In litigation, the devil is often in the detail, but not always. Sometimes there are overarching issues that decide a dispute and the legal detail is simply worked out in order to reach the only result that any remotely reasonable person could consider correct. The situation surrounding Oracle's push for a re-retrial is clear: Google's expert witnesses told the opposite of the truth to Judge Alsup and the jury. In Judge Alsup's case, there is evidence that the lies were outcome-determinative because he denied Oracle's first motion for judgment as a matter of law JMOL) on that basis. And with respect to the jury, there can be no reasonable doubt that its deliberations--the details of which are not known--would have been very, very, very different if Google had been unable to base its "transformative use" and "no market harm" arguments on the claim that "Java SE runs on desktops, Android is on smartphones" (because Oracle could have pointed to the Marshmallow-Chrome project as conclusive evidence that it was a lie).
Before the re-retrial is ordered (and I'm sure it will happen, be it by order of Judge Alsup or be it the outcome of an appeal that will, if it has to be filed, be a slam dunk), some procedural details concerning what went wrong in the discovery process may have to be discussed. But at the end of the day, it doesn't really matter what Google told its lawyers. All that matters is what absolute untruths Google's expert witnesses, directed by Google's lawyers, told the judge and, especially, the jury.
Google is trying to hide behind Judge Alsup's pretrial orders that limited the scope. It can run, but it can't successfully hide. Those orders were bad and unfair in their own right. So even if Judge Alsup tried to let Google get away with it, what would happen then? The whole thing would be presented to the appeals court (which is the opposite of hostil to intellectual property right holders). After the first page and a half of an Oracle opening brief, it would already be clear that this here is not just a case about software theft but also about a stolen trial.
Judge Alsup can only make things worse for himself by adopting Google's excuses the way he once adopted Google's misinterpretation of the Sega and Sony Ninth Circuit cases. Everyone knows how that one ended.
The appeals court would simply not let a judgment stand that is based on lies of the worst kind. The expert witnesses communicated those lies to the jury, but they presumably hadn't been briefed and instructed correctly. But the bottom line was that Google, as a party, lied to the jury. Even if Judge Alsup found Google's conduct excusable, the judges above him almost certainly wouldn't.
So instead of going into detail here on how certain discovery responses allegedly came into being and why certain things were said or not said or asked or not asked, I'll just highlight three things now and then I'll show you all three documents filed today (written declarations by attorneys for both parties, and an Oracle response and objection to last week's follow-up order to the motion hearing).
I wrote above that the platform-related lies were outcome-determinative with respect to the denial of Oracle's first JMOL motion. Here's a sentence from that order:
"With respect to Factor Four, our jury could reasonably have found that use of the declaring lines of code (including their [structure, sequence and organization]) in Android caused no harm to the market for the copyrighted works, which were for desktop and laptop computers."
In my previous post I wrote I had also interpreted the Ninth Circuit's Jones v. Aero/chem decision (which remanded a case with certain similarities to a district court so a hearing would be held) the way Judge Alsup outlined in last week's order. But Oracle's declaration now explains that a "hearing on the motion" was actually held in the Jones proceedings, but, Oracle's lawyers explain, "[w]hat the district court had not done was hold its contemplated hearing where evidence could be presented in order to determine whether there was discovery misconduct."
Google's arguments as they try to now say that the unified Android-Chrome platform is not a "full" version of Marshmallow are ridiculous. Two particularly crazy examples: they argue that "the Google Play Store is not part of (the Marshmallow version of) Android, but is rather a separate application that is available for Android," even though everybody knows that Google contractually requires Android licensees (unless they use Android on open source terms without the right to show the green robot logo etc.) to ship the Play Store (and other proprietary Google apps) with Android. And they write that "the runtime for (the Marshmallow version of) Android that can be run inside of Chrome OS does not include the Linux Kernel at the bottom of the Android stack," even though everybody with a modicum of technical knowledge knows that the Linux kernel has its own APIs that are simply not relevant to a case about the Java APIs.
I will continue to admire Google regardless, but this is really very bad.
So now, finally, the three documents. I'll start with Google's declaration because Google is the party that really has some 'splaining to do here, followed by Oracle's response and objection (Oracle pushes hard for a re-retrial and argues that the declaration the court requested from a Google attorney is not sufficient but much more is needed to bring the relevant facts to light) and then, finally, a declaration by an attorney for Oracle.
16-08-25 Google Attorney Declaration by Florian Mueller on Scribd
16-08-25 Oracle Response and Objection by Florian Mueller on Scribd
16-08-25 Oracle Attorney Declaration by Florian Mueller on Scribd
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