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Oracle and Google Stipulate to a Proposed Protective Order

By Pamela Jones et al.

After the presiding judge, the Hon. William Alsup, ruled the other day on the parties' remaining disputes over proposed terms for a protective order in the Oracle v. Google litigation, Oracle and Google then got together and have come up with their own solution, a proposed stipulated protective order they are submitting to the court for approval. There is also a scheduling agreement on such things as what format to provide discovery materials in.

The judge had said if either side didn't like his decision, they could file motions, but instead they have resolved the issues that they told the judge they couldn't resolve before. His order gave them a big nudge, and they have now come up with something they can each live with. I think he figured if he gave them a map of his preferences, they could get to their final destination quickly without him having to decide every last detail. And that may explain why he didn't provide any substitute language on a prosecution bar. He was, I gather, trying to prod the parties into settling their remaining issues themselves. And it looks like it worked. They have now done so.

Google won the issue of in-house counsel, but it had to come up with new prosecution bar language. So that is the main change. As for other highly confidential materials, there is a process for allowing up to five in-house counsel to view it, but never source code. And Sun lawyers, now Oracle America lawyers, are defined as house counsel, hence barred from viewing code.

Keep in mind that this is just about who can see what in discovery. It doesn't necessarily indicate what will or won't be sealed in filings, as there is a separate rule about that, but it does mean we won't be seeing properly designated confidential materials. It doesn't tell us what will be admissible as evidence either. That comes later. This is just the first real step in the discovery process, which is the biggest part but still only one part of the whole litigation process.

Full post as published by Groklaw on December 18, 2010 (boomark / email).