Oracle Corporation et al v. SAP AG et al

Filing 1151

Declaration of Tharan Gregory Lanier in Support of 1150 Opposition/Response to Motion,, 1149 Opposition/Response to Motion, Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections, and Motion for Clarification 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)(Related document(s) 1150 , 1149 ) (Froyd, Jane) (Filed on 5/1/2012)

EXHIBIT 2

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 5
PAGES 754 - 946
OAKLAND, CALIFORNIA
MONDAY, NOVEMBER 8, 2010

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:
FOR PLAINTIFFS:
BY:

BY:

BINGHAM MUCCUTCHEN 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]

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TEXT REMOVED - NOT RELEVANT TO MOTION

4

MR. McDONELL:

THERE IS ONE NEW DEVELOPMENT, YOUR

5

HONOR, WHICH IS OVER THE WEEKEND, THE PLAINTIFFS PRODUCED

6

DEMONSTRATIVE SLIDES FOR THEIR DAMAGES EXPERT ALONG WITH CERTAIN

7

BACKUP MATERIALS FOR THEM.

8

PRESENTED ALTERNATIVE APPROACHES TO MEASUREMENT OF THE

9

HYPOTHETICAL LICENSE VALUE OF DAMAGES, ONE THAT INCLUDES UPSELL

AND WHAT PLAINTIFFS HAVE DONE NOW IS

10

AND CROSS-SELL COMPUTATIONS THAT PRODUCES ONE NUMBER, AND AN

11

ALTERNATIVE SET OF SLIDES THAT EXCLUDES THE UPSELL AND

12

CROSS-SELL AND PRODUCES A -- A DIFFERENT AND LOWER NUMBER.

13

WE THINK THIS JUST CONFIRMS WHAT WE'VE BEEN SAYING

14

ALL ALONG, THAT THESE CROSS-SELL AND UPSELL SALE OPPORTUNITIES

15

HAVE BEEN INCLUDED IN THEIR FAIR MARKET VALUE LICENSE APPROACH

16

ALL ALONG, IN CONTRAVENTION OF YOUR ORDER THAT THEY SHALL NOT

17

USE THIS EVIDENCE IN SUPPORT OF ANYTHING, INCLUDING THE FAIR

18

MARKET VALUE MEASURE OF DAMAGES.

19

MR. PICKETT:

20

THE COURT:

21

MR. PICKETT:

WE DON'T.
OKAY.

GO AHEAD.

HERE -- HERE IS -- HERE IS WHY I SAY

22

THAT.

23

ARE NOT SEEKING ANY CHANGE IN ANY PRIOR ORDER.

24

WITH ALL OF YOUR ORDERS REGARDING THE EVIDENCE OF LOST PROFITS

25

ON SOFTWARE SALES, ALSO KNOWN AS LOST CROSS-SELL/UPSELL SALES,

AND LET ME BE CLEARER THAN I WAS FRIDAY AFTERNOON.

WE

WE ARE COMPLYING

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1

BOTH FOR THE LOST PROFIT MEASURES AND FOR THE FAIR MARKET VALUE

2

OF USE MEASURE.

3

HOWEVER -- AND THAT RULING, AS YOUR HONOR KNOWS, IS

4

BASED ON A FINDING THAT ORACLE -- WE DISAGREE WITH IT -- BUT

5

THAT ORACLE FAILED TO PRODUCE TIMELY THAT EVIDENCE.

6

HOWEVER, WE ARE INTENDING TO RELY ON THE BOARD MODEL

7

THAT MR. ELLISON JUST TESTIFIED ABOUT AS MR. LANIER WAS ASKING

8

QUESTIONS ON CROSS.

9

WITHIN PLAINTIFFS' EXHIBIT 615, AND I HAVE TWO PAGES -- OR THREE

SPECIFICALLY, IT'S DATA THAT'S CONTAINED

10

PAGES, RATHER, FROM THAT.

11

TERRIBLY LEGIBLE, BUT I THINK IT WILL GIVE YOU A SENSE OF WHAT

12

I'M TALKING ABOUT.

13

IT'S DATA.

FRANKLY, IT'S NOT

(EXHIBIT PUBLISHED TO JURY.)

14

MR. PICKETT:

15

YEAH, YOU CAN PUT THAT UP IF YOU WISH.

16
17

AND I HAVE A COPY FOR COUNSEL.

