Oracle Corporation et al v. SAP AG et al

Filing 1056

Declaration of Tharan Gregory Lanier in Support of 1055 Opposition/Response to Motion, Defendants' Opposition to Oracle's Conditional Motion for New Trial filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 1055 ) (McDonell, Jason) (Filed on 4/8/2011)

Oracle Corporation et al v. SAP AG et al

Doc. 1056 Att. 2

Exhibit B
Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CERTIFIED COPY
BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE ) ) PLAINTIFFS, ) ) VS. ) ) SAP AG, ET AL., ) ) DEFENDANTS. ) ____________________________) ORACLE CORPORATION, ET AL. JURY TRIAL NO. C 07-01658 PJH VOLUME 5 PAGES 754 - 946 OAKLAND, CALIFORNIA MONDAY, NOVEMBER 8, 2010

TRANSCRIPT OF PROCEEDINGS

APPEARANCES: FOR PLAINTIFFS: BY: BINGHAM MUCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4607 ZACHARY J. ALINDER, HOLLY A. HOUSE, GEOFFREY M. HOWARD, DONN P. PICKETT, ATTORNEYS AT LAW BOIES, SCHILLER & FLEXNER LLP 1999 HARRISON STREET, SUITE 900 OAKLAND, CALIFORNIA 94612 DAVID BOIES, STEVEN C. HOLTZMAN, ATTORNEYS AT LAW

BY:

(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY:

RAYNEE H. MERCADO, CSR NO. 8258 DIANE E. SKILLMAN, CSR NO. 4909

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

823 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 ELLISON - FURTHER REDIRECT / BOIES THE COURT: AND THE -- THE -- IS MR. PICKETT NOT CORRECT THAT YOU HAD THIS PARTICULAR DATA, AND ARE YOU TELLING ME THAT YOU CHOSE NOT TO TAKE DISCOVERY ON THIS PARTICULAR DATA BECAUSE YOU THOUGHT THAT IT WAS BLOCKED BY JUDGE LAPORTE'S ORDER? MR. McDONELL: THE COURT: NO.

AND IF THAT'S THE CASE, I DON'T QUITE --

I DON'T UNDERSTAND HOW THAT WORKS. MR. McDONELL: HERE'S THE POINT, YOUR HONOR. BY THE

TIME IT BECAME KNOWN THAT ORACLE WAS SEEKING DAMAGES BEYOND LOST SUPPORT PROFITS, IT WAS FAR, FAR LATE IN THE FACT DISCOVERY PERIOD; IN FACT, JUST MONTHS FROM THE CLOSE OF FACT DISCOVERY. THE ISSUE GOT LITIGATED BEFORE JUDGE LAPORTE AND THEN LITIGATED BEFORE YOUR HONOR THROUGH THE OBJECTIONS, AND JUDGE LAPORTE FOUND THAT THIS WAS OUT OF BOUNDS, PERIOD. AND FOR

PURPOSES OF YOUR ADOPTING ORDER, WE UNDERSTOOD THAT YOU TOOK THAT EVEN ONE STEP TOWARDS FURTHER CLARIFICATION BY SAYING THIS IS NOT COMING IN THROUGH THE BACK DOOR EITHER. WE UNDERSTOOD THAT LOST UPSELL AND CROSS-SELL OPPORTUNITIES WERE OFF THE TABLE. DOCUMENTS. THE COURT: SO YOU THINK THE DISTINCTION BETWEEN THE YES, WE HAD SOME PROJECTION

ACTUAL SALES, WHICH IS WHAT I WAS CONCENTRATING ON, AS OPPOSED TO THE PROJECTED SALES -- YOU THINK THERE'S NO -- YOU HAVE CONSTRUED THE ORDER AS NOT PROVIDING A DISTINCTION BETWEEN THOSE
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

824 ELLISON - FURTHER REDIRECT / BOIES 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 TWO. MR. McDONELL: IT'S MORE THAT -- IT -- IT'S -- THE

SUBSTANCE I COME BACK TO IS WE DIDN'T HAVE ACTUAL DATA EITHER BEFORE OR AFTER THE DATE OF THE INFRINGEMENT. AND SO WE

COULDN'T ASSESS THE -- THE CREDIBILITY OF THE PROJECTIONS AT THE TIME THEY'RE MADE OR WITH THE BENEFIT OF HINDSIGHT, WHICH THE CASE LAW PERMITS. THE COURT: SO YOUR EXPERT DIDN'T LOOK AT THE

PROJECTIONS AND HAS NO OPINION AS TO THE MERIT OF THE PROJECTIONS? MR. McDONELL: HE HAS -- HE WILL HAVE OPINIONS. HE

WILL, HOWEVER, STATE THAT HE HAS BEEN -- AND HE HAS STATED THIS IN THE DECLARATION HE FILED WITH JUDGE LAPORTE, THAT HE'S BEEN SEVERELY LIMITATED (PHONETIC) -- LIMITED IN HIS ABILITY TO CHALLENGE HIM BECAUSE HE DOESN'T HAVE THE UNDERLYING DATA. AND HE IS -- AS A RESULT, THERE'S A FAIR AMOUNT OF PRESSURE ON OUR SIDE TO SIMPLY ACCEPT THEM. THE COURT: OKAY. I DON'T QUITE --

MR. PICKETT: THE COURT:

I NEED TO CORRECT -EXCUSE ME.

EXCUSE ME. SORRY.

