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. 5

Exhibit E
Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 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 9 PAGES 1512 - 1695 OAKLAND, CALIFORNIA TUESDAY, NOVEMBER 16, 2010

CERTIFIED COPY
TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BY: BINGHAM MCCUTCHEN 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]

1530 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 CLARKE - DIRECT / MITTELSTAEDT DIRECT EXAMINATION BY MR. MITTELSTAEDT: Q. A. MR. CLARKE, GOOD MORNING. WHAT IS YOUR ROLE IN THIS CASE?

IT WAS TO CALCULATE THE DAMAGES THAT ORACLE HAD SUFFERED AS

A RESULT OF COPYRIGHT INFRINGEMENT AND ALSO TO LOOK AT MR. MEYER'S ANALYSIS OF THAT SAME ISSUE AND COMMENT ON IT AS I SAW FIT. Q. BEFORE WE GET INTO THAT, LET'S GET SOME BACKGROUND ON YOU.

COULD YOU TELL THE JURY WHEN AND WHERE YOU WERE BORN? A. I WAS BORN IN A SMALL TOWN CALLED WIGAN NEAR MANCHESTER IN THE -- DID YOU JUST SAY WHEN, TOO?

ENGLAND. Q. A. Q. A. YES. 1950.

AND WOULD YOU TELL US ABOUT YOUR EDUCATION BRIEFLY, PLEASE. I STARTED HIGH SCHOOL IN THAT -- IN THAT LITTLE TOWN IN WE START WHEN WE'RE 11 YEARS OLD IN ENGLAND IN HIGH I GRADUATED FROM THERE IN '69 AND WENT TO MANCHESTER

1961.

SCHOOL.

UNIVERSITY, AND AT THE SAME TIME I WAS AT MANCHESTER, I ALSO JOINED THE ROYAL AIR FORCE. SO STRAIGHT OUT OF HIGH SCHOOL, I

JOINED THE ROYAL AIR FORCE, SO I WENT THE COLLEGE WHILE I WAS IN THE ROYAL AIR FORCE AS A PILOT. Q. A. AND AFTER COLLEGE, WHAT DID YOU DO? I THEN WENT TO THE EQUIVALENT OF THE U.S. AIR FORCE ACADEMY.

IT'S CALLED THE ROYAL AIR FORCE COLLEGE CRANWELL LEARNED TO BE AN OFFICER IN THE ROYAL AIR FORCE.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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

Q. A. Q. A.

1531 CLARKE - DIRECT / MITTELSTAEDT AND HOW LONG DID YOU SERVE IN THE AIR FORCE AFTER COLLEGE? AFTER COLLEGE, IT WAS ABOUT TWO MORE YEARS. AND AFTER THE AIR FORCE, WHAT DID YOU DO? I BECAME -- I WENT FROM THE SUBLIME TO THE RIDICULOUS. I --

I BECAME A CHARTERED ACCOUNTANT IN LONDON. Q. AND WOULD YOU DESCRIBE TO US THE PROCESS OF BECOMING A

CHARTERED ACCOUNTANT, AND ACTUALLY TELL US WHAT THAT IS, TOO. A. YES. THE -- A CHARTERED ACCOUNTANT IS A LOT LIKE A C.P.A. AND IT'S VERY

IT'S A SOMEWHAT MORE INTERNATIONAL QUALIFICATION. DIFFICULT TO BECOME ONE.

AND IT'S A THREE-YEAR TRAINING WHERE

YOU'RE -- WE CALLED IT ARTICLED, SO YOU'RE -- YOU HAVE A LEADER WHO IS RESPONSIBLE FOR TAKING YOU THROUGH YOUR CAREER AND TEACHING YOU HOW TO BE AN ACCOUNTANT. Q. A. AND DURING THAT PERIOD, WHAT KIND OF WORK WERE YOU DOING? MY MAIN ROLE WAS TO -- AT FIRST TO DO ACCOUNTING FOR SMALLER I WOULD TRAVEL AROUND LONDON AND SHOW UP FOR A DAY AND AT THE SAME TIME, I

COMPANIES.

OR TWO HOURS AND DO THEIR ACCOUNTING. WAS LEARNING TO DO AUDIT WORK.

SO LATER, ONCE I FIGURED OUT THE

ACCOUNTING, I STARTED TO DO AUDITING, TRAVELING AROUND FROM ONE COMPANY TO ANOTHER TO SEE WHETHER THE BOOKS WERE BEING PROPERLY KEPT. Q. A. OKAY. AND WHAT WAS YOUR NEXT JOB?

AFTER -- AFTER I BECAME A CHARTED ACCOUNTANT AND FULLY

QUALIFIED, I JOINED A SMALL AIRLINE IN -- JUST NORTH OF LONDON AT STANSTED AIRPORT AND, AND I WAS THEIR CONTROLLER -- IT'S WHAT
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1532 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 CLARKE - DIRECT / MITTELSTAEDT WE WOULD CALL THE CONTROLLER IN THE UNITED STATES. Q. A. YOUR NEXT JOB? MY NEXT JOB WAS WITH 20TH CENTURY FOX. I ALWAYS WANTED TO

WORK IN A FOREIGN COUNTRY, SO I STARTED APPLYING TO FOREIGN COMPANIES AND GOT A JOB WITH 20TH CENTURY FOX. ME TO THE UNITED STATES IN 1980. Q. A. WHAT KIND OF WORK WERE YOU DOING FOR 20TH CENTURY FOX? I DID PREDOMINANTLY AUDIT WORK AGAIN, BUT VERY MUCH OF AN I TRAVELED TO MANY COUNTRIES TO SEE AND THEY MOVED

INTERNATIONAL NATURE.