(EXHIBIT PUBLISHED TO JURY.)
MR. PICKETT:

WHAT THIS IS, IS THIS IS GOING TO BE --

18

THIS IS, IN A SENSE, AN OFFER OF PROOF.

BUT THIS IS A DOCUMENT

19

THAT MS. CATZ WILL BE TESTIFYING ABOUT.

IT'S A DOCUMENT THAT

20

WAS PRODUCED TIMELY.

21

MR. ELLISON, MR. PHILLIPS, MS. CATZ.

22

WITH RESPECT TO TIMELINESS AND WHAT IT SHOWS.

23

IT WAS PRODUCED BEFORE THE DEPOSITIONS OF
FULLY PRODUCED, NO ISSUE

IT SHOWS THE DATA THAT WAS PRESENTED IN THAT BOARD

24

MODEL TO SUPPORT THE PEOPLESOFT ACQUISITION.

25

CERTAIN ASSUMPTIONS, NOT BASED, BY THE WAY, ON ANY INTERNAL DATA

AND THERE ARE

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1

BECAUSE IT WAS A HOSTILE TAKE-OVER, YOUR HONOR WILL RECALL.

2

THERE'S NO INSIDE INFORMATION.

3

INFORMATION.

4

SO

IT'S JUST PUBLICLY AVAILABLE

BUT IT IS THE BEST -- AND OUR EXPERT WILL SAY VERY,

5

VERY GOOD EVIDENCE OF WHAT WAS IN THE MINDS OF ORACLE IN LATE

6

2004 WITH RESPECT TO THE PEOPLESOFT ACQUISITION AND, THEREFORE,

7

WHAT WOULD HAVE BEEN IN THE MIND A FEW WEEKS LATER WHEN THERE

8

WAS A -- IN THE HYPOTHETICAL A NEGOTIATION IN JANUARY 2005 ABOUT

9

THIS PROPERTY.

10

NOW, THIS DOCUMENT IS NOT OBJECTED TO BY PLAINTIFFS

11

(SIC), EXCEPT FOR ONE LIMITED USE.

12

DOCUMENT.

13

THE COURT:

14

MR. PICKETT:

15

THE COURT:

16

MR. PICKETT:

17

NOT OBJECTED TO BY SAP.

THEY AGREE THAT THE

BY DEFENDANTS.
WHAT DID I SAY?
"OBJECTED TO BY PLAINTIFFS."
IT'S TOO OFTEN I'M ON THE OTHER SIDE.
THEY ACKNOWLEDGE THAT IT'S A

18

BUSINESS RECORD.

19

RESPECT TO THE MAINTENANCE REVENUES ARE -- ARE LEGITIMATE, CAN

20

BE USED BY OUR EXPERT, CAN BE USED BY THEIR EXPERT FOR THAT

21

MATTER.

22

THEY ACKNOWLEDGE THAT THE ASSUMPTIONS WITH

THAT'S ALL IN.
WHAT THEY DO OBJECT TO ARE FOUR LINES OF THIS THAT

23

HAVE TO DO WITH THE ADDITIONAL SALES OF APPLICATIONS -- OF

24

APPLICATION SOFTWELL (SIC) -- THE UPSELL IN THE VERNACULAR OF

25

THE CASE THAT ARE IN THIS DOCUMENT AND THAT ARE -- THE ONLY

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1

THING USED BY OUR EXPERT BECAUSE WE'RE TALKING ABOUT

2

EXPECTATIONS.

3

THE ACTUAL SALES -- THE THING THAT STARTED THIS WHOLE

4

THING, THAT WASN'T PRODUCED ARE NOT RELEVANT.

5

HANSON CASE AND OTHERS.

6

BASED ON A HINDSIGHT EVALUATION OF WHAT HAPPENED.

7

BASED ON WHAT'S IN THE MIND OF THE PARTIES AT THE TIME OF

8

NEGOTIATION.

9

AND THAT'S THE

THE -- THE NEGOTIATION'S NOT TO BE
IT'S TO BE

AND TO BE SORT OF CRYSTAL CLEAR ABOUT IT, YOUR HONOR,

10

THIS TYPE OF DATA WAS PRECISELY THE DATA THAT WE PUT IN TO THE

11

DECLARATION OF PAUL MEYER OUR DAMAGE EXPERT BACK WHEN THE

12

FIRST -- THE FIRST PARTIAL SUMMARY JUDGMENT MOTION WAS PRESENTED

13

TO YOUR HONOR.

