Google twists the knife, asks for sanctions against Oracle attorney

The second Oracle v. Google trial drew to a close in May, when a jury found that Google’s use of certain Java APIs wasn’t a copyright infringement. But court filings from last week show that Google isn’t done delivering punishment to Oracle, which started the litigation back in 2010.

Google will be filing a motion for sanctions against Oracle and its law firm, Orrick, Sutcliffe Herrington. The motion relates to statements by Oracle attorney Annette Hurst, who revealed financial arrangements between Google and Apple that were confidential—until she discussed them in open court at a January 14 discovery proceeding.

Speaking in open court, Hurst said that Google’s Android operating system had generated revenue of $31 billion and $22 billion in profit. She also disclosed that Google pays Apple $1 billion (~£750 million) to keep Google’s search bar on iPhones.

“Look at the extraordinary magnitude of commerciality here,” Hurst told a magistrate judge as she discussed the revenue figures.

The $1 billion figure comes from a revenue-split that gives Apple a portion of the money that Google makes off searches that originate on iPhones. The revenue share figure was 34 percent, “at one point in time,” according to Hurst.

Google lawyers asked for the figure to be struck from the record.

“That percentage just stated, that should be sealed,” Google lawyer Robert Van Nest said, according to a transcript of the hearing. “We are talking hypotheticals here. That’s not a publicly known number.”

Get that transcript

The magistrate judge at the hearing declined Google’s request to keep the transcript of the hearing secret, according to a detailing of events by Bloomberg News, which was first to publish the figures. On January 20, a transcript was made public. Google quickly asked US District Judge William Alsup, who has overseen the litigation for six years now, to seal and redact the transcript.

The transcript disappeared from electronic court records at about 3pm Pacific time on January 21—two hours after Bloomberg published a story based on it.

Bloomberg published two stories detailing Hurst’s statements. The information then spread to other news outlets and blogs, including Fortune, Business Insider, Ad Age, MacWorld, and SearchEngineLand.

The following week, Google asked for sanctions. “Annette Hurst recently disclosed in open court self-serving representations of sensitive confidential financial information of both Google and third-party Apple Inc., as well as extremely confidential internal Google financial information,” wrote (PDF) Google attorney Bruce Baber. “[F]ollowing Oracle’s failure to take remedial action, this sensitive information became headline news for major news outlets.”

The Bloomberg News piece and subsequent articles meant “the press finally could report on confidential information that had heretofore been only a subject of speculation,” Baber noted.

US District Judge William Alsup, who has overseen the companies’ dispute for six years now, said he would postpone considering the matter until after the trial.

With the trial over, Baber reminded the court of Google’s request. He noted that the disclosures also harmed Apple. On Thursday, Alsup granted permission for Google to file a 15-page motion seeking sanctions.

A decision on whether any sanctions will actually be ordered is at least several weeks away, if not months. Google has permission to file the motion on Alsup’s thirty-five day calendar, and Oracle will have a chance to respond before the judge makes any ruling.

Google has also filed a request (PDF) that Oracle reimburse it for $3.9 million in costs. That consists of $1.8 million for managing documents in the case, close to $300,000 for transcript fees, and more than $1.8 million in payments to a court-appointed expert.

Those costs are only a tiny fraction of what the case cost Google. The request doesn’t include any of Google’s legal fees, which aren’t recoupable in most cases.

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