District Judge Worries That Google or Oracle May Pay Commentators, Orders Disclosure Of Everyone Being Paid

August 8th, 2012

District Judge William Alsup in the Oracle v. Google case has ordered the parties to turn over the names of all commentators on the payroll.

The Court is concerned that the parties and/or counsel herein may have retained or paid print or internet authors, journalists, commentators or bloggers who have and/or may publish comments on the issues in this case. Although proceedings in this matter are almost over, they are not fully over yet and, in any event, the disclosure required by this order would be of use on appeal or on any remand to make clear whether any treatise, article, commentary or analysis on the issues posed by this case are possibly influenced by financial relationships to the parties or counsel.

Therefore, each side and its counsel shall file a statement herein clear identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action.

This is fascinating. He is worried about documents outside the record, which may be created by people on the payroll, affecting the issue on appeal. Perhaps this is a reason why appellate courts should be limited to the record. Documents created after the fact are influenced (whether paid or not) by a motivation to adopt a certain position.

It is no secret that Google pays bloggers and academics to state certain positions. Recently, Eugene Volokh acknowledged that Google commissioned him to write a paper about whether search results are protected by the First Amendment. However, not all writers, apparently, are so forthright.

I wonder if there are any First Amendment ground challenges here…