14

AND HE SAID I'VE GOT --

YOU KNOW, THERE'S A PROJECTION.

AND A PROJECTION IS

15

DIFFERENT THAN ACTUAL SALES AFTER THE FACT.

16

YOU KNOW, RELY ON PROJECTIONS.

17

CHALLENGING THIS WHOLE HYPOTHETICAL LICENSE NEGOTIATION

18

APPROACH, YOU'LL RECALL.

19

NEGOTIATION IS A VALUE OF USE.

20

DAMAGES, AND YOU REITERATED THAT IN AN ORDER, AUGUST 17, AS WELL

21

AND ACTUALLY OVERRULED THEIR OBJECTIONS TO THIS VERY EVIDENCE.

AND I'M GOING TO,

AND YOUR HONOR -- AND THEY WERE

YOUR HONOR SAID NO, THE HYPOTHETICAL
IT'S A LEGITIMATE MEASURE OF

22

YOU OVERRULED AN OBJECTION LAST YEAR IN YOUR

23

JANUARY 28TH, 2010 RULING ON THIS WITH RESPECT TO THESE

24

PROJECTIONS.

25

LEGITIMATELY, GET INTO IT.

THIS IS WHY YOU CAN, I THINK ABSOLUTELY

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1

AND -- ONE LAST POINT -- IF THERE ARE ANY DOUBT ABOUT

2

THIS, DEFENDANTS HAVE REPEATEDLY OPENED THE DOOR TO THIS VERY

3

ISSUE OF WHAT WOULD BE IN THE MINDS OF ORACLE WITH RESPECT TO

4

UPSELL, NOT THE ACTUAL SALES AFTER THE FACT.

5

MIND WHEN THEY COME TO THE NEGOTIATION TABLE.

6

WHAT'S IN THEIR

THEY DID IT IN THEIR OPENING STATEMENT IN TWO MAJOR

7

WAYS.

8

ABOUT IT.

9

WEIGHS ALL THE INDICATIONS OF VALUE AND COMES OUT WITH A VALUE

10

FIRST, THEY PUT FORWARD OUR -- WE HAVE A -- BE VERY CLEAR
IF THE UPSELL IS IN THE MIND OF ORACLE, OUR EXPERT

FOR THE PEOPLESOFT LICENSE OF AT LEAST $2 BILLION.

11

IF THE UPSELL IS TAKEN OUT, AND IT'S ONLY

12

MAINTENANCE, THEN THE VALUE OF THE LICENSE IS DECREASED.

13

DECREASES ALL THE WAY DOWN TO 1.5 -- AT LEAST 1.5 BILLION.

14

KNOWING THAT THE $2 BILLION FIGURE -- OUR $2 BILLION FIGURE WAS

15

BASED ON THIS -- THE PROJECTION IN -- IN THE DOCUMENT 615,

16

KNOWING THAT IT INCLUDED UPSELL, THE -- THE DEFENDANTS TELL THE

17

JURY THAT ORACLE'S GOING TO ASK FOR $2 BILLION, QUOTE, BECAUSE

18

THEY SUPPOSEDLY THOUGHT A REALLY LARGE PERCENTAGE OF THEIR

19

PEOPLESOFT CUSTOMERS WERE GOING TO GO TO TOMORROWNOW AND THEN TO

20

SAP.

21

PAGE 412, LINE 13 TO 17 OF THE TRANSCRIPT.

22

AND THEN TO SAP.

THAT'S THE CROSS-SELL.

AND SO THAT ALONE SHOULD BE ENOUGH.

IT
SO

THAT'S AT

BUT IT GOT

23

WORSE.

24

REFERENCE TO MR. HENLEY, ORACLE'S CHAIRMAN, ABOUT WHICH THEY

25

SAID THE EVIDENCE WAS GOING TO BE ABOUT SWITCHING FROM

BECAUSE EVEN LATER IN THE OPENING STATEMENT, THERE WAS A

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1

PEOPLESOFT TO SAP AND THE -- AND THE HIGH EXPECTATIONS -- THIS

2

IS A QUOTE -- HIGH EXPECTATIONS THAT TOMORROWNOW IS GOING TO

3

TAKE AWAY A LOT OF VALUABLE BUSINESS, MEANING THE SWITCH -- IT'S

4

CALLED UPSWITCH OR UPSELL -- FROM PEOPLESOFT TO -- TO SAP.

