You are on page 1of 137

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 1 of 20

1
2
3
4
5
6
7
8
9

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
rvannest@kvn.com
CHRISTA M. ANDERSON - # 184325
canderson@kvn.com
DANIEL PURCELL - # 191424
dpurcell@kvn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
(415) 391-5400
Facsimile:
(415) 397-7188
KING & SPALDING LLP
BRUCE W. BABER (pro hac vice)
bbaber@kslaw.com
1180 Peachtree Street
Atlanta, GA 30309
Telephone:
(404) 572-4826

10
11

Attorneys for Defendant
GOOGLE INC.

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15

ORACLE AMERICA, INC.,

16

Plaintiffs,

17

v.

18

GOOGLE INC.,

19

Defendant.

Case No. CV 10-03561 WHA
DECLARATION OF CHRISTA M.
ANDERSON IN RESPONSE TO AUGUST
18, 2016 ORDER (ECF 2036)
Hearing:
Time:
Dept.
Judge:

August 17, 2016
8:00 a.m.
Courtroom 8, 19th Fl.
Hon. William Alsup

20
21
22
23
24
25
26
27
28
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA
1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 2 of 20

1

I, Christa M. Anderson, declare as follows:

2

1.

I am a partner in the law firm of Keker & Van Nest LLP, counsel to Google Inc.

3

(“Google”) in the present case. Unless otherwise stated, I have personal knowledge of the facts

4

set forth herein, and if called to testify as a witness thereto could do so competently under oath.

5

2.

I submit this declaration in response to the Court’s Order re Follow-up from

6

Hearing on August 17, 2016 (ECF 2036), requiring submission of a “sworn statement explaining

7

why the discovery responses referenced in Court yesterday were not updated, including the full

8

extent to which counsel knew Google’s intention to launch a full version of Marshmallow,

9

including the Google Play Store, for Chrome OS.” I set forth below in paragraphs three and four

10

an overview that addresses the Court’s inquiry, and provide further details, including citations to

11

documents produced to Oracle during the discovery period and testimony provided by Google

12

witnesses during the discovery period, in paragraphs five through forty-seven.

13

I.

14

OVERVIEW
3.

At the August 17 hearing, the gravamen of Oracle’s argument was that Google

15

should have supplemented its discovery responses to inform Oracle of its plans to enable Android

16

applications (which are available on the Google Play Store) to run on laptops or desktops that use

17

Google’s Chrome OS as their operating system. See, e.g. ECF 2037 38:8-9 (“They didn’t

18

disclose it, despite diligent discovery requests.”). In response to Oracle’s motion and the Court’s

19

inquiry, I have reviewed relevant information made available to Oracle during the discovery

20

period, including Google’s discovery responses, the parties’ meet-and-confer correspondence,

21

documents produced by Google, and deposition transcripts of Google witnesses, which (among

22

other things) disclosed to Oracle Google’s ongoing efforts and plans to build software allowing

23

Android applications, (which are available on the Google Play Store) to run on desktops and

24

laptops that use Chrome OS.

25

4.

Based on the information I reviewed, I have confirmed and believe that the Google

26

discovery responses at issue were proper and did not require further supplementation for the

27

reasons I will now discuss. In the paragraphs below, I summarize documents, deposition

28

testimony, and other information relevant to the Court’s inquiry.
1
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 3 of 20

1
2

II.

BACKGROUND
5.

In order to understand the bases for my belief that Google’s discovery responses

3

did not require supplementation, I have set out the below information about the status of the ARC

4

project, the latest version of ARC (known as ARC++ internally at Google), and the information

5

made available to Oracle during discovery concerning the ARC project, ARC++, and Google’s

6

plans to make Android applications available through use of those products on desktops and

7

laptops that use Chrome OS. This information is set forth below, and the relevant documents are

8

attached hereto.

9
10
11
12
13
14
15
16
17

A. Information made available to Oracle during discovery about Google’s plans to
make Android applications available on Chrome OS devices.
6.

During the discovery period in this case, there was significant information

available to Oracle about Google’s intentions, plans and efforts to make Android applications
available on devices running the Chrome operating system (such as Chromebook laptops). For
example, as reflected in ECF 1999-16, Google publicly announced an earlier iteration of the App
Runtime for Chrome (“ARC”) project at the annual Google I/O developer conference in June
2014. In that announcement, Google’s then-head of Chrome explained that Google had been
working on a project to “connect your phone and your Chromebook.” Id., Ex. OO-1 at 84. He
noted that “this is a difficult challenge technically, so we’ve been working on this project for a
18
while. Our goal is to bring your favorite Android applications in a thoughtful manner to
19
20
21
22
23
24
25
26
27

Chromebooks.” Id. (emphasis added). He further explained that “[w]e want this to be intuitive
for users. These applications were built for Android for the phone, so we want them to work
when there is a mouse, keyboard and touch events, et cetera. For developers, we want this to
work with as little modifications as possible.” Id.. He also noted that Google was “very, very
excited about bringing important, favorite Android applications [to users] for uses straight on
their Chromebooks, so that they can get an even more connected experience. And we are
working on bringing our experiences across both Android and Chrome together, so that it looks in
a delightful way for our users.” Id. at 86 (emphasis added). Oracle was aware of this
28
2
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA
1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 4 of 20

1

announcement during the discovery period, as it cited press articles describing the announcement

2

in its damages expert’s report. See ECF 1560-12 (Malackowski Opening Report) ¶ 172 n.351.

3

7.

Google then publicly announced the first Android apps available to be run on

4

Chrome OS using the ARC technology in a September 2014 blogpost on the Google Chrome blog

5

(https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html). A true and

6

correct copy of that blogpost is attached as Exhibit 1. The title of the blogpost was “First set of

7

Android apps coming to a Chromebook near you.” The blogpost stated that “Today, we’re

8

making Chromebooks even more mobile by bringing the first set of Android apps to Chrome

9

OS.” The blogpost further stated: “These first apps are the result of a project called the App

10

Runtime for Chrome (Beta), which we announced earlier this summer at Google I/O. Over the

11

coming months, we’ll be working with a select group of Android developers to add more of

12

your favorite apps so you’ll have a more seamless experience across your Android phone and

13

Chromebook.” Id. (Emphasis added). Oracle was aware of this blogpost as it cited it in the expert

14

report of its technical expert Robert Zeidman (“Zeidman Report”). ECF No. 2012-2 at ¶ 129

15

n.10.

16

8.

Google provided instructions and documentation on the public Chrome developer

17

website explaining how developers could use ARC to enable Android apps to run on Chrome OS.

18

(https://developer.chrome.com/apps/getstarted_arc). A true and correct copy of a webpage

19

providing such instructions and documentation is attached as Exhibit 2. The webpage is titled

20

“Getting Started with ARC” and explains: “The App Runtime for Chrome (Beta), or ARC, lets

21

you run your favorite Android apps on Chrome OS.” Id. (emphasis added). Oracle was aware

22

of this webpage too as it was also cited in the expert report of Mr. Zeidman. ECF No. 2012-2

23

(Zeidman Rep.) at ¶ 126 n.7.

24

9.

Moreover, internal Google documents produced to Oracle during the discovery

25

period in this case provided further details on Google’s work to make Android applications

26

available to run on devices running Chrome. For example, a document Bates-labeled GOOG-

27

00148195, a true and correct copy of which is attached as Exhibit 3, is titled “ARC Design Doc.”

28

It was produced to Oracle during discovery on December 2, 2015. This document is dated
3
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 5 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 6 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 7 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 8 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 9 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 10 of 20

1

fully-tested “Stable” channel that an end user will encounter by default. See Exhibit 16

2

(https://support.google.com/chromebook/answer/1086915). In order to receive the developer

3

channel version of Chrome OS, an end user must affirmatively select the option to switch to the

4

developer channel after clicking on “Settings > About Chrome OS.” Id. In addition, I am

5

informed and believe that Google continued to make changes to ARC++ code after Google I/O.

6

Accordingly, on information and belief, I understand that the code for ARC++ was not ready for

7

external release until on or around June 15, 2016, when Google released the experimental

8

“developer channel” version of ARC++ to the public. See Exhibit 17

9

(http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:00)

10

(noting that “[t]he dev channel has been updated to 53.0.2767.3,” which corresponds with the

11

reference to the “M53” release in Google’s May 19 announcement). I further understand, on

12

information and belief, that the ARC++ technology still is not complete, or “stable,” and that

13

Google will not make it available in a stable release of Chrome OS for certain Chromebooks until

14

later this year.

15
16

E. Google’s Outside Counsel’s knowledge of ARC and ARC++
23.

The Court instructed me to address “the full extent to which counsel knew

17

Google’s intention to launch a full version of Marshmallow, including the Google Play Store, for

18

Chrome OS.” ECF 2036. I wish to note, upon information and belief, that the ARC++

19

functionality which is the subject of Oracle’s Motion for a New Trial did not contain a “full

20

version of Marshmallow” “for Chrome OS.” I understand and believe that the runtime for (the

21

Marshmallow version of) Android that can be run inside of Chrome OS does not include the

22

Linux Kernel at the bottom of the Android stack, and does not include the Application

23

Framework layer at the top of the stack. I also wish to note, upon information and belief, that the

24

Google Play Store is not part of (the Marshmallow version of) Android, but is rather a separate

25

application that is available for Android. Subject to these caveats, I address below the Court’s

26

questions.

27

24.

28

Google’s outside counsel in this matter was aware of the original version of the

ARC project at least as early as August 2015, when Oracle’s counsel inquired about a related
9
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 11 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 12 of 20

1

made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)

2

(emphasis added); see also 8A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. §

3

2049.1 (3d ed.) (“On its face, the rule only requires further disclosure if the original response was

4

incomplete or incorrect ‘in some material respect,’ emphasizing the need to verify that the

5

information was in fact requested and to guard against undue precision in scrutinizing further

6

disclosures.”). I further understand that “there is no need as a matter of form to submit a

7

supplemental disclosure to include information already revealed by a witness in a deposition or

8

otherwise through formal discovery.” Wright & Miller, Federal Practice and Procedure: Civ. §

9

2049.1 (3d ed.); accord Gomez v. Am. Empress Ltd. P'ship, 189 F.3d 473, at *1 (9th Cir. 1999)

10

(“Supplementation of discovery responses to tell the plaintiff what the witnesses said in their

11

depositions was obviously unnecessary, because plaintiff’s counsel was present at the

12

depositions.”).

13

29.

My understanding of the duty to supplement is consistent with the parties’ conduct

14

in this litigation. For example, both Google and Oracle served their most recent supplemental

15

responses to written discovery requests in December 2015. Google served supplemental

16

responses to Oracle’s Fifth, Sixth, and Seventh set of Interrogatories to Google on December 16,

17

2015, the last day of fact discovery. Oracle likewise served supplemental responses to Google’s

18

Sixth, Seventh, and Eighth set of Interrogatories to Oracle on December 16, 2015. In addition,

19

following a meet and confer between the parties on Google’s RFAs to Oracle after the close of

20

fact discovery, Oracle served a supplement response to Google’s Second set of Requests for

21

Admission to Oracle on December 22, 2015. The parties did not exchange any further written

22

supplemental responses to discovery after that point. However, the parties continued to produce

23

certain supplemental documents leading up through trial.

24

A.

Requests for Production of Documents (“RFPs”)

25

30.

While Oracle did not identify any specific RFPs at the August 17, 2016 hearing,

26

Oracle argued in its Motion for a New Trial that Google had failed to supplement its response to

27

RFP No. 324, which requested:

28
11
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA
1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 13 of 20

1

Source code and DOCUMENTATION for all GOOGLE software
that can be used to facilitate use of ANDROID (including software
derived from ANDROID such as Brillo) on devices other than
mobile phones, including by way of example and not limitation
source code and documentation for Weave and source code and
documentation for software related to porting ANDROID to
desktop or laptop computers.

2
3
4
5

ECF No. 1998-19, Ex. Q at 4. On December 4, 2016, Google served objections to this RFP

6

(which Oracle did not attach to its motion), noting that it was vague and ambiguous as to the

7

phrase “related to porting.” Google also “request[ed] a meet and confer with Oracle to obtain an

8

explanation of the nature of materials sought by Oracle in this Request.” Id. A true and correct

9

copy of Google’s objections is attached as Exhibit 17A.

10

31.

On December 14, 2015, the parties held a telephonic meet and confer. Counsel for

11

Google summarized the call in a follow-up letter to Oracle the next day, in which Google’s

12

counsel stated: “you also asked about a purported project to ‘port Android to desktop.’ It is

13

unclear to what you are referring.” Exhibit 18. Counsel closed the email by noting, “Please let

14

me know if you have any further questions.” Id. Our office has been unable to locate any follow-

15

up correspondence from Oracle on this issue.

16

32.

At the time Google answered RFP No. 324, it had already produced the source

17

code for ARC and ARC Welder, and the then-incomplete source code for ARC++ was not

18

responsive to the request because it called for software that “can be used to facilitate use of

19

Android” on “devices other than mobile phones.” As discussed above, at the time Google

20

responded to this RFP, ARC++ was months away from completion so could not yet be used to

21

“facilitate use of Android” on “devices other than mobile phones.” Furthermore, as explained

22

above, Google produced documents during the discovery period that described ARC++, and thus

23

documents regarding ARC++ were available to Oracle. Supra, ¶¶ 15-19.

24

33.

Notably, on February 5, 2016, after the close of fact discovery and months before

25

the completion of ARC++, the Court ordered that: “The upcoming trial will proceed as if we were

26

back in the original trial, but now with the instructions on fair use handed down by the court of

27

appeals. No new copyrighted works will be allowed.” ECF 1479 at 1. The Court further ruled:

28

“Among possibly others, our trial will not include implementations of Android in Android TV,
12
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 14 of 20

1

Android Auto, Android Wear, or Brillo.” Id. at 2 (emphasis in original). And in a later order, the

2

Court excluded all “evidence or expert testimony relating to Android Wear, Android Auto,

3

Android TV, Brillo, or any other new implementation of Android in devices other than phones or

4

tablets.” ECF 1781 (Mem. Op. Re Google’s Motion in Limine No. 2 Regarding New Products) at

5

5 (emphasis added). The Court’s orders on this issue are discussed in more detail in Google’s

6

Opposition to Oracle’s Motion for a New Trial, ECF No. 2012 at 7-8.

7

34.

It is my belief that Google violated no duty to supplement document production in

8

the period leading up through trial in May 2016 because ARC++ still was not complete at that

9

time, trial was well under way, and the Court had already excluded evidence of uses of Android

10

other than in phones and tablets. Furthermore, even if un-finished source code were otherwise

11

responsive to RFP No. 324, Google made clear to Oracle during discovery that it would not

12

produce source code for unfinished products. For example:

13

i)

On November 9, 2015, counsel for Google informed Oracle that RFPs

14

relating to “future products” were overbroad and irrelevant. Counsel further stated: “Google

15

continues to disagree that the production of documents relating to Google’s future products is

16

likely to lead to the discovery of admissible evidence in this case. However, in the spirit of

17

compromise and in an attempt to avoid unnecessary motion practice, subject to its already stated

18

objections, Google will collect and produce relevant executive presentations and product plans

19

that reflect Google’s plans with respect to future mobile products.” A true and correct copy of

20

counsel’s November 9, 2015 email to Oracle is attached as Exhibit 19.

21

ii)

On December 9, 2015, counsel for Google informed Oracle on a tape-

22

recorded meet-and-confer telephone call that if a document is “solely related to, you know,

23

something that’s being planned out in the future that hasn’t been released yet, um, we’re not as far

24

as I know collecting and producing those non-custodial documents on that level.” A true and

25

correct copy of an unofficial transcription by our office of an audio recording of that meet-and-

26

confer call is attached as Exhibit 20.

27
28

iii)

On December 15, 2015, counsel for Google again informed Oracle that “as

I stated on our call, Google’s position on what it would produce as to future products has been
13
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 15 of 20

1

clear since at least November 9, 2015, when I stated that, in spite of Google’s relevance

2

objections and in the spirit of compromise, Google would ‘collect and produce relevant executive

3

presentations and product plans that reflect Google’s plans with respect to future mobile

4

products.’ Google’s position has not changed, nor did [Oracle’s counsel] respond to my email of

5

November 9, 2015 or ever otherwise question Google’s agreement to produce.” A true and

6

correct copy of counsel’s December 15, 2015 email to Oracle is attached as Exhibit 18.

7
8
9

A. Interrogatories
35.

Oracle identified three interrogatories at the August 17, 2016 hearing. ECF 2037

at 35:17-20 (“We asked interrogatories about it. And interrogatories 26, 27, and 29 all covered

10

this subject matter.”). Oracle propounded these interrogatories on August 21, 2015. Google

11

served objections on September 4, and served its final supplemental responses on December 16.

12

Google’s supplemental responses are attached as Exhibit P to Oracle’s New Trial Motion.

13

36.

14

Oracle’s Interrogatory No. 26, asked:
“For each VERSION of ANDROID developed or released by
GOOGLE since October 27, 2010, identify all ANDROID code that
contains or replicates code from the 37 JAVA API PACKAGES,
including any DECLARING CODE or any other code contained in
the JAVA PLATFORM.”

