August 21, 2012
Judge Alsup Tells Google to Try Harder With Its Shill Disclosures
By Eric Goldman
Oracle America, Inc. v. Google Inc., 3:10-cv-03561-WHA (N.D. Cal. Aug. 20, 2012)
I can't imagine Google is surprised that Judge Alsup did not like its response to his request that Google and Oracle disclose potential shills in Oracle v. Google. After all, Judge Alsup's order instructed both Oracle and Google to name names, and Google's response didn't name a single name while Oracle named three names (Mueller, an employee blogger, and Goldstein). Judge Alsup's quick response, only one business day after Oracle's and Google's disclosures, has almost a pleading tone to Google:
Please simply do your best but the impossible is not required. Oracle managed to do it.
Judge Alsup's follow-on order attempts to clarify his initial request, but amazingly it still does not tip Judge Alsup's hand about what exactly is bothering him. Judge Alsup reiterates that he meant what he said earlier: he wants to know bloggers who (a) covered the case, and (b) got money from Oracle or Google, not just bloggers who got paid to cover the case (a "quid-pro-quo" situation). As I pointed out before, to do this properly, Google should have to screen its thousands of vendors to see which of them covered the case. To speed this up, Judge Alsup specifies a few categories that don't need disclosure:
* AdSense publishers
* experts already disclosed
* university recipients. Excluding universities is a little odd, as universities are hardly above the fray when it comes to being influenced by corporate money.
In the end, the clarifications don't really doesn't narrow down Google's task very much. In particular, Judge Alsup reiterates that he wants Google to disclose organizations it has supported if "one of its employees was a commenter." Given organizations typically speak through their employees, Google will have to go through all of its supported organizations.
The judge also says:
Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?
This is odd because judges and their clerks should be resistant to external influences like blogger coverage of the case. We understand that jury members (with their limited experience in the litigation process) might not be so disciplined, but judges and their clerks are trained professionals. Even so, judges and their clerks could be confused when a litigant cites a source when that source was on the litigant's dole--in those cases, it's possible the source changed his/her words to suit the benefactor, thus undermining the source's credibility in ways that may not be apparent to the reader. Oracle has tried to allege that Google did that by citing Jonathan Band's work, but Band didn't receive money from Google directly, and so we might debate if Band's words were tainted.
It's noteworthy that Judge Alsup keeps harping on treatises. Of course Google has William Patry, a copyright treatise author, on staff
, but I am not yet aware that either party cited Patry's treatise (Please let me know if I missed something). [I forgot that Oracle did cite Patry, as reported in this article.] Perhaps Judge Alsup wants every litigant in every case to disclose which treatise authors are on a litigant's dole, just in case one of his staff consults that treatise independently. Diminished credibility could be a problem when treatise authors become hired guns--especially if that's not disclosed either in the treatise or in a court filing--because a treatise writer could actually edit the treatise to reflect the interests of his/her clients. (I don't know if this has ever actually happened, so this might be a purely hypothetical discussion).
Perhaps one lesson to take away from all this: if you're a litigant and your filings cite a published work by your expert/consultant, maybe you need to disclose that. But in this case, if Alsup's clerks are traipsing through the treatises independently, surely they will discover Patry's affiliation with Google (I don't have a copy myself, but I assume Patry discloses it on the title page). As a result, there may be less risk of unintended treatise taint from Patry than from other treatise authors who become hired guns.
Perhaps as a sign of the judge's exasperation, the judge only gives Google until this Friday at noon to make its updated disclosure. I imagine a lot of Google's lawyers will burn the midnight oil--and rack up a lot of billable hours--this week. Per the judge's near-begging, Google can always claim that it "did its best" but wasn't able to do the "impossible." However, I wouldn't rely on that. I imagine any defects in its next disclosure will infuriate the judge, so I don't think it actually has the luxury of "only" trying its best in the time allotted. Google (or Oracle for that matter) could also challenge on the judge's order, which becomes increasingly likely as the parties realize the difficulty in complying with it.
Oracle may feel a little vindicated that Judge Alsup is hammering Google while giving Oracle a pat on the head, but this order isn't good news for Oracle either. Although it named three names, Oracle didn't come anywhere close to satisfying the judge's order. I expect Oracle will stand pat on its prior disclosure, but Oracle should be furiously scrambling right now too. I wonder if Google will try to drag Oracle down if Oracle doesn't update its disclosure.
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