WHETHER SOMEONE WAS STEALING FROM THE COMPANY, AND THEY USUALLY WERE. AND IN THE PROCESS OF DOING THAT WORK, I OFTEN HAD TO APPROVE ROYALTY PAYMENTS, SO I WAS WORKING WITH THE CONTRACTS AND THE LICENSE AGREEMENTS TO COMPUTE HOW MUCH THE DIRECTORS AND THE STARS SHOULD BE PAID FOR THEIR -- THEIR WORK ON THE -- ON THE SHOWS. Q. A. Q. AND WHEN DID YOU GET INTO THE CONSULTING BUSINESS? THAT WAS 1984 OR SO. OKAY. MAYBE '85.

AND CAN YOU TELL US WHAT KIND OF CONSULTING YOU DID

AT THE START? A. YES, WHEN I FIRST STARTED CONSULTING, I WAS PREDOMINANTLY

HELPING COMPANIES IMPROVE THEIR OPERATIONS, JUST TRYING TO MAKE THEM RUN BETTER, MORE EFFICIENTLY, MAKE MORE PROFIT, AND ADVISING THEM, IN MANY CASES, ON THEIR SYSTEMS, THEIR ACCOUNTING SYSTEMS AND COMPUTER SYSTEMS.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1533 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 Q. A. CLARKE - DIRECT / MITTELSTAEDT AND WHAT KIND OF CONSULTING DID YOU DO AFTER THAT? MY CLIENTS KEPT GETTING BIGGER AND BIGGER AS TIME WENT BY, BUT

SO I CONTINUED WITH THAT INITIAL WORK FOR ABOUT FIVE YEARS.

THEN, I SAW SOME OF MY COLLEAGUES DOING THIS KIND OF WORK, AND I THOUGHT IT WAS A VERY ATTRACTIVE PROPOSITION, SO I STARTED TO MARKET MYSELF TO DO EXPERT WITNESS WORK IN ECONOMICS AND ACCOUNTING AND BUSINESS GENERALLY. Q. AND IN THE COURSE OF BEING A CONSULTANT OR OTHERWISE, HAVE

YOU ACTUALLY RUN ANY BUSINESSES YOURSELF? A. I'VE RUN MANY BUSINESSES OVER THE YEARS, SOME IN THE CONTEXT

OF A BANKRUPTCY OR A RECEIVERSHIP WHERE I STEP INTO THE PLACE OF MANAGEMENT. FOR A TIME. I HAD CLIENTS THAT JUST WANTED ME TO HELP THEM RUN THEIR OPERATIONS, SO I DID QUITE A LOT OF THAT, AS WELL AS RUNNING MY OWN COMPANY EVENTUALLY. Q. AND CAN YOU -- CAN YOU GIVE US AN IDEA OF SOME OF THE KINDS I ENDED UP RUNNING SOME OF THESE SMALLER COMPANIES

OF BUSINESSES THAT YOU'VE OPERATED? A. YES. THE MOST FUN I EVER HAD WAS RUNNING A PROFESSIONAL

SPORTS FRANCHISE AND BEING INTERVIEWED ON A T.V. EVERY NIGHT. THAT WAS GREAT FUN. THERE WAS A VIDEO VENDING MACHINE COMPANY THAT I RAN. THESE DAYS YOU'D CALL IT RED BOX, BUT THESE MACHINES WERE MUCH BIGGER BECAUSE WE ONLY HAD VIDEOTAPES BACK THEN, SO THEY DIDN'T HOLD AS MANY -- AS MANY MOVIES.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1534 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 RUNNING. DO IT. Q. YES. CLARKE - DIRECT / MITTELSTAEDT IS THAT ENOUGH EXAMPLES? IN THE COURSE OF YOUR WORK, HAVE YOU ANALYZED ANY

BUSINESSES -- THE VALUE -- HAVE YOU VALUED BUSINESSES, TRANSACTIONS, AND LICENSES? A. Q. I HAVE. AND CAN YOU GIVE US -- TELL US THE SCOPE OF WHAT YOU'VE

DONE? A. YES. I'VE FIRST VALUED A BUSINESS IN, I THINK, 1969. IT

WAS ONE OF THE THINGS ONE OF MY PROFESSORS WAS DOING ON THE SIDE. SO YOU KNOW MOST PROFESSORS WORK OUTSIDE THEIR AND HE HAD A BUSINESS OF -- OF VALUING

PROFESSORSHIP.

BUSINESSES AND IMPROVING THEM, WHICH IS WHAT GOT ME -- GOT ME STARTED ON THIS BUSINESS IMPROVEMENT APPROACH TO MY WORK. AND SO I FIRST DID A VALUATION IN '69, HELPED HIM TO OF COURSE HE HAD TO SIGN IT. AND SINCE THEN, I'VE

PROBABLY DONE -- PROBABLY BETWEEN A THOUSAND AND 1500 VALUATIONS. THERE. SO SOME OF THEM WERE RUN -- COMPANIES THAT WERE SOME OF THEM WERE COMPANIES THAT WERE SORT OF ALMOST AND SOME OF THEM HAVE BEEN ASSETS, SUCH AS I'VE NEVER COUNTED THEM, BUT IT WOULD BE WAY UP

DEAD, IF YOU LIKE.

THE ASSETS THAT WE'RE TALKING ABOUT IN -- IN THIS PARTICULAR CASE. Q. A. HAVE YOU HAD EXPERIENCE VALUING INTELLECTUAL PROPERTY? YES. MANY TIMES.

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

1535 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 EXPERT. BY MR. MITTELSTAEDT: Q. OKAY. LET'S TURN TO THIS CASE NOW. WOULD YOU DESCRIBE IN LICENSES? A. I DO. MR. BOIES: EXPERT WITNESS. THE COURT: TO BE EXAMINING? ALL RIGHT. DO YOU WISH TO -- WHO'S GOING YOUR HONOR, WE OFFER MR. CLARKE AS AN Q. CLARKE - DIRECT / MITTELSTAEDT CAN YOU -- MANY TIMES? AND DO YOU HAVE ANY EXPERIENCE IN NEGOTIATING

MR. BOIES? IS THERE A PARTICULAR AREA OF EXPERTISE?

