Oracle Corporation et al v. SAP AG et al

Filing 1109

Joint Statement Regarding Trial Date by SAP AG, SAP America Inc, Tomorrownow Inc., Oracle International Corporation, Oracle USA Inc. Siebel Systems, Inc.(Froyd, Jane) (Filed on 2/24/2012) Modified on 2/27/2012 (vlk, COURT STAFF). Modified on 2/27/2012 (vlk, COURT STAFF).

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Robert A. Mittelstaedt (SBN 060359)
Jason McDonell (SBN 115084)
Elaine Wallace (SBN 197882)
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Tharan Gregory Lanier (SBN 138784)
Jane L. Froyd (SBN 220776)
JONES DAY
1755 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Scott W. Cowan (Admitted Pro Hac Vice)
Joshua L. Fuchs (Admitted Pro Hac Vice)
JONES DAY
717 Texas, Suite 3300
Houston, TX 77002
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

19
20

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

21
22

ORACLE USA, INC., et al.,

23
24
25

BINGHAM McCUTCHEN LLP
DONN P. PICKETT (SBN 72257)
GEOFFREY M. HOWARD (SBN 157468)
ZACHARY J. ALINDER (SBN 209009)
BREE HANN (SBN 215695)
Three Embarcadero Center
San Francisco, CA 94111-4067
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone: [phone]
Facsimile: [phone]
[e-mail]
STEVEN C. HOLTZMAN (SBN 144177)
FRED NORTON (SBN 224725)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
DORIAN DALEY (SBN 129049)
JENNIFER GLOSS (SBN 154227)
500 Oracle Parkway, M/S 5op7
Redwood City, CA 94070
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
Oracle USA, Inc., et al.

Plaintiffs,

Case No. 07-CV-1658 PJH (EDL)
JOINT STATEMENT REGARDING
TRIAL DATE

v.
SAP AG, et al.,

26

Defendants.

27
28
SVI-104357v1

JOINT STATEMENT
Case No. 07-CV-1658 PJH (EDL)

1

Pursuant to the Court’s February 16, 2012 Scheduling Order (D.I. 1108), plaintiffs

2

Oracle USA, Inc., Oracle International Corporation and Siebel Systems, Inc. (collectively

3

“Oracle”) and defendants SAP AG, SAP America and TomorrowNow, Inc. (collectively

4

“Defendants”) met and conferred regarding the trial date and alternatives set forth in the

5

Scheduling Order. The parties did not reach agreement on the trial date or alternatives. Oracle’s

6

position is that, due to a substantial number of scheduling conflicts, it has no choice but to object

7

to the June 18, 2012 date or trailing in 2012. Defendants’ position is that they prefer June 18,

8

2012 or to trail. The parties submit this Joint Statement Regarding Trial Date setting forth their

9

respective positions.

10
11

I.

ORACLE’S STATEMENT
Oracle appreciates the Court’s effort to fit the re-trial of this case into its 2012 calendar.

12

Unfortunately, preexisting trial obligations in multiple other cases make it impossible for Oracle

13

to consent to a June 18, 2012 trial date. These obligations prevent key Oracle management

14

witnesses, Oracle in-house counsel, Oracle’s outside trial counsel, and Oracle’s damages expert

15

from being available either to participate in a two-week trial in the second half of June or

16

adequately prepare for such a trial.1 The schedule conflicts include the following:

17

In Oracle Corporation v. Google Inc., CV 10-03561 WHA (N.D. Cal.), Judge Alsup

18

issued an order this week stating that “Counsel are reminded that they and witnesses must keep

19

the period from April 16 until late June available for the trial.” (Dkt. 724 (February 23, 2012).)

20

Oracle is represented in the Google case by its trial counsel in this case (both David Boies

21

individually and the larger Boies, Schiller & Flexner team), and there is significant witness

22

overlap, including the top executives of the company. Prior to this week’s order, Judge Alsup had

23

preserved the option of trial in April and May as a fallback, also asking counsel “to keep free

24

September, October, November and December.” (Oracle America, Inc. v. Google, Inc.,

25

Transcript of proceedings, December 21, 2011, at 164:12-19.) In a letter submitted to Judge

26
1

27
28

Oracle also believes that a two-week time slot is likely to be insufficient to present this
case, given the multiple issues and damages theories that remain unresolved and require retrial
under the Court’s post-trial orders, and requests an opportunity to be heard on that issue before
the date and duration of trial is set.
SVI-104357v1

