Judge Alsup Tries to Out the Shills in Oracle v. Google

[Post by Venkat Balasubramani, with comments from Eric]

Oracle v. Google, Case No. C 10-03561 WHA (N.D. Cal.; Aug. 7, 2012)

Judge Alsup recently issued an order in Oracle v. Google, voicing concerns that the parties or counsel may have retained or paid “authors, journalists, commentators or bloggers who have and/or may publish comments on the issues in [the] case.” Accordingly, he ordered each side and its counsel to:

[f]ile a statement . . . identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in the case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of [the] action.

The order sparked a reaction online and generated a flurry of commentary. (See articles from Ars; BuzzFeed, and posts by Paul Levy and Scott Michelman, to name a few.)

As Eric noted in his comments to Ars and BuzzFeed, as phrased, the order is overly broad and would potentially capture bloggers who have commented on the case and participate in Google’s AdSense. This could also sweep up journalists whose publications have published Google or Oracle ads. It’s also curious that Judge Alsup issued the order near the conclusion of the case, where it will have little if any prophylactic value to prevent taint of the proceedings. Although it’s not in his interest to create appealable issues, the order almost creates another issue for the parties to bicker about at the appellate level.

There was speculation about what spurred the order and whether it was directed at one or more writers in particular, including as Eric commented to BuzzFeed, perhaps the writer of a legal treatise (Patry, Nimmer, Goldstein?). But assuming it was narrowly written and issued at the outset of the case, what to make of an order such as this one?

This isn’t like an FTC endorsement-style rule which requires spokespersons to disclose material relationships about products or services that they endorse—the only thing being endorsed here is the idea that one side or the other should win in the litigation. This also isn’t like the Apple v. Samsung scenario where Samsung’s lawyers were accused of releasing evidence to the press that the court ruled wasn’t admissible. This is more directed at writing that influences the public consciousness about the issues in the trial. In that way, there’s some peripheral relationship to the case overall, but from the face of the order, there’s nothing to indicate that it does any more than that. One could make an argument that in this day and age, people involved in the judicial process (e.g., jurors) will have a hard time obeying the court’s rules to stay away from the internet during the pendency of the trial, and this is aimed at remedying any taint that may result from shilling, but it doesn’t even directly address this problem. People are free to write and get paid to write, it’s just that they have to disclose this to the court. (It’s possible that the order is directed more to the appellate court who may read media accounts or even consult “internet sources” and therefore would be better served to know who is impartial and who is influenced by the payment of money, but that seems like an odd problem for Judge Alsup to tackle.)

There’s also the issue that people don’t lose the right to advocate publicly on behalf of their position just because they are involved in litigation. If there’s no effect on the integrity of the process—and it’s tough to make an argument at this stage in the litigation—why should companies and their law firms have to disclose who they paid to get their message out? (Journalists seem to laud this order, and I have to admit that as a blogger I shared a sort of morbid curiosity to see what was behind all of this and who would end up on the lists.)

Unfortunately, neither party is going to challenge the order, although as Eric notes, they will likely make some assumptions regarding the order that may slim down their lists.

A final thought is that maybe Judge Alsup got wind of the shilling, and issued this order as a shot across the bow, to shills in this case, and in future cases as well.

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Eric’s Comments

I don’t see how the parties can properly comply with the order in such a short time-frame. They must have thousands or even tens of thousands of vendors (that’s not including Google AdSense, which would boost the number for Google even more). There’s no quick way to cross-check which of these folks have written about the lawsuit. So I expect both parties are going to make some “assumptions” to reduce their workload.

Even so, it will be quite exciting on Friday, August 17, when we get to pore over the lists provided by Oracle and Google. I imagine many of us will engage in the parlor game of trying to spot previously unknown shills for the parties.

Unfortunately, if the parties properly comply with the order, the lists will be riddled with “false positives,” i.e., people who met the literal criteria (cash from litigant + coverage of case) but didn’t meet the spirit of the order (covered case BECAUSE OF cash from litigant). As Venkat indicates, we should be on the list, but I’m skeptical that my pathetic AdSense earnings have affected my analysis. Thus, in theory, we as consumers of the lists won’t rush to judgment, improperly assuming that everyone disclosed on the lists is a shill. But in practice we just don’t have that kind of self-restraint, so there should quite a “J’accuse!” frenzy once the lists are public.

As Venkat indicates, because Judge Alsup’s order was so cryptic, there remains some confusion over the legitimacy of Judge Alsup’s order. I can think of two circumstances where the order is completely appropriate:

1) A litigant cited a source in its advocacy whose author was on the litigant’s team and not disclosed. So, for example, imagine that a litigant cited a treatise without disclosing the author is on the payroll of the ligiant. A cynic might think that the treatise author wouldn’t write anything in his treatise that conflicted with its benefactor’s interests. Before a judge relied on a putatively credible treatise in rendering a decision, it seems logical that the judge would want to know if the author might have surreptitiously updated the treatise to advance the litigant’s position. I can’t imagine that happened in this case, plus I think the judge’s effort would be most appropriate only if he had actually relied on the tainted source in making a decision.

2) The media din about the case, spurred by shills, somehow tainted the jury’s deliberation. I haven’t heard any evidence that occurred in this case, but it would be a problem if it occurred.

Instinctively, I applaud Judge Alsup’s efforts because the phenomenon of shill public relations is out-of-control. See Chris O’Brien’s recent articles on the Google/Microsoft proxy wars for more evidence of that (Microsoft and Google battle for influence in the policy shadows and Google vs. Microsoft: See who’s clashing behind the scenes). However, if nothing has yet undermined the integrity of the judicial process in the Oracle-Google case, then I think he has overreached–especially at this late date in the proceedings. Shill public relations is bad, and could even violate the FTC’s Endorsements/Testimonials Guidelines, but that doesn’t give a federal judge the power to engage in fishing expeditions about the litigants’ conduct. We’ll know more when we see the lists and get more insight into what prompted Judge Alsup’s move. I’ve blocked off some time on August 17 for further analysis!

UPDATE: Scott Graham of the Recorder analyzes some of the possible individuals who might have prompted Judge Alsup to issue the order.

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