MR. BOIES:

THERE ARE CERTAIN THINGS WE WOULD NOT OBJECT TO, BUT THERE WOULD BE CERTAIN -THE COURT: MR. MITTELSTAEDT, YOU'RE OFFERING HIM FOR

EXPERT IN WHAT PARTICULAR AREA? MR. MITTELSTAEDT: DAMAGE CALCULATIONS ON THE

HYPOTHETICAL NEGOTIATION AND ON CALCULATING LOST PROFITS AND INFRINGER'S PROFITS. MR. BOIES: THE COURT: MR. BOIES: THE COURT: ALL RIGHT. ALL RIGHT. NO OBJECTION ON THAT BASIS. DO YOU WISH TO VOIR DIRE?

NOT AT THIS TIME. ALL RIGHT. HE WILL BE ACCEPTED AS AN

GENERAL WHAT WORK YOU DID ON THIS CASE. A. YES. THE FIRST THING I DID WAS TO START GATHERING

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

1536 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 DOCUMENTS. CLARKE - DIRECT / MITTELSTAEDT THE WORK IS BASED ALMOST ENTIRELY ON DOCUMENTS. AND

IN THIS CASE, THERE WAS A MOUNTAIN OF -- OF DOCUMENTS THAT WE GATHERED, 12 AND A HALF MILLION PAGES OF DOCUMENTS, IS WHAT WE GOT, WHICH IS A PILE ABOUT A MILE AND A HALF HIGH IF YOU JUST STACK IT UP. AND WE STARTED TO ANALYZE THAT INFORMATION.

LATER ON, WE GATHERED MORE INFORMATION FROM THE COMPANIES ABOUT THEIR OPERATIONS, THEIR FINANCIAL CONDITION, THE AMOUNT OF PROFIT THAT THEY MAKE. AND ALSO DURING THAT LATER

TIME, DEPOSITIONS WERE BEING TAKEN WHERE SOMEBODY WOULD TELL EITHER WHAT THEY KNEW AND WHAT THEY'D SAID AND DONE, OR THEY WERE TESTIFYING ON BEHALF OF THE COMPANY AND SAYING THIS IS WHAT THE COMPANY DID. THOSE, TOO. AND THEN THERE WERE CUSTOMERS' DECLARATIONS, SOME OF WHICH TALKED ABOUT HOW THEY MADE THE DECISION TO GO TO TOMORROWNOW OR MAKE SOME OTHER DECISION. IN ADDITION, I SHOULD POINT OUT THAT VIRTUALLY ALL OF THE INFORMATION I WAS LOOKING AT WAS REALLY FOCUSED ON THE 358 TOMORROWNOW CUSTOMERS AND THE 86 SAP CUSTOMERS. Q. A. Q. NOW, MR. CLARKE, WHY WERE YOU FOCUSING ON THE CUSTOMERS? THIS CASE IS ALL ABOUT CUSTOMERS. WHEN YOU REFERRED TO THE 12 AND A HALF MILLION PAGES, DID SO I READ THOSE. AND THERE WERE MANY OF

YOU HAVE ANYONE HELP YOU REVIEW THAT INFORMATION? A. Q. I DID. AND HOW MANY STAFF MEMBERS DID YOU HAVE WORKING ON THIS FROM

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

1537 CLARKE - DIRECT / MITTELSTAEDT 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 TIME TO TIME? A. AT ANY ONE TIME, THERE MIGHT HAVE BEEN 50 PEOPLE WORKING ON OVERALL, JUST BEFORE MY DEPOSITION, WHICH WAS AND THERE WERE 121 DIFFERENT PEOPLE YOU CAN IMAGINE WITH THAT VOLUME

THIS ENGAGEMENT.

IN JUNE, I COUNTED THEM UP.

WHO WORKED ON THE ENGAGEMENT.

OF INFORMATION TO LOOK AT, IT'S JUST VERY TIME-CONSUMING, SO WE HAD A LARGE TEAM OF PEOPLE. Q. OKAY. WANT TO TALK A LITTLE BIT MORE ABOUT WHY YOU WERE YOU MENTIONED 358

FOCUSING ON THE CUSTOMER INFORMATION.

TOMORROWNOW CUSTOMERS AND 86 SAP CUSTOMERS. WHY DIDN'T YOU JUST CALCULATE THAT THE DEFENDANTS OWED COMPENSATION TO ORACLE FOR ALL OF THOSE CUSTOMERS? A. BECAUSE WE SHOULD ONLY CALCULATE THE DAMAGES THAT AROSE AS A NOW, IT'S NOT AN

RESULT OF WHAT'S BEING ALLEGED IN THE CASE. ALLEGATION ANY LONGER. WERE INFRINGED.

IT'S AN ADMISSION, THAT THE COPYRIGHTS

SO IT'S WHAT HAPPENED AS A RESULT OF THAT INFRINGEMENT THAT'S WHAT MATTERS. AND THE ONLY WAY TO DO THAT YOU HAVE TO TRY AND IF THEY -- IF THEY WENT

IS TO LOOK AT ONE CUSTOMER AT A TIME. DETERMINE WHY THEY DID WHAT THEY DID.

