Oracle and Amazon Web Services tangle over whether an in-house Oracle attorney should have access to filings in their dispute before the U.S. Court of Federal Claims.
Oracle has lost one fight in its legal battle over the Defense Department's $10 billion JEDI cloud contract over getting an in-house lawyer access to information regarding the case.
One of Oracle's key arguments to the Court of Federal Claims is that the JEDI solicitation favors Amazon Web Services. AWS then filed to join the case as an “intervenor," which basically makes them a co-defendant alongside DOD
So lawyers representing AWS now have access to all the documents -- even those sealed by a protective order -- just like those representing Oracle and DOD.
In one of those under-the-radar rules of bid protests, the companies involved in a protest don’t get unfettered access to the documents that are filed as part of the proceedings. This holds at both the Government Accountability Office and at the U.S. Court of Federal Claims.
Generally, the only people with access are external lawyers representing the companies and the government.
But sometimes there are exceptions and that is what Oracle looked for when it requested that one of its in-house attorneys be granted access.
As you can imagine, that didn’t go over well with AWS.
Oracle wanted access for Peggy Bruggman, an attorney with the company since 2005 who specializes in litigation and other disputes. She also advises the company on mergers and acquisitions. She is not involved in any competitive decision making, the company said.
She also said she would only access the JEDI material at Arnold & Porter, the outside counsel working on the lawsuit for Oracle.
AWS strongly objected in a 22-page motion against Oracle’s request.
AWS said Oracle already had five lawyers working on the lawsuit and didn’t need an in-house attorney when it took the protest to GAO. (Oracle lost that protest before taking the case to the Court of Federal Claims.)
As the JEDI procurement is ongoing, there will be a lot of competitive information being filed with the court, which is why only outside counsel has access to the filings.
AWS doesn’t question Bruggman’s integrity but is worried about an “inadvertent disclosure” because her office is near those of other Oracle employees working on the JEDI procurement and other business deals.
“The inability of humans to compartmentalize is of particular importance here because Ms. Bruggman’s responsibilities include the review of Oracle’s product design, marketing or financial documents,’” AWS writes.
Judge Eric Bruggink agreed with AWS and denied Oracle’s request.
Oracle has not “made a sufficient showing of need to overcome the risks of inadvertent disclosure,” Bruggink wrote. “In the absence of any persuasive reason to expand the already substantial list of admittees, the court finds that the hazards flowing from an inadvertent disclosure are an unwarranted risk,” the judge wrote.
So this little battle goes to AWS, but the war isn’t over yet.