Oracle Corporation et al v. SAP AG et al

Filing 1068

Declaration of Tharan Gregory Lanier in Support of 1067 Reply to Opposition/Response Reply Declaration of Tharan Gregory Lanier in Support of Defendants' Renewed Motion for Judgment as a Matter of Law and New Trial Motion 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, # 7 Exhibit G)(Related document(s) 1067 ) (Froyd, Jane) (Filed on 4/27/2011)

EXHIBIT E

CERTIFIED COPY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE
ORACLE CORPORATION, ET AL.

)
)
PLAINTIFFS,
)
)
VS.
)
)
SAP AG, ET AL.,
)
)
DEFENDANTS.
)
____________________________)

JURY TRIAL
NO. C 07-01658 PJH
VOLUME 13
PAGES 2231 - 2267
OAKLAND, CALIFORNIA
TUESDAY, NOVEMBER 23, 2010

TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
FOR PLAINTIFFS:
BY:

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

(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]

2255
1
2
Text Removed - Not Relevant to Motion

3
4
5
6
7

MR. LANIER:

VERY BRIEFLY, YOUR HONOR, ONE ISSUE

8

RELATING TO THE REBUTTAL CLOSING ARGUMENT YESTERDAY.

9

GOT THE TRANSCRIPT, WE REALLY REFLECTED ON THIS.

ONCE WE

WE THINK --

10

AND WE'RE -- AGAIN, WE'RE SURE UNINTENTIONALLY, A STATEMENT WAS

11

MADE IN ARGUMENT THAT WE THINK ACTUALLY IS AN INCURABLE ERROR.

12

IT MIGHT BE A BASIS FOR A NEW TRIAL, WHICH WAS AN APPEAL -- AN

13

EXAMPLE BY MR. BOIES OF AN EXAMPLE OF STEALING, WHICH IS A

14

DIFFERENT ISSUE, FROM BEST BUY, WHO IS THE EMPLOYER OF ONE OF

15

THE JURORS.

16

THAT SECOND PART, WE THINK, IS INCURABLE.

17

IGNORE -- DON'T PAY ANY ATTENTION TO TESTIMONY ABOUT ONE OF YOUR

18

EMPLOYERS, JURORS.

19

A BASIS WE RAISE LATER.

20

THAT NOW.

21

DON'T

WE THINK THAT WOULD BE INCURABLE AND MAY BE
BUT WE DON'T ASK FOR AN INSTRUCTION ON

THE STEALING POINT WE DO THINK IS WORTH A BRIEF

22

NEUTRALLY PHRASED CURATIVE INSTRUCTION FROM THE COURT.

YOU MAY

23

HAVE HEARD TESTIMONY ABOUT STEALING.

24

COPYRIGHT INFRINGEMENT, NOT THEFT, SOMETHING LIKE THAT THAT

25

DOESN'T SINGLE OUT EITHER SIDE.

THIS IS A CASE ABOUT

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

2256
1

YOUR HONOR, I DON'T THINK THAT THE

MR. BOIES:

2

ANALOGY RAISES THAT PROBLEM AT ALL.

3

WITHOUT OBJECTION, WITNESSES TESTIFIED ABOUT USING A CROWBAR TO

4

BREAK INTO A HOUSE AND BURGLARIZE IT AND CLEAN IT OUT.

5

RECOGNIZED AS AN ANALOGY.

6

THE TIME.

7

ANALOGY.

9
10

THAT WAS

THEY DIDN'T OBJECT TO THAT AT ALL AT

I DON'T THINK THEY CAN OBJECT TO THE BEST BUY

THE COURT:

8

FROM THE WITNESS STAND,

I'M NOT AS BOTHERED BY THE ANALOGY AS THE

BEST BUY -- I TOTALLY FORGOT THAT ONE OF THE WITNESSES WAS A
BEST BUY EMPLOYEE.

11

MR. LANIER:

AND, CANDIDLY, WE HAD FORGOTTEN THAT,

12

TOO.

13

WHICH IS READ IT.

14

THAT THAT'S CURABLE NOW.

15

MIGHT MAKE IT WORSE.

16

INSTRUCTION ON THAT POINT.

17

AND UNTIL WE GOT THE RECORD AND DO WHAT WE ALWAYS DO,
AND IT'S ALSO WHY WE DON'T -- WE DON'T KNOW
AND, FRANKLY, THE ATTEMPT TO CURE IT

SO WE'RE NOT ASKING FOR A CURATIVE

I MEAN, ALL WE'LL SAY ON THE -- THE STEALING POINT IS

18

THAT YOUR HONOR HAD GIVEN SPECIFIC DIRECTION IMMEDIATELY BEFORE

19

ARGUMENT AND IN A COMMENT, "AND IF YOU THINK ABOUT IT IN

20

COMMON-SENSE TERM, IF SOMEBODY GOES IN AND STEALS A GAME," AND

21

IT GOES FROM THERE.

22

AND SO THE DIRECTION TO ARGUMENT THAT -- THAT IS OUR

23

OBJECTION THAT WE DO THINK A, AGAIN, NEUTRALLY PHRASED CURATIVE

24

INSTRUCTION MIGHT BE OF SOME VALUE.

25

THE COURT:

YEAH, I'M NOT -- I'M NOT ENTIRELY SURE

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

2257
1

THAT -- THAT A CURATIVE INSTRUCTION IS NECESSARY.

2

IN MIND THAT I THINK THAT REASONABLE JURORS MIGHT DIFFER ON

3

WHETHER OR NOT THE PLAINTIFFS SHOULD HAVE BEEN ABLE TO

4

CHARACTERIZE THE CONDUCT AS THEFT OR STEALING.

5

I MEAN, KEEP

IT'S JUST THAT I FOUND IT TO BE UNNECESSARILY

6

INFLAMMATORY AND UNNECESSARY IN THIS KIND OF CASE, PARTICULARLY

7

GIVEN THE -- THE STIPULATION AS TO LIABILITY.

8
9

SO I DON'T THINK THAT I WANT TO GO SO FAR AS TO DRAW
FURTHER ATTENTION TO THE USE OF THAT KIND OF LANGUAGE, WHICH I

10

CERTAINLY PROHIBITED WITH RESPECT TO THE INFRINGEMENT.

11

WAY OF THE ANALOGIES, THEFT OF THE WATCH, THE CROWBAR TO THE

12

CAR, AND THE VIDEO -- STEALING OF VIDEOTAPE, I DON'T THINK THAT

13

I'M GOING TO DO THAT.

14

MR. LANIER:

15

THE COURT:

16

UNDERSTOOD, YOUR HONOR.
ALTHOUGH I CERTAINLY DO UNDERSTAND THE

POSITION OF THE DEFENSE.

17
18
19
20
21

BUT BY

Text Removed - Not Relevant to Motion

22
23
24
25
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

2267
1
2
3
4

CERTIFICATE OF REPORTER
I, RAYNEE H. MERCADO, OFFICIAL REPORTER FOR THE UNITED

5

STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY

6

THAT THE FOREGOING PROCEEDINGS IN C07-01658PJH, ORACLE USA,

7

INC, ET AL. V. SAP AG, ET AL., WERE REPORTED BY ME, A CERTIFIED

8

SHORTHAND REPORTER, ON TUESDAY, NOVEMBER 23, 2010, AND WERE

9

THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING;

10

THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID

11

PROCEEDINGS AS BOUND BY ME AT THE TIME OF FILING.

12

THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID

13

TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE

14

COURT FILE.

15
16

___________________________________

17

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

18

TUESDAY, NOVEMBER 23, 2010

19
20
21
22
23
24
25
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]