TO TOMORROWNOW OR WENT TO SAP FOR REASONS COMPLETELY UNRELATED TO THE INFRINGEMENT, THEN THERE WOULD BE NO DAMAGES, AND EACH CUSTOMER IS UNIQUE. SO THE ONLY WAY TO DO THAT IS TO GATHER THE INFORMATION ONE CUSTOMER AT A TIME AND TRY TO UNDERSTAND THAT
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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

1589 CLARKE - DIRECT / MITTELSTAEDT SINCE YOU ASKED. THIS IS THE TOTAL AMOUNT OF THE LOST SUPPORT PROFITS, THE 19.3 MILLION. Q. YES. OKAY. WHAT WAS YOUR APPROACH IN GENERAL IN

CALCULATING THE LOST PROFITS? A. GENERALLY, WHAT I DID WAS -- AND WE REFERRED TO THIS A FEW I LOOKED AT THE CUSTOMER INFORMATION THAT I HAD AND BY LOOKING AT

TIMES ALREADY.

TO TRY TO DETERMINE WHY THEY LEFT ORACLE.

THIS INFORMATION, I WAS ABLE TO SAY THAT SOME OF THESE CUSTOMERS LEFT FOR REASONS OTHER THAN THE ALLEGED ACTIONS, THE COPYRIGHT INFRINGEMENT. AND SO IF THEY DID LEAVE FOR REASONS OTHER THAN

THE INFRINGEMENT, I TOOK THEM OUT OF MY ANALYSIS AND DID NOT COMPUTE ANY LOST PROFITS ON THOSE. Q. WHEN YOU LOOKED AT ALL THIS INFORMATION ABOUT CUSTOMERS AND

WHY THEY MADE THE DECISIONS THAT THEY DID, HOW DID YOU GO ABOUT ORGANIZING THAT DATA FOR ALL THOSE CUSTOMERS? MR. BOIES: YOUR HONOR, WE OBJECT TO HIM TESTIFYING THAT IS OUTSIDE HIS EXPERTISE.

AS TO WHY CUSTOMERS LEFT ORACLE.

SPECULATING AS TO WHAT WAS IN THE MINDS OF THE CUSTOMERS AND WHY THEY LEFT IS NOT SOMETHING THAT'S PROPER FOR HIS TESTIMONY. WE HAVE NO OBJECTION TO HIS TESTIFYING AS TO THE CONSEQUENCES OF A PARTICULAR CUSTOMER LEAVING OR NOT LEAVING. THAT IS DAMAGE CALCULATION WITHIN HIS EXPERTISE. THE COURT: RESPONSE?
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

OKAY.

ALL RIGHT.

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 SIDEBAR:) RULES. FIRST.

1590 CLARKE - DIRECT / MITTELSTAEDT MR. MITTELSTAEDT: YES, HE HAS REVIEWED -- AND I CAN LAY A BETTER FOUNDATION. THE COURT: PLEASE. WELL, NO, MAKE AN OFFER OF PROOF

MR. MITTELSTAEDT:

YEAH, THE OFFER OF PROOF IS THAT

HE REVIEWED, ALONG WITH HIS STAFF, ALL OF THESE RECORDS RANGING FROM CUSTOMER STATEMENTS, CUSTOMER EMAILS, ORACLE DOCUMENTS, TOMORROWNOW DOCUMENTS. HE LOOKED AT ALL OF THOSE DOCUMENTS AND

REACHED THE CONCLUSION -- REACHED AN OPINION ON WHICH CUSTOMERS WOULD HAVE LEFT, WHICH ONES ARE WITHIN THE CAUSATION POOL, AND REACHED AN OPINION ON THAT. THE COURT: ALL RIGHT. AND I NEED TO SET SOME GROUND

I'D LIKE TO TALK TO BOTH COUNSEL AT SIDE BAR. (THE FOLLOWING PROCEEDINGS WERE HEARD AT THE

THE COURT:

OKAY.

NOW, WITH REGARD TO THE FIVE

EXHIBITS THAT YOU OBJECTED TO EARLIER, OR YOU DIDN'T, BUT MR. PICKETT DID, I'VE ALREADY INDICATED HE CAN REFER TO THOSE. HE CAN REFER TO THE CALCULATIONS. MR. BOIES: THE COURT: YES. THOSE DECLARATIONS CONTAIN THE REASONS

WHY THEY LEFT, SO I DON'T QUITE UNDERSTAND HOW TO WORK AROUND THAT. I MEAN, I'VE ALREADY MADE A RULING WITH REGARD TO THOSE

WITH REGARD TO COWLITZ -- I MEAN, THERE ARE ANY NUMBER OF PIECES OF EVIDENCE THAT ARE ALREADY IN OR WHICH I'VE ALREADY APPROVED
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1591 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 CLARKE - DIRECT / MITTELSTAEDT THAT GO TO THAT WHOLE QUESTION OF REASONS. MR. BOIES: EXACTLY. AND I THINK THE JURY CAN

CONCLUDE FROM THAT THAT CUSTOMERS EITHER DID OR DID NOT LEAVE BECAUSE OF TOMORROWNOW OR FOR SOME OTHER REASON. THAT'S A

DECISION FOR THE JURY TO MAKE BASED ON THE EVIDENCE THAT IS ADMITTED. WHAT I DON'T THINK HE CAN DO IS I DON'T THINK HE CAN SPECULATE AS TO WHAT WAS IN THE CUSTOMERS' MINDS. IN OTHER

WORDS, WHAT THEY'RE ASKING HIM TO DO AND -- AND I THINK -- I THINK COUNSEL PUT IT VERY DIRECTLY, HE -- HE AND THE STAFF LOOKED AT LOTS OF DOCUMENTS. HE'S NOW PURPORTING TO COME IN AND TELL THE JURY, BASED ON LOOKING AT ALL THESE DOCUMENTS, THIS IS WHAT I CONCLUDE IS THE REASON THAT THEY LEFT. THAT'S EXACTLY WHAT I THINK

EXPERTS ARE NOT PERMITTED TO DO, WHICH IS TO TAKE A LOT OF HEARSAY EVIDENCE AND COME IN AND SAY, THIS IS WHAT I CONCLUDE A CUSTOMER WOULD OR WOULD NOT HAVE DONE. THE COURT: HE'S NOT AN EXPERT --

