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. 6

Exhibit F
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 7 PAGES 1188 - 1420 OAKLAND, CALIFORNIA FRIDAY, NOVEMBER 12, 2010

CERTIFIED COPY
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]

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 CLERK.

1296 MEYER - CROSS (RESUMED) / MITTELSTAEDT THE COURT: THAT'S RIGHT, YOU KNOW, BECAUSE I TOOK A PART FROM YOURS AND A PART FROM YOURS. I DID ALREADY. MR. PICKETT: MR. LANIER: THE TRANSCRIPT? MR. MITTELSTAEDT: MR. PICKETT: THE COURT: OKAY. WE'LL DO THAT. THAT'S RIGHT. DOES YOUR HONOR WANT US TO FIND IT IN

THANK YOU, YOUR HONOR. LET'S CALL THE JURY BACK IN, MADAM

OKAY.

(THE FOLLOWING PROCEEDINGS WERE HEARD IN THE PRESENCE OF THE JURY:) THE COURT: BY MR. MITTELSTAEDT: Q. MR. MEYER, LET ME SEE IF I CAN DO THIS AS SIMPLY AS YOU'VE PREPARED A LOT OF SCHEDULES WITH LISTING (SIC) ALL RIGHT. BE SEATED.

POSSIBLE.

OF CUSTOMERS AND A LOT OF DATA ABOUT THE CUSTOMERS, CORRECT? A. Q. THAT'S CORRECT. AND YOU PREPARED ONE SCHEDULE THAT WAS CALLED "SUMMARY OF

EXCLUDED CUSTOMERS." A. Q. A. Q. A. THAT'S CORRECT. AND YOU LISTED THE REASONS FOR EXCLUSION. THAT'S CORRECT. AND ONE OF THE REASONS YOU LISTED WAS CAUSATION, CORRECT? I BELIEVE THAT'S ON THERE; THAT'S CORRECT.

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

1301 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 MEYER - CROSS (RESUMED) / MITTELSTAEDT ADOPTED A PARTICULAR SERVICE GAP. Q. BUT AS IT TURNED OUT, THE ONLY CUSTOMERS YOU EXCLUDED

BECAUSE OF SERVICE GAP ARE CUSTOMERS WHO JUST HAPPENED TO HAVE A SERVICE GAP OF FOUR YEARS OR LONGER; IS THAT CORRECT? A. NO, THERE'S STILL ONE IN THAT'S OVER FOUR YEARS. I NEVER

ADOPTED A SERVICE-GAP METHODOLOGY. Q. OKAY. WELL, WHY DIDN'T YOU EXCLUDE THAT OTHER ONE ON A

SERVICE-GAP BASIS? A. BECAUSE THEY WERE TAKING TOMORROWNOW SERVICE THAT BUT FOR

TOMORROWNOW, THEY DIDN'T HAVE A SERVICE PROVIDER THAT CAN PROVIDE VENDOR-LEVEL SERVICE. Q. A. Q. A. WHAT WAS IT ABOUT THE TWO YOU EXCLUDED? I --- HAD BEEN GONE FOR MORE THAN FOUR YEARS. I MENTIONED SIEBEL A FEW MINUTES AGO. THE EVERGREEN

CUSTOMER LEFT SIEBEL IN 2002, AND THEN FIVE YEARS LATER, THEY GO -- THEY TAKE A CONTRACT WITH -- WITH TOMORROWNOW. AND AS I

MENTIONED A MOMENT AGO, SAP BEGAN OFFERING TOMORROWNOW SERVICES I BELIEVE IN THE FALL OF 2006. SO FROM THAT PERSPECTIVE, I TOOK

THEM OUT, JUST BASED ON THOSE FACTS. Q. YOU AGREE THAT USING FOUR YEARS AS A SERVICE-GAP CUTOFF

WOULD BE INFLATED, CORRECT? A. I AGREE THAT ONCE YOU GET OUT IN TIME, THE FURTHER YOU GET I'LL AGREE

OUT, THERE'S MORE REASON TO TAKE A CUSTOMER OUT. WITH THAT.

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

1305 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. MEYER - CROSS (RESUMED) / MITTELSTAEDT AND WHAT GAP ARE YOU USING FOR THIS CAUSATION ANALYSIS

EXCLUSION? A. I THINK THE TWO WE JUST MENTIONED, THOSE TWO CUSTOMERS ON

THE OTHER SCHEDULE. Q. NO, WHAT YEAR ARE YOU DOING? WHAT YEAR CUTOFF ARE YOU

DOING -- ARE YOU USING? A. Q. A. THOSE TWO HAD A SERVICE PERIOD OVER FOUR YEARS. AND SO YOU SAY, "CAUSATION, FOUR-YEAR GAP." FOR THOSE TWO, THAT'S CORRECT. OKAY. LET'S GO -- IF WE GO BACK TO THE ORIGINAL.

YOU'LL SEE DOWN AT THE BOTTOM, YOU ADD UP THE TOTAL -LET'S JUST DO THE LAST FOUR OR FIVE LINES, PLEASE. (EXHIBIT PUBLISHED TO JURY.) BY MR. MITTELSTAEDT: Q. OKAY. SO -GO UP A LITTLE BIT. I'M SORRY.

(EXHIBIT PUBLISHED TO JURY.) BY MR. MITTELSTAEDT: Q. I GUESS THIS IS ACTUALLY A SUBTOTAL. BUT FOR THE 358

CUSTOMERS WE STARTED WITH, YOU'RE PUTTING 253 IN YOUR LOST-PROFITS ANALYSIS, MR. CLARKE IS PUTTING 167 IN HIS ANALYSIS BECAUSE YOU'RE USING DIFFERENT CAUSATION POOLS OR DIFFERENT EXCLUSIONS, RIGHT? DIFFERENTLY. A. I AGREE. OR YOU'RE COUNTING THE CUSTOMERS

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

1420

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 SATURDAY, NOVEMBER 13, 2010 ___________________________________ 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, FRIDAY, NOVEMBER 12, 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 REPORTERS' CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE.

___________________________________ DIANE E. SKILLMAN, CSR, RPR, FCRR

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