MR. PICKETT: THE COURT:

I'M NOT EXACTLY SURE HOW I'M SUPPOSED TO

RESOLVE IT WITH ONE SIDE SAYING THE DATA HAS BEEN PROVIDED AND THE OTHER SIDE SAYING WE DON'T HAVE ACCESS AND HAVEN'T HAD ACCESS TO THE UNDERLYING DATA.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

825 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 THING. ELLISON - FURTHER REDIRECT / BOIES GENERALLY, THESE KINDS OF MATTERS ARE DETERMINED BEFORE TRIAL. WHEN THE MAGISTRATE JUDGE LAPORTE LOOKED AT I AFFIRMED IT. DIDN'T OCCUR

THESE, SHE MADE A DETERMINATION.

TO ME THAT THERE WAS THE DISTINCTION THAT YOU'RE NOW DRAWING.

YOU ALL NEED TO GIVE ME SOME ASSISTANCE IN DETERMINING HOW I'M SUPPOSED TO DECIDE AN ISSUE OF -- DISCOVERY ISSUE THAT SHOULD HAVE BEEN RESOLVED BEFORE TRIAL.
MR. PICKETT: LET ME BE CRYSTAL CLEAR ABOUT ONE

THIS DATA WAS PRODUCED PRIOR TO THEIR FILING THE RULE 37

MOTION WITH MAGISTRATE JUDGE LAPORTE. THE DEPOSITIONS OF MR. ELLISON, MS. CATZ, MR. PHILLIPS WERE PRIOR TO THEIR MOTION TO MAGISTRATE JUDGE LAPORTE. IF THEY HAD SOME QUARREL WITH WHAT THESE PROJECTIONS WERE OR WHETHER THERE WAS SOMETHING MORE THEY NEEDED, OR THERE WAS SOMETHING MISSING, WOULDN'T THEY HAVE TOLD JUDGE LAPORTE ABOUT IT RATHER THAN TRYING TO SWEEP THIS IN NOW AND SAY THAT WELL, PROJECTIONS, YOU KNOW, AREN'T GOOD ENOUGH. ARE PRECISELY THE ISSUE. KEEP IN MIND THE CASE LAW ON THIS HYPOTHETICAL NEGOTIATION. IT'S NOT BASED ON -- YOU KNOW, AFTER THE FACT. THAT'S THIS PROJECTIONS

IT'S BASED ON PROJECTIONS IN THE MIND AT THE TIME. EVIDENCE. THEY'VE HAD IT.

THEY'VE HAD AN OPPORTUNITY -- AND

IT'S FAR TOO LATE TO COME IN HERE NOW AND TRY AND CUT THIS OUT, PARTICULARLY WHEN THEY'VE OPENED THE DOOR AGAIN AND AGAIN AND
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

826 ELLISON - FURTHER REDIRECT / BOIES 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 AGAIN. MR. McDONELL: BEEN PRECLUDED. YOUR HONOR, LET'S COME BACK TO WHAT'S

JUDGE LAPORTE PRECLUDED THEM FROM PURSUING

CLAIMS FOR LOST UPSELL AND CROSS-SELL OPPORTUNITIES. OPPORTUNITIES. A PROJECTION OF WHAT THEY THINK THEY'RE GOING TO

GET IN CROSS-SELL AND UPSELL IS NOTHING MORE THAN A PROJECTION OF THAT OPPORTUNITY. IT'S AN EMBODIMENT OF THAT OPPORTUNITY.

JUDGE LAPORTE FOUND THAT WE HAD NOT HAD ADEQUATE DISCOVERY ON THAT ISSUE TO CHALLENGE IT ONE WAY OR THE OTHER. WE STILL HAVE NOT HAD IT. IT IS ABSOLUTELY WITHIN THE COURT'S

POWER AND AUTHORITY TO SIMPLY AFFIRM THAT RULING AND ALLOW PLAINTIFFS TO PROCEED WITH THEIR ALTERNATIVE THEORY THAT THEIR EXPERT'S READY TO PROCEED WITH HERE TODAY. THE COURT: MADE GOOD ARGUMENTS. RIGHT. RIGHT. WELL, I THINK YOU'VE BOTH

IT CLEARLY WASN'T CONTEMPLATED BY THE BUT I'M PERSUADED BY

COURT AT THE TIME OF THE PRETRIAL RULING. THE DEFENSE POSITION.

I THINK IT'S CLOSE ENOUGH -- I THINK

OPPORTUNITY IS CLOSE ENOUGH. I'M GOING TO REAFFIRM THE RULING. UPSELL,

CROSS-SELL, WHICH I HAVE DENIED ALL ALONG, CONTINUES TO BE DENIED. MR. McDONELL: MR. PICKETT: THANK YOU, YOUR HONOR. WILL WE AT LEAST BE ABLE TO MAKE AN

OFFER OF PROOF FOR THE RECORD, YOUR HONOR? THE COURT: SURE.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

946

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 TUESDAY, NOVEMBER 9, 2010 ___________________________________ DIANE E. SKILLMAN, CSR, RPR, FCRR ___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR CERTIFICATE OF REPORTER WE, RAYNEE H. MERCADO AND DIANE E. SKILLMAN, OFFICIAL REPORTERS FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C07-01658PJH, ORACLE USA, INC., ET AL. V. SAP AG, ET AL., WERE REPORTED BY US ON, MONDAY, NOVEMBER 8, 2010, CERTIFIED SHORTHAND REPORTERS, AND WERE THEREAFTER TRANSCRIBED UNDER OUR DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY US AT THE TIME OF FILING. THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE.

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