Oracle Corporation et al v. SAP AG et al

Filing 1058

Declaration of Lisa Chin in Support of 1057 Opposition/Response to Motion for JMOL or New Trial filed byOracle International Corporation. (Attachments: # 1 Exhibit A part 1, # 2 Exhibit A part 2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG, # 35 Exhibit HH, # 36 Exhibit II, # 37 Exhibit JJ, # 38 Exhibit KK, # 39 Exhibit LL, # 40 Exhibit MM, # 41 Exhibit NN, # 42 Exhibit OO, # 43 Exhibit PP, # 44 Exhibit QQ, # 45 Exhibit RR, # 46 Exhibit SS, # 47 Exhibit TT, # 48 Exhibit UU, # 49 Exhibit VV)(Related document(s) 1057 ) (Howard, Geoffrey) (Filed on 4/8/2011)

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Oracle Corporation et al v. SAP AG et al Doc. 1058 Att. 4 EXHIBIT C Dockets.Justia.com Hurst PA DC on 11-4 13 38:25 -39:11 Hurst II, Terry 2008-04-30 38:25 39:1 39:2 39:3 39:4 39:5 39:6 39:7 39:8 39:9 39:10 39:11 00:00:36 00:03:21 00:17:38 THE WITNESS: At the highest level, that's the -- a general characterization of Safe Passage. And it's -- that still holds true. BY MS. HOUSE: Q. Although the products have expanded beyond JD Edwards and PeopleSoft, correct? A. Correct. Q. Now, so the -- is it fair to say that the key goal of the program has always been to transition Oracle customers, Oracle application customers, to give them safe passage to become SAP applications customers? 00:00:01 00:03:57 00:17:02 14 39:14 -39:14 Hurst II, Terry 2008-04-30 39:14 THE WITNESS: Yes. 15 39:20 -39:23 Hurst II, Terry 2008-04-30 39:20 39:21 39:22 39:23 00:00:28 00:03:58 00:17:01 Link > 193.1 Q. And Exhibit 147 is a document titled "Safe Passage, Global Sales Guide, April 2005," with the Bates numbers SAP-OR00018474 through 18511. Can you tell me what this document is? 00:01:06 00:04:26 00:16:33 16 39:24 -40:20 Hurst II, Terry 2008-04-30 39:24 39:25 40:1 40:2 40:3 40:4 40:5 40:6 the Safe Passage program. A. This appears to be a program overview of Q. And that would be shortly after the acquisition of TomorrowNow by SAP; is that correct? It says April 2005. A. When was the acquisition of TomorrowNow? Q. January of 2005. A. Yes, you're correct. Q. Could you look at 18477, which is titled "Safe Passage Strategy." If you look at the bottom right-hand corner. A. Oh, okay. Well, I'm sorry. Could you repeat the number? Q. 18477. A. Okay. Q. And it's titled "Safe Passage" -- "Passage Strategy, Convert and Contain." Then it says, "Goal: Our objective is to convert the majority of the PeopleSoft and JD Edwards customer base to SAP and contain Oracle's potential growth in the next generation application market." And was that the goal of the Safe Passage program? 00:01:07 00:05:32 00:15:27 Link > 193.4.1 40:7 40:8 40:9 40:10 40:11 40:12 40:13 40:14 40:15 40:16 40:17 40:18 40:19 40:20 17 40:21 -41:18 Hurst II, Terry 2008-04-30 Printed: 11/8/2010 4:18:28PM Page 3 of 12 Hurst PA DC on 11-4 40:21 40:22 40:23 40:24 40:25 41:1 41:2 41:3 41:4 41:5 41:6 41:7 41:8 41:9 Link > 193.4.2 41:10 41:11 41:12 41:13 41:14 41:15 41:16 41:17 41:18 18 41:20 -42:6 A. The first part of that, "Our objective is to convert the majority of...PeopleSoft and JD Edwards customer base to SAP," that is correct. That is -- that is the goal. "Contain Oracle's potential growth in the next generation application market," I didn't write this. I can't say -- I can't say that for sure. Q. Okay. A. But -Q. You understand that you're testifying on behalf of the companies, correct? Do you have any reason to believe that this was not the company's goal as stated in its document at that time? A. No, I do not. Q. And the "Strategy" that's listed below that is, quote: "By offering full maintenance and support of PeopleSoft and JD Edwards systems, migration tools, and favorable upgrade licensing terms to mySAP ERP and SAP NetWeaver, SAP will siphon off the cash flow that Oracle needs to build or acquire its next generation applications." Do you have any reason to believe that was not the strategy of Safe Passage at that time? 00:00:29 00:06:39 00:14:20 Hurst II, Terry 2008-04-30 41:20 41:21 41:22 41:23 41:24 41:25 42:1 42:2 42:3 42:4 42:5 42:6 THE WITNESS: My understanding is that the -- the strategy was to convert the PeopleSoft and JD Edwards customers to be SAP customers. I don't -BY MS. HOUSE: Q. Do you understand the difference between "goal" and "strategy"? A goal would be to convert them, but the strategy would be how you achieve it? A. Yes, I understand. Q. Okay. And did you understand that the strategy of achieving the conversion was by offering full maintenance and support -00:00:01 00:07:08 00:13:51 19 42:9 -42:9 Hurst II, Terry 2008-04-30 42:9 Q. -- as indicated? 