-1-

JOINT STATEMENT
Case No. 07-CV-1658 PJH (EDL)

1

Alsup today, counsel for Google confirms that the Court has asked the parties’ counsel to set

2

aside these time periods, and that Google (like Oracle) is complying with that request. (Dkt. 748

3

(February 24, 2012).) As was the case with regard to this litigation, and as Oracle has repeatedly

4

expressed to Judge Alsup, getting to trial in the Google case as soon as possible is of critical

5

importance to Oracle. Consenting to re-trial in this case would ignore Judge Alsup’s request and

6

jeopardize Oracle’s interests in the Google litigation.

7

Prior to and notwithstanding Judge Alsup’s order this week in the Google case, Oracle’s

8

lead trial counsel, Mr. Boies, has a previously scheduled trial starting on June 4, 2012 and

9

continuing into July for another client (Invista B.V., et al. v. E.I du Pont de Nemours and

10

Company, 08 Civ. 3063 (SHS) (S.D. N.Y.). Mr. Boies does not have the ability to reschedule that

11

trial at this juncture.

12

In Hewlett-Packard Co. v. Oracle Corporation, 1-11-CV-203163 (Cal. Superior Court,

13

Santa Clara County), trial is set for May 29, 2012, and is likely to continue through late June.

14

Both key management witnesses and in-house counsel overlap between the Hewlett-Packard case

15

and this case. The overlapping witnesses’ testimony includes, without limitation, testimony

16

relating to lost profits, causation, and the expectations of the parties.

17

Finally, Oracle’s damages expert witness, Mr. Meyer, and his team of consulting experts

18

are scheduled to appear at two separate multi-week trials beginning in June: Voom HD Holdings,

19

LLC v. Echostar Satellite LLC, Index No. 600292/08 (Supreme Court of the State of New York)

20

(4-6 weeks), and Lyons v. Nike, 3:09-cv-01183-AC (D. Oregon) (2-3 weeks).

21
22
23

As a result of these multiple conflicts, Oracle unfortunately cannot consent to the
proposed June 18, 2012 trial date.
With respect to the prospect of trailing other cases, Oracle notes only that the conflicts

24

described above are likely to extend into July; that Judge Alsup has asked counsel to keep

25

September, October, November and December open for trial in the Google case; that co-lead trial

26

counsel (Geoff Howard and other members of the Bingham McCutchen team assigned to this

27

case) have a trial scheduled for October 2012 in Yardi Systems, Inc. v. RealPage, Inc. and DC

28

Consulting, Inc., CV11-690 ODW (JEMx) (C. D. Cal.); and that Mr. Meyer is scheduled to testify
SVI-104357v1

-2-

JOINT STATEMENT
Case No. 07-CV-1658 PJH (EDL)

1

at trial in August 2012 in PMC v. Echostar, 2:08-cv-00070-RSP (E.D. Tex.) and in November

2

2012 in Summit Entertainment v. Bath & Body Works, 1:11-cv-01594-GBD (S.D. NY).

3

Deferring trial in this case all the way to August 2013 is not optimal. But given the Court’s own

4

schedule and the conflicts noted above, Oracle feels it has relatively little choice.

5

II.

DEFENDANTS’ STATEMENT

6

Defendants are ready, willing and able to retry this case on the June 18, 2012 date set

7

forth in the Scheduling Order. This case has already been litigated for nearly five years, and

8

Oracle’s statement rejecting the Court’s remittitur makes it clear that Oracle intends for this case

9

to be litigated for many years to come.

10

Oracle’s statement above emphasizes the point. The first trial took three weeks. The

11

Court and the parties invested years of effort in focusing the case for the first trial, through

12

numerous rulings on motions and detailed factual and legal stipulations. The Court’s ruling on

13

the parties’ post-trial motions gives very clear guidance on the issues to be retried. Yet, Oracle

14

now claims that two weeks is not enough for the retrial and that numerous (but unidentified)

15

damages issues are unresolved. Both statements should leave the reader incredulous. Given the

16

limited scope of the new trial, i.e., focused solely on calculating lost profits and infringer’s profits

17

for copyright infringement, the retrial should be short, focused and efficient. Where an

18

alternative is available on the Court’s calendar, there is no need, and no reason, to wait until

19

August 2013. Nothing good will come of waiting; delay will only engender more delay.

