Case3:10-cv-03561-WHA Document988 Filed04/26/12 Page1 of 250 Volume 7 Pages 1397 - 1645 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE WILLIAM H. ALSUP ORACLE AMERICA, INC., ) ) Plaintiff, ) ) VS. ) No. C 10-3561 WHA ) GOOGLE, INC., ) ) Defendant. ) San Francisco, California ___________________________________) April 24, 2012 TRANSCRIPT OF JURY TRIAL PROCEEDINGS APPEARANCES : For Plaintiff : MORRISON & FOERSTER 755 Page Mill Road Palo Alto, California 94304 BY: MICHAEL A. JACOBS, ESQUIRE KENNETH A. KUWAYTI, ESQUIRE MARC DAVID PETERS, ESQUIRE DANIEL P. MUINO, ESQUIRE BOIES, SCHILLER & FLEXNER 333 Main Street Armonk, New York 10504 BY: DAVID BOIES, ESQUIRE ALANNA RUTHERFORD, ESQUIRE (Appearances continued on next page) Reported By: Katherine Powell Sullivan, RPR, CRR, CSR #5812 Debra L. Pas, RMR, CRR, CSR #11916 Official Reporters - U.S. District Court Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988 Filed04/26/12 Page2 of 250 1398 APPEARANCES (CONTINUED) : For Plaintiff: BOIES, SCHILLER & FLEXNER 1999 Harrison Street, Suite 900 Oakland, California 94612 BY: WILLIAM FRED NORTON, ESQUIRE STEVEN C. HOLTZMAN, ESQUIRE ORACLE AMERICA, INC. 500 Oracle Parkway Redwood Shores, California 94065 BY: ANDREW C. TEMKIN, CORPORATE COUNSEL DORIAN DALEY, GENERAL COUNSEL For Defendant : KEKER & VAN NEST 633 Battery Street San Francisco, California 94111-1809 BY: ROBERT ADDY VAN NEST, ESQUIRE CHRISTA MARTINE ANDERSON, ESQUIRE DANIEL PURCELL, ESQUIRE MICHAEL S. KWUN, ESQUIRE KING & SPALDING LLP 1185 Avenue of the Americas New York, New York 10036-4003 BY: BRUCE W. BABER, ESQUIRE GOOGLE, INC. 1600 Amphitheatre Parkway Mountain View, California 94043 BY: RENNY HWANG, LITIGATION COUNSEL For Dr. Kearl : FARELLA BRAUN & MARTEL LLP 235 Montgomery Street, 30th floor San Francisco, California 94104 BY: JOHN L. COOPER, ESQUIRE Also Present: SAFRA CATZ, President and CFO Oracle Corporate Representative CATHERINE LACAVERA Google Corporate Representative _ _ _ Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988PROCEEDINGS Filed04/26/12 Page3 of 250 1399 1 2 P R O C E E D I N G S 3 4 APRIL 24, 2012 7:29 a.m. 5 6 7 (Proceedings held in open court, outside 8 the presence and hearing of the jury.) 9 THE COURT: Good morning everyone, please be seated. 10 So how can I help you this morning? 11 MR. JACOBS: We have some housekeeping items first, 12 your Honor. 13 THE COURT: All right. 14 MR. JACOBS: The Court requested a list of witnesses 15 and attorneys, and we have one that we have agreed to with 16 Google. 17 THE COURT: Wonderful. 18 (Whereupon, document was tendered 19 to the Court.) 20 THE COURT: Do we have 12 copies we can hand out? 21 MR. JACOBS: We do, actually. That's why there's so 22 many here. This is the list of witnesses. 23 THE COURT: Are those -- 24 MR. JACOBS: And the attorneys are on the back, your 25 Honor. Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988PROCEEDINGS Filed04/26/12 Page4 of 250 1400 1 THE COURT: These are the witnesses in the entire 2 case or... 3 MR. JACOBS: Phase 1, your Honor. 4 THE COURT: This is Phase 1 witnesses? 5 MR. JACOBS: Yes. 6 THE COURT: All right. 7 MR. JACOBS: Then the deposition exhibits for -- 8 sorry, the deposition excerpts for Daniel Morrill that were 9 played by video during the trial, we're submitting with an 10 exhibit marker on it as 1066. 11 THE COURT: That will be made part of the record. 12 (Trial Exhibit 1066 marked for identification) 13 MR. JACOBS: And for Bob Lee 1067. 14 THE COURT: Same. 15 (Trial Exhibit 1067 marked for identification) 16 MR. JACOBS: And the demonstratives that were used 17 during Dr. Mitchell's testimony we're submitting as 1073. 18 THE COURT: All right. Those are the ones that were 19 actually used and shown to the jury as opposed to drafts. 20 MR. JACOBS: That's exactly right. You'll see in the 21 dec there's some potentially left blank to cover those that 22 were not shown and discussed. 23 THE COURT: Thank you. 24 MR. JACOBS: We have some other items. 25 THE COURT: Go ahead. Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988PROCEEDINGS Filed04/26/12 Page5 of 250 1401 1 MR. BOIES: Two things relating to documents, your 2 Honor. 3 First, the Court will recall that in our motion in 4 limine the Court excluded the 1994 testimony by Mr. Schmidt 5 explicitly. 