Google Is Trying to Get Oracle in Trouble for a $1 Billion Open Secret

Well, it's a bit more complicated than that, because in Google v. Oracle, nothing will ever be simple.

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Sep 23 2016, 3:35pm

Google's Larry Page leaving court in 2011. Yep, it's all been going on for that long. Image: Bloomberg

Another day, another trip down the swirling spite-tornado that is Oracle v. Google.

Last month, Oracle asked for a new trial, claiming that Google failed to disclose key information prior to the most recent trial. Judge William Alsup has yet to rule on Oracle's request, but meanwhile, Google's lawyers are asking Alsup to find Oracle's lawyers in civil contempt of court. For all of the non-lawyers out there, it's basically just being in huge trouble with a judge, which is legitimately scary because judges can do all kinds of things like hold you in prison indefinitely.

Back in January, the two parties were in front of Magistrate Judge Ryu, hashing out a discovery dispute. While in open court, in what Oracle calls the "heat of argument," Oracle attorney Annette Hurst blurted out two numbers, two numbers so very secret that in the contempt hearing on Thursday, Judge Alsup threatened to clear out the courtroom in order to prevent reporters from hearing Google's confidential information.

Previously in #Googacle: Why the Very Silly Google V. Oracle Trial Actually Matters

One number is how much Google paid Apple to put Google search bar on the iPhone. The other number is how much revenue Android generates per year.

This is top secret information subject to a protective order.

Unfortunately for Google, those two numbers can be readily found via a website known as Google dot com:

In the hearing, both sides performed a weird, coy dance around all mentions of the "Google Information" and "Apple Information," which is still subject to a protective order that binds the attorneys who are in receipt of the confidential information, on pain of sanctions and contempt.

Despite having been turned into what Google calls "widespread global headline news," Google is still very insistent that Oracle redact such information in its briefs:

"There were articles all over the internet quoting the disclosure and quoting Oracle's counsel," said Bruce Baber, attorney for Google, in the contempt hearing. He tapped on his podium repeatedly as he spoke. "They said, 'We always wanted to know the numbers around this Google/Apple deal. And now we know.'"

Oracle's lawyers tried to explain themselves by providing a timeline of events. The confidential information was blurted out during a hotly contested hearing on January 14, 2016. Google attorney Robert Van Nest objected to the disclosure of the Google/Apple information, but didn't say anything when Hurst mentioned Android revenue numbers.

Four days later, on January 19, Google's attorneys tried to get Oracle to sign onto a letter asking the court to redact those portions of the transcript. Before anyone from Oracle could reply, the magistrate judge denied Google's motion to seal portions of the transcript. Google filed a motion to reconsider on January 20, then due to a mistake, had to refile on January 21.

Around 1 PM that day, Bloomberg broke the news that Android generated $31 billion in revenues, and then a few hours later, that Google was paying Apple $1 billion to use the Google search bar.

"The transcript vanished without a trace from electronic court records at about 3 PM Pacific standard time with no indication that the court ruled on Google's request to seal it," Bloomberg reported at the time. (The request to seal the transcript was officially granted the next day).

In other words, life comes at you fast, and Oracle made a mistake—but nothing worthy of sanctions, according to Oracle attorney Melinda Haag.

Judge Alsup was extremely skeptical of Haag's position. "Every good lawyer in this district with her experience knows, you could hand the document to the judge, you could ask to clear the courtroom, you could ask to submit under seal," he said.

"I think it's important for you to own up and admit that it's a violation [of the protective order]," he told Oracle's counsel.

"Even assuming it's a violation of the protective order..." Haag began to say, when Alsup interrupted her with an exasperated noise.

"Your firm is one of the biggest litigators in America," said the judge. "Next time you go into a court somewhere and you ask for confidential documents, I hope someone raises this and says, 'Your firm violated that order, and why should we give your firm access?'"

According to Oracle, because Hurst was not in bad faith, she and her firm, Orrick, should not be subject to contempt and sanctions.

"She just blurted out the two numbers that mattered. She just blurted it out," said Judge Alsup. "If she had had the recipe for Coca-Cola she could have blurted it out in this court right now."

Google's Bruce Baber said that it wasn't just about the disclosure. Hurst made an understandable mistake. "There, but for the grace of God, go I," he said. But, "The answer is not to dispute that there was a problem, to refuse to cooperate, to not take very simple steps to address it."

Google says that when its lawyers first objected during that January hearing, Hurst "quibbled and engaged in misdirection about the information" instead of just agreeing to redact the transcript. Then, when she left the courtroom, she recognized a reporter, but didn't mention it to Google or the judge. (Google thinks she should have told someone, or even stopped the reporter and asked him not to report the story.) And later, when Google raised a fuss, Oracle attorneys kept filing "no opinion" replies, instead of doing what Google thinks they should have done—just go ahead and agree with Google, so that the judge would seal it quickly.

If Google's motion is granted, Oracle and its lawyers will have to pay Google attorney's fees for the various motions that were filed in the aftermath of the leak. In a $9 billion case, that's not really a big deal. The big deal is that an experienced trial attorney and her prestigious law firm might be held in civil contempt. Imagine the most popular girls in your high school having to serve detention, or Robin Thicke being forced to plunge his own toilet. It'll be a big shock if it actually happens.

But to make things even sadder for Oracle, the timing around the Bloomberg article doesn't suggest that a reporter heard Hurst drop confidential information in court, and then ran back to the office to break the news. The Bloomberg article was published on January 21, a full week after the hearing, and the day after the transcript became available.

Maybe that's just the day that a reporter happened to read through the transcript. But maybe it was Google flailing around on the 20th and 21st, trying to seal the transcript, that actually tipped the press off. (Adam Satariano, who cowrote the article, says he doesn't remember what it was.)

Whatever the case, Google is probably right that sealing the transcript faster would have stopped the news story from ever breaking. But the cat's out of the bag now, and Google's private information is out there for everyone to see, on Google. Maybe it should try using the right to be forgotten?