EXCEPT HE HAS MADE THE DETERMINATION THAT

A SIZABLE NUMBER OF CUSTOMERS WOULD HAVE LEFT FOR OTHER REASONS. THAT'S THE BASIS OF HIS ANALYSIS. OKAY? HE HAS TO BE ABLE TO

TESTIFY AS TO HOW HE KNOWS THAT THEY WOULD HAVE LEFT, EITHER THROUGH INFORMATION THAT WAS PROVIDED, THROUGH DISCOVERY THAT WAS PROVIDED -- HE HAS TO BE ABLE TO TESTIFY AS TO HOW HE WAS ABLE TO COME TO HIS CONCLUSION. WHILE I AGREE WITH YOU THAT THE ACTUAL REASONS CAN'T
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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

1592 CLARKE - DIRECT / MITTELSTAEDT COME THROUGH HIS MOUTH, I MEAN, THOSE ARE THE AT-RISK REPORTS, REASONS, ET CETERA. THE ACTUAL REASONS HE CANNOT TESTIFY ABOUT.

BUT HE HAS TO BE ABLE TO TESTIFY AS TO THE FACT THAT HE HAD EVIDENCE UPON WHICH TO MAKE A CONCLUSION THEY WOULD -(SIMULTANEOUS COLLOQUY.) MR. BOIES: YEAH, AND I AGREE THAT HE CAN, FOR

EXAMPLE, SAY THAT IF THE JURY CONCLUDES THAT ALL OF THESE PEOPLE EXCEPT FOR FOUR WOULD HAVE LEFT, THEN THE DAMAGE CONSEQUENCES ARE THIS. I AGREE HE CAN TESTIFY TO THAT. THAT'S WHAT HE'S UP

HERE TO DO. BUT WHAT I THINK HE CAN'T DO IS SAY ALL OF THESE CUSTOMERS EXCEPT THESE FOUR WOULD HAVE LEFT BECAUSE THAT IS WHAT IS REQUIRING HIM TO MAKE A JUDGMENT AS TO WHY THE CUSTOMERS HAVE LEFT AND -THE COURT: BUT HE'S ALREADY TESTIFIED 84 OF THE 86, UPON WHAT DOES HE -- DOES HE

RIGHT, LEFT FOR OTHER REASONS? BASE THAT CONCLUSION?

IT'S OBVIOUSLY SOMETHING THAT'S BEEN IT'S WHAT HE'S RELIED UPON, AND HE HAS

PROVIDED IN THE RECORD.

TO BE ABLE TO TESTIFY TO THAT. MR. BOIES: EXCEPT I'M -- I'VE ALWAYS BELIEVED --

THIS WAS THE POINT I WAS MAKING THIS MORNING, IS THAT WHEN HE GETS UP TO TESTIFY AS TO HOW MANY CUSTOMERS WOULD OR WOULD NOT HAVE LEFT, THAT'S SOMETHING THAT'S WAY BEYOND HIS EXPERTISE AND INAPPROPRIATE FOR AN EXPERT TO BE TESTIFYING TO. THE COURT: BUT HE CAME TO THAT CONCLUSION.

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

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

1593 CLARKE - DIRECT / MITTELSTAEDT MR. BOIES: I KNOW, BUT WHAT I'M SAYING IS HE DOESN'T HAVE A BASIS FOR COMING TO THAT CONCLUSION, AND HE CERTAINLY -THE -- THE FACT THAT HE READ ALL THESE DOCUMENTS -- I MEAN, SEE, THE THING IS WE NOW KNOW FROM THE OFFER OF PROOF THAT WAS JUST MADE THAT WHAT HE'S GOING TO DO IS HE'S GOING TO TESTIFY THAT HE READ ALL THESE DOCUMENTS, HIS STAFF READ ALL THESE DOCUMENTS, AND BASED ON ALL THESE DOCUMENTS, HE CONCLUDES THAT THESE PEOPLE WOULD HAVE -- CERTAIN PEOPLE WOULD HAVE LEFT. THE COURT: MR. BOIES: THAT'S WHAT HE'S GOING TO TESTIFY. I KNOW, BUT WHAT I'M SAYING IS I THINK

THAT IS WHAT IS NOT POSSIBLE FOR AN EXPERT TO DO, PARTICULARLY AN EXPERT THAT DOESN'T HAVE ANY -THE COURT: TESTIFYING TO THAT. I AM NOT GOING TO DISALLOW HIM FROM

I'M NOT GOING TO TELL -- I'M NOT GOING TO THAT IS THE ESSENCE

ORDER DEFENSE TO NOT ASK HIM THAT QUESTION.

OF THE DEFENSE CASE, AND I'VE ALREADY SAID THE UNDERLYING EVIDENCE CAN (SIC) COME IN, SUCH AS THE CUSTOMER STATEMENTS THEMSELVES. REASONS. SO YOU'RE RIGHT, HE CANNOT TESTIFY AS TO THE

HE CAN ONLY TESTIFY AS TO HIS CONCLUSION THAT THEY

WERE NOT RELATED TO THE INFRINGEMENT. THERE WERE OTHER REASONS WITH THE EXCEPTION OF FEW DOCUMENTS THAT I'VE SAID THAT YOU CAN GET IN AND THE FEW CUSTOMERS THAT WE'VE ALREADY HEARD TESTIFY, FOR INSTANCE. OKAY. SO HE CAN TESTIFY AS TO HIS CONCLUSIONS THAT

THEY WOULD HAVE GONE -- I MEAN, THAT'S THE BASIS FOR YOUR
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1594 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 SAYING. CALCULATION. CLARKE - DIRECT / MITTELSTAEDT OKAY. YEAH, I UNDERSTAND WHAT THE COURT'S

