Oracle Corporation et al v. SAP AG et al

Filing 1143

Declaration of Tharan Gregory Lanier in Support of 1142 MOTION in Limine Defendants' Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Related document(s) 1142 ) (Froyd, Jane) (Filed on 4/26/2012)

EXHIBIT 1

PAUL K. MEYER
May 12, 2010
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE CORPORATION, a
Delaware corporation,
ORACLE USA, INC., a
Colorado corporation, and
ORACLE INTERNATIONAL
CORPORATION, a California
corporation,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
) No. 07-CV-1658 (PJH)
)
SAP AG, a German
)
corporation, SAP AMERICA,
)
INC., a Delaware
)
corporation, TOMORROWNOW,
)
INC., a Texas corporation,
)
and DOES 1-50, inclusive,
)
)
Defendants.
)
________________________________)

VIDEOTAPED DEPOSITION OF
PAUL K. MEYER
_________________________________
VOLUME 1; PAGES 1 - 331
WEDNESDAY, MAY 12, 2010

HIGHLY
REPORTED BY:

CONFIDENTIAL - ATTORNEYS' EYES ONLY
HOLLY THUMAN, CSR No. 6834, RMR, CRR
(1-427362)

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PAUL K. MEYER
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Cause of Action, No. 1, Copyright Infringement.

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you see that?

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A.

Yes.

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Q.

Can you explain what's included in the

Q.

Let's go in Exhibit 2017 to the First
Do

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PAUL K. MEYER
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under Actual Damages, you have the value of use,

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which is basically the fair market value of the

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license, which is -- the amount there is the 2

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billion 156.

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Siebel, and the database calculations.

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the amount for OIC, which holds the copyrights,

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that's the 36 million to the 120.7 million.

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those are the numbers that are summarized there.

damages remedy part?
A.

Yes.

From my perspective, you have the --

And that includes the PeopleSoft,

And then the other measure of actual
damages is lost profits.

And what's in there is

And

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Exhibit 2017 for infringer's profits against

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TomorrowNow.

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A.

Yes, I believe in general sense, I do.

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Q.

As you sit here today, are you computing a

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claim for damages of -- well, a claim of

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infringer's profits against TomorrowNow?

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and its lawyers.

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will evolve as we talk about Mr. Clarke's report --

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from my perspective, when it relates to the

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infringer's profit side of the remedies, that from

Q.

Okay.

I don't see any damage item on

Do you know what I'm referring to when I
say infringer's profits against TomorrowNow?

A.

I can't speak to the position of Oracle
From my perspective -- and this

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the standpoint of the analysis, that TomorrowNow,

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as a separate entity within the SAP organization,

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does not have any profits to disgorge is sort of my

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position.

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behalf of Oracle or its lawyers, so I'll defer to

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them on that issue.

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claiming that there are -- that TomorrowNow has

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received infringer's profits that should be

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disgorged.

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that would be my position from the standpoint of

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the finance and economic and accounting issues, the

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damage issues.

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draw your attention to the right-hand column.

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Column No. 2, states:

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causes, copyright, actual damages based on lost

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profits.

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A.

Yes.

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Q.

And under that column in the first row,

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Q.

But I don't want to be speaking on

But let's stick with your position as you

sit here today.
As you sit here today, you are not

A.

Q.

Is that true?

Setting aside the lawyers and the court,

Referring again to Exhibit 2017, I want to

Oracle prevails on all

Do you see that?

there is a line for actual damages, lost profits,

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A.

Yes.

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Q.

Can you please explain those numbers?

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A.

Yes.

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looked at the OIC lost profits, they're 36 million,

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220.7 million.

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amount that would be basically awarded or would

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apply to the lost profits part of the OIC claim for

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And so that's the amount that should be

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sort of the first number that sort of then -- we

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then say, how do the other causes leverage off of

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that, is there duplication or not, going below for

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the other causes.

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A.

Yes.

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Q.

-- is there any number in between the two,

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I'll present it obviously on the lower end.

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through the point in time when TomorrowNow exits

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the market in basically October of 2008.

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that in a general fashion.

36 million to 120.7 million.
Do you see that?

That would be basically, if you

My understanding, that would be the

copyrights.

Q.

All right.

With respect to that range of

36 million to 120.7 million --

or is it one or the other in your mind?
A.

Well, at some level, from my perspective,
That's

And I say

That's the 36 million.

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because these maintenance contracts, once they're

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entered into, there's a long-term relationship, and

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once you leave a provider, it's hard to get the

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business back, the 120.7 relates to impacts out

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through basically 2015.

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it at trial.

