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UPDATE 4:52pm PDT: The judge presiding over the case on Friday neither held Oracle’s attorney in contempt or issued any sanctions.
Instead, the judge ruled that issuing such an order would be “heavy handed.” (PDF) The judge ordered that Oracle would have to pay for Google’s expenses in its successful bid to seal the transcript of the lawyer’s courtroom disclosure—an amount that will be determined later.
The federal judge who presided over the Google-Oracle API copyright infringement trial excoriated one of Oracle’s lawyers Thursday for disclosing confidential information in open court earlier this year.
The confidential information included financial figures stating that Google generated $31 billion in revenue and $22 billion in profits from the Android operating system in the wake of its 2008 debut.
The Oracle attorney, Annette Hurst, also revealed another trade secret: Google paid Apple $1 billion in 2014 to include Google search on iPhones.
Judge William Alsup of San Francisco has been presiding over the copyright infringement trial since 2010, when Oracle lodged a lawsuit claiming that Google’s Android operating system infringed Oracle’s Java APIs.
After two trials and various trips to the appellate courts, a San Francisco federal jury concluded in May that Google’s use of the APIs amounted to fair use. Oracle’s motion before Alsup for a third trial is pending. Oracle argues that Google tainted the verdict by concealing a plan to extend Android on desktop and laptop computers.
As this legal saga was playing out, Hurst blurted out the confidential figures during a January 14 pre-trial hearing, despite those numbers being protected by a court order.
The transcript of that proceeding has been erased from the public record.
But the genie is out of the bottle.
Google lodged a motion (PDF) for sanctions and a contempt finding against Hurst for unveiling a closely guarded secret of the mobile phone wars.
During a hearing on that motion Thursday, Judge Alsup had a back-and-forth with Hurst’s attorney, former San Francisco US Attorney Melinda Haag.
According to the San Francisco legal journal The Recorder, Haag said that her client Hurst—of the law firm Orrick, Herrington & Sutcliffe—should not be sanctioned because of “one arguable mistake made through the course of a very complex litigation.”
According to the Recorder (subscription):
But at the end of Haag’s initial remarks, Alsup asked her a blunt question: “Do you admit that [Hurst] should not have revealed this to the court in the way that she did?”
Haag declined to answer directly and tried to make a legal argument, but Alsup cut her short. Haag’s “dodging,” the judge said, was “not helping.”
“I think you’re afraid to come out and admit that [Hurst] screwed up and she never should have done what she did,” he said. “If the shoe was on the other foot, you would be jumping up and down.”
“It takes away from the rest of a very good argument that you made that you wouldn’t make that concession,” he said.
The judge went so far as to say that he “hopes” that, when Orrick lawyers ask for confidential information in other case elsewhere, “someone raises this.”
Haag, undeterred by the dressing down, said that Google could not show bad faith necessary to hold Hurst in contempt. When Alsup said that he was inclined to side step a bad faith finding by granting Google’s motion for sanctions under Rule 37 of the Federal Rule of Civil Procedure, Haag responded by citing two cases that held even a Rule 37 sanction motion requires a finding of bad faith.
“I’m not saying it’s OK,” Haag finally conceded late in the hearing. “I’m saying she shouldn’t be held in contempt for doing so.”
Google attorney Bruce Baber argued that at a minimum, sanctions were necessary to protect the legal process. “This is not about trying to punish anyone,” Baber said. “It’s important for the court to clarify the protective order.”
Meanwhile, Hurst also said in open court in January that regarding the Google-Apple agreement to place Google search on iOS, “the revenue share was 34 percent.”
“That percentage just stated, that should be sealed,” Google lawyer Robert Van Nest countered at the time, according to the transcript. “We are talking hypotheticals here.
That’s not a publicly known number.”
Whether the figure was the percentage kept or paid by Google is not clear.
Although Judge Alsup did not rule on Google’s motion for contempt or sanctions, he is expected to do so soon.
After deliberating for three days in May, the Oracle-Google jury concluded that the Android operating system did not infringe Oracle-owned copyrights because Android’s re-implementation of 37 Java APIs was protected by “fair use.”