15
16
17

ECF 1995-12, Ex. P at 5. Google objected that the phrase “developed or released by Google”

18

was vague and ambiguous, though it responded to the interrogatory subject to those (and other)

19

objections. Id. Relying on Fed. R. Civ. P. 33(d), Google identified previously produced

20

documents and code repositories from which the information sought by Oracle could be derived.

21

Id. In particular, Google identified the publicly available source code for the Android Open

22

Source Project, a hard drive containing all publicly released versions of Android, and a source

23

code computer containing the source code for ARC and ARC Welder, which Google had

24

previously made available to Oracle for inspection. Id.

25
26
27
28

37.

Oracle’s Interrogatory No. 27, asked:
For any software developed or released by GOOGLE since October
27, 2010, identify all code from such software that contains or
replicates code from the 37 JAVA API PACKAGES.”

ECF 1995-12, Ex. P at 6-7. Google objected that the phrase “developed or released by Google”
14
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 16 of 20

1

was vague and ambiguous, though it responded to the interrogatory subject to those (and other)

2

objections. Id. Relying on Fed. R. Civ. P. 33(d), Google identified previously produced

3

documents and code repositories from which the information sought by Oracle could be derived,

4

and incorporated in full its response to Interrogatory No. 26.

5

38.

6

Oracle’s Interrogatory No. 29, asked:
“For any software based on or derived from ANDROID since
October 27, 2010, identify all code from such software that contains
or replicates the SSO of the 37 JAVA API PACKAGES.”

7
8

ECF 1995-12, Ex. P at 9. Google objected that the phrase “any software based on or derived

9

from Android” was vague and ambiguous, though it responded to the interrogatory subject to

10

those (and other) objections. Id. Relying on Fed. R. Civ. P. 33(d), Google identified previously

11

produced documents and code repositories from which the information sought by Oracle could be

12

derived, and incorporated in full its response to Interrogatory No. 26.

13

39.

I do not believe that Google had a duty to identify un-finished source code for

14

ARC++ in its responses to Oracle Interrogatory Nos. 26, 27 & 29 because, at the time of those

15

responses, the ARC++ source code was not yet developed but instead was months away from

16

completion and Google had consistently objected to producing source code for potential future,

17

unreleased products. Furthermore, Google already had produced documents describing ARC++

18

to Oracle during the discovery period.

19

40.

I do not believe that Google had a duty to supplement these interrogatory

20

responses in May 2016 because, by that time, the source code for ARC++ still was not complete,

21

and, in any event, the trial was well under way and the Court had already (months earlier)

22

excluded uses of Android other than phones and tablets. Furthermore, as explained above,

23

Google had already produced documents describing the ARC++ project, including design and

24

architecture documents, as well as documents that described Google’s plans to enable Chrome OS

25

users to access the Play Store with the entire suit of Android apps. Supra Exs. 6-14. And Oracle

26

had already elicited deposition testimony regarding Google’s ongoing plans to enable access to

27

Android apps on Chrome OS. Exs. 4 & 5.

28

B. Request for Admission (“RFA”)
15
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 17 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 18 of 20

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 19 of 20

1
2

IV.

STATEMENTS MADE BY ORACLE’S COUNSEL AT THE AUGUST HEARING
44.

On August 17, 2016, the Court held a hearing on Oracle’s Rule 59 Motion for a

3

New Trial (ECF No. 1997), which I attended. I describe below some of the statements made by

4

Oracle’s counsel at that hearing characterizing Google’s discovery responses, and provide

5

additional context for the Court’s consideration of those statements.

6

45.

Oracle’s counsel stated that “In deposition, they described it [ARC] as a failure.”

7

ECF No. 2037 at 40:22; see also 65:5-8. Our office has searched for this testimony in the

8

transcripts of the depositions taken in this case and have been unable to find any instance where a

9

Google witness testified that ARC was a “failure.” Google 30(b)(6) witness Felix Lin testified

10

that, while Google had not gotten the traction or degree of success it would like, it had “some

11

successes” with ARC. Ex. 4 (Lin Dec. 14, 2016 Dep. Tr.) at 21:18-19. An excerpt of Mr. Lin’s

12

testimony on this issue is attached as Exhibits 4 & 5. ARC has been available since September

13

2014, and remains available today. See Ex. 2 (https://developer.chrome.com/apps/getstarted arc).

14

46.

Oracle’s counsel stated that “But this thing they announced in May is not ARC

15

Welder. It makes clear, if you look at the transcript of their announcement – which is Exhibit J1

16

to our Rule 59 motion – this is not ARC Welder. They say ‘ARC failed. It had challenges. It

17

didn’t work. So we’re building a whole new platform.” ECF No. 2037 at 40:1-6. However, I

18

have reviewed Exhibit J1 to Oracle’s Motion for a New Trial—which is not Google’s

19

“announcement” of ARC++ but, rather is, a transcript of a presentation at Google I/O entitled

20

“Bring Your Android App to Chrome OS”—and the presenter did not say that “ARC failed” or

21

that “it didn’t work.” See ECF 1998-10. He said that ARC “had some challenges for

22

developers,” and that “some apps didn’t work great with this.” He also went on to say, “Having

23

said all that, we still believe that getting Android applications running as a fully integrated native

24

Chrome OS apps [sic] was the right idea, so we made a lot of improvements and we’re building a

25

whole new platform to run Android apps on Chromebooks.” Id. at 3-4.

26

47.

Oracle’s counsel stated: “If we had had the source code and come before the Court

27

when the Court was considering the new-products issues, we would have been able to say to the

28

Court, Your Honor, they’re going to the core market for Java SE: laptops and desktops.” ECF
18
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA

1101363

Case 3:10-cv-03561-WHA Document 2045 Filed 08/25/16 Page 20 of 20

1

No. 2037at 37-7:11. However, Oracle was well aware of this argument, and indeed made the

2

argument in the Expert Report of James Malackowski, stating: “ARC allows Google to bring

3

Android Apps to the Chrome operating system. This means Google is now using Android to

4

occupy the original, traditional market of the Java Platform.” (Emphasis added). ECF 1560-12

5

(Malackowski Opening Rep.) ¶ 172 . In addition, as noted earlier, Oracle had received during

6

discovery documents describing the fact that Google was in the process of designing ARC++ to

7

allow Android application to run on Chrome OS. Ex. 7 [GOOG-00203783] at *785 (goal of

8

ARC++ to “[p]rovide Chrome OS users with Play Android apps on Chrome OS without

9

developer action”) (emphasis added).

10
11
12
13

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct to the best of my knowledge.
Executed this 25 day of August, 2016 at San Francisco, California.

14
15
16

By:
CHRISTA M. ANDERSON

17
18
19
20
21
22
23
24
25
26
27
28
19
DECLARATION OF CHRISTA M. ANDERSON
CASE NO. 3:10-CV-03561-WHA
1101363

Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 1 of 9

EXHIBIT 1

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 2 of 9

Duolingo

Evernote

Sight Words

Vine

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 3 of 9

announced earlier this summer at Google I/O

tell us which of your favorite Android apps

493 comments

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 4 of 9

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 5 of 9

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 6 of 9

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 7 of 9

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 8 of 9

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Google Chrome Blog: First set of Android apps coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-1 Filed 08/25/16 Page 9 of 9

Google · Privacy · Terms

https://chrome.googleblog.com/2014/09/first-set-of-android-apps-coming-to.html

8/24/2016

Case 3:10-cv-03561-WHA Document 2045-2 Filed 08/25/16 Page 1 of 4

EXHIBIT 2

Getting Started with ARC - Google Chrome
Case 3:10-cv-03561-WHA Document 2045-2 Filed 08/25/16 Page 2 of 4

DEVTOOLS

MULTI-DEVICE

PLATFORM

Apps
Learn Basics
Learn with Codelab
Run Chrome Apps on Mobile
Run Android Apps on Chrome OS
Getting Started With ARC
Enable Play Services in Your ARC App
In-app Purchases for ARC Apps
Samples
Develop in the Cloud
User Low-Level System Services
MVC Architecture & Frameworks
Distribute Apps
Chrome Platform APIs
Help

Extensions

Native Client

Store

Getting Started with ARC
The App Runtime for Chrome (Beta), or ARC, lets you run your favorite Android apps on Chrome OS.
By following these steps, you can try out the App Runtime for Chrome (Beta) during this
Developer Preview.

https://developer.chrome.com/apps/getstarted_arc

8/24/2016

Getting Started with ARC - Google Chrome
Case 3:10-cv-03561-WHA Document 2045-2 Filed 08/25/16 Page 3 of 4
To test your app, you need three things:
1. Your APK.
2. PC, Mac, Linux, or Chromebook on Chrome Version 41+.
◦ Note: ARC is no longer supported on 32-bit x86 platforms and those platforms will no longer
receive updates after October 13, 2015. All ARM platforms will continue to work and receive
updates.
3. The ARC Welder app.

Test your app
Open ARC Welder, attach your APK, and select your options. Click Launch App to test your app.

Upload your app
In ARC Welder, click Download ZIP. Upload your ZIP file to the Chrome Web Store. See Publishing
Your App for more details.

Best practices
When testing your APK on ARC, developers have passed along these helpful tips:
• Use Tablet or Maximized for your form factor and Landscape for your orientation.
• Be sure your app works well for touch and non-touch Chromebooks.
• If you need to check if your app is running on Chrome OS, look for chromium as the
android.os.Build.BRAND and android.os.Build.MANUFACTURER.
• Getting logs:
◦ On a PC, you can get logs from your app by running plugin.shell('adbd') in the JavaScript
console (chrome://inspect/#apps) and then running either adb logcat or adb
pull /data/data/package_name/path/to/your/log.txt from the Android SDK tools.
◦ On a Chromebook, where adb isn't available right now, run either plugin.shell('logcat')
or plugin.shell('cat /data/data/package_name/path/to/your/log.txt') directly
in the JavaScript console (chrome://inspect/#apps).

https://developer.chrome.com/apps/getstarted_arc

8/24/2016

Getting Started with ARC - Google Chrome
Case 3:10-cv-03561-WHA Document 2045-2 Filed 08/25/16 Page 4 of 4
◦ If the app crashes and you can't get logs using logcat, try collecting stdout and stderr from
Chrome/NaCl. On Chrome OS, you can get these logs from chrome://system/ and expanding

ui_log .
◦ Javascript console logs sometimes contain relevant information. There are two contexts, the
background page (chrome://extensions, enable Developer Mode, select app_main.html for
your app), and the app window (chrome://inspect/#apps).
• To enable Google Play services, read more.
• Since ARC is in Beta, it doesn't support all of Google Play Services yet. However, here are some
available APIs:
◦ Auth (OAuth2)
◦ GCM
◦ Google+ sign-in
◦ Maps
◦ Location
◦ Ads
• To ensure compatibility with all users, package and test your app on the Chromebook Stable
channel.
• To use in-app payments, read more.
Content available under the CC-By 3.0 license

Google

Terms of Service

Privacy Policy

Report

14M

Add us on

a content bug

https://developer.chrome.com/apps/getstarted_arc

8/24/2016

Case 3:10-cv-03561-WHA Document 2045-3 Filed 08/25/16 Page 1 of 1

Exhibit 3
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 1 of 18

Exhibit 4
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 2 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.,

5

Plaintiff,

6
7

) Case No.

vs.

) CV 10-03561 WHA

GOOGLE, INC.,

8
9

)

)
Defendant.

)

__________________________________) VOLUME I

10
11

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

12

VIDEOTAPED 30(b)(6) DEPOSITION OF GOOGLE, INC.

13

DESIGNEE:

14

FELIX LIN

Palo Alto, California

15

Monday, December 14, 2015

16
17
18
19
20
21
22

Reported by:

23

KELLI COMBS, CSR No. 7705

24

Job No.

25

Pages 1 - 184

2196295

Page 1
Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 3 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

If you'll wait just one moment, I'll put

2

an objection in.

3

BY MS. HURST:

4

Q

And would you correct my pronunciation of

5

any names if they're wrong today?

6

offend anyone by getting the names wrong.

7

I don't want to

A

Sure.

9

Q

Thank you.

10

Yes.

And during what period of time did you

11

understand Mr. Pichai to be responsible for

12

Chrome OS?

13

MR. RAGLAND:

Objection to form.

14

THE WITNESS:

Pretty much from the

15

beginning.

16

BY MS. HURST:

18

Q

Now, in 2009, Google had already created

and announced Android; is that correct?
A

Yes.

20

Q

And Android is an operate -- or includes

MR. RAGLAND:

Objection; form.

23

THE WITNESS:

Yes.

25

10:07:39AM

an operating system, true?

22

24

10:07:17AM

10:07:27AM

19

21

10:07:07AM

Is that -- is that all right with you?

8

17

10:07:00AM

BY MS. HURST:
Q

10:07:47AM
Page 13

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 4 of 18

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 5 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

19
20
21

MR. RAGLAND:

Objection; outside the scope

and form.

10:09:59AM
I'll also take this opportunity to

22

designate the transcript as Highly Confidential,

23

Attorneys' Eyes Only subject to review, as we've

24

been doing in other depositions.

25

THE WITNESS:

What was the question again?

10:10:09AM
Page 15

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 6 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

Page 16

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 7 of 18

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 8 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1
2
3

10:13:14AM
BY MS. HURST:
Q

But you have been able to create a

4

solution that will allow Android applications to run

5

on Chrome OS, true?

6
7

MR. RAGLAND:

10

Objection to form and

outside the scope.

8
9

10:13:22AM

THE WITNESS:

We've managed to get some

Android applications running on Chrome OS.
BY MS. HURST:

10:13:35AM

11

Q

12

ARC Welder?

13

A

Yes.

14

Q

What is ARC Welder?

15
16

And the -- are you familiar with

MR. RAGLAND:

Objection; outside the

THE WITNESS:

ARC Welder is a tool that

scope.

17
18

allows application developers to try to get their

19

applications running on Chrome OS.

20

BY MS. HURST:

21

10:13:43AM

Q

10:13:52AM

And why did you create ARC Welder?

22

MR. RAGLAND:

Same objection.

23

THE WITNESS:

We wanted to make it

24

possible for application developers who were

25

familiar and had built Android applications to make

10:14:02AM
Page 19

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 9 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

encourage developers to write for the form factor,

2

so they don't necessarily offer the best solution by

3

simply taking a device -- an application written for

4

a phone and running it on a -- on a larger display.

5

BY MS. HURST:

6

Q

10:15:22AM

So then why not simply encourage them to

7

develop for Chrome OS devices?

8

ARC Welder at all?

9

A

10
11

I mean, why offer

We do.
MR. RAGLAND:

Objection to form and

THE WITNESS:

We do.

BY MS. HURST:

14

Q

And have you been successful in getting

15

many developers of Android applications to port them

16

over to Chrome OS?

17

MR. RAGLAND:

Same objections.

18

THE WITNESS:

We've seen some success,

19

yes.

20

BY MS. HURST:

21

Q

Can you approximate how many Android

applications have been ported over to Chrome OS

23

without use of ARC Welder?

25

10:15:36AM

10:15:45AM

22

24

10:15:31AM

outside the scope.

12
13

10:15:09AM

MR. RAGLAND:

Objection to form and

outside the scope.

10:15:53AM
Page 21

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 10 of 18

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 11 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

the scope.

2

10:24:00AM
THE WITNESS:

I see different strategies

3

for different companies playing out.

4

BY MS. HURST:

5

Q

My question now is:

Thinking forward and

6

projecting into the future with the goals for

7

Google, wouldn't you like to have a unified

8

experience for your customers, that is, end user

9

customers, across any device that they may choose to

10

use?

10:24:35AM

11
12

MR. RAGLAND:

Objection to form, outside

THE WITNESS:

Google tries to make its

the scope.

13
14

applications available on all platforms, yes.

15

BY MS. HURST:

16

Q

17
18

10:24:44AM

And how does Google make money?
MR. RAGLAND:

Objection; outside the

scope, form.

19

THE WITNESS:

Today, Google primarily

20

makes money from advertising.

21

BY MS. HURST:

22
23

10:24:20AM

Q

10:24:57AM

And in what forms does Google deliver the

advertising from which it makes that money?

24

MR. RAGLAND:

Same objections.

25

THE WITNESS:

Largely online.

10:25:08AM
Page 29

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 12 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

BY MS. HURST:

2

Q

1:28:38PM

Did Exhibit 5089, this article, did it

3

prompt any discussion on your part with anybody else

4

at Google about the information contained therein?

5
6

MR. RAGLAND:

Objection to form and beyond

THE WITNESS:

Other -- other people on the

the scope.

7
8

team saw it.

9

was an interesting analysis but, you know, there

10

I think, in general, people thought it

wasn't really any discussion beyond that.

11

MS. HURST:

Journal article dated October 29, 2015, entitled

13

"Alphabet's Google to Fold Chrome Operating System

14

into Android."

15

(Deposition Exhibit 5090 marked

16

for identification.)

Q

Mr. Lin, did you read this article on or

about the time it was published?

20

A

I did.

21

Q

And what was your reaction to it at the

22

25

1:30:30PM

time?