5

AND THEN EVEN TODAY -- EVEN TODAY, WE GET IT AGAIN.

6

WE HAVE EXHIBIT 4089 FROM MR. HENLEY TO MS. CATZ.

7

QUESTION WAS, WHAT WAS THE CHAIRMAN'S THINKING AT THE TIME.

8

THEY GET THE ISSUE.

9

ORACLE'S MIND WHEN IT COMES TO THE NEGOTIATION TABLE.

AND THE

THEY UNDERSTAND THAT IT'S ABOUT WHAT'S IN
AND THE

10

QUESTION WAS, WHAT WAS MR. HENLEY'S THINKING AT THE TIME WITH

11

RESPECT TO, QUOTE, A SWITCH FROM PEOPLESOFT TO SAP.

12

THAT'S OUT OF THE MOUTHS OF SAP'S LAWYERS, REPEATED

13

QUESTIONS ABOUT HOW MANY CUSTOMERS SAP COULD GET, NOT

14

TOMORROWNOW.

15

AND THEN FINALLY, REFERENCE TO THE BOARD MODEL ITSELF

16

IN WHICH MR. ELLISON TESTIFIED THAT WE PREPARED TO THE BOARD A

17

MODEL TO JUSTIFY OUR $11 BILLION.

18

EXPECTATIONS ABOUT THE PEOPLESOFT ACQUISITION.

19

EXPECTATIONS ARE WHAT IS IN THE MIND OF SAP -- OF ORACLE WHEN IT

20

COMES TO THAT NEGOTIATING TABLE.

21

DO WITH AFTER-THE-FACT SALES THAT YOUR HONOR AND MAGISTRATE

22

JUDGE LAPORTE FOUND DIDN'T COME IN.

23

WE HAVE TO -- WE HAVE CERTAIN
THOSE VERY SAME

AND, AGAIN, IT HAS NOTHING TO

IT'S JUST WHAT'S IN THEIR MIND LATE 2004,

24

JANUARY 2005.

25

DATA.

THAT'S ALL WE'RE RELYING ON, THIS SINGLE SET OF

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1

MR. McDONELL:

YOUR HONOR, COUPLE OF THINGS.

FIRST

2

OF ALL IN TERMS OF THE MENTION OF THESE VARIOUS THINGS COUNSEL

3

JUST TALKED ABOUT, THOSE WERE GENERIC; NONE OF THEM WERE IN THE

4

CONTEXT OF THIS PRECISE ISSUE, UPSELL AND CROSS-SELL.

5

REALLY DID NOT PRESENT THAT ISSUE IN ANY WAY, SHAPE, OR FORM.

6

THEY

THERE CERTAINLY IS EXPECTATION EVIDENCE ON BOTH SIDES

7

THAT IS APPROPRIATE IN THIS CASE.

8

NOW IS ENFORCING THE CONSEQUENCE OF THE SANCTIONS ORDER THAT

9

RESULTED IN YOUR ORDER ADOPTING IT AND RESULTED IN THE ORDERS ON

10
11

WHAT WE'RE TALKING ABOUT HERE

MOTIONS IN LIMINE.
AND, AGAIN, IT IS CLEAR NOW THAT -- THAT UPSELL AND

12

CROSS-SELL IS IN THESE NUMBERS.

13

VERY QUICKLY OF MY OWN, YOUR HONOR, TO SHOW YOU REALLY THE --

14

THE PRECISE THING WE'RE TALKING ABOUT HERE.

15
16

AND IF I JUST MAY HAVE A SLIDE

(EXHIBIT PUBLISHED TO JURY.)
MR. McDONELL:

17

NO, NEXT SLIDE, PLEASE.

(EXHIBIT PUBLISHED TO JURY.)

18

MR. McDONELL:

19

IT'S ONE OF THE SUPPORT SHEETS THAT'S LIKE AN EXCEL

20
21
22

NO.

SPREADSHEET.
(EXHIBIT PUBLISHED TO JURY.)
MR. McDONELL:

YOUR HONOR, HERE IS THE BACKUP SUPPORT

23

FOR THEIR CURRENT VERSION OF THEIR -- EITHER AS COUNSEL

24

MENTIONED, 2 BILLION OR APPROXIMATELY $1.5 BILLION CLAIM, ONE

25

WITHOUT UPSELL AND CROSS-SELL, ONE THAT INCLUDES IT.

