Oracle continues to experience trouble with its damage expert report in the ongoing battle over the Android Operating System. In its third attempt to prepare an appropriate damage report, Oracle's expert apparently consulted with a number of Java engineers employed by Sun (now Oracle). He consulted with the engineers in order to rank the importance of the intellectual property in the 2006 license bundle, which he used to support his analysis.
Google sought to depose these Java engineers. Oracle opposed the request and argued that only one person who consulted with the expert, Dr. Mark Reinhold, should be deposed. Oracle asserted that only Dr. Reinhold provided information to the Oracle expert and the language in the report that he consulted with "other Java engineers" was unfortunately the result of a "drafting error." Oracle explained that these other Java engineers only assisted Dr. Reinhold and did not directly speak with the expert and are not expected to testify at trial.
The district court disagreed. It found that Google should be allowed to depose both Dr. Reinhold and the four "other Java engineers." "Google is hereby allowed to depose (and Oracle must make available without subpoena) Dr. Reinhold and the four 'other Java engineers' for a total of 14 hours of 'airtime,' i.e., not counting breaks, all depositions to occur over the course of two days unless counsel agree otherwise. Oracle must produce at the depositions any materials used by the deponent in supplying information to the expert or to Dr. Reinhold on the subjects at issue. Google may allocate the 14 hours as it wishes among the five deponents, in any sequence Google wishes, may choose to eliminate one or more deponents without prejudice to its full 14 hours of 'air time.'"
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As this example makes clear, it is important to read expert reports carefully. This unfortunate typo not only expands the litigation, but it likely will allow Google the opportunity to depose witnesses that Oracle never intended to rely upon at trial and that it never intended to have exposed to deposition. Every deposition becomes an opportunity for attack on the expert and a way to discredit the expert's report or the reliance on the Java engineers to support certain opinions. Given the trouble that Oracle has already had (two of the previous expert's reports were stricken in part), it is likely that Google will find this an additional opportunity to discredit and eliminate more of Oracle's expert report.
The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.