This article was originally published by American Lawyer affiliate The Recorder.
Each side in the Oracle v. Google battle is relying on a small army of lawyers to make its case, and their roles became clearer as the first week of trial wrapped up in U.S. District Judge William Alsup’s San Francisco courtroom.
David Boies of Boies, Schiller & Flexner is there to handle executive-size egos: The lawyer famous for grilling Bill Gates in the 1999 Microsoft Corp. antitrust prosecution conducted the direct exam of Oracle CEO Larry Ellison, who is said to be a personal friend, as well as a testy exam of Google’s Larry Page. Boies sought to humanize Ellison and demonize Page, though observers seemed split as to whether Page looked evasive or just young and awkward.
Co-lead Oracle counsel Michael Jacobs of Morrison & Foerster is chief strategist. He delivered opening statements and is handling important witnesses as well as Alsup’s tough questions about copyright law.
Google counsel Robert Van Nest of Keker & Van Nest has been Boies’s chief opponent, conducting a sharp cross-examination of Ellison, slickly aided by video deposition showing Ellison contradicting himself.
“You understand that nobody owns the Java programming language, right?” Van Nest probed. Fumbling for an answer, Ellison finally said, “I’m not sure.” The depo showed Ellison answering that same question quickly, “Correct. That’s right.”
Then there are the bit players. The core of the dispute is highly technical: Oracle says when Google entered the mobile device market with its Android operating system, it used something called Java APIs, which Oracle acquired when it bought Sun Microsystems Inc. for $7.4 billion.
Van Nest’s younger partners, Daniel Purcell and Christa Anderson, handled the computer programmers and engineers. And co-counsel from King & Spalding, Bruce Baber, a partner in the Atlanta and New York offices, examined one Google software engineer who had seemed to give Oracle some helpful testimony. Baber also argued finer points of copyright law that will inform what Alsup puts in the jury instructions and on the verdict forms.
It may be no surprise that Jacobs, co-founder of MoFo’s IP practice group, is the Oracle lawyer doing most of the talking to Alsup. Jacobs and Alsup were colleagues at MoFo before Alsup took the bench a dozen years ago.
There were some rough spots. Boies Schiller partner W. Fred Norton didn’t seem to be engaging jurors during his mechanical examination of Oracle chief corporate architect Edward Screven. And he drew Alsup’s wrath when he elicited a forbidden piece of information: that Oracle paid $7.4 billion to acquire Sun for its Java. Alsup repeatedly warned Oracle that figure was off limits, since that figure shouldn’t inform any damages award.
“Ladies and gentlemen of the jury, a $7.4 billion number has nothing to do with this case,” Alsup said. Then he turned to Norton: “We have talked about this before.”
Van Nest dispatched one of his younger partners to pair against Boies for the testimony of Google engineer Tim Lindholm, author of the infamous email seen by Oracle as a smoking gun. His email said all the alternatives “suck” and concluded: “[W]e need to negotiate a license for Java under the terms we need.”
Pressed by Boies, Lindholm insisted he wasn’t referring to a license from Sun or Oracle or any specific company. He also insisted he wasn’t much involved with Android.
When it was her turn, Anderson sought to clarify Lindholm’s role. “Have you ever contributed any source code whatsoever to the project?” she asked Lindholm.
“None,” he said.
Anderson’s boss, famed criminal defense attorney John Keker, had slipped into the courtroom and watched that portion of the trial.
Anderson proved to be the most polite lawyer in the room, repeatedly offering a “thank you” to the judge and witness.
She scored points in other ways, too, in a couple of instances getting Judge Alsup to overrule objections from Boies.
The trial is expected to last another seven to nine weeks.
