Google points to Sun's SEC filings to defend previous testimony

In a power play, Oracle tries to nullify the testimony of Sun's former CEO by calling another witness in an effort to contradict everything he said.
Written by Rachel King, Contributor

SAN FRANCISCO -- In an effort to nullify the testimony of former Sun Microsystems CEO Jonathan Schwartz, Oracle called former Sun executive vice president Brian Sutphin to the stand at the U.S. District Court on Wednesday.

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Sutphin started at Sun in 1994. From 2004 until Oracle's acquisition of Sun in 2010, he was the executive vice president of corporate alliances and development. After the merger, he served as a senior vice president at Oracle until January 2012. As of now, Sutphin admitted he is currently "unemployed," adding that he is "taking a break."

He was called to the stand as part of Oracle's threat to Google's legal defense team if they attempted to recall Schwartz during phase two of the trial.

Schwartz's testimony has proved to be extremely threatening to Oracle's case in its intellectual property lawsuit about Google -- mainly because Schwartz testified that although Sun wasn't entirely happy that it couldn't form a partnership with Google, the former Java owner had no grounds to sue over the use of the Java APIs integrated on the Android mobile platform.

Oracle attorney Michael Jacobs and Google counsel Robert Van Nest have been repeatedly squabbling over the issue of calling Sutphin in front of Judge William Alsup during the last few mornings at court.

Jacobs asserted that Sutphin's testimony could nullify everything Schwartz said. Van Nest had previously promised that he wouldn't call Schwartz back if Jacobs didn't call Sutphin, but it looked like all bets were off on Wednesday morning.

Alsup warned Jacobs that calling Sutphin might be a dangerous move, as Google might still call Schwartz back after all.

Oracle has tried to diminish any meaning -- legal, business or otherwise -- to Schwartz's November 2007 blog post, which has taken a central role in this case because Schwartz used his blog to congratulate Google on the debut of Android. Using the testimony of Sun co-founder Scott McNealy, Jacobs previously tried to convey that the blog was personal and not corporate, so it shouldn't be of any importance to the jury.

Furthermore, Van Nest came back with evidence -- which Oracle objected over but lost -- that proves otherwise. Van Nest submitted Sun's 10-K form from June 2008, which explained that company announcements and other news might be delivered from a variety of channels -- including the CEO's blog.

Nevertheless, Oracle called up Sutphin anyway -- although how much he actually helped Oracle is debatable.

While he was a Sun executive, Sutphin affirmed on the stand that he was "very close" to Schwartz, and he had responsibility for a lot of issues important to the CEO. In fact, his office was just a few doors down, so Sutphin described that Schwartz would drop in several times a day.

But they couldn't have been that close as Sutphin admitted that he "rarely" ever read Schwartz's CEO blog. When asked about the credibility of the blog, Sutphin commented Sun had "a very clear policy" that any blogs were personal to their writers, and they didn't represent any official statements or policies of the company.

Also to counter Schwartz's previous assertion that Sun didn't have a sufficient reason to sue Google over intellectual property related to Java, Jacobs asked Sutphin if Sun's leadership team ever expressed concern that Sun did not have grounds to pursue Google with a lawsuit. Sutphin replied that there were never any such discussions.

To really nail down this line of argument, Jacobs asked if Sutphin's responsibilities changed prior to the Sun-Oracle merger. Sutphin explained that they did in October 2009, remarking that his responsibilities "significantly increased" while Schwartz's power was "significantly reduced."

Yet Van Nest stepped in during cross-examination and showed his cards to Sutphin -- specifically the 10-K filing with the U.S. Securities and Exchange Commission from 2008. Incidentally, Van Nest also pointed out that the 10-K form was also signed by McNealy, who was Sun's chairman of the board at the time.

Van Nest asked Sutphin if he was aware that the company was informing the U.S. government that the blog was an official medium for Sun.

Shrugging, Sutphin replied, "I don't read that statement from that language here."

During redirect questioning, Jacobs tried to refocus the blog post yet again. Sutphin confirmed that not all of Schwartz's blog posts were about "matters of substance" to Sun, citing that he could remember one post where Schwartz talked about an April Fools Day prank played on him.

In an effort to defend Schwartz's testimony and favor for the open source community, Van Nest also questioned Sutphin if ever heard Schwartz say, "The policy of Sun is to innovate, not litigate."

Sutphin affirmed that he had, explaining, "I do remember the company culture was not to be the plaintiff in litigation over intellectual property."

However, he added that "there were many exceptions to that needed to protect our rights."


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