23
24

1:30:02PM

BY MS. HURST:

18
19

1:29:05PM

Exhibit 5090 is a Wall Street

12

17

1:28:48PM

MR. RAGLAND:

Objection; outside the

THE WITNESS:

My impression was that

scope.
1:30:44PM
Page 106

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 13 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

somebody who had done some analysis was completely

2

misreading what was actually going on.

1:30:46PM

3

24

Page 107

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 14 of 18

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 15 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

10

BY MS. HURST:

11

Q

1:34:06PM

What was the goal of creating ARC Welder?

12

MR. RAGLAND:

Objection to scope.

13

THE WITNESS:

Are you asking about the

14

technical goal or what -- what do you mean?

15

BY MS. HURST:

16

Q

17
18

1:35:09PM

Well, let's start with the technical goal.
MR. RAGLAND:

Same objection, also to

THE WITNESS:

The technical goal was to

form.

19
20

just make it easier for application developers to

21

put the finishing touches on Android applications so

22

that they could run on Chrome OS.

23

BY MS. HURST:

24
25

Q

1:35:16PM

What were the bus- -What was the business goal or goals of

1:35:26PM
Page 109

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 16 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

17
18

BY MS. HURST:
Q

Is there some version of Android that's

19

API-level version that's been released where ARC

20

does support all of the libraries?

21

MR. RAGLAND:

Same objections.

22

THE WITNESS:

I don't know that we have

23

produced that or that it's been made available, no.

24

BY MS. HURST:

25

Q

Which -- which libraries are not

1:42:19PM

1:42:33PM
Page 115

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 17 of 18
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
1

there.

2

developers to make their applications at the margin

3

work.

4

other.

5

BY MS. HURST:

6

It's just a matter of getting application

I just don't know for certain, one way or the

Q

1:43:56PM

And is it your goal and plan to get

7

application developers to do the work to support

8

Android on Chrome OS using ARC Welder or otherwise?

9
10

MR. RAGLAND:

Objection to form and beyond

the scope of noticed topics.

11

THE WITNESS:

possible for every Android application to run on

13

Chrome OS without any developer work, that would be

14

phenomenal; just like I think Microsoft would love

15

to have every Android application running on

16

Windows, and I suspect, at least customers who are

17

using iPhones, would love to have all the Android

18

apps that aren't currently running on iPhones

19

available to them on iPhones as well.

20

BY MS. HURST:
Q

1:44:30PM

1:44:53PM

Does ARC support Google Play Services?

22

MR. RAGLAND:

Objection; beyond the scope.

23

THE WITNESS:

I don't know the answer to

24

1:44:11PM

I think if we could make it

12

21

1:43:45PM

that.

25
Page 117

Veritext Legal Solutions
866 299-5127

Case 3:10-cv-03561-WHA Document 2045-4 Filed 08/25/16 Page 18 of 18

Case 3:10-cv-03561-WHA Document 2045-5 Filed 08/25/16 Page 1 of 1

Exhibit 5
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-6 Filed 08/25/16 Page 1 of 1

Exhibit 6
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-7 Filed 08/25/16 Page 1 of 1

Exhibit 7
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-8 Filed 08/25/16 Page 1 of 1

Exhibit 8
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-9 Filed 08/25/16 Page 1 of 1

Exhibit 9
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-10 Filed 08/25/16 Page 1 of 1

Exhibit 10
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-11 Filed 08/25/16 Page 1 of 1

Exhibit 11
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-12 Filed 08/25/16 Page 1 of 1

Exhibit 12
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-13 Filed 08/25/16 Page 1 of 1

Exhibit 13
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-14 Filed 08/25/16 Page 1 of 1

Exhibit 14
(Document Sought to be Sealed)

Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 1 of 8

EXHIBIT 15

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 2 of 8

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 3 of 8

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 4 of 8

here
Google Plus

Twitter

25 comments

Add a comment

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 5 of 8

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 6 of 8

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 7 of 8

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Google Chrome Blog: The Google Play store, coming to a Chromebook near you
Case 3:10-cv-03561-WHA Document 2045-15 Filed 08/25/16 Page 8 of 8

Google · Privacy · Terms

https://chrome.googleblog.com/2016/05/the-google-play-store-coming-to.html

8/24/2016

Case 3:10-cv-03561-WHA Document 2045-16 Filed 08/25/16 Page 1 of 4

EXHIBIT 16

Stable, beta, and development channels - Chromebook Help
Case 3:10-cv-03561-WHA Document 2045-16 Filed 08/25/16 Page 2 of 4

Chromebook Help
CHROMEBOOK

FORUM

CONTACT US

Stable, beta, and development channels
You can test the latest features of the Chrome operating system (OS) by switching channels to a more
experimental version.
You’ll need to be the Chromebook owner to switch channels.
To see which channel you're using:
1. Click the status area, where your account picture appears.
2. Click Settings > About Chrome OS.
3. An "About" window will open with your version number and channel.

Before you switch channels
Stable channel: This channel is fully tested by  the Chrome OS team, and is the best choice to avoid
crashes and other problems. It's updated roughly every 2-3 weeks for minor changes, and every 6
weeks for major changes.
Beta channel: If you want to see upcoming changes and improvements with low risk, use the Beta
channel. It's updated roughly every week, with major updates coming every 6 weeks, more than a
month before the Stable channel gets them.
Dev channel: If you want to see the latest Chrome OS features, use the Dev channel. The Dev channel
gets updated once or twice weekly. While this build is tested, it might have bugs, as we want people to
see what's new as soon as possible.
Warning: Switching from an experimental channel to a more stable channel will delete everything from
your Chromebook, like downloaded files, photos, owner permissions, and saved networks for all
accounts. You’ll need to enter all your Google Accounts again.

Switch channels
1. Sign in to your Chromebook with the owner account.
2. Click the status area, where your account picture appears.
3. Click Settings > About Chrome OS > More info....
4. Click the Change channel... button.
5. Pick a channel from the box that appears.

https://support.google.com/chromebook/answer/1086915

8/25/2016

Stable, beta, and development channels - Chromebook Help
Case 3:10-cv-03561-WHA Document 2045-16 Filed 08/25/16 Page 3 of 4

Move to an experimental channel

Move to a more stable channel

Discuss with other Chromies in Chromebook Central.

Share this:

Casey is a Chromebook expert and author of this help page. Help her improve this article by leaving
feedback below.

Was this article helpful?
YES

NO

Operating system and browser
Stable, beta, and development
channels
Update your Chromebook operating
system
Clear browsing data

Watch video tutorials

https://support.google.com/chromebook/answer/1086915

8/25/2016

Stable, beta, and development channels - Chromebook Help
Case 3:10-cv-03561-WHA Document 2045-16 Filed 08/25/16 Page 4 of 4
To get the latest tips, tricks, and howto's, subscribe to our YouTube Channel.

En...


©2016 Google - Privacy Policy - Terms of Service - Contact Us

https://support.google.com/chromebook/answer/1086915

8/25/2016

Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 1 of 19

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 2 of 19

The beta channel has been updated to 52.0.2743.41 for Windows, Mac, and
Linux.

A partial list of changes is available in the log. Interested in switching release
channels? Find out how. If you find a new issue, please let us know by filing
a bug. The community help forum is also a great place to reach out for help
or learn about common issues.

Richard Bustamante
Google Chrome

Labels: Beta updates

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 3 of 19

log

switching

how
a bug

filing

community help forum

Labels: Dev updates

here

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 4 of 19

forum

filing a bug

Find out how

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 5 of 19

here

forum

filing a bug

Find out how

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 6 of 19

The dev channel has been updated to 53.0.2763.0 for Windows, Mac, and
Linux.

A partial list of changes is available in the log. Interested in switching release
channels? Find out how. If you find a new issue, please let us know by filing
a bug. The community help forum is also a great place to reach out for help
or learn about common issues.

Krishna Govind
Google Chrome

Labels: Dev updates

available in Google Play

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 7 of 19

Git
log

filing a bug
Chrome site

Labels: Chrome for Android Stable updates

here

forum

filing a bug

Find out how

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 8 of 19
Labels: Chrome OS Dev updates

The beta channel has been updated to 52.0.2743.33 for Windows, Mac, and
Linux.

A partial list of changes is available in the log. Interested in switching release
channels? Find out how. If you find a new issue, please let us know by filing
a bug. The community help forum is also a great place to reach out for help
or learn about common issues.

Di Mu
Google Chrome

Labels: Beta updates

timed
reboot

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 9 of 19

here
Google for Work Connect
contacting support

Labels: Admin Console

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 10 of 19

Labels: Chrome OS Stable updates

The stable channel has been updated to 51.0.2704.84 for Windows, Mac, and
Linux.

A list of changes is available in the log. Interested in switching release
channels? Find out how. If you find a new issue, please let us know by filing
a bug. The community help forum is also a great place to reach out for help
or learn about common issues.

Krishna Govind
Google Chrome

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 11 of 19
Labels: Stable updates

The Beta channel has been updated to 51.0.2704.79 (Platform version:
8172.47.0) for all Chrome OS devices except Dell Chromebook 11 and the
Lenovo N22 Chromebook. This build contains a number of bug fixes, security
updates and feature enhancements.

If you find new issues, please let us know by visiting our forum or filing a bug.
Interested in switching channels? Find out how. You can submit feedback
using ‘Report an issue...’ in the Chrome menu (3 horizontal bars in the upper
right corner of the browser).

Bernie Thompson 
Google Chrome

The dev channel has been updated to 53.0.2756.0 for Windows, Mac, and Linux.

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 12 of 19

A partial list of changes is available in the log. Interested in switching release channels? Find out
how. If you find a new issue, please let us know by filing a bug. The community help forum is
also a great place to reach out for help or learn about common issues.

Anantha Keesara
Google Chrome

Labels: Dev updates

The Chrome team is excited to announce the promotion of Chrome 52 to the
beta channel for Windows, Mac and Linux. Chrome 52.0.2743.24 contains our
usual under-the-hood performance and stability tweaks, as well as cool new
features to explore - head to the Chromium blog to learn more about what's
happening with Chrome!

A full list of changes in this build is available in the log. Interested in
switching release channels? Find out how here. If you find a new issue,
please let us know by filing a bug. The community help forum is also a
great place to reach out for help or learn about common issues.

Richard Bustamante
Google Chrome

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 13 of 19

The Dev channel has been updated to 52.0.2743.19, 52.0.2743.21 (Platform
version: 8350.14.0) for all Chrome OS devices except for celes and x86-alexhe . This build contains a number of bug fixes, security updates and feature
enhancements. A list of changes can be found here.

If you find new issues, please let us know by visiting our forum or filing a
bug. Interested in switching channels? Find out how. You can submit
feedback using ‘Report an issue...’ in the Chrome menu (3 vertical dots in the
upper right corner of the browser).

Grace Kihumba
Google Chrome

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 14 of 19

The stable channel has been updated to 51.0.2704.79 for Windows, Mac, and
Linux.
Security Fixes and Rewards
Note: Access to bug details and links may be kept restricted until a majority of
users are updated with a fix. We will also retain restrictions if the bug exists in
a third party library that other projects similarly depend on, but haven’t yet
fixed.
This update includes 15 security fixes. Below, we highlight fixes that were
contributed by external researchers. Please see the Chromium security page
for more information.
[$7500][601073] High CVE-2016-1696: Cross-origin bypass in Extension
bindings. Credit to anonymous.
[$7500][613266] High CVE-2016-1697: Cross-origin bypass in Blink. Credit to
Mariusz Mlynski.
[$4000][603725] Medium CVE-2016-1698: Information leak in Extension
bindings. Credit to Rob Wu.
[$3500][607939] Medium CVE-2016-1699: Parameter sanitization failure in
DevTools. Credit to Gregory Panakkal.
[$1500][608104] Medium CVE-2016-1700: Use-after-free in Extensions.
Credit to Rob Wu.
[$1000][608101] Medium CVE-2016-1701: Use-after-free in Autofill. Credit to
Rob Wu.
[$1000][609260] Medium CVE-2016-1702: Out-of-bounds read in Skia. Credit
to cloudfuzzer.
We would also like to thank all security researchers that worked with us during
the development cycle to prevent security bugs from ever reaching the stable
channel.

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 15 of 19

As usual, our ongoing internal security work was responsible for a wide range
of fixes:
• [616539] CVE-2016-1703: Various fixes from internal audits,
fuzzing and other initiatives.

Many of our security bugs are detected using AddressSanitizer,
MemorySanitizer, Control Flow Integrity or LibFuzzer.

A list of changes is available in the log. Interested in switching release
channels? Find out how. If you find a new issue, please let us know by filing
a bug. The community help forum is also a great place to reach out for help
or learn about common issues.

Krishna Govind
Google Chrome

Labels: Stable updates

The Beta channel has been updated to 51.0.2704.64 (Platform version:
8172.45.0) for all Chrome OS devices except those listed below. This build
contains a number of bug fixes, security updates and feature enhancements.

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 16 of 19

If you find new issues, please let us know by visiting our forum or filing a bug.
Interested in switching channels? Find out how. You can submit feedback
using ‘Report an issue...’ in the Chrome menu (3 horizontal bars in the upper
right corner of the browser).

Bernie Thompson 
Google Chrome

Systems missing in this release:
Google Chromebook Pixel
Some Acer C7 Chromebooks
Lenovo Thinkpad X131e Chromebook
Lenovo ThinkPad 11e Chromebook
AOpen Chromebox Commercial
Acer Chromebook R11
Acer Chromebook 14

Labels: Beta updates Chrome OS

The dev channel has been updated to 52.0.2743.19 for Windows, Mac, and Linux.

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 17 of 19

A partial list of changes is available in the log. Interested in switching release channels? Find out
how. If you find a new issue, please let us know by filing a bug. The community help forum is
also a great place to reach out for help or learn about common issues.

Anantha Keesara

Google Chrome

Labels: Dev updates

The Dev channel has been updated to 52.0.2743.0 (Platform version:
8350.1.0, 8350.2.0, 8350.3.0) for all Chrome OS devices except for x86mario, x86-zgb and expresso . This build contains a number of bug fixes,
security updates and feature enhancements. A list of changes can be found
here.

If you find new issues, please let us know by visiting our forum or filing a
bug. Interested in switching channels? Find out how. You can submit
feedback using ‘Report an issue...’ in the Chrome menu (3 vertical dots in the
upper right corner of the browser).

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 18 of 19

Grace Kihumba
Google Chrome

The dev channel has been updated to 52.0.2743.10 for Windows, Mac, and Linux.

A partial list of changes is available in the log. Interested in switching release channels? Find out
how. If you find a new issue, please let us know by filing a bug. The community help forum is
also a great place to reach out for help or learn about common issues.

Anantha Keesara
Google Chrome

Labels: Dev updates

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Chrome Releases
Case 3:10-cv-03561-WHA Document 2045-17 Filed 08/25/16 Page 19 of 19

Google · Privacy · Terms

http://googlechromereleases.blogspot.com/search?updated-max=2016-06-15T17:16:00-07:... 8/25/2016

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 1 of 9

Exhibit 17A

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 2 of 9

1
2
3
4
5
6
7
8
9
10
11

KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
rvannest@kvn.com
CHRISTA M. ANDERSON - # 184325
canderson@kvn.com
DANIEL PURCELL - # 191424
dpurcell@kvn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
(415) 391-5400
Facsimile:
(415) 397-7188
KING & SPALDING LLP
BRUCE W. BABER (pro hac vice)
bbaber@kslaw.com
1185 Avenue of the Americas
New York, NY 10036
Telephone:
(212) 556-2100
Facsimile:
(212) 556-2222
Attorneys for Defendant
GOOGLE INC.

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
ORACLE AMERICA, INC.,

Case No. 3:10-cv-03561 WHA

16
Plaintiffs,
17
v.
18

DEFENDANT GOOGLE INC.’S
RESPONSE AND OBJECTIONS TO
PLAINTIFF ORACLE AMERICA, INC.’S
REQUESTS FOR PRODUCTION

GOOGLE INC.,
19

SET ELEVEN (NO. 324)
Defendant.

20
21
22
23
24
25
26
27
28
DEFENDANT GOOGLE INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF
ORACLE AMERICA, INC.’S REQUESTS FOR PRODUCTION
Case No. 3:10-cv-03561 WHA
1008344

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 3 of 9

1

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant Google Inc.

2

(“Google”), through its attorneys, provides its Responses and Objections to Plaintiff’s Requests

3

for Production to Defendant Google Inc., Set Eleven (“Plaintiff’s Eleventh Request for

4

Production”), served by Plaintiff Oracle America, Inc. (“Plaintiff” or “Oracle”) on November 4,

5

2015.

6
7

GENERAL OBJECTIONS

1.

Google responds generally that its investigation of the facts relevant to this

8

litigation is ongoing. Google’s responses herein are given without prejudice to Google’s right to

9

amend or supplement in accordance with Rule 26(e) of the Federal Rules of Civil Procedure, the

10
11

Civil Local Rules, the Court’s Case Management Orders, and any applicable Standing Orders.
2.