20 42:11 -42:14 Hurst II, Terry 2008-04-30 42:11 42:12 42:13 42:14 THE WITNESS: Yes. BY MS. HOUSE: 00:00:12 00:07:09 00:13:50 Q. And this Safe Passage strategy, is this the strategy of SAP AG, SAP America, or both? 00:00:15 00:07:21 00:13:38 21 42:15 -42:16 Hurst II, Terry 2008-04-30 Printed: 11/8/2010 4:18:28PM Page 4 of 12 Hurst PA DC on 11-4 42:15 42:16 22 42:17 -42:23 A. It was a global program, so it would be both. 00:00:41 00:07:36 00:13:23 (Edited) Hurst II, Terry 2008-04-30 42:17 42:18 42:19 42:20 42:21 42:22 42:23 Link > 193.3.1 Q. And if you would look on page 476, the day -- "the day before" -- the page before. This is titled "Safe Passage Overview." The third bullet -- it's not a bullet. The third paragraph says, "To meet customer needs, SAP has acquired TomorrowNow." Was that -- was TomorrowNow acquired to facilitate the Safe Passage program? 00:00:05 00:08:17 00:12:42 23 42:25 -43:1 Hurst II, Terry 2008-04-30 42:25 43:1 THE WITNESS: It was -- it was acquired to be an offer with -- within the program. 00:00:21 00:08:22 00:12:37 Link > Hide 24 77:20 -78:1 Hurst II, Terry 2008-04-30 77:20 77:21 77:22 77:23 77:24 77:25 78:1 Q. The next bullet reads "The Maintenance offering," dash, "a key part of the Safe Passage Program and provided by TomorrowNow," dash, "is used as enabler for future license revenue, to grow maintenance contract volume taken away from Oracle and to generate additional maintenance revenue for SAP." And that bullet is also true? 00:00:00 00:08:43 00:12:16 25 78:4 -78:4 Hurst II, Terry 2008-04-30 78:4 THE WITNESS: That's true. 00:00:11 00:08:43 00:12:16 (Edited) 26 78:7 -78:10 Hurst II, Terry 2008-04-30 78:7 78:8 78:9 78:10 since there are numerous pieces, let's take them one at a time. The maintenance offering by TomorrowNow is a key part of the Safe Passage program, correct? 00:00:14 00:08:54 00:12:05 27 78:12 -78:17 Hurst II, Terry 2008-04-30 78:12 78:13 78:14 78:15 78:16 78:17 THE WITNESS: The maintenance offering has -- has been an offer that was available as part of the -- the Safe Passage program. BY MS. HOUSE: Q. And it's a key part of the Safe Passage program, correct? 00:00:10 00:09:08 00:11:51 28 78:19 -78:24 Hurst II, Terry 2008-04-30 78:19 78:20 78:21 78:22 78:23 78:24 a key part of the program. BY MS. HOUSE: THE WITNESS: It was positioned as a -- as Q. And was -- that maintenance offering by TomorrowNow was used as an enabler for future license revenue, correct? Printed: 11/8/2010 4:18:28PM Page 5 of 12 Hurst PA DC on 11-4 29 79:2 -79:8 Hurst II, Terry 2008-04-30 79:2 79:3 79:4 79:5 79:6 79:7 79:8 THE WITNESS: Yes. BY MS. HOUSE: 00:00:12 00:09:18 00:11:41 Q. And it was also used to grow maintenance contract volume taken away from Oracle? A. Yes. Q. And it was also used to generate additional maintenance revenue for SAP? 00:00:02 00:09:30 00:11:29 30 79:10 -79:10 Hurst II, Terry 2008-04-30 79:10 THE WITNESS: Yes. 31 80:23 -81:1 Hurst II, Terry 2008-04-30 80:23 80:24 80:25 81:1 00:00:13 00:09:32 00:11:27 Q. And wasn't one of the goals of the Safe Passage program at its implementation to sort of fan the fears of those PeopleSoft/JD Edwards customers about that acquisition by Oracle? 00:00:51 00:09:45 00:11:14 32 81:4 -81:17 Hurst II, Terry 2008-04-30 81:4 81:5 81:6 81:7 81:8 81:9 81:10 81:11 81:12 81:13 81:14 81:15 81:16 81:17 THE WITNESS: When the Safe Passage program was introduced, it was believed that those -- the PeopleSoft/JD Edwards customers would be feeling some uncertainty about the future of those applications, and it was the desire of SAP to put together a program to help migrate them over to SAP applications, treating them like SAP customers and giving them the same opportunities that SAP customers had in terms of upgrading to SAP applications. BY MS. HOUSE: Q. And -- but -- but wasn't part of the method of doing that, as a sales tool, was to talk about those fears and to fan those fears? 