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The Battle over Android, Oracle v. Google: Court Allows Third Chance for Oracle’s Damage Expert to Take a Bite out of Google But Makes Oracle Pay for the Chance

In the ongoing saga over Oracle’s lawsuit against Google, the district court has allowed Oracle’s damage expert another chance to fix its damage report. The district court had previously stricken Oracle’s damage expert report on two previous occasions but allowed Oracle’s damage expert a third chance.

Before addressing the damage expert report issue, the district court rejected Oracle’s suggestion of a piecemeal approach to the trial due to the court’s docket. “The docket simply does not permit that luxury. Counsel are unfortunate in having drawn a judge assigned to the massive MS-13 gang prosecution, which has resulted in four lengthy trials, including one underway now, without any relief from the remainder of his normal caseload. This has led to a backlog of trial-ready cases waiting their turn. . . . In the instant case, the damages methodology must be sorted out before the case will even be trial-ready. Until then, there is no point in setting a firm trial date. If matters go smoothly herein and if other trial settings fall away, the instant case could still possibly be tried starting mid-April and all counsel and witnesses should reserve for that possibility, failing which it will likely occur sometime during the last four months of the year. This order, however, gives no assurances as to when the case can be tried. If Oracle wishes to voluntarily dismiss any damages claim it will have to do so with prejudice; otherwise a dismissal is nothing more than an invitation to piecemeal litigation.”

Turning to the issue of Oracle’s damage expert report, the district court determined that the expert could have a third try but his methodology would have to conform to the district court’s previous rulings and certain conditions were set as well. In addition, the district court stated that any of the revised methodology would be subject to a further Daubert challenge. “For the items stricken in the recent order, he may try any methodology he wishes consistent with the prior ruling but whatever method he selects will, of course, be subject to further Daubert challenge.”

One of the district court’s conditions — Oracle would pay Google’s fees incurred as a result of the third expert report. “All attorney’s fees, expert fees, and other expenses reasonably incurred by Google as a result of allowing a third damages study by Oracle, including all expense and time discussed above, shall be reimbursed by Oracle.” The district court also found that Oracle had overreached and acted unreasonably. “Oracle should be required to make the reimbursements described above as a condition of a third try because it would be unfair to impose on Google the fees and expenses necessary to respond to the third effort. Oracle has already had two full and fair opportunities and has overreached on both. Oracle has behaved unreasonably and should bear the burden of the consequences. Apart from reasonableness or not, allowing a third try of this magnitude is rare in federal litigation and the party responsible for the need for a third try should bear the full burden thereof. A district court is not required to allow a third try at all, therefore, it is certainly allowed to impose fee and cost reimbursement as a condition of allowing a third opportunity.”

The district court also discussed what methodologies would be appropriate for the third damage report, but declined to give a “blessing” to any particular approach. “Although in the past the Court has suggested possible starting points and inquired about possible methodologies (without requiring them), this order emphasizes that Dr. Cockburn may try any methodology he wishes to replace the stricken items so long as the methodology is true to the rulings previously made herein, subject to challenge by Google. No prior suggestion or question by the Court should be taken as a blessing or any particular approach, including any of the approaches referenced by Oracle in its recent filings.”

Oracle America, Inc. v. Google Inc., Case No. C 10-03561 WHA (N.D. Cal. Jan. 20, 2012)
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