Google generally objects to Plaintiff’s Requests for Production, Set Eleven, and

12

the “Definitions and Instructions” related thereto, to the extent they are inconsistent with or

13

impose obligations beyond those required by the Federal Rules of Civil Procedure, the Civil

14

Local Rules, the Case Management Orders entered by the Court, and any applicable Standing

15

Orders. In responding to each Request for Production, Google will respond as required under

16

Rule 34 of the Federal Rules of Civil Procedure.

17

3.

Google generally objects to Oracle’s Requests for Production to the extent Oracle

18

requests materials that predate June 15, 2011 and/or otherwise seek discovery on issues, events,

19

transactions, and/or occurrences that could have, and should have been addressed, if at all, prior

20

to the original trial, including, but not limited to, where such requests were the subject of

21

discovery requests served in the discovery period preceding the original trial. Google similarly

22

objects to the extent the Requests purport to demand production of documents already produced

23

to the parties or logged on privilege logs in this action.

24

4.

Google objects to the term “Documentation” because it is defined by incorporating

25

the phrase “relating to,” which in turn renders the requests for production using the term vague,

26

ambiguous and overly broad.

27
28

5.

Google objects to the definition of the words “Google,” “You” and “Your” in

paragraph 1 of the Definitions of the Requests for Production as overly broad, unduly
1
DEFENDANT GOOGLE INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF
ORACLE AMERICA, INC.’S REQUESTS FOR PRODUCTION
Case No. 3:10-cv-03561 WHA

1008344

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 4 of 9

1

burdensome, vague, and ambiguous and not proportional to the needs of the case because the

2

definition seeks to expand the definition of “Google” to include all “locations, predecessors,

3

affiliates, successors, subsidiaries, divisions or parts thereof, parent holding companies including

4

without limitation, Alphabet, Inc., and all past or present directors, officers, agents,

5

representatives, employees, consultants, attorneys, and others acting on its behalf.” Such a

6

definition of “Google” expands the definition beyond any reasonable or commonly accepted

7

meaning of the term. Further, Google generally objects to Oracle’s definitions of “Google,”

8

“You,” and “Your” as overbroad and vague to the extent the definitions purport to include

9

Alphabet, Inc., as Google’s proposed reorganization has not yet been finalized.

10

6.

Google generally objects to Oracle’s definition of “Android” as vague, ambiguous,

11

overly broad, unduly burdensome, and not proportional to the needs of the case to the extent it

12

includes “any versions thereof …, any other works derived from Android, and any related public

13

or proprietary source code, executable code, documentation, and Google Android devices.”

14

Android is an open source software project, and Google distributes the source code for Android

15

pursuant to a free and open source license that allows third parties to make modifications to the

16

Android source code that Google distributes. Accordingly, Google objects to Oracle’s definition

17

of “Android” to the extent it purports to include software created, modified, and/or distributed by

18

third parties and not Google. Similarly, Google objects to the term “Google Android devices” as

19

vague and ambiguous and further objects to the term as overly broad, unduly burdensome, and

20

not proportional to the needs of the case to the extent it includes devices running Android

21

software that are manufactured and sold by third parties, including without limitation any original

22

equipment manufacturers, and not Google.

23

7.

Google objects to each Request for Production as premature to the extent it seeks

24

expert testimony. Google will disclose such information at the time and in the manner

25

contemplated by the Federal Rules of Civil Procedure, the Civil Local Rules, the Court’s Case

26

Management Orders, and any applicable Standing Orders in this case. Google also reserves the

27

right to supplement to incorporate expert opinion and testimony at the appropriate time.

28
2
DEFENDANT GOOGLE INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF
ORACLE AMERICA, INC.’S REQUESTS FOR PRODUCTION
Case No. 3:10-cv-03561 WHA
1008344

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 5 of 9

1

8.

Google generally objects to Plaintiff’s Requests for Production, Set Eleven to the

2

extent (a) they are not reasonably calculated to lead to the discovery of admissible evidence that

3

is relevant to any claim or defense of any party; (b) they are unreasonably cumulative or

4

duplicative; (c) they seek information that is obtainable from some other source that is more

5

convenient, less burdensome, or less expensive; or (d) the burden or expense of the proposed

6

discovery outweighs any likely benefit.

7

9.

Google generally objects to Plaintiff's Requests for Production, Set Eleven as

8

unduly burdensome and not proportional to the needs of the case to the extent that they seek

9

production of data on back-up tapes or any other automatically saved files solely intended for

10

restoration of systems in the event of program failure, including, but not limited to, autosaved

11

drafts of email iteratively created for program failure restoration during the course of preparation

12

of an email. Google further states that, as of November 2012, Google ceased retaining historical

13

copies of the iteratively-created autosave drafts created for program failure restoration. Google

14

further states that it retains historical copies of and will produce (subject to any other asserted

15

objections) emails that were sent, received or saved by document custodians subject to collection

16

in this matter.

17

10.

Google generally objects to Plaintiff’s Requests for Production, Set Eleven to the

18

extent they seek information, documents, and/or things protected from discovery by the attorney-

19

client privilege, the work product doctrine, the common-interest privilege, and/or any other

20

applicable privilege, immunity, or protection. Nothing contained in Google’s responses is

21

intended to be, or in any way shall be deemed, a waiver of any such applicable privilege or

22

doctrine.

23

11.

Google generally objects to Plaintiff’s Requests for Production, Set Eleven to the

24

extent they seek information, documents, and/or things protected from discovery by court order or

25

other restrictions on disclosure.

26

12.

Google generally objects to Plaintiff’s Requests for Production, Set Eleven to the

27

extent they request information, documents, and/or things not within the possession, custody, or

28

control of Google, that are as readily available to Plaintiff as to Google, or that are otherwise in
3
DEFENDANT GOOGLE INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF
ORACLE AMERICA, INC.’S REQUESTS FOR PRODUCTION
Case No. 3:10-cv-03561 WHA

1008344

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 6 of 9

1

the possession of Plaintiff, on the grounds that such requests are unduly burdensome and not

2

proportional to the needs of the case. Google further states that any agreement to produce is

3

subject to the parties’ negotiations regarding the appropriate scope of discovery, including, for

4

example, ESI search terms and custodians, and any agreements reached during the parties’ meet

5

and confers.

6

13.

Google incorporates by reference these General Objections into the specific

7

objections and responses set forth below. While Google may repeat a General Objection for

8

emphasis or some other reason, the failure to specifically refer to any General Objection does not

9

constitute a waiver of any sort. Moreover, subject to the requirements of Rule 34 of the Federal

10

Rules, Google reserves the right to alter or amend its objections and responses set forth herein as

11

additional facts are ascertained and analyzed.

12
13
14
15

REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 324:
Source code and DOCUMENTATION for all GOOGLE software that can be used to

16

facilitate use of ANDROID (including software derived from ANDROID such as Brillo) on

17

devices other than mobile phones, including by way of example and not limitation source code

18

and documentation for Weave and source code and documentation for software related to porting

19

ANDROID to desktop or laptop computers.

20

RESPONSE TO REQUEST FOR PRODUCTION NO. 324:

21

In addition to its General Objections, Google objects to this Request for Production as

22

overly broad, unduly burdensome, and not proportional to the needs of the case to the extent it

23

seeks documents related to operations of Google outside of the United States having no

24

connection with the United States or information not related to any party’s claims or defenses or

25

any relevant subject matter at issue. Google further objects to this Request for Production as

26

vague, ambiguous, overly broad, unduly burdensome and not proportional to the needs of the case

27

as to the phrases “Android” and “Android (including software derived from Android such as

28

Brillo).” Google also objects to this Request for Production as vague, ambiguous, overly broad,
4
DEFENDANT GOOGLE INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF
ORACLE AMERICA, INC.’S REQUESTS FOR PRODUCTION
Case No. 3:10-cv-03561 WHA

1008344

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 7 of 9

1

unduly burdensome and not proportional to the needs of the case as to the phrases “can be used to

2

facilitate use,” “devices other than mobile phones,” and “related to porting.” Google further

3

objects to this Request for Production to the extent that it seeks information that is the

4

confidential information of, or proprietary to, or the trade secret of, a third party. Google further

5

objects to this Request to the extent it seeks information, documents, and/or things protected from

6

discovery by the attorney-client privilege, the work product doctrine, the common interest

7

privilege, and/or any other applicable privilege, immunity, or protection.

8

Subject to the foregoing objections and the General Objections, without waiver or

9

limitation thereof, Google requests a meet and confer with Oracle to obtain an explanation of the

10

nature of materials sought by Oracle in this Request.

11
12
13

Dated: December 4, 2015.

KEKER & VAN NEST LLP

14
15

By:

16
17

/s/ Robert A. Van Nest
ROBERT A. VAN NEST
CHRISTA M. ANDERSON
DANIEL PURCELL
Attorneys for Defendant
GOOGLE INC.

18
19
20
21
22
23
24
25
26
27
28
5

DEFENDANT GOOGLE INC.’S RESPONSE AND OBJECTIONS TO PLAINTIFF
ORACLE AMERICA, INC.’S REQUESTS FOR PRODUCTION
Case No. 3:10-cv-03561 WHA
1008344

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 8 of 9

1

PROOF OF SERVICE

2

4

I am employed in the City and County of San Francisco, State of California in the office of a
member of the bar of this court at whose direction the following service was made. I am over the
age of eighteen years and not a party to the within action. My business address is Keker & Van
Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809.

5

On December 4, 2015, I served the following document(s):

3

6
7
8
9
10
11

DEFENDANT GOOGLE INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFF’S INTERROGATORIES, SET 6 (NOS. 38-44)
DEFENDANT GOOGLE INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFF ORACLE AMERICA, INC.’S REQUESTS FOR
PRODUCTION, SET 11 (NO. 324)
DEFENDANT GOOGLE INC.’S RESPONSES AND OBJECTIONS TO
PLAINTIFF ORACLE AMERICA, INC.’S REQUESTS FOR ADMISSION,
SET THREE

12
13
14
15

 by ELECTRONIC MAIL (PDF): Based on an agreement of the parties to accept service
by electronic mail, I caused a true and correct copy of the foregoing document(s) to be sent
to the person(s) at the electronic notification address(es) listed below. The email was
transmitted without error.

16
17
18
19
20
21
22
23

ORRICK, HERRINGTON & SUTCLIFFE LLP
Karen G. Johnson-Mckewan
Annette L. Hurst
Gabriel M. Ramsey
405 Howard Street
San Francisco, CA 94105
Tel: 415.773.5700 / Fax: 415.773.5759
Peter A. Bicks
Lisa T. Simpson
51 West 52nd Street
New York, NY 10019
Tel: 212.506.5000 / Fax: 212.506.5151

24
25
26
27

kjohnson-mckewan@orrick.com
ahurst@orrick.com
gramsey@orrick.com
pbicks@orrick.com
lsimpson@orrick.com

28
1
PROOF OF SERVICE
Case No. 3:10-cv-03561-WHA
1009385.01

Case 3:10-cv-03561-WHA Document 2045-18 Filed 08/25/16 Page 9 of 9

1
2
3
4

David Boies
Boies Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Tel: 914.749.8201 / Fax: 914.749.8300
dboies@bsfllp.com

Attorneys for Plaintiff
ORACLE AMERICA, INC.
Oracle-Google@BSFLLP.com

5
6
7
8

Steven C. Holtzman
1999 Harrison St., Ste. 900
Oakland, CA 94612
Tel: 510.874.1000 / Fax: 510.874.1460
sholtzman@bsfllp.com

9
10
11

Executed on December 4, 2015, at San Francisco, California.

12

I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.

13
14
15

/s/ Edward A. Bayley
Edward A. Bayley

16
17
18
19
20
21
22
23
24
25
26
27
28
2
PROOF OF SERVICE
Case No. 3:10-cv-03561-WHA
1009385.01

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 1 of 7

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 2 of 7
Raina M. Abaya
From:
Sent:
To:
Cc:
Subject:

Sarah B. Faulkner
Tuesday, December 15, 2015 8:43 PM
'Uriarte, Robert L.'; Beth Egan; Steven Ragland
Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
RE: Oracle v Google- Meet and Confer Call

Rob,
I write to follow-up on our conversation yesterday.
1. Financial projections for Google’s non-Android, non-mobile lines of business
First, as I stated on our call, Oracle’s request comes too late. I stated in my email of November 9, 2015 to Lisa Simpson that,
in spite of Google’s relevance objections and in the spirit of compromise, Google would produce - and has produced - “from
non-custodial sources responsive, non-privileged documents maintained in the ordinary course of business reflecting
projected revenues for Google’s mobile business.” Thus, Oracle has been aware of Google’s position since at least
November 9, 2015. Oracle should have raised this issue prior to the close of discovery.
Second, as I stated on our call, Google does not believe financial projections of any kind are relevant to the issues in this
case. Google has communicated this position to Oracle several times, including in our meet and confer of October 16, 2015
and in my email of November 9, 2015, when I stated: “We are now 10 years beyond the date of the hypothetical
negotiation, so any recent revenue projection is irrelevant to a hypothetical license. For the same reason, the logic of Judge
Ryu’s order – even if it applied to copyright damages – would not apply here. Google’s revenue projections are also not
relevant to Oracle’s lost profits claim, which will stand or fall based on evidence of Oracle’s own products, services, and
business capacity. Further, Judge Alsup’s January 9, 2012 Order made clear that post-verdict damages will be based only on
the jury’s findings regarding pre-verdict damages, not on Google’s projected or actual future revenues.” I then further
stated Google’s position that projected revenues were not relevant to the market harm prong of the fair use defense or bad
faith. Google’s position has not changed.
You stated that the non-Android financial projections are relevant to the modeling Oracle’s experts are doing for damages
and to show the commercial nature of the infringement. Oracle’s damages argument was addressed in my response of
November 9, 2015, as repeated above. The theory that financial projections for Google’s non-Android lines of business bear
on the commercial nature of the infringement is new, but meritless. Google financial data may be relevant to whether
Android is commercial in nature, but Oracle already has Google financial data from the inception of Android to the end of
2015 to make that argument, as well as the PnLs for all of Google’s non-Android lines of business. Future financial
projections provide no incremental proof of Android’s commercial nature.
Third, I told you I would inquire whether Google could and would provide this information, to the extent it exists,
notwithstanding its relevance objections. I can confirm that, as Oracle’s financial designee Edward Senteno testified is true
for Oracle, Google does not establish financial projections in the normal course of its business other than during its process
of planning for the immediate next fiscal year. With respect to FY 2016, which begins in January, Google is still in the
process of developing these projections, and thus does not have any such financial projections beyond Q4 2015.
2. “Future” Products
First, as I stated on our call, Google’s position on what it would produce as to future products has been clear since at least
November 9, 2015, when I stated that, in spite of Google’s relevance objections and in the spirit of compromise, Google
would “collect and produce relevant executive presentations and product plans that reflect Google’s plans with respect to
1

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 3 of 7
future mobile products.” Google’s position has not changed, nor did Ms. Simpson respond to my email of November 9, 2015
or ever otherwise question Google’s agreement to produce.
Second, as I stated on our call, Google does not believe this information is relevant to the issues in this case. As I stated in
the meet and confer of October 16, 2015, future products may never become actual products, and therefore this evidence is
speculative.
Third, you inquired about two such “future products” and asked whether we were producing documents on those. First, as
to "Android versions using OpenJDK," we have produced relevant, non-privileged documents and other materials,
including Source Code for inspection at KVN’s offices, which I understand Oracle has inspected multiple times. As for
custodial documents, if any responsive, non-privileged documents have been collected in connection with the custodial
searches agreed to by the parties, those documents have been or will be produced. Further, I understand Oracle deposed
Anwar Ghuloum, whose custodial documents were produced, on this very topic. I note that Google disclosed its
development of Android versions using OpenJDK on November 12, 2015, and it is now the eve of the close of discovery. The
time for requesting additional ESI search terms has passed. Second, you also asked about a purported project to “port
Android to desktop.” It is unclear to what you are referring.
Please let me know if you have any further questions.
Regards, Sarah

From: Uriarte, Robert L. [mailto:ruriarte@orrick.com]
Sent: Monday, December 14, 2015 4:06 PM
To: Sarah B. Faulkner; Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Ok, sorry about that. We will be on the line at 4:15.
Rob
From: Sarah B. Faulkner [mailto:SFaulkner@kvn.com]
Sent: Monday, December 14, 2015 4:05 PM
To: Uriarte, Robert L.; Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Rob,
That’s short notice. I am on another call, but I can call in at 4:15 pm.
Thanks - Sarah
From: Uriarte, Robert L. [mailto:ruriarte@orrick.com]
Sent: Monday, December 14, 2015 4:00 PM
To: Sarah B. Faulkner; Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Hi Sarah. We can join a call now. Please use my dial in:
(866) 244-1129
Passcode: 8248 040#
2

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 4 of 7
Thanks
Rob
From: Sarah B. Faulkner [mailto:SFaulkner@kvn.com]
Sent: Monday, December 14, 2015 11:20 AM
To: Uriarte, Robert L.; Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Rob,
I write to follow-up on conferring as to the following two issues on Oracle’s agenda that were not addressed on Friday:
-

Financial Projections RFPs (RFPs 229, 230, 234-239, 251)
Future products RFPs (RFPs 211, 219, 220, 221, 230, 239)