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fact decided there was some in-between position,

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the jury or the judge could do that.

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the two sort of extremes that I've sort of

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corralled or presented.

The 120.7 million takes the position that

Obviously, this would be how I'd present
And to the extent that the trier of

But those are

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been marked as Exhibit 2020, can you tell us the

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general purpose of the document?

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listed out, I believe it's 86 customers, and I've

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gone through and categorized them and provided

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information by column.

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they're found to have become a Safe Passage

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customer, I would then leave them in the

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determination of the infringer's profits, so --

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Q.

And why would you do that?

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A.

Because from my perspective, it would

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relate to the marketing, solicitation, the business

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efforts that were taken by SAP in conjunction with

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TomorrowNow to improve and change and upgrade the

MR. McDONELL:

A.

Yes.

Q.

With respect to what's

The general purpose was, there's

So I note whether they're a Safe Passage
customer or not -Q.

And what is the significance of noting

whether they're a Safe Passage customer?
A.

Well, ultimately from my perspective if

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service that was being provided to one of these

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customers.

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Exclusion - Joined SAP Prior to TN; Product

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Extensions"?

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A.

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details later on -- he had a variety of categories

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that he used to -- to exclude customers that were

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in the 86.

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looked at and provided -- provided information to

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me that I adopted.

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had been customers of SAP before TomorrowNow, and

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they did not become part of Safe Passage, I took

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them out.

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part of Safe Passage, I left them in.

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were older customers and they did not become part

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of Safe Passage, I made that adjustment.

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his position was that certain licenses had been

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extended.

Q.

What is the next column, the "Mr. Clarke

Well, Mr. Clarke -- and we can go into his

And they're in his report, and we can

go look at that.
There was two categories that -- that I

And that was that if customers

So if they were older customers that were

Q.

But if they

And what about the second part of it, the

product extensions?
A.

And then Mr. Clarke did some analysis, and

And there may be a variety of reasons

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why he categorized it that way, but say the --

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there had been a license that was based on a

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certain amount of volume per seat or something, and

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that license was extended for some reason, he then

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said, well, exclude that customer.

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finding and they were not part of Safe Passage,

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then I excluded them also.

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Safe Passage, I left them in.

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agreed with those two categories of Mr. Clarke,

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unless the customer was also designated somewhere

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as a Safe Passage customer?

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calculation by Mr. Clarke, I reviewed it, I made

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some adjustments that I felt were appropriate at

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the logic level.

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I'm sort of making them at a level that's grosser

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than I would want to make them out.

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sort of rely upon it a little bit, but then I say,

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by the way, I'm not going to back down from the

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importance that I see of Safe Passage, but I'll

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adopt these exclusions.

From my perspective, if that was his

Q.

A.

Okay.

If they were part of

So is it correct that you basically

You know, these were where we get into the

situations that you have to describe.
From my perspective, I was provided this

But at the same point in time,

So I have to

But it doesn't mean that

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I'm going to adopt the other ones.

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were two that I thought -- if -- the way I

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described it was the way Mr. Clarke had analyzed

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it, I would accept.

And so those

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Q.

So the 577 million is the total SAP

revenue that you are then considering for your

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A.

It would be that revenue --

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Q.

And then if you look at page 4 of 4 --

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MS. HOUSE:

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THE WITNESS:

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For the total disgorgement, it's that

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revenue plus the 577 plus the additional 126 on

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page 4.

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your total is -- let me back up.

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that relates to the disgorgement revenue.

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showing you the reconciliation to the total.

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is 577.

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4 on Exhibit 2020, your infringer's profits

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calculation takes the 577 million, deducts or

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applies a 50 percent profit margin, and then it

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comes up with a total of 288 million.

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right?

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disgorgement analysis.

Is that true?

I think he was not done.
Let me finish.

Maybe you were going to get there.

Now, excuse me.

The 577 is the amount

MR. McDONELL:

A.

So

Q.

Okay.

I was
So it

So on page 4 of

Is that

That's correct.

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profits relating to the 358 TomorrowNow customers.

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Correct?

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A.

That's been measured.

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Q.

You've also measured the alleged

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Q.

Which is the up to 86 of those customers?

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A.

The 86 list, that's correct.

Q.

So you have measured the alleged lost

infringer's profits relating both to those -- well,
relating to those customers as well.
A.

Correct?

To a subset of those customers, that's

correct.

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you're working with a list of a total of 86 joint

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customers between TomorrowNow and SAP.

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MR. McDONELL:

A.

That's correct.

Q.

But you do know that

Correct?

I do need to mention one

thing just quickly, because I --

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