6 THE COURT: Correct. 7 MR. BOIES: And as part of a general ruling that 8 excluded testimony about pre-2006 Sun positions. I find that 9 in the book that has been given to me in terms of disclosed 10 documents for Mr. Schmidt's examination, so I wanted to raise 11 that outside the presence of the jury. 12 I assume that counsel will, before using an excluded 13 document, raise that outside the presence of the jury so that 14 we can discuss it. I just wanted to be absolutely certain that 15 I was correct about that. 16 MR. VAN NEST: I certainly will, your Honor. 17 THE COURT: Okay. 18 MR. BOIES: Second, on documents I have a modicum of 19 good news. 20 I gave them 35 documents with respect to Mr. Rubin 21 that I requested stipulation on, and I have agreement as to six 22 of those that I would like to offer at this time. 23 THE COURT: Please go ahead. 24 MR. BOIES: Exhibits 34, 278, 298, 387, 538 and 1048, 25 which I would offer at this time. Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988PROCEEDINGS Filed04/26/12 Page6 of 250 1402 1 MR. VAN NEST: No objection, your Honor. 2 THE COURT: Those are received. 3 (Trial Exhibits 34, 278, 298, 387, 538 and 1048 4 received in evidence) 5 MR. BOIES: Then, last, I would ask the Court's 6 guidance. That leaves me with 29 exhibits and what I would 7 plan to do is offer those, not using the term "party 8 admission," but as a party admission. And if there is an 9 objection that is sustained, I would lay a foundation through 10 the witness, but I don't want to, obviously, do that when I 11 don't have to in terms of my time. 12 THE COURT: Well, here is what I suggest. I'm 13 sympathetic to your problem. I suppose almost all of these are 14 going to be emails written by the witness? 15 MR. BOIES: Yes, or to the witness. 16 THE COURT: Or to the witness written by somebody 17 else at Google? 18 MR. BOIES: Yes, your Honor. 19 THE COURT: So all you have to do is say, "Is this an 20 email you wrote on or about X?" He says, "Yes." And you say, 21 "Offer in evidence," and it's going to sail in. 22 MR. BOIES: I will do that, your Honor. 23 THE COURT: Or, "Is this an email you received from 24 somebody else in Google on or about X?" Same scenario. 25 So that has the additional advantage of helping the Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988PROCEEDINGS Filed04/26/12 Page7 of 250 1403 1 jury understand what it is, so that it's just not a stray 2 document stuck in the jury room. 3 All right? 4 MR. BOIES: Thank you, your Honor. 5 MR. NORTON: Thank you, your Honor. 6 Another matter we wanted to bring up. On Sunday, 7 February -- or, April 15th, we filed a motion in limine 8 concerning evidence that Google apparently intends to rely upon 9 to satisfy the reliance element of its equitable defenses, 10 including implied license and equitable estoppel. Among that 11 evidence is Mr. Schwartz's blog post, which is admitted into 12 evidence as Exhibit 2352. 13 Google has disclosed for several of its witnesses 14 that it intends to use in its examination Exhibit 2352, and we 15 renew our objection and move to exclude testimony concerning 16 that document on the grounds that Google did not at any time in 17 discovery disclose anything to suggest that any witness, any 18 employee of Google, relied on any blog post by Mr. Schwartz in 19 deciding to proceed with Android, invest in Android, make any 20 decision with respect to Android. There is nothing -- 21 And this is in Docket 922, which we again filed on 22 Sunday the 15th. We recounted what they disclosed in discovery 23 and what they did not and we specifically asked them for the 24 bases for their equitable defenses. And there is no evidence 25 ever disclosed by Google that any employee of theirs ever Katherine Powell Sullivan, CSR, CRR, RPR Debra L. Pas, CSR, CRR, RMR Official Reporters - US District Court - 415-794-6659 Case3:10-cv-03561-WHA Document988PROCEEDINGS Filed04/26/12 Page8 of 250 1404 1 relied on any such statement and for them to try to offer 2 testimony now at trial that we had no notice of during the 3 entire course of discovery would be unfair and prejudicial and 4 would be entirely inconsistent with the purposes of Rule 26.