Can you meet at 4 pm today?
Thanks - Sarah

From: Uriarte, Robert L. [mailto:ruriarte@orrick.com]
Sent: Friday, December 11, 2015 3:30 PM
To: Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Ok, we are calling in now. Some of us may have to drop quickly but lets see what we can resolve and then we can
reconvene later if necessary
From: Beth Egan [mailto:BEgan@kvn.com]
Sent: Friday, December 11, 2015 3:07 PM
To: Uriarte, Robert L.; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Rob,
We would prefer to keep with the 3:30 start time because two of our team members have hard stops at 5 PST. Can we
begin the call and at least cover the issues that we can with those who are available? Otherwise, we will agree to begin at
4:30 but can’t guarantee our team members can stay on to cover the issues.
Thanks,
Beth
From: Uriarte, Robert L. [mailto:ruriarte@orrick.com]
Sent: Friday, December 11, 2015 3:49 PM
To: Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Hi Beth. Apologies, but we need to push this call to 4:30. Please let us know if that doesn’t work for your team.
3

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 5 of 7
Thanks
Rob
From: Beth Egan [mailto:BEgan@kvn.com]
Sent: Friday, December 11, 2015 2:12 PM
To: Uriarte, Robert L.; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Rob,
Thanks for the agenda. We will be prepared to address the issues you list below, with the exception of Annette’s email to
Dan Purcell sent this morning. Dan is in deposition today and will respond to Annette separately with regard to those issues.
Thanks,
Beth
From: Uriarte, Robert L. [mailto:ruriarte@orrick.com]
Sent: Friday, December 11, 2015 12:03 PM
To: Beth Egan; Steven Ragland
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Thanks Beth.
Here are the issues we would like to discuss:
-

Oracle’s motion for protective order re: IBM deposition
Missing Google financial documents (see Annette’s prior email)
Source code production/inspection
Android download metrics (see Alyssa’s prior email)
Apple agreement(s) (see Alyssa’s prior email)
Financial Projections RFPs (RFPs 229, 230, 234-239, 251)
Future products RFPs (RFPs 211, 219, 220, 221, 230, 239)

Please use my dial in (866) 244-1129
Passcode 8248 040#

Rob

From: Beth Egan [mailto:BEgan@kvn.com]
Sent: Thursday, December 10, 2015 8:01 PM
To: Steven Ragland; Uriarte, Robert L.
Cc: Edward A. Bayley; DALVIK-KVN; Oracle/Google-OHS Only
Subject: RE: Oracle v Google- Meet and Confer Call

Rob,
To follow up on Steven’s email, Sarah Faulkner and I are available tomorrow at 3:30 PST for a meet and confer call.

4

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 6 of 7
I had not yet received any response to my email (attached) requesting a meet and confer tomorrow concerning Oracle’s
responses to the RFAs and RFPs referred to in my email. The attached email outlines the issues we intend to raise on
tomorrow’s call. I understand that Oracle would like to raise issues relating to Google’s RFP responses that would not be
resolved by any pending compromise over search terms. Could you please send us a brief agenda by tomorrow morning of
the issues you intend to raise so that we can prepare to address those issues?
Thanks,
Beth

From: Steven Ragland
Sent: Thursday, December 10, 2015 6:52 PM
To: Uriarte, Robert L.
Cc: Edward A. Bayley; Beth Egan; DALVIK-KVN; Oracle/Google-OHS Only
Subject: Re: Oracle v Google- Meet and Confer Call
RobI thought we left it that you were going to reach out to Beth and/or Sarah to set up a time. Regardless, one of them will get
back to you on this shortly.
Thanks,
--Steven
On Dec 10, 2015, at 3:17 PM, Uriarte, Robert L. <ruriarte@orrick.com> wrote:

Ed and team:
Yesterday we asked you to propose a time for today for a call to meet and confer regarding
remaining discovery disputes. As it doesn’t look like that call is going to happen today, please
propose some times for tomorrow. Our team is available after 3:30 pacific.
Thanks
Rob
ROBERT L. URIARTE
Managing Associate
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025-1015
tel +1-650-289-7105
fax +1-650-614-7401
ruriarte@orrick.com
bio • vcard
www.orrick.com

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.
5

Case 3:10-cv-03561-WHA Document 2045-19 Filed 08/25/16 Page 7 of 7

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.

6

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 1 of 7

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 2 of 7
Raina M. Abaya
From:
Sent:
To:
Cc:
Subject:

Sarah B. Faulkner
Monday, November 09, 2015 1:48 PM
'Simpson, Lisa T.'; Beth Egan; Reid P. Mullen
Oracle/Google-OHS Only; DALVIK-KVN
RE: Oracle v. Google: Meet and Confer Follow Up

Dear Lisa,
I write in response to your email of Thursday, October 22, 2015, which was a follow up to our discussion on Friday, October
16, 2015. In our meet and confer on October 16, 2015, we discussed 45 of Oracle’s RFPs, including 209, 211, 213, 214, 218,
219, 220, 221, 227, 229, 230, 232, 234, 235, 236, 237, 238, 239, 240, 241, 243, 244, 249, 251, 252, 254, 258, 271, 272, 273,
276, 277, 280, 281, 282, 283, 289, 290, 296, 297, 298, 299, 300, 301. In that discussion, we clarified the scope of a number
of RFPs, including at least 272, 282, and 289, and Google will supplement its responses to these RFPs accordingly.
Moreover, in meet and confer, Google identified a number of overarching issues that affect the scope of multiple RFPs, and
we requested a further explanation from you as to Oracle’s position regarding why the documents Oracle seeks with respect
to those categories of information are relevant or likely to lead to the discovery of admissible evidence in the coming retrial. Thank you for the additional information you provided in your email as to these overarching issues; we respond to
your positions below.
Requests re: Future Products
As discussed on our call, Google believes that the scope of RFPs relating to future products, e.g., 211, 219, and 220, is
overbroad to the extent these RFPs seek documents relating to future products. Google continues to disagree that the
production of documents relating to Google’s future products is likely to lead to the discovery of admissible evidence in this
case. However, in the spirit of compromise and in an attempt to avoid unnecessary motion practice, subject to its already
stated objections, Google will collect and produce relevant executive presentations and product plans that reflect Google’s
plans with respect to future mobile products. Google will supplement its response to these RFPs accordingly.
Requests re: Projected Revenues
Oracle also propounded numerous requests that seek various categories of financial documents. As discussed in meet and
confer, these requests are overbroad to the extent they seek documents relating to Google’s projected future revenues,
e.g. RFPs 219, 220, 221, 230, 234, 235, 236, 237, 238, 239, 251. Discovery relating to projected revenues will not lead to the
discovery of admissible evidence in this case. We are now 10 years beyond the date of the hypothetical negotiation, so any
recent revenue projection is irrelevant to a hypothetical license. For the same reason, the logic of Judge Ryu’s order – even
if it applied to copyright damages – would not apply here. Google’s revenue projections are also not relevant to Oracle’s lost
profits claim, which will stand or fall based on evidence of Oracle’s own products, services, and business capacity. Further,
Judge Alsup’s January 9, 2012 Order made clear that post-verdict damages will be based only on the jury’s findings regarding
pre-verdict damages, not on Google’s projected or actual future revenues. We also disagree that revenue projections would
lead to the discovery of admissible evidence with regard to the market harm prong of the fair use defense or bad faith.
Nevertheless, in the spirit of compromise and in an attempt to avoid motion practice, subject to Google’s already stated
objections, Google will produce from non-custodial sources responsive, non-privileged documents maintained in the
ordinary course of business reflecting projected revenues for Google’s mobile business. Google will supplement its
responses accordingly.
Requests re “network effects”
In meet and confer and in your email dated October 22, you clarified that in RFPs 232, 240, 244 and 254, Oracle is seeking
documents describing or quantifying indirect effects Android has on Google’s business. Subject to its already stated
1

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 3 of 7
objections, Google has already produced non-privileged, responsive documents from non-custodial sources maintained in
the ordinary course of business reflecting the revenues, profits, and costs related to Android, to the extent such documents
exist. Relatedly, Google tracks advertising revenue related to Android, and, as stated above, documents related to those
effects have been produced. Google does not otherwise quantify or track in the ordinary course of business any other such
“network effects” related to Android. Google will supplement its response accordingly.
Requests re: Google’s non-mobile, non-Android business
Google does not agree that documents relating to Google’s non-mobile, non-Android business are relevant to this case, and
therefore the scope of RFPs such as 209, 249, 251, 252 – to the extent they relate to non-mobile unrelated to Android -- is
over broad. On our meet and confer conference of October 16, 2015, you argued that Judge Ryu’s August 23, 2011 order
decided this issue. In that order, however, which related to Oracle’s requests for Google’s “non-mobile data and financial
projections,” Judge Ryu stated unequivocally that “Oracle has made absolutely no showing that the alleged infringement of
certain Java class libraries is causally connected to Google’s advertising revenues. Oracle’s copyright damage argument is
therefore too speculative to support these discovery requests.”
Despite this finding in Judge Ryu’s order, Oracle continues to assert that the order supports, rather than undercuts, its
position. We disagree. Although a plaintiff may under certain circumstances recover indirect profits in a copyright
infringement matter, the causal link you describe in your email is far too speculative (as noted by Judge Ryu) to support the
discovery you are requesting in these RFPs relating to Google’s non-mobile business. You also point to Judge Alsup’s July 22,
2011 order. But that order only allowed Oracle to “base its damages model on then-expected advertising revenue so long as
apportionment is done,” because “[t]he relationship between Android and Google’s advertising revenues would have been
known to the parties at the time of the hypothetical negotiation.” That order is not a perpetual carte blanche requiring
production of all of Google’s financial documents relating to its non-mobile business. Further, as noted above, subject to its
already stated objections, Google has produced non-privileged, responsive documents from non-custodial sources
maintained in the ordinary course of business reflecting the revenues, profits, and costs related to Android, to the extent
such documents exist. And, as noted above, Google does not otherwise track in the ordinary course of business any other
financial metrics related to Android.
I note that your request for production of pre-June 15, 2011 documents for Henrique de Castro has been addressed in other
correspondence.
Requests re: Mobile devices not running Android
Certain of Oracle’s RFPs, e.g. 221, 227, 238, 241, 243, and 258, request a wide range of information relating to mobile
devices not running Android. Google’s primary concern here is with the breadth of the requests. Google disagrees with
Oracle’s claim that such information is relevant to fair use. However, Google understands that certain non-Android mobile
financials and other information may be relevant to damages. Thus, subject to its already stated objections, Google will
produce non-privileged, responsive documents from non-custodial sources maintained in the in the ordinary course of
business that relate to mobile devices not running Android, including financials showing revenue, mobile strategy
documents and mobile marketing documents.
Number of Ads served
During the meet and confer of October 16, 2015, you stated that Oracle believes the number of ads served on Android
devices is relevant to the fair use analysis and damages. Google disputes that this information is relevant to the damages
analysis under copyright law, which, depending on the theory at issue, requires proof of (1) Oracle's own lost profits; (2) the
hypothetical licensing negotiation between Sun and Google in 2005; or (3) an apportionment of Google's Android-related
profits attributable to the copyrighted material at issue. Even assuming (without conceding) that the information Oracle
seeks could be tangentially relevant to damages, that limited relevance would be dwarfed by the burden of gathering this
data. Further, Google has already produced the revenue generated from ads served on Android devices.
We will consider a further explanation for why the number of ads served is relevant to fair use.
Request for Production 290
2

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 4 of 7
As discussed on our meet and confer call, Google offered to produce non-privileged, responsive documents, to the extent
such documents exist, for the latter part of Oracle’s request no. 290: “DOCUMENTS related to any analysis or discussion of
the ability, feasibility, or advisability of removing or replacing the 37 JAVA API PACKAGES or SSO from ANDROID.” In your
email of October 22, 2015, Oracle rejected this narrowing, reiterating its request that Google provide documents responsive
to the entire request. Google continues to believe this request is overbroad. Oracle has only alleged infringement of 37
specific Java method headers, not the entire Java Platform. Google requests that Oracle appropriately narrow the request.
Request for Production 249
During the meet and confer, we expressed concern about the extremely overbroad nature of this RFP, which purports to
request every document “related to” any statement in any Google public financial statement. No proposed narrowing was
offered, other than to suggest Oracle would like to see “briefing books.” Google continues to object to this RFP as so
overbroad that no meaningful search can be made for responsive documents. Please propose a narrowed version of this
request.
Lastly, we note that although you said you would get back to us with respect to certain RFPs, for example 237, 297-300 and
301, we have not yet received a response. With respect to other RFPs on which we have reached agreement, Google
already has or is preparing for production of those documents. Further, we note that with respect to RFPs that require the
search of custodial data, we expect that any remaining issues with regard to scope of those requests will be resolved in the
resolution of search terms.
Best,
Sarah

From: Simpson, Lisa T. [mailto:lsimpson@orrick.com]
Sent: Thursday, October 22, 2015 3:18 PM
To: Beth Egan; Reid P. Mullen
Cc: Oracle/Google-OHS Only; DALVIK-KVN
Subject: Oracle v. Google: Meet and Confer Follow Up

Dear Beth and team:
We write to follow up on various meet and confer issues that we have been discussing over the past couple of
weeks.

Pre-2011 Custodians and Search Terms: We have provided you with comprehensive information that
makes clear the relevance of the custodians whose pre-2011 documents we are seeking – despite the fact that
this information in entirely within your knowledge. Given the involvement that the named custodians had in the
decisions Google was making at the time it acquired Sun, for example, Google has no excuse for not having
searched these custodians the first time around if it was operating consistent with its discovery obligations. We
have provided a limited set of search terms, only one of which was not run last time, and have narrowed our
request to an entirely reasonable and doable search. We have now discussed this issue at length. As set forth in
Annette’s email to Ed of yesterday, we would like an answer by the end of the week as to whether Google will
agree to search these custodians for pre-2011 documents or not or we will raise this issue with Judge Alsup.

Google custodians: As you indicated in our meet and confer last week, we were expecting to received
Google’s refined list of custodians yesterday. We need to move forward on the discovery plan ASAP. Oracle is
already preparing to search the custodians that it has identified as likely to have information responsive to
Google’s requests and we do not think we should delay the process any further given the looming discovery
deadline. Please provide your custodian list ASAP or we will have to raise this issue with Alsup as well.
Google’s Privilege Log Documents: Please advise as to when we can expect the production of the
improperly withheld, non-privileged documents identified in Annette’s prior emails.
3

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 5 of 7
Production of Brillo, ARC Welder and financial documents: You indicated that you would get us a firm
date for production of these materials by early this week but have not. Please let us know immediately when we
can expect these materials. Obviously, they are important to our experts’ work.

Google’s Interrogatory Responses: You indicated on our call last week that we would have supplemental
rog responses to Interrogatories 30, 34, and 36 this week – we have not received them. Please provide those
supplemental responses immediately.
Google’s RFA Responses:
270: You have now supplemented this response to indicate that Google derives profits from advertising. We note
that although the request specifically asks about profits, you have not revised your statements with respect to
Google Play and direct to consumer sales of hardware, sticking with your original formulation of revenue. Does
that mean that it is Google’s position that it derives no profits from these additional activities? Again, we reiterate
our request for a fully supplemented answer that addresses profits – the request is clear.
271: We understand that your issue with this RFA is that the definition of Java Platform includes “Java
programming language”. Oracle is prepared to remove “java programming language” from the definition of Java
Platform in its requests for purposes of this RFA. Please advise whether with this clarification, Google can
supplement its answer to this RFA.
272: This request, we understood, has the same concerns as 271. We agree to modify the definition of Java
Platform for this request as well. Please advise whether Google will now supplement its response.
275 and 276 – The responses to these requests remain ambiguous. The ambiguity arises from the clause “some,
but not all” – the question it raises is this: is that clause merely intended to indicate Google’s position that it did not
copy all the declaring code from the 37 packages OR by this clause is Google trying to indicate that it decided to
copy some of the declaring code before November 7 and decided to copy other of the declaring code after
November 7. We believe, after discussions with you, that it is the former, but we request a supplemental response
that makes that clear.

