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Court Appoints Rare Independent Damages Expert in Oracle-Google Dispute

Under Rule 706 of the Federal Rules of Evidence, a court may "appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection." I have not seen a court rely on Rule 706 before to appoint its own damages expert, but that is what is happening in the case of Oracle America v. Google that is now pending before U.S. District Judge William Alsup in the Northern District of California. In the lawsuit, Oracle claims that Google's Android mobile operating system violates Java-related patents and copyrights that Oracle acquired from Sun Microsystems in 2009, The Recorder reports.

On Aug. 30, Alsup appointed James Kearl, an economics professor from Brigham Young University, to testify in the trial between the two technology giants. The Recorder notes that Oracle had previously presented an expert's report that found $6.1 billion in damages while Google had argued that there were no damages at all because the patents at issue are neither valid nor infringed.

Faced with this $6 billion divide, Alsup appointed his own damages expert. In an order issued on Friday, the court wrote that Kearl's job is to "provide an independent professional analysis and view to inform the jury, in the event liability is found, on the issue of damages on the claims asserted in this action." The court also appointed a lawyer to serve as counsel to Kearl on a pro bono basis. 

The court ruled that in his role as court-appointed damages expert, Kearl:

  • may review all materials necessary for him to be thoroughly informed as to all aspects of the damages claims and analyses of the parties in the case, including confidential material, depositions and other discovery materials, and expert reports.
  • will prepare and submit a separate expert report that will independently critique the damages expert reports submitted by each side and assess all issues raised in the parties' damages expert reports.
  • will be subject to having his deposition taken to the same extent as any other expert witness; and
  • will be permitted to attend the depositions of the parties’ damages experts in this matter and, through his counsel, may question the parties’ damages experts at those depositions.

Litigators told The Recorder that Alsup's naming his own damages expert was a "bold move" that brings with it some risks of its own. For example, one litigator said, the proceedings can "turn[ ] into a one-witness trial," where whatever the independent expert says is "taken as gospel" over the parties' positions. Indeed, in a motion arguing against the independent expert, Google stated its fear that such an expert "will have a powerful stamp of court approval and objectivity that will lend a disproportionate weight to that expert's opinions and testimony." The court rejected that argument, finding that in this case where both parties have taken "extreme and unreasonable positions regarding damages," the independent expert's assistance would be particularly useful.

Posted by Bruce Carton on September 12, 2011 at 04:34 PM | Permalink | Comments (6)


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