MR. BOIES:

I THINK -- ANOTHER POSSIBLE WAY TO DO IT WOULD BE TO

ALLOW HIM TO TESTIFY TO HIS DAMAGE CONCLUSIONS SAYING THIS IS BASED ON THE ASSUMPTION THAT THESE MANY CUSTOMERS WOULD HAVE LEFT. THE COURT: I THINK HE CAN GO ONE STEP FURTHER THAN

THAT AND SAY THAT HE CONCLUDED THAT THEY WOULD HAVE LEFT FROM OTHER REASONS, FOR REASONS THAT ARE CONTAINED IN ALL OF THE VOLUMINOUS DOCUMENTS THAT HE -MR. BOIES: THE COURT: MR. BOIES: THE COURT: THAT'S IN EVIDENCE IN THE CASE. THAT'S RIGHT. BUT HE CAN'T GO INTO THE REASONS. YES, I AGREE WITH THAT, WITH THE

EXCEPTION OF THE FEW DOCUMENTS THAT CAN BE EXAMINED SUCH AS THE DECLARATIONS, HE CANNOT GIVE THE REASONS EXCEPT OTHER THAN THEY WERE FOR REASONS OTHER THAN THE INFRINGEMENT OR WANTING TO GO TO TOMORROWNOW OR WHATEVER WAY YOU WANT TO FRAME IT. DO YOU UNDERSTAND THAT? HE CAN GIVE US HIS

CONCLUSIONS THAT THE EVIDENCE THAT HE HAS BEEN GIVEN SUPPORTS HIS CONCLUSION THAT THEY WOULD HAVE GONE FOR OTHER REASONS. MR. MITTELSTAEDT: THE COURT: OKAY. YEAH. BUT THE ACTUAL REASONS, SUCH AS

ALL OF THOSE REASONS THAT ARE GIVEN ON THE AT-RISK REPORT, HE CAN'T TESTIFY TO THOSE REASONS.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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 CAN DO.

1595 CLARKE - DIRECT / MITTELSTAEDT MR. MITTELSTAEDT: BUT IT'S STUFF THAT HE COULD RELY ON AS AN EXPERT -THE COURT: YES. -- TO HELP HIM FORM HIS OPINION.

MR. MITTELSTAEDT: THE COURT: YES.

MR. MITTELSTAEDT:

WHICH IS -- I MEAN, IT MAY NOT

COME IN FOR THE TRUTH OF THE MATTER, BUT I WANT TO ASK HIM WHAT'S THE BASIS FOR THAT CONCLUSION. MR. BOIES: THAT'S EXACTLY WHAT I -- I DON'T THINK HE

HE CAN'T GIVE THE REASONS, WHETHER YOU TALK ABOUT IT THAT'S

FOR TRUTH OR FOR THE BASIS, HE DOESN'T HAVE EXPERTISE.

WHY I WANTED TO KNOW WHAT THE SCOPE OF THEIR -- SCOPE OF THEIR OFFER OF EXPERTISE WAS. THE COURT: HE CAN GIVE THE REASONS THAT THEY HAD OKAY. BUT THE

NOTHING TO DO WITH TOMORROWNOW'S INFRINGEMENT.

ACTUAL DETAILS OF IT, YOU KNOW, THE DETAILS THAT ARE THOSE THINGS THAT ARE INCLUDED IN THE AT-RISK REPORT, HE CAN'T GET INTO THOSE BECAUSE THAT'S JUST ANOTHER WAY OF GETTING THE HEARSAY IN. MR. MITTELSTAEDT: OKAY. THERE ARE THREE OR FOUR

CUSTOMERS FOR WHICH WE HAVE ORACLE DOCUMENTS -- AND I'M JUST PREVIEWING THAT -- WITH SOME OF THOSE DEPENDING ON HOW THE EXAMINATION GOES, I MAY ASK HIM TO COMMENT ON THOSE, 'CAUSE I THINK THE DOCUMENT -- THE UNDERLYING DOCUMENT IS ADMISSIBLE. MR. CUMMINS IS THE AUTHOR OF AT LEAST TWO OF THEM, AND HE'S A
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1596 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 CLARKE - DIRECT / MITTELSTAEDT HIGH ENOUGH LEVEL, I THINK, THOSE COME IN AS ADMISSIONS. THE COURT: IT'S THE CUSTOMER -MR. MITTELSTAEDT: THE COURT: UNDERSTOOD. THOSE, I DON'T HAVE ANY PROBLEM WITH.

IT'S THE CUSTOMER INFORMATION I HAVE -UNDERSTOOD.

MR. MITTELSTAEDT: THE COURT:

-- SOME LIMIT -- I KNOW I HAVEN'T BEEN

EXACTLY PRECISE, BUT IT'S THE DETAILS THAT ARE CONTAINED ON SOMETHING LIKE THE AT-RISK REPORT. HE CANNOT TESTIFY TO THOSE,

ALTHOUGH HE CAN TESTIFY TO THE CONCLUSIONS HE DREW FROM THOSE. MR. MITTELSTAEDT: MR. BOIES: THE COURT: OKAY.

THANK YOU. OKAY?