Google’s Response to RFPs:
On our call we discussed the 40-plus requests where Google has indicated in response that it needs to meet and
confer in order to understand the scope of the request. As we discussed those requests, there were a number of
broad objections made by Google that were recurring. Below we set forth in further detail our response to several
of those objections with the expectation that this will satisfy your concerns as to these issues and we can agree to
move forward with production of documents. We also address some of the more specific requests that we
indicated we would get back to you on:
Future Products and Projections (RFP Nos. 211, 219, 220, 229, 230, 234, 235, 236, 237, 239)
Documents relating to Google’s future product plans and revenue projections are highly relevant to this
case. Specifically, how Google plans to use Android in the future is relevant to the fourth fair use factor, because it
will indicate how, whether, and to what extent Google intends to use Android to compete further with Java in
Java’s historical, intended, and potential markets. Similarly, documents relating to Google’s planned future
revenue are relevant to the size and scope of the actual and potential markets under that same factor. The extent
of Google’s intended use of Java in Android in future products is also relevant to the bad faith analysis because it
demonstrates Google’s ongoing willful infringement and expansion of that infringement. Finally, the revenues that
Google plans to earn from further use of Java in Android in future products is information that our damages
experts are entitled to review to assist in their assessment of harm. During the meet-and-confer, you expressed
concern over Google producing information about future products. The Protective Order provides ample
protection for the production of sensitive documents, including by designating documents Attorneys’ Eyes
Only. Accordingly, confidentiality is not an appropriate ground to withhold relevant information.
4

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 6 of 7
Indirect Profits, Non-Mobile Business and Devices Not Running Android (RFP Nos. 209, 218, 221, 227, 232,
238, 241, 243, 244, 249, 251, 252, 258)
As requested specifically in RFP 232, the indirect revenues and profits that Google derives from Android will be a
part of the calculation of damages in this case. As set forth in Polar Bear Productions, Inc. v. Timex Corp., 384
F.3d 700, 711, 714 n.10 (9th Cir. 2004), a plaintiff may recover indirect profits in a copyright infringement matter if
that plaintiff “establish[es] a causal relationship between the infringement and the profits generated indirectly from
such infringement.” Without the Java APIs, there was no Android. For this reason, many of the network effects
that Android’s success has had on other areas of Google’s business are also attributable to Java, and are thus a
part of the damages calculation.
In addition, documents reflecting metrics relating to the success of Google’s non-mobile business, including the
impact of Android on that business, are also highly relevant to this case. To the extent Google’s release of
Android has positively impacted Google’s non-mobile business, that fact also will be relevant to the damages
calculation. In addition, data concerning Google’s valuation of the distribution of its search on non-Android devices
(such as the documents requested in Request No. 221), is directly relevant to showing the benefit that Google
received by its head start in the mobile business—a head start largely occasioned by use of the Java API
packages at issue. Google’s overall benefit from Android will also be relevant to fair use, because it will show that
the purpose and character of Google’s use of Java in Android was commercial and motivated by a desire to
improve Google’s business across the board. It will also be relevant to bad faith and Google’s motivation for using
the Java APIs.
Documents relating to Google’s revenue and other benefits derived from devices not running Android are similarly
relevant to this matter. Oracle is entitled to compare the benefits Google receives from devices running Android to
the benefits it receives from devices that do not run Android. This information will be relevant to the first fair use
factor, because it will show that the purpose and character of Google’s use of Java in Android is commercial and
the fourth factor, as it shows the nature of the market. This information will also be relevant to damages, because
it will show with specificity the extent to which the Android operating system itself, as opposed to Google’s
applications, contributes to Google’s revenues.
During the meet-and-confer, you mentioned that a prior discovery order in this matter indicated that metrics
relating to the success of Google’s non-mobile business were not relevant to Oracle’s copyright claim. That order
looked solely at relevance to damages (not fair use), and ignores everything that happened since August 23,
2011. Both the expert reports served after that date and the documents and testimony demonstrated such a
causal link. Indeed, Google’s own technical expert Dr. Astrachan admitted that Android would not work without the
purloined code. Google’s President of Mobile and Platforms, Henrique de Castro, declared at Google’s 2010
Mobile Summit that Google would be “out of business in 10 years” if it did not succeed in the mobile market. No
Java APIs, no Android. No Android, no Google. This kind of but-for causal link more than satisfies the legal
requirements under copyright law. And Judge Alsup recognized that advertising revenues were properly included
in the copyright damages analysis. See ECF No. 230, 7/22/2011 Order at 9:14-10:2. Moreover, Oracle’s expert
reports served before the first trial describe that Google chose to use Java in Android in order to go-to-market
faster, and that the speed with which Google was able to go-to-market with Android directly impacted the adoption
and success of Android, which in turn assisted Google’s non-mobile business. Indeed, that is exactly what Mr. De
Castro expressed in his speech at the Google mobile summit in 2010. We expect that other documents he
created will reflect a similar view, but of course Google did not produce his documents—and as you know, we are
now requesting them. It is apparent from the few documents we do have that Google viewed Android as critical to
its overall success. Oracle is entitled to other documents discussing Google’s strategy for non-Android search.
Alternatives to Java (RFP No. 290)
Oracle continues to demand that Google produce documents responsive to the entirety of this request, and not
simply documents responsive to the last few lines of this request. The entirety of this request seeks documents
relevant to the first, third and fourth fair use factors and to damages. Documents relating to alternatives to using
the Java Platform—whether the alternative is a substitute platform or removal of the 37 Java API Packages—are
relevant to assessing the substantiality and importance of the copied work. For example, feasibility evaluations on
potential substitute platforms could indicate how important the use of the Java Platform and the 37 Java API
Packages were (and are) to the development of Android. The notorious Lindholm email that Google tried to shield
5

Case 3:10-cv-03561-WHA Document 2045-20 Filed 08/25/16 Page 7 of 7
with improper claims of attorney-client privilege is a prime example. In that email, Mr. Lindholm discusses the
possibility that Google might pretend to Oracle it would use Obj-C rather than Java. Beyond Mr. Lindholm’s work,
did Google evaluate Obj-C, C, C++ or any other alternative? Clearly the Court already considers this subject
matter to be highly relevant.
These documents will likely also be relevant to the purpose and character of the use, in that they will show that
Google’s use of the 37 Android packages was not transformative. These documents are also relevant to market
harm as related to the availability of options in the market and the definition of the market generally.
We look forward to your response to the above matters,
Lisa
LISA T. SIMPSON
ORRICK, HERRINGTON & SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019-6142
tel +1-212-506-3767
fax +1-212-506-5151
lsimpson@orrick.com
bio • vcard
www.orrick.com

NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and may be a communication privileged by law. If you
received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the
error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation.
For more information about Orrick, please visit http://www.orrick.com.

6

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 1 of 21

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 2 of 21

DALVIK: FURTHER MEET AND CONFER
DATE: December 9, 2015
Participants:
Participants (KVN): Ed Bayley and Steven Ragland
Participants (ORRICK): Rob Uriarte
Participants (OTHER): Unknown woman’s voice
SPEAKER
Rob Uriarte

TEXT
I think where we’re at is – um - we’re ready to move unless we can compromise on the
ESI queries and just to be clear, your last email, if I’m reading it correctly, I think you’re
saying that Google’s position is just an all or nothing compromise, so either we agree to
the terms that you’re gonna run or we have to file a motion. Is that – am I reading that
email right?

Ed Bayley

No, I think what I was saying in my email is that we’ve had a number of back and forth
where we’ve negotiated on terms and you’ve – we thought we’d come to a position
where, you know, the parties are in their final positions (unintelligible) Oracle’s offer of a
new revision to what they’re proposing, and then we decide whether or not we can accept
any of these. So, just as a primary point, as I said, __________________, said “we are
now close to close of facts recovery. Not gonna be able to run in any additions in terms
and produce documents beyond what has already been – for any of these new terms I’ve
just been offered now. And so, our position is just – we’re at this late stage. We’ve run the
terms and tried to do everything to see where we are and whether or not – you know- how
reasonable and how responsive they are and there are a handful that we could accept, but
only if it comes with an agreement that, this is it, this is done. You’re not going to file a
motion. Right? We’re kind of at the end of our offers of compromises. We’re definitely
going to run this term, or we’re willing to run the terms as a compromise. At this point,
unless there’s any way that there isn’t going to be a dispute left if we agree to run these
terms, then we’re not really in any position to accept it at this stage because we’re already
past the point of no return, so to speak.

Rob Uriarte

So, initially there was a set of uh 72 terms, I believe. So-

Ed Bayley

Well – it depends on how you do the counting. We offered 32 terms, you added 72 terms,
32 of which were just rewrites of our initial 32.

Rob Uriarte

Sure so what I’m trying to get at is, I think we have reached agreement on certain terms
where either we propose revisions or you propose revisions that reduce the hit count
significantly and I think we’re in agreement on those. And I’m just trying to make sure
that the good work that we’ve done on those terms isn’t gonna fall apart based on what
we’re gonna start talking about right now, which is the remaining 33 requests that are still
1

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 3 of 21

SPEAKER

TEXT
in dispute.

Ed Bayley

No, I don’t mean to give that impression. We’re moving forward with our – we haven’t
had the luxury of waiting for the court to resolve anything on our (unintelligible), but
we’ve had to move forward with the understanding that the compromise will be accepted
at some point, just because we have to have these documents reviewed. But now we’re
kind of past that point, so unless we have an agreement that as long as we run these
additional terms, that you’ve now proposed for the first time, uh, and that’s gonna resolve
this, that we’re not going to go forward and get started on trying to run these because
there’s – we’re already past the point of no return on getting this done by December 16.
So, I was just making the point that unless there’s actually some room for us to actually
resolve here on the call today, that if we run these terms, you’re not going to file a motion
and we’re not going to be agreeing to run anything additional from the call.

Rob Uriarte

Okay – but we’re only talking about the –

Ed Bayley

We’re talking about the terms that you sent on Monday.

Rob Uriarte

Cool. And the terms that weren’t included in that list on Monday are terms where we’ve
already reached an agreement so Yeah, I mean, we’ve certainly offered it as our compromise. We haven’t agreed that these
are, you know, proper terms. We’ve agreed as our compromise that if you were to agree
to these terms we would – we’ll agree to run them. It’s still our position that these are
compromise terms that we’re running. We’re only happy to run them now because we’re
not so close down to the wire in discovery. But, this is the long way of saying, we are
moving forward with these terms, but they are these terms that we’ve accepted since our
initial proposals, but we’re not taking the position that we have already fulfilled an
agreement on that because these were part of our compromise proposal in order to resolve
this dispute. So we are moving forward on running those terms (unintelligible).

Ed Bayley

Rob Uriarte

Okay, cool. And so just to confirm: when we get off the call I’ll send you a list of what I
think that set of terms is – and if I’m wrong –

Ed Bayley

Yeah, it’s in our emails, but, if you want to send a confirming email, you can.

Rob Uriarte

Okay cool. So then turning to the live disputes that we have. What is the best way to do
this? Should we just mark down – are there any off the bat that you guys are willing to
make a compromise on?

Male voice 3(?)

I think that one goes to Steven

Male voice 4
(Steven?)

I think the question first is sort of a gating question for you all – is that – is your position
that unless we agree to run the additional 30 whatever terms there are that you all
proposed on Monday, you’re going to move? And if that’s the case, if that’s your position,
we oughta do it or you move, then I think we can be done with this call because that’s not
2

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 4 of 21

SPEAKER

TEXT
a position we’re going to agree to.

Rob Uriarte

Yeah, we’re not that – we’re not that black and white on this. It’s not like, if you don’t
agree to run every single one we’re going to move, if you agree to run most of them, and
most of the ones that are important, then I think we can – we’re certainly prepared to
compromise.

Steven(?)

Then why don’t you identify the ones that are most important ones and then if those are
ones that we think we might be able to do, then we have something to talk about.
Otherwise, we can move onto other things.

Rob Uriarte

I’d really like to just to get your position on whether you’re going to run these.

Steven(?)

The problem is that we’ve now been talking for weeks about going that way and there’s
never an end to it. There’s additional terms, additional terms, additional terms, additional
terms, and so what would be more helpful, I think, is sort of your final – if this were a
negotiation about a resolution, what’s your final best, and either we do that or we don’t.
Because this is sort of death by a thousand cuts. We keep trying to compromise thinking
we’re making progress and then, there’s another whole list of terms and so that’s the
frustration here with a week left to go before discovery cutoff.

Rob Uriarte

Yeah, there will be no extra terms. Let’s just run through and a yes no for each one and if
it looks like there are – you know – there’s room for compromise then we’ll do that.

Steven(?)

The problem though is – again, and what I’m trying to do is reap some resolution on this.
And it seems that – that seems a very elusive thing where I thought we were having final
changes of terms but the goalposts seem to keep moving. So the problem is that if we go
through and say, as a part of a compromise we might go run this or that term, then that
again moves the goalposts. What I’d like to know is are – why don’t we do this: are there
specific terms on this list that absolutely Oracle believes are you must run this or we’ll
move on it. If settled, please identify those, and then we can go from there.

Rob Uriarte

But I already sent you – so we’ve already whittled down – we abandoned a bunch of
queries, we’ve modified a bunch of queries, so I don’t – we gave you the last offer. So
now you’re asking us to negotiate against ourselves and start eliminating our own
requests. I don’t think that’s the right way to go. Let’s just run – there’s not that many –
let’s just run through and you can – the other thing about this is if we do need to move
you’re going to need to explain the basis for your position, so I don’t think the way that
you propose to proceed makes sense. Let’s just run through it.

Ed Bayley

Now hold on - I I think it makes perfect sense, because I __________ our position at the
beginning of this call, is, if it is your position that you are not changing – that you are not
backing off any of these terms, that you’re going to move unless we agreed to all of these
terms, then there’s really nothing for us to talk about. We’ve been compromising for
weeks and if there’s going to be a motion at this point, we’re not going to make any
3

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 5 of 21

SPEAKER

Rob Uriarte
(multiple voices
talking at once)
Steven Ragland

TEXT
further compromises unless it resolves the motion in its entirety. I’m happy to explain our
positions as to each of these, but I’m not going to go through and offer compromises on
things aren’t actually going to resolve anything, because you’re going to move forward.
So maybe a way to shortcut this, because there is at least one issue which I think is –
could be enough to kind of figure out where the parties are going to end up here – but
you’ve identified three terms that result in a high number of hits that you said in your
email on Monday that Google has to go back in and craft new search terms for. So I’m
going to tell you on this call, that we are not crafting any new search terms the week
before close of fact discovery. And if it is your position that we have to or you’re going
to move, then on those three terms, then I don’t think there’s anything more for us to talk
about.
Okay well, when we get to those terms, maybe we can talk about what you’re producing
or what you will produce, and maybe there’s not dispute there. So Unintelligible
Why don’t you answer the question that was posed? And then – I mean – we’re trying to
make this the most efficient call possible so we can all get back to other work, including
getting documents out as quickly as possible. So – that’s a gating question. I’d like to get
an answer to it.

Rob Uriarte

All right, let’s go to it. Which term are you referring to?

Ed Bayley

So these are the terms that you’ve identified as requiring Google to craft terms, so I’m
going to scroll down, and-

Rob Uriarte

I think 22 is the first one I’ve got, Android was in 25, Vodaphone or Cingular, that’s the
start of the queries.

Ed Bayley

Yeah, so this is the term forty-two. Yeah.

Rob

So, what have you produced regarding Android business with these entities?

Ed Bayley

We’re producing on a custodial basis, the _____________ and the right share agreements
and the anti-fragmentation agreements for set – on a non-custodial basis that are
responsive to some of these RFPs that you’ve identified here subject to our objections.

Rob Uriarte

So you’re not producing any custodial documents?

Ed Bayley

The custodial documents that we’re producing – so I can go through these RFPs one by
one, but I will say on a custodial basis, of the – then again, sticking with search term 42,
you’ve identified 8 different RFPs here, so of those 8 RFPs, we’re producing on a
custodial basis two of them, for 257, we’re producing custodial documents based on
search term 11, and for 265, we are producing custodial documents based on search term
17.
4

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 6 of 21

SPEAKER

TEXT

Rob Uriarte

Okay. So 11 and 17 for the custodial productions on those?

Ed Bayley

And for non-custodial productions we’re collecting agreements, we’re collecting
documents from public – and we’re directing to public sources in response to 258. We
are producing custodial sources including both agreements and you know, Google’s
website developer type things like that.

Rob Uriarte

Okay. Have you already produced any of that stuff that we might be able to look at some
exemplars or you haven’t produced it yet?

Ed Bayley

We’ve produced some. I couldn’t tell you sitting here on this call what exactly we’ve
produced yet.

Rob Uriarte

Okay. All right, well I can say that I don’t think that this is a deal breaker so let’s keep
going. The next one is Android – it’s the one that starts ___________ and 25 vehicle or
car.

Ed Bayley

Uh, yeah so it’s 46. You’ve identified – I think it may be the same, 8 terms and for this
one we are producing in response to RFP 257 – well – just – for everyone’s sake this is
being recorded, the RFPs he’s identified are 219, 229, 237, 257, 265, 267 and 268. In
response to RFP 257 we are producing custodial documents using search term 11 and in
response to RFP 265 we are producing documents ______________ search term 17. And
just so we’re clear, because the numbers, I’m sure, have changed over time. So for 17 it’s
the term “Android within 10 of (Java within 10) is compatible or incompatible or
developer or developers” etc. That’s 17. I think that lines up with the number we have for
this, to make that clear.

Rob Uriarte

Okay. Next, okay so again, I don’t think that’s a deal breaker and I guess, same question,
can you please tell me what you’ve produced already on that or no?

Ed Bayley

No. Well, hold on – let me-

Steven Ragland

And while he’s looking into that, let me ask when you say it’s not a deal breaker, does
that mean, okay you accept the fact that we don’t need to craft terms? That we’re done
with that – that you’re not pressing forward on that one?

Rob Uriarte

It means that we’re willing to compromise on this stuff ending the rest of this
conversation. So if, for example, you’re going to run everything and these are the only
three things that we have in dispute, I don’t think we want to take the court’s time with it.
But if you’re gonna stonewall us on all of the requests, then yeah, this will be something
we’ll have to do about.