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1

THIS IS THE BACKUP SUPPORT FOR THE LARGER NUMBER THAT

2

SHOWS AS CLEAR AS CAN BE THAT WHAT THEY'RE INCLUDING IN

3

COMPUTING THAT NUMBER IS LOST INCREMENTAL REVENUE -- UPSELL LOST

4

INCREMENTAL REVENUE -- WELL, THE NEXT ONE, IF I COULD SEE IT, IS

5

THE SAME FOR CROSS-SELL.

6

THEY BUILD THE $2.1 BILLION CLAIM.

7

THOSE NUMBERS ARE FOUNDATIONS ON WHICH

THE PROBLEM THAT WE'RE ADDRESSING HERE IS TWO-FOLD.

8

ONE, YOU KNOW, THEY DRAW THIS DISTINCTION BETWEEN A LOST

9

OPPORTUNITY TO UPSELL AND CROSS-SELL AND A LOST EXPECTED

10

OPPORTUNITY TO UPSELL AND CROSS-SELL.

11

YOUR HONOR, THAT'S A DISTINCTION WITHOUT A

12

DIFFERENCE.

13

WHETHER YOU CALL IT A LOST OPPORTUNITY OR A LOST EXPECTED

14

OPPORTUNITY, IT'S THE SAME THING.

15

EVIDENCE OF THIS CASE THE SAME WAY, BECAUSE YOU'LL SEE WHAT WE

16

HAVE HERE.

LOST PROFITS ARE PROFITS THAT WERE NEVER MADE, SO

AND IT PLAYS OUT IN THE

AND IT'S, FRANKLY --

17

FRANKLY, DIFFICULT FOR ME TO STAY OUT OF THE WAY.

18

MAY I USE YOUR MICROPHONE, MR. PICKETT?

19

MR. PICKETT:

20

MR. McDONELL:

SURE.

IT'S NOT A OPRAH MIKE, BUT --

YOUR HONOR, WE HAVE TO GO BACK TO

21

FIRST PRINCIPLES, AND WHAT IS THE SUBSTANCE OF THE HARM WE'RE

22

TALKING ABOUT HERE?

23

AND CROSS-SELL INFORMATION ABOUT WHAT THESE COMPANIES,

24

PEOPLESOFT AND SIEBEL HAD ACTUALLY ACCOMPLISHED OVER TIME GOING

25

ALL THE WAY BACK TO THE PERIOD SEVERAL YEARS BEFORE THOSE

WHAT WE DID NOT GET WAS HISTORICAL UPSELL

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1

ACQUISITIONS.

2

INSTEAD, WHAT WE DO HAVE ARE JUST THESE ISOLATED

3

UNSUPPORTED PROJECTIONS, WHICH, AS COUNSEL HAS NOW TOLD YOU,

4

ARE -- ARE THE FOUNDATION OF THEIR CLAIM OF THIS $11 BILLION

5

VALUE.

6
7
8
9
10

THE COURT:

LET ME MAKE SURE I UNDERSTAND.

THESE

PROJECTIONS NOW ARE BASED UPON PRE-JANUARY 2005 SALES FIGURES.
MR. McDONELL:

WE DON'T KNOW WHAT THEY'RE BASED ON.

THEY'RE SIMPLY PROJECTIONS WHICH ARE PRESUMABLY -THE COURT:

WELL, EXCUSE ME.

THERE ARE DATES ON AT

11

LEAST THE ONE THAT COUNSEL GAVE ME, AND IT'S SEPTEMBER OF '03;

12

IS THAT CORRECT?

13

MR. McDONELL:

14

THE COURT:

YES.

SO --

AND SEPTEMBER OF '04.

IT'S THROUGH

15

DECEMBER OF '04.

16

POST-DATE ARE SOMEWHAT PROBLEMATIC, BUT THOSE THAT PREDATE

17

AREN'T REALLY THE SAME THING WE WERE TALKING ABOUT.

18

THE -- IT SEEMS TO ME THAT THE ONES THAT

MR. McDONELL:

THEY'RE EQUALLY, IF NOT MORE,

19

IMPORTANT BECAUSE THESE ARE PROJECTIONS, YOUR HONOR.

