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 3

PAUL K. MEYER
May 14, 2010
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 648
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 3; PAGES 648 - 937
FRIDAY, MAY 14, 2010

HIGHLY

REPORTED BY:

CONFIDENTIAL - ATTORNEYS' EYES ONLY

HOLLY THUMAN, CSR No. 6834, RMR, CRR
(1-427378)

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PAUL K. MEYER
May 14, 2010
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referred to your report.

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report, what you referred to there is a lot of the

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activities of the defendants that you chronicle in

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your report, or the alleged activities.

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particular customer's purchase of something from

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SAP, either some software or service, and some

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alleged infringement in a way that you can say that

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you know that that customer made that purchase from

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SAP and, but for the activities of TomorrowNow,

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that customer would not have made that purchase?

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Have you done that analysis?

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MS. HOUSE:

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assumes a legal test that's not in evidence,

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overbroad.

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question.

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addressed that exact issue.

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I've testified clearly the last 2 days of

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TomorrowNow and SAP, and the significant references

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to my report, which I mentioned right here, and the

MR. McDONELL:

Q.

So Mr. Meyer, you
And as I understand your

But that's -- I have a little different
question.
Have you made an effort in your work to
actually establish the causation between a

Objection.

Compound, vague,

And asked and answered.

THE WITNESS:

I believe I've answered that

And from my perspective, I have
And the activities as

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PAUL K. MEYER
May 14, 2010
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hundreds of documents in my footnotes that

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reference this plan of SAP and TomorrowNow and

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working in union, from my perspective, sets up a

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situation where one cannot undo what's been done.

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Let me finish.

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So once that plan is unveiled, and the

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salesforce is initiated, and 4000 customers are --

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joint customers are approached and presented and

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solicited, you have a situation now where a

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business plan and marketing activities have taken

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place using the property that in this case is not

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the property of SAP/TomorrowNow.

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And I focused on the 86, and I've made some

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adjustments and I've looked at timing issues.

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those customers now have all been -- at some level

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been impacted, and SAP has benefited from having a

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program in place that was announced to the world on

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January 19th, 2005.

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much different than that, because you look at all

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those customers, and those were joint customers,

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they had TomorrowNow, they had SAP's other

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products, and that's where we are.

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That has an impact on all those customers.

But

And one can't go to any level

And I've quantified it, I've made
adjustments.

I believe I've addressed what I need

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to address, and I feel the numbers are

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appropriates.

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PAUL K. MEYER
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Strike that.

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Okay.

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paragraph 435 of your report.

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reads:

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the basis of its lost support profits, as

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opposed to based on the fair market value of

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SAP's use of the infringed copyrighted

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materials in suit, I understand Oracle would

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be entitled to an award of infringer's

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profits as it relates to any relevant

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TomorrowNow customers who are -- who also

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purchased applications or other services from

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SAP or were otherwise excluded from the

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calculation of lost support profits.

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A.

Yes.

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Q.

And I think this is clear, but just to

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make it clear, that defined term "relevant

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TomorrowNow customers," that's our list of 86.

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Right?

MR. McDONELL:

Q.

Would you look at

paragraph 435 of your report again, please?

I want to draw your attention to
The third sentence

If Oracle is awarded actual damages on

Do you see that?

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where you say, or were otherwise excluded from the

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calculation of lost support profits, what do you

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mean by that?

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the relevant TomorrowNow customers, it's the ones

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that overlap with having SAP, other purchases.

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it is the 86, but just -- it really is the whole

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phrase that brings that together.

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in that same sentence where you make reference to

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those customers who are otherwise excluded from the

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calculation of lost support profits, what are you

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getting at there?

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the 358, I've made certain exclusions and I've done

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certain calculations.

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where in the group that was excluded in that

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determination of the lost profits due to Oracle

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from TomorrowNow, if someone was excluded for the

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reasons I've laid out in my report, and I've

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presented those schedules, that from -- my

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understanding is that that customer would also be

A.

That would be the list of 86, that's

correct.
Q.

A.

Q.

A.

And then going on in that same sentence,

Let me back up.

Thank you.

Just to be precise, with

So

Then my follow-up question is,

Well, that would be a situation where, of

If there was a situation

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eligible for a calculation of infringer's profits

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as it relates to that TomorrowNow customer that's

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not also in the group of 86.

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So it's sort of that -- that's the
category of that -- of that situation.

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marked as Exhibit 2020 reflects your current

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analysis of infringer's profits.

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A.

That's correct.

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Q.

So I want to walk through it and make sure

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established that the customers listed here are the

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list of 86.

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are some companies that may appear twice, like a

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Zimmer, Inc., there may be more than 86 line items.

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But essentially, what you've tried to do is analyze

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the list of 86 customers.

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Q.

Okay.

So as you sit here today, what's

Is that right?

I understand all the details.
First of all, is it -- I think you already

A.

Yes.

Is that right?
This would be the list of 86

customers.
Q.

A.

And I think in some cases, because there

That's right.

Correct?

I would agree, there's some

additional lines, but it comes back to the 86.
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4 of 4 in Exhibit 2020.

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we've got this clear.

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less a 50 percent profit margin, and resulting in

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alleged SAP infringer's profits of 288 million

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dollars.

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Q.

Okay.

Then let's look at the box on page
I want to just make sure

So your ultimate calculation of
infringer's profits is 577 million in SAP revenue,

A.

Correct?
That's correct.

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just to to get started here, is whether you've read

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Section 12.2 of Mr. Clarke's report; and, if so,

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whether you have -- you know, take issue with it.

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deductions from infringer's revenues as it relates

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to determining infringer's profits in this case, I

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have read through this at a medium to high level,

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and from my perspective, in this part of

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Mr. Clarke's report, have come to no -- really no

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particular opinion.

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basically have taken what I'll call some results

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from his analysis, he comes up with a wide variety

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of analytical schedules and approaches, which I

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can't determine why he had to do that, but the long

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and the short is, he determines that basically, the

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costs are around 50 percent and the profits are

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around 50 percent.

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talking about 42.2.DU, that the figure I use for

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the profit margin of 50 percent is referenced at

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Footnote 10, which basically I take two figures

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from Mr. Clarke's appendix M-9, and I compare those

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figures and come up with a factor of 50 percent.

Q.

A.

Yeah.

So, you know, my overall question,

If we're focused on the issue of the cost

But when you really cut through it all, I

And you'll see in my schedule that we're

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area, I'm not accepting or rejecting.

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saying, for purposes of the determination of the

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infringer's profits, I'll use this figure, and

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there we are.

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Q.

Okay.

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A.

And I understand that represents sort of

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the cost of license and support.

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a --

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Q.

Blended?

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A.

-- blended cost of product and support.

And we can go look at that.

So in this
I'm just

Thank you.

That's sort of

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