Oracle Corporation et al v. SAP AG et al

Filing 1025

Declaration of M. Gary Funck in Support of 1021 Response filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Related document(s) 1021 ) (Froyd, Jane) (Filed on 12/23/2010) Modified on 12/27/2010 (kc, COURT STAFF).

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Oracle Corporation et al v. SAP AG et al Doc. 1025 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DECLARATION OF M. GARY FUNCK IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' PROPOSED FINAL JUDGMENT DECLARATION OF M. GARY FUNCK ISO DEFENDANTS' OPP. TO PLAINTIFFS' PROPOSED FINAL JUDGMENT Case No. 07-CV-1658 PJH (EDL) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, M. Gary Funck, declare as follows: (1) I am President and founder of Intrepid Technology, Inc. ("Intrepid"). Intrepid is a software consulting company with extensive experience in operating systems, development tools, and embedded systems software. During the past several years, numerous Silicon Valley companies have retained my services as well as the services of Intrepid to investigate and render opinions based upon analysis of electronic evidence. During such investigations, Intrepid practices and follows industry standards and procedures generally recognized for the collection and analysis of electronic evidence. I have over 30 years of experience working in various capacities in the computer industry. For the past 20 years, along with my business partner, Nenad Vukicevic, I have provided software development, technical, and litigation-related technical expert services through our firm, Intrepid Technology, Inc., based in Palo Alto, California. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. (2) During my work for this case, I examined some of Oracle's software, and gained an understanding of how the software installs on a computer. Like the installation of many software packages, I found that the component files for some of the Oracle software install in multiple locations on a computer. (3) Additionally, I reviewed content from the hard drives for approximately 82 TomorrowNow employees in order to locate Oracle code and/or files within that content. Through this costly and time consuming review, I determined that for many of the employees, the Oracle code and/or files only made up a small sub-set of the searched data, which included substantial amounts of non-Oracle data. (4) It is my understanding that Oracle also reviewed the same data for the same purpose. Based on a comparison of my results and Oracle's results, it appears that we employed similar methods to search the data, yet we still characterized certain files differently. And, after an extensive review of each other's findings and several exchanges between the parties in an attempt to reach agreement, we were unable to agree on the exact files that made up Oracle code and/or files. -1DECLARATION OF M. GARY FUNCK ISO DEFENDANTS' OPP. TO PLAINTIFFS' PROPOSED FINAL JUDGMENT Case No. 07-CV-1658 PJH (EDL) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (5) Based on these experiences, it is my conclusion that locating all of Oracle's intellectual property on a given hard drive with a high degree of certainty is an extremely difficult, and likely impossible, task. This is both because of the volume of data that has to be considered and searched, and the fact that it is not always apparent what piece of code or data is actually Oracle's. For example, some of Oracle's code and/or files will likely be attached to email messages that were exchanged among TomorrowNow employees. (6) Moreover, because the Oracle code and/or files are located on a hard drive with other non-Oracle data, it would be impossible to segregate and return only the Oracle code and/or files without returning the non-Oracle code and/or files on any given hard drives. To store data semi-permanently, computers write the data onto a hard drive. The hard drives contain several disks called platters. Platters are covered with magnetic coating. Hard drives also have a read/write head that writes the data onto the hard drive and subsequently reads the data when needed. The platters spin very quickly and the read/write heads pivot back and forth quickly to read information from any part of the hard drive. Due to the complexity of the systems involved and volume of data, it would be impractical and likely impossible to remove all remnants of nonOracle code and/or files on the hard drive platters at issue. There is no way to return a portion of data on a given hard drive, server, or database (i.e., platter) without returning the entire hard drive, server, or database (platter). I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 21st day of December, 2010 in Palo Alto, California. M. Gary Funck HUI-134747v1 -2- DECLARATION OF M. GARY FUNCK ISO DEFENDANTS' OPP. TO PLAINTIFFS' PROPOSED FINAL JUDGMENT Case No. 07-CV-1658 PJH (EDL)

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