20

PROJECTION IS JUST A NUMBER A PERSON WRITES DOWN ON A PAGE.

21

WHETHER THEY BASE THAT PROJECTION IN A WAY THAT CLOSELY HEWS

22

WITH SOME HISTORICAL EVIDENCE THAT MAKES THE PROJECTION

23

RELIABLE, DEPENDABLE, IMPORTANT, OR NOT, IS THE CRUX OF WHAT

24

WE'RE GETTING AT HERE.

25

THE COURT:

OKAY.

A
AND

LOOK, I THINK THAT I CAN MAKE THIS

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1

EASY FOR BOTH OF YOU.

2

ADDRESS.

3

THERE'S SOMETHING THAT YOU NEED TO

FIRST OF ALL, NO DISTINCTION WAS MADE BETWEEN THE

4

ACTUAL LOST PROFITS BASED UPON THE -- THE POST-JANUARY 2005

5

PERIOD AND THE PROJECTIONS WHICH WERE BASED UPON PREVIOUS SALES

6

ACTIVITY ON ORACLE'S PART.

7

EITHER IN JUDGE LAPORTE'S ORDER IN THE -- AT THE TIME OF THE

8

PRETRIAL CONFERENCE WHEN THE WHOLE SECOND ISSUE WITH REGARD TO

9

UPSELL AND RESALE APPEARED.

10

THERE WAS NO DISTINCTION MADE AT

THERE'S NO DISTINCTION.

THE FIRST THIS EVEN OCCURRED

11

TO ME WAS ON FRIDAY WHEN THE EXHIBIT WAS SHOWN -- SHOWING SAP'S

12

PROJECTIONS.

13

MEANS IN TERMS OF ARGUMENT AS TO ORACLE'S PROJECTIONS.

14

OCCURRED TO ME THAT THERE WAS A DISTINCTION TO BE MADE.

15

I IMMEDIATELY THOUGHT, HMM, I WONDER WHAT THAT

JUDGE LAPORTE'S ORDER DOESN'T ADDRESS IT.

IT NEVER

NO ORDER

16

THAT I'VE ISSUED ADDRESSES THIS.

17

IS ENTIRELY NEW ISSUE.

18

ORDER.

19

KNOW IT WAS AN ISSUE AT THE TIME THAT I ADOPTED THE SANCTIONS

20

ORDER.

AS FAR AS I'M CONCERNED, THIS

IT IS NOT BARRED BY THE PRIOR DISCOVERY

IT COULDN'T CONCEIVABLY BE BARRED WHEN I DIDN'T EVEN

21

SO THE QUESTION IS WHETHER OR NOT IRRESPECTIVE OF THE

22

SANCTION ORDER, WHETHER OR NOT THE EVIDENCE SHOULD COME IN.

23

THE ONLY QUESTION HERE IS WHETHER OR NOT IT WAS PRODUCED IN

24

DISCOVERY.

25

DISCOVERY, THE DIFFICULTY FOR SAP AT THIS POINT IS THAT YOU

AND

AND TO THE EXTENT THAT IT WASN'T PRODUCED IN

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1

DIDN'T RAISE THE MOTION.

2

OF EVIDENTIARY ISSUES.

3

SOMETHING THAT YOU WERE AWARE OF.

4
5
6

YOU ALL RAISED MOTIONS ON ALL MANNER
I CANNOT IMAGINE THAT THIS IS NOT

MR. McDONELL:

YOUR HONOR, THIS -- THIS WAS OUR

MOTION IN LIMINE NO. 2 COUPLED -THE COURT:

NO.

NO.

NO.

THERE WAS NO DISTINCTION

7

MADE WHATSOEVER IN THAT MOTION WITH REGARD TO PROJECTED SALES.

8

THE HYPO- --

9

WHEN I RULED THAT THE LOST REVENUE FROM UPSELL AND

10

CROSS-SELL COULD NOT BE USED TO SUPPORT A HYPOTHETICAL LICENSE,

11

THAT WAS BASED UPON POST-JANUARY 2005 SALES.

12

DISTINCTION MADE WITH RESPECT TO WHAT SALES WERE BEING RELIED

13

UPON BY THE EXPERT AND TO THE EXTENT THAT THIS INFORMATION WAS

14

IN MR. MEYER'S REPORT FROM A YEAR AND A HALF AGO, I DON'T

15

REMEMBER THAT.

