represented and presumably continues to represent Google, warrants his disqualification, and it's by far not the only and not even the strongest reason.

The next passage is even stronger in my mind:

"Second, Dr. Kearl helped the Samsung/Google team by offering his analysis of Samsung's counterclaims at trial. Google had two ways to lower Apple's damages, and thereby its liability: on defense, by undermining Apple's expert's analysis; and on offense, by convincing the jury that smartphone patents are not worth much. To execute the offensive strategy, Samsung counterclaimed for $6 million to argue that Apple's $2 billion demand was overstated. When Dr. Kearl testified about Samsung's counterclaims, he also helped to defend Google. In other words, Samsung's offense was also Google's defense."

The above is absolutely true. Even though Dr. Kearl denies that he had sandbagged his damages figures, there cannot be the slightest doubt that he knew, before starting his analysis, what his client wanted to achieve. They won't have told him to arrive at a lowball damages figure. They will have said something to that effect in a slightly more subtle way. For example, they might have told him something like "look at Apple's lunacy of a damages claim and just so you know, we don't want to reciprocate that but we want to show the jury what a more reasonable damages claim looks like." He must have known that he was expected to come up with something that would contrast with Apple's approach.

The second, shorter part of Oracle's reply brief explains why there should be no other court-appointed damages expert either. Oracle's argument is convincing to me when looking at it through the lens of U.S. litigation. In other jurisdictions, such as the one in which I live, court experts are the norm. In the U.S., they are meant to be a rare exception, and if there were reasons for a rare exception last time, the threshold will hardly be met now that the case no longer involves any damages theories related to patent claims.

I guess Dr. Kearl will be disqualified later this month. Anything else would be outrageous.

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