March 15, 2004 2:40 PM PST

Judge seeks expert witness in Oracle suit

A district court judge is seeking to appoint an expert witness or witnesses to aid the court in its review of the U.S. Department of Justice's antitrust lawsuit to block Oracle's proposed acquisition of PeopleSoft.

Although the type of expert was not disclosed in a Friday filing, U.S. District Judge Vaughn Walker may seek technology and economist experts, given his previous comments in court.

During the first case management conference at the U.S. District Court of Northern California last week, Walker expressed a desire to enhance his knowledge of technology.

"I'm not sure what these products are," Walker said. "I need to be brought up to speed."

He also noted the large gap that exists between the Justice Department and Oracle's definitions of a competitive market.

The two parties will have until Thursday to submit a written objection to the use of court-appointed experts. The Justice Department and Oracle declined to comment. A deputy clerk for the judge declined to comment other than to refer to the filing.

"It's not uncommon to use (court-appointed) expert witnesses in technology cases, especially when something is very complicated," said Stan Gorinson, an antitrust and business law partner with Kilpatrick Stockton. "The parties usually prefer it that way, too, because it gets away from the extraneous issues.

"The experts help the judge get up to speed on the basics and shift through conflicting technical information. Sometimes they have great influence (on the judge) and sometimes very little."

One of the more notable technology cases that involved the court designation of an expert was Judge Thomas Penfield Jackson's appointment of Stanford law professor Larry Lessig in 1997 to review issues in the Microsoft antitrust case. The judge was weighing the technical issues of whether the software giant had violated a 1995 court order by requiring Windows 95 licensees to bundle in its Internet Explorer browser.

A federal appeals court eventually removed Lessig from the case, after Microsoft attorneys found an old e-mail from him that exhibited a bias against the company. Lessig joked in the e-mail that he "sold his soul" after installing the company's browser on his computer.

One attorney who specializes in antitrust cases noted that it can be tricky for a judge to find someone in the technology industry who doesn't have strong feelings on the subject or who "hasn't chosen up sides."

Other attorneys specializing in antitrust said it's likely that the judge will select a court-appointed expert witness from academia.

"You're not going to appoint a competitor, because it'll be hard to say that person is neutral--and consulting houses have certain clients," Gorinson said. "People go to universities to help them get a handle on the issues. Some judges may ask the parties to recommend people, and some are savvy enough to make their own call."

 

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