16

CERTAINLY HAD NO INTENTION OF RULING ON THAT SPECIFICALLY.

17

SO THE QUESTION IS, DO YOU HAVE A BASIS NOW FOR

18
19

THERE WAS NO

YOU ALL DID NOT BRING IT TO MY ATTENTION, AND I

KEEPING IT OUT BECAUSE THE FORMER RULING DOES NOT KEEP IT OUT?
MR. McDONELL:

AND WE DO, YOUR HONOR.

AND IT'S --

20

THE COMMUNICATION MAY BE IMPERFECT ON THIS, BUT THE SUBSTANCE OF

21

THE PROBLEM AND THE PREJUDICE REMAINS THE SAME.

22

IS AS FOLLOWS:

23

AND THE BASIS

JUDGE LAPORTE FOUND THAT WE WERE DENIED DISCOVERY OF

24

ACTUAL LICENSE SALES BY THE PLAINTIFFS, EITHER FOR PEOPLESOFT OR

25

SIEBEL, OR FOR ANY OTHER PARTY.

EVIDENCE OF ACTUAL LICENSE --

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1

THE COURT:

2

MR. McDONELL:

AFTER THE INFRINGEMENT BEGAN.
NO, YOUR HONOR.

AT ANY TIME.

WE

3

ASKED FOR DISCOVERY OF -- ALL FINANCIAL INFORMATION RELATING TO

4

THESE ISSUES, AND WE DIDN'T GET IT.

5

AND ONLY ALLOWED REVENUES CONCERNING DELIVERY OF SUPPORT

6

SERVICES.

NO SOFTWARE LICENSE SALES HISTORICAL DATA WAS

7

PRODUCED.

THAT'S A SETTLED ISSUE.

8

THE BOOK IS CLOSED.

9

WE WERE CONSISTENTLY DENIED

JUDGE LAPORTE FOUND THAT.

THE PROBLEM WITH THAT AND WHAT WE'RE TALKING ABOUT

10

HERE AND NOW IS WHY ARE WE PREJUDICED AS A RESULT OF THAT?

11

IT'S VERY STRAIGHTFORWARD, AND LET ME BE -- TRY -- TRY TO BE

12

VERY CLEAR.

13

AND

THEY NOW WANT US TO ACCEPT THESE PROJECTIONS AT FACE

14

VALUE.

15

TO ACCEPT THESE PROJECTIONS UPON WHICH THEY FOUND THEIR -- THEIR

16

BILLION-DOLLAR CLAIM.

17

FACE VALUE.

WE NOW HAVE NO CHOICE, THEY WILL SAY, BUT

AND, AGAIN, I GO BACK TO A PROJECTION, WITHOUT MORE,

18

IS JUST SOMEBODY WRITING DOWN ON A PIECE OF PAPER WHAT THEY

19

MIGHT WANT TO SELL.

20

ACTUAL UPSELL AND CROSS-SELL EXPERIENCE BEFORE THE DATE OF THESE

21

PROJECTIONS.

22

ASSESSED THESE PROJECTIONS AND --

23

AND WHAT WE DIDN'T GET WAS THE HISTORICAL

HAD WE HAD THAT EVIDENCE, WE COULD HAVE CRITICALLY

THE COURT:

NOW, ARE YOU SAYING, THEN, THAT THE

24

PROJECTIONS THAT ARE INCLUDED POST-ACQUISITION OF TOMORROWNOW BY

25

SAP, THAT'S POST-JANUARY 2005, ARE BASED UPON THE PRE-2005

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SALES, AND YOU'RE SAYING THAT YOU DIDN'T RECEIVE THE UNDERLYING

2

INFORMATION THAT SUPPORTS THE CONCLUSIONS CONTAINED IN THESE

3

COLUMNS?

4

MR. McDONELL:

WE DIDN'T LEAVE (SIC) THE -- WE DIDN'T

5

GET THE UNDERLYING SUPPORT FOR THE PRE-INFRINGEMENT PERIOD OR

6

THE POST-INFRINGEMENT PERIOD.

7

THE COURT:

8

MR. McDONELL:

9

THE COURT:

10
11

OKAY.
WE HAD NEITHER.

OKAY.