20

Sorting through the statement above, Oracle really rejects the June 18 date based on four

21

purported conflicts. The first is the potential May trial in Santa Clara County Superior Court of

22

the HP v. Oracle matter. This poses no real conflict. Oracle’s management can surely consider

23

more than one litigation at a time (having filed most of those that are so busy this year), this case

24

does not share the same trial team as the HP matter, and there is no reason that Oracle witnesses

25

in common to the two cases (if there actually are any) could not appear to testify in San Jose in

26

May and in Oakland in June. Notably, Oracle neither identifies the witnesses allegedly in

27

common, nor explains how its executives, who testified in November 2010 that they had no

28

knowledge on the lost maintenance profits and infringer’s profits at issue in the upcoming trial,
SVI-104357v1

-3-

JOINT STATEMENT
Case No. 07-CV-1658 PJH (EDL)

1

would have anything to add to the more focused retrial.

2

The second potential conflict involves the busy testifying schedule of Oracle’s damages

3

expert Paul Meyer. The limited information available in the meet and confer does not confirm

4

Mr. Meyer will not be available, it simply demonstrates that he will be busy. An expert witness

5

of Mr. Meyer’s experience can surely manage the two to three days necessary for his more

6

focused testimony at the retrial around his busy schedule, even assuming the other trials in which

7

he is involved actually go to trial on their currently scheduled dates.

8
9

The third potential conflict is a New York state court trial scheduled in June led by David
Bois, who is Oracle’s lead trial counsel in this case. Defendants acknowledge Oracle’s

10

representation that this trial date was previously scheduled and that if the New York case

11

continues to trial as scheduled it will create a conflict with the June 18, 2012 date for this case.

12

But, some cases settle, and schedules do change.

13

The Oracle v. Google matter is apparently a reason that neither Oracle nor its lawyers can

14

be involved in any other trials this year. Yet, both Oracle and its lawyers have plenty of other

15

trials scheduled during the affected months, notwithstanding that Oracle v. Google case. And, it

16

not clear that the trial will even happen this year. In fact, just today Judge Alsup directed the

17

parties to submit statements by March 9 on whether the trial should be delayed to permit

18

reexaminations of Oracle’s asserted patents to run their course. D.I. 726, February 24, 2012

19

Order Regarding Reexaminations, C3:10-cv-03561 WHA.

20

Obviously, a lot can change between now and June that affects the availability of parties

21

and counsel for trial. At the same time, preparing this case for retrial should not be unduly

22

difficult, as the parties and Court have years of familiarity with the issues and the Court has

23

provided clear guidance for the retrial.

24

Defendants therefore propose the following approach: Trial should be tentatively set for

25

June 18, 2012, for two weeks, with the final pretrial conference on May 3, as set forth in the

26

Scheduling Order (along with the dates dictated by the Court’s standing orders and federal and

27

local rules for submissions leading up to the pretrial conference). If Oracle’s lead trial counsel’s

28

trial conflicts are resolved by the May 3 conference, then the retrial of this case would remain on
SVI-104357v1

-4-

JOINT STATEMENT
Case No. 07-CV-1658 PJH (EDL)

1

June 18; if not, then this case should trail (ideally on four week’s notice) or be reset for such other

2

time as may be available on the Court’s calendar, should other times have opened based on

3

developments in the next few months. Uncertainty is never ideal, but such flexibility by both

4

sides’ trial teams ought to be possible for a retrial that will be much shorter and more focused

5

than the original.

6
7

Dated: February 24, 2012

JONES DAY

8
9

By: /s/ Tharan Gregory Lanier
Tharan Gregory Lanier

10

Counsel for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

11
12
13

In accordance with General Order No. 45, Rule X, the above signatory attests that

14

concurrence in the filing of this document has been obtained from the signatory below.

15

Dated: February 24, 2012

BOIES, SCHILLER & FLEXNER LLP

16
17
By:

18
19
20

/s/ Steven C. Holtzman
Steven C. Holtzman
Attorneys for Plaintiffs
Oracle USA, Inc., Oracle International
Corporation, and Siebel Systems, Inc.

21
22
23
24
25
26
27
28
SVI-104357v1

-5-

JOINT STATEMENT
Case No. 07-CV-1658 PJH (EDL)