(END SIDEBAR ON THE RECORD.) (THE FOLLOWING PROCEEDINGS WERE HEARD IN THE PRESENCE OF THE JURY:) BY MR. MITTELSTAEDT: Q. THE QUESTION WAS, WHEN YOU GATHERED AND REVIEWED ALL OF THIS

INFORMATION, HOW DID YOU GO ABOUT ORGANIZING IT? A. EVENTUALLY, I DEVELOPED WHAT I CALLED POOLS OR BUCKETS INTO

WHICH I WOULD PLACE THE CUSTOMERS THAT EXHIBITED THE SAME SORT OF STORY. SO I DIDN'T START OFF WITH THOSE, BUT AS I GATHERED

INFORMATION ABOUT CUSTOMERS, I REALIZED THAT A LOT OF THEM HAD THE SAME -- THEY WERE SAYING THE SAME THINGS AND DOING THE SAME THINGS. SO I STARTED TO GROUP THEM -- EVENTUALLY CALLED THEM

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

1597 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 CLARKE - DIRECT / MITTELSTAEDT POOLS OR BUCKETS -- AND GAVE EACH BUCKET A NAME, AND I DON'T KNOW HOW MUCH WE'RE GOING TO SPEND TALKING ABOUT THOSE. Q. OKAY. I'M JUST GOING TO GET TO YOUR CONCLUSION FIRST. WE CAN GO TO THE NEXT SLIDE, SLIDE 11. (DEMONSTRATIVE PUBLISHED TO THE JURY.) BY MR. MITTELSTAEDT: Q. WOULD YOU EXPLAIN YOUR CONCLUSION TO US ON THE AMOUNT OF IF

LOST SUPPORT PROFITS USING THIS CHART. A. YES, HERE, I HAVE TWO COLUMNS WITH MR. MEYER'S NAME AT THE AND YOU CAN

TOP OF ONE, AND MY NAME AT THE TOP OF THE OTHER.

SEE THAT THE TOTAL CUSTOMERS THAT WE BOTH START WITH ARE THE SAME, 358 THAT YOU'VE HEARD SO MUCH ABOUT. AND THEN THERE WERE CERTAIN EXCLUSION POOLS OR BUCKETS THAT MR. MEYER IDENTIFIED AND I IDENTIFIED, AND WE AGREED ON THOSE. SO THERE'S NO DISPUTE AS TO THE NATURE OF THAT

PARTICULAR EXCLUSION. AS YOU CAN SEE FROM THE -- THE DIFFERENCE IN THE NUMBERS, THERE'S A SLIGHT DIFFERENCE IN -- IN WHO WE THINK SHOULD BE IN THOSE POOLS, BUT THE PRINCIPLE OF THE POOLS IS ESTABLISHED. THEN THESE OTHER EXCLUSIONS ARE 63 OTHER CUSTOMERS THAT I THINK LEFT ORACLE FOR REASONS OTHER THAN THE COPYRIGHT INFRINGEMENT AND -- KNOW THAT WE'RE GOING TO TALK ABOUT AT LEAST SOME OF THOSE.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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

Q.

OKAY.

1598 CLARKE - DIRECT / MITTELSTAEDT LET'S GO TO THE NEXT SLIDE. AND THIS IS A LIST OF

YOUR EXCLUSION BUCKETS. (DEMONSTRATIVE PUBLISHED TO THE JURY.) BY MR. MITTELSTAEDT: Q. AND WOULD YOU USE THIS TO DESCRIBE TO US IN MORE DETAIL THE

VARIOUS EXCLUSION BUCKETS OR POOLS THAT YOU USED, WHICH ONES MR. MEYER AGREED WITH, AND WHERE YOU DIFFERED? A. YES. THE -- THE TOP ONE, TWO, THREE, FOUR, FIVE -- THE TOP THAT, WE

SIX BUCKETS ON THAT -- ON THAT SCHEDULE, WE AGREE ON. DON'T HAVE ANY DIFFERENCE ABOUT THOSE.

SO "REINSTATEMENT TO RELICENSE" MEANS THAT THE CUSTOMER WENT BACK TO ORACLE OR RELICENSED ORACLE SOFTWARE, AND SO ORACLE DIDN'T LOSE ANYTHING FOR THOSE CUSTOMERS. MR. MEYER AND I EXCLUDED ALL 26 OF THOSE CUSTOMERS. SOME CUSTOMERS NEVER EVEN LEFT ORACLE, SO ALTHOUGH THEY WERE A TOMORROWNOW CUSTOMER, THEY DIDN'T STOP PAYING ORACLE AT ANY TIME. SO THOSE WERE NOT LOST-PROFITS CUSTOMERS EITHER. THERE WERE 54 OF THOSE. SO

ORACLE DIDN'T LOSE ANYTHING ON THOSE.

THEN SOME OF THESE CUSTOMERS WEREN'T EVEN CUSTOMERS, AND WE EXCLUDED -- WE BOTH EXCLUDED 3 OF THOSE. AND THEN THE "PRODUCT MISMATCH," WHAT THAT MEANS IS THEY WERE SUPPORTING ONE PRODUCT AT ORACLE AND THEN SUPPORTED A DIFFERENT PRODUCT AT TOMORROWNOW. SO BECAUSE THERE WAS NO REAL

LINK BETWEEN THOSE -- THOSE PRODUCTS THAT WERE BEING SUPPORTED, WE EXCLUDED THOSE.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1599 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 CLARKE - DIRECT / MITTELSTAEDT THE "NON-ASSOCIATION" IS 1, AND THAT MEANS THAT IT'S -- IT'S A COMPANY AND WE'RE NOT QUITE SURE WHAT THE RELATIONSHIP OF IT IS TO THE CASE. AND THEN "CAUSATION," MR. MEYER HAS 3 THERE. WITH THOSE 3. I AGREE

BUT THERE ARE OTHERS THAT I THINK OUGHT TO GO AND MANY OF THEM ARE DEALT WITH ON

INTO THIS EXCLUSION POOL.

