Yesterday afternoon, the jury returned with the eighth note issued during the deliberation period, which asked, "What happens if we can't reach a unanimous decision and people are not budging?"
At an 8 a.m. PT hearing today, Alsup asked attorneys from both Oracle and Google for their thoughts about where to proceed from here.
Once again, both sides have polarizing views on this, citing precedent cases in both directions. On the one hand, Oracle wants to proceed to phase two of the trial if the jury can come to a partial verdict on the four questions they must answer on the verdict form.
Based on the questions already asked from the jury, it looks as though the jurors have found that Google did copy Oracle's intellectual property, but they might be still torn on whether or not it is a case of fair use.
However, Google's counsel Robert Van Nest made it crystal clear that Google wants all or nothing -- meaning a complete verdict or a mistrial.
"We do need to be careful about what we get," Van Nest cautioned. "If the jury fails to resolve an issue, the only correct result there is a mistrial on that divisible question and move on to the patent phase."
That's becoming a more possible road map in this case by the hour. Oracle's lead attorney Michael Jacobs cited a previous federal case that suggested five possible outcomes:
- Resubmit the issues for further deliberations
- Ask the parties to forgo unanimity and go with a majority vote
- Enter partial judgment
- Declare a mistrial
- Order a partial retrial to cover those issues not unanimously agreed upon
Jacobs was very wary of the last option, plotting an alternative could be if Oracle doesn't win copyright liability, we could go through the patent portion of the trial followed by a retrial on unresolved issues and new damages.
"That seems like it would be quite a journey," Jacobs sighed.
After hearing enough from both sides, Judge Alsup responded soundly with his arms folded, "I'm going to receive a partial verdict. I'm not going to let this court go to waste."
Nevertheless, the judge added quickly that isn't his official ruling yet and that he would look over the precedent cases provided by both legal teams.
Oracle is trying to preclude Schwartz's testimony from the next phase of the trial with a motion it filed at midnight. Yet at the hearing, Van Nest snapped back that he hadn't seen the motion yet. Thus, Judge Alsup gave Google a deadline of 6 p.m. tomorrow to file a response.
Although Van Nest said we won't see any "celebrities" in phase two, he did say it was a possibility that they would be calling Schwartz back to the stand, quipping "that is if you consider Mr. Schwartz a celebrity."
This item first appeared on ZDNet's Between the Lines blog under the headline "Oracle-Google trial could result in partial verdict or even mistrial."