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).

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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: (415) 626-3939 Facsimile: (415) 875-5700 Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 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: (415) 393-2000 Facsimile: (415) 393-2286 BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8200 Facsimile: (914) 749-8300 STEVEN C. HOLTZMAN (SBN 144177) FRED NORTON (SBN 224725) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: (510) 874-1000 Facsimile: (510) 874-1460 DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: (650) 506-4846 Facsimile: (650) 506-7114 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)

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