00:00:08 00:10:36 00:10:23 33 81:20 -81:23 Hurst II, Terry 2008-04-30 81:20 81:21 81:22 81:23 THE WITNESS: Yeah, I believe some of the -- the messaging around the Safe Passage program highlighted the uncertainties that were part of that. 00:00:11 00:10:44 00:10:15 (Edited) 34 95:10 -95:13 Hurst II, Terry 2008-04-30 95:10 95:11 95:12 95:13 Q. Now, would you agree that TomorrowNow was the centerpiece of SAP's Safe Passage program from essentially the time it was acquired in January of 2005? 00:00:04 00:10:55 00:10:04 35 95:16 -95:17 Hurst II, Terry 2008-04-30 95:16 95:17 THE WITNESS: No, I don't think I would consider it the centerpiece of the program. Printed: 11/8/2010 4:18:28PM Page 6 of 12 Hurst PA DC on 11-4 313:14 313:15 313:16 313:17 313:18 313:19 313:20 313:21 47 313:24 -314:1 A. I'm not -- I'm not sure exactly what the point is that they're -- they're trying to make with that particular bullet point. Q. Hadn't one of the uses of TomorrowNow in the Safe Passage program, the service that TomorrowNow provides, wasn't that something that SAP was leveraging as a competitive weapon against Oracle? 00:00:05 00:18:34 00:02:25 Hurst II, Terry 2008-05-01 313:24 313:25 314:1 THE WITNESS: Yeah, we did leverage the TomorrowNow support offers as part of our competitive programs. 00:00:05 00:18:39 00:02:20 48 314:3 -314:5 Hurst II, Terry 2008-05-01 314:3 314:4 314:5 to restricting competition is? A. Correct. Q. And you don't understand what the reference 49 544:5 -544:12 Hurst II, Terry 2009-09-10 544:5 544:6 544:7 544:8 544:9 544:10 544:11 544:12 00:00:24 00:18:44 00:02:15 MS. HANN: Q: Whose decision was it to include TomorrowNow Siebel support services in Siebel Safe Passage? A: Well, there was an investigation into, like I said, the feasibility of it. And then I spoke with Thomas Ziemen about this topic, and he said that ultimately that was the decision of Gerd Oswald and Leo Apotheker. 00:00:34 00:19:08 00:01:51 50 547:13 -547:21 Hurst II, Terry 2009-09-10 547:13 547:14 547:15 547:16 547:17 547:18 547:19 547:20 547:21 Link > 958.1.1 MS. HANN: Q: Let's look at what's been marked Exhibit 1601. Exhibit 1601 is an e-mail with attachments. The first cover e-mail is from Christian Klein to Thomas Ziemen and Bernd Welz, with some ccs. The subject is 'TNow Budget 2006.' It is Bates labeled SAP-OR00250204. The attachment is labeled SAPOR00250205 through 225. Do you have that in front of you? A: Yes, I do. 00:01:00 00:19:42 00:01:17 51 548:22 -549:17 Hurst II, Terry 2009-09-10 548:22 548:23 548:24 548:25 549:1 549:2 Link > 958.20 Q: I'm going to ask you about the slide that's on the page that ends in 223. It's entitled 'Biz Opportunity - TNow Offering for Siebel.' Have you seen this slide before? A: This slide looks familiar. Q: Looking over in the right-hand column of text, there's a subsection called 'Conclusions.' Do you see that? Page 10 of 12 Link > 958.20.1 549:3 549:4 Printed: 11/8/2010 4:18:28PM Hurst PA DC on 11-4 549:5 549:6 549:7 549:8 549:9 549:10 549:11 549:12 549:13 549:14 549:15 549:16 549:17 52 549:20 -549:24 A: Yes, I do. Q: In the second bullet point, do you see where it says, 'The Maintenance offering - a key part of the Safe Passage Program and provided by TomorrowNow - can be used as enabler for future license revenue, to grow maintenance contract volume taken away from Oracle and to generate additional maintenance revenue for SAP'? A: I do see that. Q: Was it correct at this time that the maintenance offering was a key part of the Safe Passage program for Siebel as provided by TomorrowNow? 00:00:09 00:20:42 00:00:17 Hurst II, Terry 2009-09-10 549:20 549:21 549:22 549:23 549:24 THE WITNESS: Yeah, it was an offering within the Safe Passage program that we positioned to the marketplace. MS. HANN: Q: And this document says it was a key part; correct? 00:00:03 00:20:51 00:00:08 53 550:2 -550:3 Hurst II, Terry 2009-09-10 550:2 550:3 positioning it as a key part. THE WITNESS: At that -- we were Link > Hide 54 564:4 -564:5 Hurst II, Terry 2009-09-10 564:4 564:5 00:00:05 00:20:54 00:00:05 Q: Did SAP market TomorrowNow's 50 percent off price to potential Siebel customers? 00:00:01 00:20:58 00:00:01 55 564:7 -564:7 Hurst II, Terry 2009-09-10 564:7 THE WITNESS: Yes, we did. Play Time for this Script: 00:20:59 Printed: 11/8/2010 4:18:28PM Page 11 of 12

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