Steven Ragland

Wow, aside from the loaded line stonewall, which I think is completely inaccurate, um, it
5

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 7 of 21

SPEAKER

TEXT
just would be helpful – okay – so what are the other terms – so I think it would be helpful
to know which are the – again – there must be something off this list that’s a deal breaker
for you all, but we just identified two that were for us, so now – quid pro quo.

Rob Uriarte

I’m entitled to your position on this stuff so I’m going in the order you asked. Now we’re
on this term that starts with maps or search or calendar.

Steven Ragland

Yep.

Ed Bayley

So for this one, these are all documents to the extent we’re producing from custodial
sources so for the 6 RFPs here, we’re either pointing to public sources or collecting from
non-custodial sources, I should say.

Rob Uriarte

Okay, so for the custodial productions on the apps, what term can we look to on that?

Ed Bayley

You mean for 49?

Rob Uriarte

Yeah, I think that’s the one that starts with maps or search.

Ed Bayley

Yeah, so what I’m saying here is we’re not – we haven’t agreed to produce documents
relating to just specific apps on a custodial basis. The specific categories of documents
relating to apps that we’ve agreed to produce on a non-custodial basis, but, you know,
we’re talking about Google applications in the abstract. That only has marginal relevance
to this case and these are search terms that are also resulting in millions of documents.
The RFPs – we’ve pointed to each of them – you know we’ve only – we’re only planning
to produce on a non-custodial basis and collect them on a non-custodian basis.

Rob Uriarte

So only non-custodial –

Ed Bayley

I mean, I can walk through each RFP if you want (unintelligible something like “save us
time.”)

Rob Uriarte

No, I don’t think that’s necessary. So, in terms of our requests that ask for information
related to distribution of Google applications, you’re only producing on a non-custodial
basis?

Ed Bayley

Yes. So it would be things like, agreements with partners about those distributions.

Rob Uriarte

Okay. Thanks. Again, I don’t think that’s a deal breaker so let’s jump to the top. We
propose Android within 10 of strategy or roadmap or plan or vision and we included here
finance and business limitations then – um where are we on that?

Ed Bayley

So, on this one, again, with all the caveats that I’ve put out at the beginning of this call,
assuming we can come to a holistic agreement that resolves it, and with the understanding
that any additional documents collected by these revisions will be produced after
6

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 8 of 21

SPEAKER

TEXT
December 16, you know, that is a term that we may be able to come to a compromise on.

Rob Uriarte

Okay. And just for the record, if you tell me this was something – like if you wanted to
say we’re willing to compromise on this one – I’m not going to take that as a done deal. I
realize it’s got to be a package deal for the purposes of this call so, I understand your
position on that. This is one where compromise (unintelligible). Um, next term.

Ed Bayley

This is another one where again, depending on the timing, because this one still has a
significant number of hits, but I think it’s also one that we’re willing to compromise on.
Cool. Next term starts Android and - and then it’s got the API packages.

Rob Uriarte
Ed Bayley

Yeah so, this is another one where assuming we can come to some kind of an agreement,
we’d be willing to compromise on this one.

Rob Uriarte

Great. Next term is Android within 10 of ad or ads or advertising and the variable
_____________________.

Ed Bayley

Uh yeah, this is another one where we’d be willing to compromise but depending on the
timing because it still has a significant number of hits. But we’d be willing to
compromise.

Rob Uriarte

Great. And then the next one, I tried to address – you mentioned that the word “value”
was bringing in a lot of noise to I tried to craft a request that didn’t include the word
value. Did that do the trick? Android as in 25 valued, value or valuation?

Ed Bayley

No. This one is still problematic. We’re not going to be able to compromise on this one.

Rob Uriarte

Okay. Can you tell me if you’re producing non-custodial documents on Android
valuations?

Ed Bayley

Uhm, no – well, are you talking about a response to the RFPs you identified?

Rob Uriarte

Yes.

Ed Bayley

With respect to the RFPs we’ve identified, we are producing those – each of those RFPs
are being produced on a custodial basis.

Rob Uriarte

Okay.

Ed Bayley

Or, at least my notes here aren’t – the notes here identify the ones that we – it only works
the other way around. It only identifies ones that we’re only producing on a non-custodial
basis. It’s possible we may be doing additional custodial collections for some of these but
I can’t tell. But certainly, we’re doing search terms for each of these.

Rob Uriarte

Okay. All right, next term Oracle or Java within 20 harm or harms – see that term?
7

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 9 of 21

SPEAKER

TEXT

Ed Bayley

Yeah. So this is another one where we’d be willing to compromise. We can come to an
agreement.

Rob Uriarte

Cool. Next up, is the one that’s Android and market share or sales, etc.

Ed Bayley

This is one we are – we’d be willing to compromise if we can come to an agreement.

Rob Uriarte

Cool. Next term, Android and competes and iOS or Windows or Java.

Ed Bayley

This one is still problematic.

Rob Uriarte

Okay. Next, Java class library or Java application, etc.

Ed Bayley

This one we’d be willing to compromise on if we can come to an agreement.

Rob Uriarte

Great. The following term is similar.

Ed Bayley

Yeah, it’s the same answer. We’d be willing to compromise if we can come to an
agreement.

Rob Uriarte

That takes us to Android within 10 of 4 for fragmentation or fragments.

Ed Bayley

Yeah that’s still problematic. The fragment issue – there’s – it’s all crap.

Rob Uriarte

Okay. Next, Android within 20, Java within 20.

Ed Bayley

This is another one where depending on the timing, we’d be – you know – because of the
numbers on here, we’d be willing to compromise.

Rob Uriarte

Okay. Next term, infringe or intellectual property or IT within 30.

Ed Bayley

Again, depending on the timing for production after December 16, we would be willing to
compromise on this term.

Rob Uriarte

Cool. Next term, unlicensed within 20, use.

Ed Bayley

This is one we’d be willing to compromise on if we can come to an agreement.

Rob Uriarte

Great. Unauthorized use or infringed within 10 copyright.

Ed Bayley

So, I think this one you haven’t offered any additional terms, and I think our position still
stands on this one. We’re not going to change from our last position.

Rob Uriarte

Okay.
8

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 10 of 21

SPEAKER

TEXT

Ed Bayley

But, I’m happy to discuss any of the RFPs if you want to discuss those.

Rob Uriarte

Uh what, I guess, yeah, my question would be what are you producing by way of
custodial documents on this?

Ed Bayley

Okay, so for – let me just walk through them. So you’ve identified 4 RFPs here for 271.
We’re producing documents in response to 19 Android and ((API or application or
programming interface, within 50 of copyright. For 262 we’re producing response to 16,
Android within 10 of 4 for fragmentation. That’s the same for 263. 277 is we’re
producing custodial documents _____________ term 24, authorized use or infringe within
10 of copyright and value, etc.

Rob Uriarte
Ed Bayley

Okay. Next term.
Next term, again, you know, you haven’t offered any new term. We’re not inclined to
change our terms. In response to the RFPs, you’ve identified 266, which we are
producing custodial documents in response to 18 – uh term 18, Oracle and infringe or
copyright or license or acquired. And obviously some of these are going to change – you
know –depending on whatever agreement we come to. 280 – uh RFP 280, we’re
producing documents in response to term 25, Android and Java or Oracle within 10 of
lawsuit.

Rob Uriarte

I think we’re good on this one.

Ed Bayley

Okay. Then there’s a couple more that we’re doing on a non-custodial basis.

Rob Uriarte

Okay – I think we’re good there. Um, for the next one, Android or Java and API or APIs
etc.

Ed Bayley

Sorry I’m lost – can you give me the number. I got lost. We’re at 36?

Rob Uriarte

Um, sorry I’m looking at –

Ed Bayley

____________ API or APIs or ______________________

Rob Uriarte

Yes.

Ed Bayley

Within 30 of Chrome, Brillo, Archwelder, etc.?

Male voice

Yep.

Ed Bayley

So this one’s still problematic. We’re not going to be willing to compromise on that one.
Do you want me to walk through the RFPs?

Male voice

Yeah, just – if you just know what non-custodial documents you’re producing on those,
9

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 11 of 21

SPEAKER

TEXT
that would be ______________.

Ed Bayley

So for 219 we’re producing on a non-custodial basis, these are, you know, ____________
documents, I believe, I know that one by heart by now. 224 is, we’re actually producing
on a custodial basis, that’s search term 3, Android within 10 of advertise and ROI or
return on investment. 232, we’re producing on a non-custodial basis. 237 we’re
producing on a non-custodial basis subject to our objections re scope. And then, same for
244. 246 we’re producing on a custodial basis in response to search term 7, Android
within 10 of ad or ads or advert and grow or increase. 251 again, producing on a noncustodial basis subject to scope – objections on scope, and then 252, I don’t believe we
have an agreement on that. 256, we’ll produce on a custodial basis, search term 10,
Android and market share or sales within 10 of mobile within in 5 search or advert or ad
or ads or device. And 258 we’re directing to public sources.

Rob Uriarte

Okay.

Woman’s voice

Sorry, can you repeat 219?

Ed Bayley

219 we’re producing on a non-custodial basis. We’re collecting and producing
__________________ documents.

Woman’s voice

Subject to any limitation?

Ed Bayley

Uh, subject to limitations in our objections. Uh, this one is kind of fluid because there’s a
portal __________, so we have, you know, we’re producing a lot more subject to that
order on the executive presentation when they would be in our responses-subject to
what’s in our responses and the court’s order we’re producing documents on a noncustodial basis in response to ____________________.

Woman’s voice

Okay.

Male voice

Okay so the next one is archwelder or Android run time for Chrome, etc. and Java or
Android or Chrome.

Ed Bayley

Uh, yes. So we’re not – you haven’t offered any new terms we’re not agreeing to accept
on this call – that the new term for the RFPs you’ve identified we are – uh 19 covered
224. We are producing on a custodial basis in response to term 3. Android with intended
advertising and ROI or return on investment. 232 we’re producing on a non-custodial
basis. 237 non-custodial basis subject to objections. 244 again, that one I think we’re –
we have objections on that one of scope as to non-mobile. Uh, I’m not sure how that
affects the archwelder of these other ones but, 246 we’re producing on a custodial basis in
response to search term 7, which is Android within 10 of ad or ads or advert in
____________ or increase within 25 variables or IOT or internet ___________ or
auto________. 251 we’re collecting on a custodial basis. 252, I don’t think we have an
agreement on that one. 256, we’re producing in response to search term 10 which is
10

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 12 of 21

SPEAKER

TEXT
Android and market share or sales within 10 of mobile within 5 or search or advert or ad
or ads or device. And then 268, public sources.

Rob Uriarte

Am I correct that this term is only bringing back 614 documents?

Ed Bayley

Uh, that’s right. So, uh, again, it’s the (???Desk 5000 patch term??) so, again, this might
be one that if _______________ entirely is subject to timing. We may be able to
compromise on this one, but we’re not willing to do so unless it’s something that’s going
to be final/final. I mean, we still think it’s duplicative of, you know, some of these other
terms that you have that all relate to the RFP’s we’ve identified. But, given the head
count, depending whether or not we can come to a final agreement, maybe to come to
some kind of compromise, but we’re not going to add it to our existing compromise that
we’re doing right now.

Rob Uriarte

Okay. Cool, thanks. Next term is Android within 10 of desktop or laptop.

Ed Bayley

Yeah, I think this term is still problematic. We also – I’ll just say it’s still problematic.

Rob Uriarte

But I think if I understand our discussions, I think that you are producing non-custodial
documents that will talk about Android strategies for the desktop and laptop.

Ed Bayley

Uh, we’re certainly producing non-custodial documents that talk about current products
and plans. I don’t know – I can’t – I don’t know if we have any agreements to product on
a non-custodial basis about future product plans. I think that was an open meet and confer
issue that never got resolved. As my understanding.

Rob Uriarte

So what do you mean by future because as I understand it, like, this work is already
underway and there’s already press and public statements by Google about what’s going
on, so in our view, that’s not really a future product, that’s something that’s currently in
development and parts of it are already ____________________, as I understand.

Ed Bayley

Wow, if it’s a released product, then certainly that would fall into something that would
be collected. If it’s solely related to, you know, something that’s being planned out in the
future that hasn’t been released yet, um, we’re not as far as I know collecting and
producing those non-custodial documents on that level.

Rob Uriarte

Okay. Um, next term is Skyhook or Sky Wireless.

Ed Bayley

Yeah, we’re not producing this one. I still have the relevant objections
___________________ hasn’t really satisfied me that any of these terms are relevant. It
clearly hasn’t satisfied me as to anything regarding Skyhook or Sky Wireless and Sky
____ is also – that document does not establish to me that these documents are responsive
to any of your RFPs. So I can – you know, I can tell you that 219 we’re producing on a
non-custodial basis and for 224 we are producing custodially in response to search term 3,
11

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 13 of 21

SPEAKER

TEXT
Android with intent of advertise and ROI or return on investment, etc.

Rob Uriarte

So, I guess, um, setting aside the Sky Hook pieces – we’ve seen documents that were
produced last time discussing the Sky team as it relates to Android so I’m just trying to
understand what the basis is for not producing them this time.

Ed Bayley

Well, I guess I don’t – I don’t know what the relevance of Sky Team is to the remaining
issues in this case.

Rob Uriarte

Okay. So we already talked about uh, Android within 25 of Vodaphone. The next term
would be Core within 10 of code or libraries or APIs etc.

Ed Bayley

Yes. So uh, we’re – the term is still problematic. I still have issue with the relevancy of
the stage of the case in where we are – uh – we are producing on a custodial basis uh in
response to the each of the RFPs we’ve listed here for 290, we’re producing on a custodial
basis using the term 28, Java or Java cross-libraries, within 50 of alternative or substitutes.
For 291, we’re producing response to term 29, Android and third within 3 of party and 3
of development and _____________. For 223 we’re producing in response to term 2,
Android and __________sure or yadda yadda yadda. 264 and 265 we’re producing in
addition from outside custodial sources from in response to term 17, Android within 10 of
Java within ________ of compatible or incompatible or developer or developers…

Rob Uriarte

So is this term bringing back a lot of noise – is that – or a big volume of hits or
something?

Ed Bayley

Yes. It’s a big volume of hits with a lot of noise. Um, in terms of things that are actually
responsive to the RFPs you’ve identified.

Rob Uriarte

Okay. So I think that takes us down to the term that starts with Android or Java and
developer.

Ed Bayley

Yes, so you haven’t called for new terms so I’m just going to respond to the RFP points.
220, we’re producing subject to our objections on a non-custodial basis. 223 we are
producing documents on a custodial basis – hold on – sorry – in addition to pointing you
to public sources, we’re collecting on a non-custodial basis in response to term 2. That’s
the Android and brochure. We’re also in response to RFP 226, we’re producing in
response to term 4, Android and all the package names within 10 of success or impact or
recognition or familiar. 265 we are pointing you to our developer site, and we’re also
producing on a custodial basis based on term 17, Android within 10 of Java within 10 of
compatible or incompatible or developer or developers. 280 we are producing on a
custodial basis in response to term 25, Android and Java or Oracle within 10 of lawsuit or
litigation or sue. In 290, we’re producing on a custodial basis in response to term 28, Java
or Java cross-libraries etc within 50 of alternative or substitute. And 291 we’re producing
on a custodial basis in response to term 29, Android and third within part 3 of party within
3 of _______________ and success.
12

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 14 of 21

SPEAKER

TEXT

Rob Uriarte

Okay. So the next term I think we just need to confirm that you’re producing noncustodial presentations on this stuff. This is the term that starts studies, or study of
presentation, etc. within 25 of Android or mobile or IOT.

Ed Bayley

Yes.

Rob Uriarte

Okay.

Ed Bayley

I mean, we’re collecting response to RFP 219 strategy – high-level strategy presentations
in response to that RFP. I don’t know if you have an RFP identified for that one, but if
that’s what you’re referring to, yes, that’s what we’re doing.

Rob Uriarte

Okay. That takes us to the term that starts Android or mobile or wear or autos etc within
30 market share.

Ed Bayley

Uh, yes. So, you haven’t offered a new term so I’m just going to run through the RFPs.
215 and 219 we’re producing on a non-custodial basis. 244 as well, subject to our
objections on the mobile. 255 uh, we are producing on a custodial basis in response to
term 9, that’s Oracle or Java within 10 of harm, harmed, or harming, and Android.

Rob Uriarte

How is that um, I mean I can see how that would capture some responsive documents, but
this is fundamentally about Android’s market share so-just – are you limiting what you’re
producing on this stuff to documents that actually mention Oracle or Java?

Ed Bayley

Well, I guess, my question for you is, is there an RFP that you are saying is directed for
custodial documents relating to market share for these products? And if so, I can look and
I can give you a more targeted response as to what we’re doing.

Rob Uriarte

Okay, I mean, our RFPs aren’t – don’t delineate between custodial or non-custodial.

Ed Bayley

Sure sure - So I guess then, setting aside the custodial/non-custodial point, do you have an
RFP in mind that you believe captures – outside of high level strategy documents which
we’re producing, uh, you know documents relating to market share, like generally?

