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Google vs. Cockburn Report

Google vs. Cockburn Report

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Published by ck5046

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Published by: ck5046 on Jan 18, 2012
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GOOGLE’S MEMORANDUM REGARDING THIRD DAMAGES REPORTCASE NO. 3:10-cv-03561-WHA
613213.01
KEKER & VAN NEST LLPROBERT A. VAN NEST - #84065rvannest@kvn.comCHRISTA M. ANDERSON - #184325canderson@kvn.comDANIEL PURCELL - #191424dpurcell@kvn.com633 Battery StreetSan Francisco, CA 94111-1809Telephone: 415.391.5400Facsimile: 415.397.7188KING & SPALDING LLPDONALD F. ZIMMER, JR. - #112279fzimmer@kslaw.comCHERYL A. SABNIS - #224323csabnis@kslaw.com101 Second St., Suite 2300San Francisco, CA 94105Tel: 415.318.1200Fax: 415.318.1300KING & SPALDING LLPSCOTT T. WEINGAERTNER (
Pro Hac Vice
)
 
sweingaertner@kslaw.comROBERT F. PERRYrperry@kslaw.comBRUCE W. BABER (
Pro Hac Vice
)
 
1185 Avenue of the AmericasNew York, NY 10036Tel: 212.556.2100Fax: 212.556.2222IAN C. BALLON - #141819ballon@gtlaw.comHEATHER MEEKER - #172148meekerh@gtlaw.comGREENBERG TRAURIG, LLP1900 University AvenueEast Palo Alto, CA 94303Tel: 650.328.8500Fax: 650.328-8508Attorneys for DefendantGOOGLE INC.UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISIONORACLE AMERICA, INC.,Plaintiff,v.GOOGLE INC.,Defendant.Case No. 3:10-cv-03561-WHA
GOOGLE’S MEMORANDUMREGARDING WHETHER DR.COCKBURN SHOULD BE ALLOWEDTO SUBMIT A THIRD DAMAGESREPORT
Dept.: Courtroom 8, 19th FloorJudge: Hon. William Alsup
Case3:10-cv-03561-WHA Document697 Filed01/17/12 Page1 of 8
 
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GOOGLE’S MEMORANDUM REGARDING THIRD DAMAGES REPORTCASE NO. 3:10-cv-03561-WHA
613213.01
I.
 
INTRODUCTION
On July 22, 2011, this Court struck the vast majority of Oracle’s damages expert Dr. IainCockburn’s initial expert report for deliberately “overreach[ing] in multiple ways—each andevery overreach compounding damages ever higher into the billions—evidently with the goal of seeing how much it could get away with, a ‘free bite,’ as it were.” July 22, 2011 Order [Dkt.No. 230] at 15. Although the Court gave Oracle and Dr. Cockburn a second chance to bringtheir damages analysis into line with federal law and the facts of the case, it also explained inplain English the consequences Oracle would face if it and Dr. Cockburn overreached again:Please be forewarned: the next bite
will be for keeps
.
If the next
 and final 
reportfails to measure up
in any substantial and unseverable way
 ,
including ways thisorder did not have time to reach, then it may be excluded altogether without leaveto try yet again.
 Id.
(emphases added).At the same time it issued its express warning to Oracle, the Court took an additional andunusual measure to safeguard against distorted presentations on damages issues. On July 5,2011, the Court announced its tentative intention to retain a court-appointed damages expert totestify to the jury on damages issues, under Federal Rule of Evidence 706. On August 30, 2011,the Court retained Dr. James Kearl as its Rule 706 expert. On November 9, 2011, the Courtentered a further order explaining that appointing an independent damages expert was necessarybecause of “the parties’ extremely divergent views on damages and the unusual complexity of the damages aspect of this case.” Nov. 9, 2011 Order [Dkt. No. 610] at 3.The writing on the wall was unmistakable, but Oracle failed to read it. On September 12,2011, Oracle served Dr. Cockburn’s revised damages report. If the second report was lessobjectionable than the first, it was only superficially so. Dr. Cockburn still ignored governingdamages law and filled his analysis with unsupportable logical leaps designed to inflate Oracle’srecovery. Google filed a second
 Daubert 
motion, and, on January 9, 2012, the Court againstruck most of Dr. Cockburn’s report. Specifically, the Court:
 
Struck Dr. Cockburn’s opinion apportioning to the patents-in-suit 30% of thevalue of Sun’s $100 million demand to Google and assigning to the copyrights atissue 15% of the value of that demand because Dr. Cockburn failed to understandor account for the full panoply of things Google would have received had it
Case3:10-cv-03561-WHA Document697 Filed01/17/12 Page2 of 8
 
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GOOGLE’S MEMORANDUM REGARDING THIRD DAMAGES REPORTCASE NO. 3:10-cv-03561-WHA
613213.01
accepted Sun’s demand. Jan. 9, 2012 Order [Dkt. No. 685] at 7-9.
 
Barred Dr. Cockburn from offering any testimony on a reasonable royalty, eitheras to patent or copyright damages, because of his failure to apportion the value of the patents and copyrights at issue.
 Id.
 
 
Precluded Dr. Cockburn from apportioning the value of Oracle’s patents amongthe asserted claims of those patents—something Dr. Cockburn has neverattempted to do in either iteration of his report.
 Id.
at 9-10.
 
Ruled that, because Dr. Cockburn had never valued the handful of code files thatOracle alleged Google to have literally copied, he may not offer damagestestimony on those files at trial.
 Id.
at 10.
 
Struck Dr. Cockburn’s testimony on future damages because Dr. Cockburn failedto calculate damages past the end of 2012 and failed to account for the varyingexpiration dates of the asserted patent claims.
 Id.
at 10-11.
 
Excluded evidence of certain licenses and settlements of litigation between Sunand Microsoft, along with any testimony from Dr. Cockburn (or, presumably, anyother Oracle witness) about that evidence.
 Id.
at 11-12.The Court should not give Oracle a third chance. The Court made clear to Oracle instriking most of Dr. Cockburn’s first report that its second chance was its last. Dr. Cockburn’ssecond report completely and deliberately disregarded several of the Court’s instructions in itsfirst
 Daubert 
order. Permitting Dr. Cockburn a third try would significantly burden Google andits experts. And Dr. Kearl’s testimony could mitigate Dr. Cockburn’s absence. The Courtshould not reward Oracle at Google’s expense for Oracle’s disregard of the Court’s instructions.
II.
 
ARGUMENTA.
 
The Court should stand by its previous statements that Dr. Cockburn’s secondchance was his last.
The Court could not have been clearer in its July 22, 2011 order that Oracle’s “next[report] will be for keeps,” driving the point home further by referring to Dr. Cockburn’s “next
 and final 
” report. July 22, 2011 Order [Dkt. No. 230] at 15 (emphasis added). The Court evenraised the possibility that, if Dr. Cockburn committed errors in that final report that weresignificant enough that they tainted the full report “in any substantial and unseverable way,” theCourt might even strike the
entire
report and preclude
 any
testimony by Dr. Cockburn at trial
without leave to try again
.”
 Id.
(emphases added). Google asks the Court to follow throughwith its earlier order and impose the consequences it told Oracle it would.
Case3:10-cv-03561-WHA Document697 Filed01/17/12 Page3 of 8

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