Discovery disputes are rarely exciting, but I keep an eye on them anyway in the major disputes I follow. And today I found an Apple filing that contains some reasonably interesting stuff.
In the second California dispute with Samsung (scheduled to go to trial in about a year), Apple recently brought a motion to compel discovery of documents and diff printouts (source code printouts showing differences between versions) from Google. Late on Tuesday, Apple filed a reply brief in support of the document-related part of its motion; it has withdrawn its request for diff printouts after the court denied another motion to compel in this context.
The headline "Google's Search Methodology Was Clearly Flawed" caught my curiosity. Why would Apple criticize Google, the undisputed leader in the search market, for a "clearly flawed" search methodology? Despite certain redactions I believe I've understood. The only way that these large players can handle discovery requests for documents is that they run automated searches over all company documents. Whether those search operations really identify the relevant documents depends on whether the appropriate search terms are used.
Google's search results for the purposes of document production in this litigation have been so poor in connection with certain keywords that Apple "wants to work cooperatively with Google to correct these flaws". For the next step Apple proposes that Google be required to provide a "list of search terms and custodians". Apple considers this a "necessary first step [...] to obtain fulsome and meaningful discovery from a key player in the subject matter of this case".
Apple believes Google purposely uses suboptimal search terms. For example, Apple claims to know that Google uses a different term internally for what Apple calls "slide to unlock". As a result, searches for "slide to unlock" wouldn't deliver too many documents in which Google employees discussed this patented technology.
Google argues that it would be an undue burden to require disclosure of the search terms used, and whether or not a certain burden is acceptable depends on the status of a party. In this context, Google claims that it's merely a third party, and third parties enjoy stronger protection against allegedly-burdensome discovery requests than parties to a dispute. Apple says that "there is no burden here", making it a non-issue whether Google is a third party. But in any event, Apple tells the court that Google can't have it both ways and deny its responsibility for many of the infringement issues that gave rise to this lawsuit:
"[C]haracterizing Google as merely a 'third party' fails to capture the full extent of Google's involvement and collaboration with Samsung regarding the subject matter of this lawsuit. Google developed Android, which is used in the accused Samsung products and provides much of the accused functionality. Google and Samsung jointly developed the Galaxy Nexus, which is one of the accused products. Indeed, unlike every other third party in this case, Google affirmatively chose to involve itself in this litigation by providing declarations from its engineers to support Samsung's positions during the preliminary injunction phase of the case. Finally, in connection with Apple's Subpoenas, Google retained the law firm representing Samsung in this case, and used the same lawyers [Quinn Emanuel] representing Samsung within that law firm. In addition, both Google and Samsung have repeatedly resorted to claims of a 'common interest privilege' in refusing to produce documents in this case. As a result, it simply strains credibility for Google to now assert that it should be viewed as a neutral third party. Google is providing material support to Samsung regarding the subject matter of this case; asking it to now provide basic information regarding its document production process is not unduly burdensome."
I've been watching Android-related patent litigation for more than two and a half years by now, and I, too, have noticed that Google takes inconsistent positions on its involvement and responsibility. One day Google's executive chairman Eric Schmidt announces 1.5 million Android activations; the next day, Microsoft announces an Android and Chrome patent license deal with Foxconn parent Hon Hai, and I haven't seen a Google comment on that one yet, even though it's all about Google's operating systems. As Apple notes in the passage I quoted above, Google basically co-developed the Galaxy Nexus smartphone with Samsung, which is enough of a reason (besides all the other reasons Apple mentions or alludes to) that it simply can't claim to be a third party to a litigation in which the Galaxy Nexus is at issue. Google has officially stayed on the sidelines of numerous Android patent lawsuits, but from time to time it wants to be involved, such as in the ITC investigation of Nokia's complaint against HTC, in which it even wanted to become a co-defendant (it's now involved as a third-party intervenor). I've seen Google intervene in some German Nokia v. HTC lawsuits as well, but not in all cases in which Android is at issue.
Google's inconsistent, "variable geometry" type positions are even more striking when its wholly-owned subsidiary, Motorola Mobility, is a party to a patent infringement lawsuit. During the last six months or more, Google in-house lawyers typically acted as Motorola Mobility's party representatives (sitting next to its outside counsel) in court. This was also the case at a first hearing in Munich in October 2012 on a Google Maps infringement case. Despite being represented by a Google in-house lawyer, Motorola denied knowledge of how Google's servers operate in the relevant context. In order to force Google to come clean on what its servers do, Microsoft was, for practical considerations, effectively forced to add Google to the case as another defendant. A trial was held in March, and even though the position outlined by the court at the time was preliminary in nature (counsel for Google had the chance to dissuade the court from its preliminary infringement finding), the June 3 decision is most likely going to be adverse to Google. If Motorola Mobility had simply been more cooperative and not denied knowledge of how Google's servers operate, Microsoft would never have had to sue Google in addition to its Motorola Mobility subsidiary, and the scope of that lawsuit would be limited to the Google Maps Android app, while it now also relates to the Google Maps service per se.
Google should accept its responsibility for Android's infringement issues. That's what Apple is saying in the passage I quoted above, and I believe it's a perfectly reasonable demand. Google can run, but it can't hide.
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