THIS NEXT SECTION, WHICH SAYS WE AGREE IN PRINCIPLE WITH THE SERVICE GAP. SO IF THE CUSTOMER WAS OFF ORACLE SUPPORT FOR A

PERIOD OF TIME, IT COULDN'T HAVE BEEN TOMORROWNOW THAT CAUSED THEM TO LEAVE. AND THERE WAS EXTENSIVE DEBATE BETWEEN

MR. MITTELSTAEDT AND MR. MEYER WHEN HE WAS TESTIFYING LAST WEEK ABOUT THAT GAP AND HOW LONG THAT GAP SHOULD BE. SO WE AGREE IN PRINCIPLE THAT IF THERE IS A GAP, THEY SHOULD BE EXCLUDED, BUT WE -- WE DISAGREE ON THE LENGTH OF THAT GAP. AND THEN THESE OTHER POOLS, THE BOTTOM 4, WE DON'T AGREE ON AT ALL. SO THIS IS MY VIEW OF WHAT OUGHT TO HAPPEN.

"SERVICE EVALUATION" MEANS THAT THE COMPANY WAS OUT LOOKING AT OTHER VENDORS, OTHER WAYS TO GET ITS SUPPORT FOR ITS ORACLE SYSTEMS. THERE WERE 41 OF THOSE. AND I EXCLUDED THEM

AND MR. MEYER DIDN'T EXCLUDE ANY OF THEM. THE "PARENT MANDATE" MEANS THAT AN ACQUISITION HAD OCCURRED, AND THE COMPANY WAS TOLD BY ITS NEW OWNER THAT -- TO CHANGE ITS SOFTWARE SYSTEMS. NOT BE CAUSED BY TOMORROWNOW. SO IN MY VIEW, THAT CLEARLY COULD MR. MEYER LEFT THAT ONE IN.

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

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

1600 CLARKE - DIRECT / MITTELSTAEDT THE OTHER IS JUST -- I COULDN'T PUT THEM INTO -- INTO BUCKETS BECAUSE THEY WERE ALL A LITTLE BIT DIFFERENT, SO THE "OTHER" POOL CATCHES ALL OF THOSE. THERE ARE 8 OF THOSE.

AND THEN THIS "JOINT EXCLUDE" AT THE BOTTOM HERE MEANS THAT SOME COMBINATION OF FACTORS INDICATED THAT THEY SHOULD BE EXCLUDED. ENTIRELY. Q. OKAY. LET'S GO TO "SERVICE GAP." IF WE CAN GO TO SLIDE 13. AND AGAIN, HE AND I DISAGREE ON THIS POOL

(DEMONSTRATIVE PUBLISHED TO THE JURY.) BY MR. MITTELSTAEDT: Q. A. WHAT DOES THIS SLIDE SHOW? THIS SLIDE SHOWS ALL OF THE CUSTOMERS THAT I'M EXCLUDING FOR AND YOU SEE THE DIFFERENT COLORS ON HERE. THE TWO

SERVICE GAP.

BRIGHT ORANGE ONES IN THE MIDDLE, THE LONG BARS THERE, WERE TWO CUSTOMERS THAT MR. MEYER EXCLUDED. POWERWAY. AND THEY WERE EVERDREAM AND

AND THEY BOTH WERE OFF ORACLE SERVICE FOR ABOUT FOUR AND THEN WENT TO TOMORROWNOW.

YEARS OR SO.

IN MY VIEW AND IN HIS, SO WE AGREE ON THIS, IF YOU HAVE A -- A GAP OF FOUR YEARS, TOMORROWNOW COULDN'T HAVE BEEN THE CAUSE OF YOU LEAVING IN THE FIRST PLACE. SO THEY -- ORACLE

DIDN'T LOSE ANY LOST -- ANY PROFITS AS A RESULT OF THAT. THE PALER ORANGE, THE LITTLE SHORT ONES, THOSE ARE THE THREE COMPANIES THAT WERE LESS THAN A YEAR. OF THIS SLIDE IS AT SIX MONTHS. MONTHS. SO THE VERY END

SO EVERYTHING STARTS AT SIX AND IF YOU

SO THESE WERE LESS THAN 12 MONTHS' GAPS.

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

1630 CLARKE - DIRECT / MR. MITTELSTAEDT 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 BY MR. MITTELSTAEDT: Q. WE ARE ALMOST DONE. WOULD YOU EXPLAIN TO US WHY YOU

EXCLUDED THIS CUSTOMER? A. I WILL. ABITIBI IS A PAPER, PULP AND PAPER COMPANY. THERE

WAS A PLAN FOR J.D. EDWARDS TO CREATE THAT FUNCTIONALITY, THE SOFTWARE SPECIFIC TO PULP AND PAPER OPERATIONS. IT WAS

PROMISED, AS YOU CAN SEE, J.D. EDWARDS COMMITTED, BUT THEY NEVER DID IT. AND SO ABITIBI WAS CONCERNED THAT THEY WERE RUNNING LONGER AND LONGER ON THIS NONSPECIFIC SOFTWARE, DIDN'T DEAL WITH PULP AND PAPER OPERATIONS, AND THAT HE WAS LOOKING TO PULL ALL OF THAT OUT AND GO WITH SAP. TO TOMORROWNOW. Q. OKAY. SO BASED ON ALL THIS WORK, ALL THE REVIEW OF THE CUSTOMER INFORMATION, AND PLACING THE CUSTOMERS INTO VARIOUS BUCKETS, EITHER EXCLUSION OR INCLUSION, YOU REACHED SOME CONCLUSIONS ABOUT THE AMOUNT OF COMPENSATION SAP OWED TO -- SAP AND TOMORROWNOW OWED TO ORACLE, RIGHT? A. Q. CORRECT. AND LET'S LOOK FINALLY AT TWO SLIDES, SLIDE 53 TO START AGAIN, COULD NOT BE RELATED

WITH. (SLIDE DISPLAYED ON SCREEN.) AS YOU DID FOR THE LOST SUPPORT PROFITS, IF YOU

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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, TUESDAY, NOVEMBER 16, 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.

___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR

___________________________________ DIANE E. SKILLMAN, CSR, RPR, FCRR

/s/

WEDNESDAY, NOVEMBER 17, 2010