Rob Uriarte

Yeah, for sure. I’m just going to mark a note for this one. Okay, let me, I’ll follow up
with you on that one. And by the way, I anticipate getting a response to you this evening.
And then if need be, the joint letter shortly thereafter. So, but, I wanted to take a little bit
of time to circle up with my team and make sure that – cause it seems like we’re actually
pretty close here. I appreciate this effort and I think we might be able to work something
out. I’m hopeful that we can, so let’s just press on. We just have a couple left here.

Ed Bayley

Okay, I’ll wait for my final comments until we get through the rest. So we are now at-

Rob Uriarte

Oracle or Sun or Java within 30, license or fair use or board.
13

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 15 of 21

SPEAKER

TEXT

Ed Bayley

Yeah, so, you haven’t offered new terms here so I’m just going to go straight to the RFPs.
Uh, 284, we’re producing on non-custodial basis. 288 we are producing on a custodial
basis in response to term 18, Oracle and infringe or copyright or license or expire within
10 of Java. 290, that is RFP 290, we’re producing custodially in response to term 28, Java
or Java plus libraries, etc. within 50 of alterative or substitute. 292 we’re producing on a
custodial basis in response to term 17, _______________ within 10 of Java within 10 of
compatible or incompatible, etc.

Rob Uriarte

Okay. Um, Next, unauthorized or without or not etc and Android or Java.

Ed Bayley

Yep. So, again, no new terms so I’ll just walk through the RFPs—

Rob Uriarte

Can I just ask – so it seems like your position is that if we didn’t tweak a term, that you’re
just taking a blanket stand that you’re not going to run it, regardless of how many
documents it’s bringing back.

Ed Bayley

Well, we have –

Rob Uriarte

You know, I mean, look, I don’t want to derail this, I think we’re making good progress
here, but I’m just – I don’t understand that. Especially for something that’s bringing back,
you know, 30,000 documents, not a ton. So,

Ed Bayley

Well, you know, we had a call last week and you know, we had issues beyond just
numbers of documents for some of these. Um, you know, this one is it’s so producing
given what we’ve looked at – and this is especially one where we’ve offered another term
that’s much more targeted and much more successful in getting responsive hits. You
know, we’re not willing to just fix up 30,000 documents because 30,000 documents
(unintelligible) disagree. I’m willing to compromise in order to get us to the end, but I’m
only willing to go so far and I think I told you how far we’re willing to go. As far as I’m
concerned, we’ve already talked about this term for hits and we haven’t been able to
figure out anything that we can come to a compromise on. We thought we were at a final
______________ on that and then you came back with additional terms which we had to
consider. We didn’t go through and consider all the ones we’ve already not agreed to and
we’re going to stand on them. Depending on what you may come back with tomorrow,
again, this is the first time – I thought this was going to be the final call, but now it sounds
like you need to go back to your team. If you want me to go back to my team, and inquire
about this one, I can, but I’m not – I don’t think it’s proper –

Rob Uriarte

I get it, and I know we’re running out of time but so here’s my concern. This is – I think
reasonable minds can look at both of the terms we propose and see that they’re both
relevant to issues in the case. I’m just concerned when I see your term only bringing back
251 documents, and I think that is not a deduced number. Correct me if I’m wrong. Less
than 250 documents on a topic that says, unauthorized use of Android or Java seems like
something is amiss. But maybe if you can give me some confidence that we’re going to
14

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 16 of 21

SPEAKER

TEXT
get materials discussing unauthorized use of Android or Java –

Ed Bayley

I need – the problem is that you have your term – it isn’t limited to unauthorized use of
Android and Java. You have a term where those words unauthorized and the words
Android appear somewhere in the documents. And what I’m telling you is, our term,
which actually does go toward capturing what you’re looking for which is documents that
actually relate to discussions of authorized or unauthorized uses of Java are captured by
our terms. Your terms do not successfully capture those documents. It captures a large
swathe of non-responsive documents and certainly when compared to the RFPs – the
search term you proposed in our view does not adequately capture that. And I’m not
trying to be difficult here, it’s just – I mean we’ve got to draw the line somewhere.

Rob Uriarte

Yeah I know—

Ed Bayley

We’ve done our best on this one.

Rob Uriarte

I would propose, I guess, to just increase the proximity, like the within 10, to increase that
by some amount. You guys know better than we do what hits are coming back but I don’t
want this to be a hang up, so, I understand your position on it. I think we can go to the
next term. And this is the one that starts off with _______________

Ed Bayley

Yeah, so again, we think our term is more than adequate for what we’ve proposed. In
terms of the RFPs, I don’t know if we discussed the RFPs for the last term. Do you want
to or do you want to move on?

Rob Uriarte

It looks like there’s substantial overlap so why don’t you just run through the terms on
this one.

Ed Bayley

Okay. Yeah, I think they are overlapped. So for 271, I’m just going to do this quickly, on
a custodial basis we’re doing term 19, that’s Android and API or application program
names, within 50 of copyright. RPF 266’s responsive to term 18, 259 is in response to
term 13. 262 and 263 is in response to term 16, that’s the Android ______________ with
fragmentation. 276 is in response to term 23. And 222 is in response to term 1. And by
term 1 I mean the closed __________, that’s the strategy or model and Android within 5
of closed ___________(unintelligible). And then 289 is in response to term 27. 290 is
term 28.

Rob Uriarte

Okay. The next is the legal balance of that list _____ CPO domain.

Ed Bayley

Yeah. And I mean this is – I can walk through all these RFP letters again but I think our
main objection here is a relevance objection. These are third party conversations on, uh,
listserve that some Googlers and some Oracle posted a number of – and so, just to walk
through the numbers. RFP 271 is response to term 19. RPF 266 is term 18. RFP 259 is
term 13. RFP 262 and 263 is term 16. RFP 276 is term 23. And 222 is term 1.

15

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 17 of 21

SPEAKER
Rob Uriarte

TEXT
And are those terms capturing emails from this domain?

Ed Bayley

Uh, are you asking me if we’ve used this domain as a custodian? Or—

Rob Uriarte

Uh, sorry, I’m just asking – I’m trying to figure out, is this really worth fighting over
because you just told me some other terms that you’ve run that you think respond to these
RFPs and so I’m just trying to – are those terms you’ve just recited, are they capturing
documents from this – with this email domain in it?

Ed Bayley

Uh, I can tell you, I didn’t look at the documents, but there are some emails from this
domain captured within the production. Whether they’re captured by these terms, I have
no idea. These terms are directed at RFPs not any strict search term that you’re
proposing. I’m not saying I’m refusing to produce documents that have these domains,
but it has to be responsive and we’re not going to agree to a term that’s just directed at
this domain.

Rob Uriarte

Okay, what if we added in a modifier that was and Android or Java?

Steve or Ed (can’t
tell)

The problem is, again, we need to get the closure on this and not keep testing and testing
and running things and running things. In __________________ we explained why
____________ is unreasonable, and either you stand on it being reasonable or not, and we
move on.

Rob Uriarte

Yeah but I’m just trying to limit it – I don’t think you need to do any additional testing.
It’s only bringing back 1800 documents, and that’s not de-duped, so if we added a
modifier, then in all likelihood that will drop it below 1000 documents. That seems like
something that, you know, if we agree to everything else, this shouldn’t be a hang-up.

Ed Bayley or Steve

But then that’s just playing the hit count game which, I mean, something could return 10
documents and still not be a good term because those 10 documents are not relevant.

Rob Uriarte

Right but we would hate to – but we wouldn’t want to go to court on a motion to compel
over 10 documents. It would just make sense for everyone to just produce them. I get it, I
mean, I’d propose an additional compromise. If your answers are not willing to consider
it, that’s fine, we can move on.

Ed Bayley

Sorry, I do need to hurry on this stuff because they’re gonna – four secretaries having to
stay here to work late, also.

Rob Uriarte

I think we’re there. Last two terms, um, this is another one where we didn’t propose a
new term but it’s only bringing back 686 documents so I would hope that we could just
compromise on it and put this one to bed.

Ed Bayley

I mean, I’m not for the same reason as before. This term doesn’t have any, you know, as
far as I can tell, any of the RFPs you’ve identified.
16

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 18 of 21

SPEAKER

TEXT

Rob Uriarte

What if we add um an and Android or Java modifier to this term? Your proposal is and
Android, what if we just add Java to that?

Ed Bayley

Um, if you want to throw that into the proposal you send back, we’ll certainly consider it.

Rob Uriarte

Okay. And then last one is specification or sets within 20 license, etc. And if you recall, I
thought we were close to a deal on this one before, and we proposed to add and Android
or Java and you said you thought that might be the trick and you’d go back to your team
about it.

Ed Bayley

Yeah and I think for this one, this is one where uh, subject to – I mean, I’m having a lot of
trouble seeing the relevance of this one. Honestly, the RFPs you’ve identified don’t
appear to relate to specification and I’m not exactly sure what you’re getting at with the
specification – how that aligns with your RFPs. Can you tell me on this call? Which of
these RFPs do you believe line up with specifications and why?

Rob Uriarte

Specification license and violate or enforce or sue and Android or Java. So an email
talking about whether the license to use the specification and whether that would be a
violation. I mean, this is pretty straightforward, I think.

Ed Bayley

Well, I guess – before I can agree to this I need to know if we go and collect these
documents or review them, what am I reviewing them for? What is – are you just talking
about – is all you’re looking for – is a discussion of the Java specification license as it
relates to Android within Google? I mean, I’m not sure if you’ve requested that in any of
your RFPs, but I wanted to know what it is that you think is the relevant category of
documents.

Rob Uriarte

I think that’s the core of it. The core of it is specifications – talking about the
specifications license and violations or lawsuits or Android or Java in that context. Yeah,
I think that’s right.

Ed Bayley

Okay. Well, I’ll put that down as a category. If you want to propose it as part of
whatever final compromise, we’ll consider it, but, I’m not – sitting here today, I’m not
inclined to unless ________________________ to get a deal done.

Rob Uriarte

Okay. So I think where we’re at, I think we’re actually pretty close. We will get back to
you tonight on whether we can forego – so there’s a set of requests where you’ve said that
you will not run them and that there’s not room for compromise on them. So I think, I
just have to make sure that we’re okay accepting that position. And then if you’ll agree to
run the rest, then I think we’re – we’ll be able to get to a deal. I just need a couple hours
to internalize this and then we’ll get back to you tonight.

Ed Bayley

Okay, and just so we’re clear. You understand that, you know, in order to run and
produce these additional terms, we’re looking at a production after the close of fact
17

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 19 of 21

SPEAKER

TEXT
discovery?

Rob Uriarte
Steve

Yes.
And that if we’re going to agree to do that as part of the agreement, it would have to be
that you couldn’t use that after the fact discovery production as any basis to reopen any
depositions.

Rob Uriarte

Okay, let me take that – I mean, I think that makes sense but I need to confirm. I mean, if
there’s something that should have been produced before a deposition and it wasn’t, then
that’s the problem I see.

Steve

Well, again, - any good lawyer can make an argument that any document should have
been produced before deposition. So that sort of the problem. We can’t make an
agreement, you know, late date, now we have less than a week before the close of fact
discovery, and then have that lead to a prejudice to us because it’s ___________ perhaps
extending it so far __________________ close of fact discovery is a convenient to reopen
deposition, so that has –

Rob Uriarte

That’s not our – yeah, we don’t – that’s not what we envision happening here. But on the
other hand, good cause is good cause if we need to move for relief under the scheduling
order and the same goes for you all. I get it, I get your position. I understand the
apprehension and I can assure you that that’s not our intent. But I need to talk to my team
about that.

Ed Bayley
Steve

Okay
And now, I think this can be a very brief comment, but, at 4:42, 18 minutes before the call
started, you sent over a list of – I haven’t been able to read it all but it looks like more
than a dozen RFPs on which you want to meet and confer and say you’re going to move
to compel if we can’t reach a compromise. I mean, we haven’t even had a meet and
confer on it and we obviously aren’t going to do that right now on things you just raised
for the first time barely an hour ago.

Rob Uriarte

Yeah so I don’t think you’ve been involved in some of these calls, but all – with the
exception of a handful, all of the RFPs listed in my email are RFPs that we’ve previously
met and conferred on. And, I think the only – the one other thing that we needed to
address on this call was just the – separate and aside from the ESI issue that we’ve just
discussed – it’s your position that you will not produce any documents custodial or
otherwise dealing with what you’re referring to as future products or projections – then
that is something that we’re keyed up for a motion on now. Because we talked about that
before we were assigned to Judge review and she has this requirement of having to file
within five days of a meet and confer so, on the issue of future products, I think we
understand your final position is that you’re not producing any documents, and I think
that keys up a motion now.

Steve

I don’t know – (unintelligible) accurate. But I mean – (voices talking at once) – You, you
18

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 20 of 21

SPEAKER

TEXT
have more background so why don’t you go.

Ed Bayley

Sure, I was just going to say, you know, that the problem from Steve and my perspective
is that we are not necessarily – we had set up a call to talk about search terms and
obviously were prepared to do that. We haven’t – we weren’t able to get Beth or Sarah on
the line who I know were the people involved in negotiating these objections on the RFPs.
And again, it wasn’t until 8 minutes before the phone call that there were these additional
objections that you wanted to take action on so we’re just not in a position today. I mean,
we can certainly reach out to Beth and get something set up for tomorrow or whenever
she’s available to do that. But we’re just not in a position here today to talk about these
things. I know there was discussion about pre2011 documents that was going on recently
but it sounds like you’re objections on these RFPs are much broader than that. And so if
that’s the case then we need to have a more full discussion with the people who are
involved to make sure that we’re all on the same page as __________________. Because
it’s not clear to me—

Rob Uriarte

Yeah and just to clear up – and I can see how it would be confusing but – first off, yeah,
let’s try and set up a call for tomorrow on this stuff but what we the reason I sent you
these lists of RFPs is that in the event we need to move to compel on the ESI issue, the
basis for that motion will be these RFPs.

Ed Bayley

I see, okay. Well, you know –

Steve

That doesn’t make – I don’t understand that. Because –

Ed Bayley

Yeah, I’m -That doesn’t – I mean – the (2-3 voices talking at once, unintelligible) – it doesn’t seem to
me, and I’m aware of the pre-June 2011 discussions, which I understand that hasn’t yet
been closed out, that’s still being discussed as to my understanding, but I’m not aware of
any meet and confer as to the agreements to produce or limitations on the scope of
production in response to RFPs – I’m not aware of any meet and confer on that in my
mind it was raised the first time today and (background noise, unintelligible).

Steve

Rob Uriarte

So what I guess that I’m saying is that, for example, email communications and
documents (background noise on phone line, unintelligible) use of Java, Android, Brillo,
Archweller etc. If you won’t agree to run the terms that we think are required to bring
those documents back, then we’ll file a motion to compel production of documents
responsive to the applicable RFPs. (background noise, fade out). There are a couple in
here at the top of the chart that have to do with other issues so we can set up a call for that
tomorrow. But (background noise, unintelligible) that we will file a motion to compel
production of documents and (background noise, unintelligible) whatever ESI dispute
there is and whatever RFPs _____________ remaining.

Steve

I think that would be improper because throughout all of these discussions we’ve talked
about terms we’re running as far as (background noise, unintelligible)
19

Case 3:10-cv-03561-WHA Document 2045-21 Filed 08/25/16 Page 21 of 21

SPEAKER
Rob or Ed (can’t
tell)
Steve
Ed Bayley

TEXT
(background noise, unintelligible)
Are you walking Ed or somebody? We’re getting a lot of
Yeah, that’s me, sorry. I’m going to see if I can – I had to leave.

Steve

No worries.

Rob Uriarte

So anyways, Steve, I didn’t catch everything you were saying but

Steve

What I was saying was that, you know, throughout our discussions on the ESI issue,
we’ve emphasized that all of this, and the agreements around terms, is all subject to our
objections to the RFPs and that’s never led to any attempt by Oracle to discuss the
substance of our objections or anything like that. And so, that discussion, I mean, I think
we need to have that discussion before there’s any motion to compel based on the
objections of the RFPs because we have not had that conversation. You all haven’t
attempted to have that conversation until, to my knowledge, until today. And we’re
happy to have it, but I just want to be clear that if there’s am option to compel based on
objection to RFPs separate from the search terms which we emphasized were subject to
our objections, then I think that’s not proper. We need to have a discussion.

Rob Uriarte

Yeah, and just to be clear, we have discussed most of these RFPs in the past and you
weren’t involved in those conversations but anyways we’d be happy to do it again. Let’s
try and set something up for tomorrow. And hopefully we’ll have to talk about tomorrow
a few straggler RFPs so we can get to a deal on the ESI stuff.

Steve

All right, so, as far as, yeah, I’m not sure schedule-wise – so I think that probably Beth or
Sarah will get back to you on this request for the RFP discussion. And we’ll just monitor
email as best we can.

Rob Uriarte
Steve

Cool. All right, I think that’s it.
All right.

Rob Uriarte
Steve

All right thanks.
Thanks, bye.

Ed Bayley

Thanks guys. Bye.

20