MR. McDONELL:

MR. --

AND AS A RESULT COULD NOT CRITICALLY

ASSESS --

12

THE COURT:

13

NOW, OBVIOUSLY, I HAVE NO IDEA WHAT YOU ALL RECEIVED

14

-- SHAKING HIS HEAD.

IN DISCOVERY FROM EACH OTHER.

15

MR. PICKETT:

LET ME BE VERY CLEAR ABOUT THIS.

THIS

16

DATA WAS PRODUCED LONG, LONG TIME AGO.

17

MR. ELLISON TESTIFIED.

18

TESTIFIED AT DEPOSITION.

19

TESTIFIED.

20

FIGURES, WHAT WAS IN YOUR MIND?

21

YOU PAID FOR PEOPLESOFT BASED ON THESE ASSUMPTIONS.

22

THE ASSUMPTIONS THE EXPERT IS USING FOR THE -- THE FAIR MARKET

23

VALUE OF USE.

24
25

IT WAS PRODUCED BEFORE

IT WAS PRODUCED BEFORE MS. CATZ
IT WAS PRODUCED BEFORE MR. PHILLIPS

THEY COULD HAVE ASKED ANY ONE OF THEM ABOUT THESE
THIS IS WHAT YOU -- YOU KNOW,
THOSE ARE

THEY COULD HAVE SOUGHT -- THEY DON'T HAVE TO TAKE
THEM AT FACE VALUE.

THEY HAD AN OPPORTUNITY TO TAKE DISCOVERY

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ON IT.

2

THERE'S NO PREJUDICE, UNLIKE IN THE OTHER SITUATION.

3

THAT'S -- THAT'S WHY IT'S NOT AN ISSUE.

THAT'S WHY

NOW, THERE IS SOME CLAIM HERE THAT -- WHICH IS A NEW

4

CLAIM -- SOME PRIOR DATA WAS NOT PRODUCED.

5

THAT.

6

IN THEIR MIND.

7

BUT TWO POINTS ON

FIRST THESE PROJECTIONS ARE THE BEST EVIDENCE OF WHAT'S
AND THEY HAD THOSE.

SECOND, AS I SAID, IT WAS A HOSTILE TAKE-OVER.

THERE

8

WAS NO OTHER INFORMATION OTHER THAN 10K'S AND PUBLICLY AVAILABLE

9

INFORMATION.

AND WHEN WE PUT -- WHEN WE PRESENT THIS, WE WILL

10

LAY THAT FOUNDATION TO SHOW THAT IT'S PUBLICLY AVAILABLE

11

INFORMATION.

12

BUT IT IS THE PROJECTION.

YOU KNOW, LET'S JUST STEP BACK FOR A MOMENT.

THE

13

BIG -- WE ALL KNOW THAT THIS IS A MAINTENANCE BUT THEN THE IDEA

14

IS YOU GET THE APPLICATION SOFTWARE.

15

SOFTWARE, YOU GET MAINTENANCE FOR YOURS.

16

BUSINESS RUNS FOR BOTH SAP AND ORACLE.

17

AND THEN ONCE YOU GET THAT
THAT'S THE WAY THE

AND WE KNOW THAT WHEN A PARTY WOULD BE NEGOTIATING

18

THIS, SAP (SIC) HAD A CERTAIN THING IN MIND.

19

COMBINATION OF MAINTENANCE AND UPSELL WOULD, IN THE FIRST THREE

20

YEARS, COME UP TO ALMOST $900 MILLION.

21

SIDE?

22

THEY THOUGHT THE

WHAT WOULD BE ON THE SAP

WELL, IT'S THIS DATA RIGHT HERE, WHICH, AGAIN, HAS

23

BEEN PRODUCED LONG AGO, FULLY DISCLOSED, FULL OPPORTUNITY TO

24

TAKE DISCOVERY AND.

25

SAY TO MR. ELLISON, WELL, YOU KNOW, YOU THOUGHT THAT IT'S 20 TO

AND IF THEY DISAGREE, AND THEY DO, THEY CAN

Raynee H. Mercado, CSR, CRR, FCRR & Diane E. Skillman, CSR, RPR, FCRR

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30 PERCENT OF THE CUSTOMERS OR 30 PERCENT OF THE CUSTOMERS.

2

THEY CAN CROSS-EXAMINE THAT.

3

THE FAIR THING TO DO IN THIS CASE.

4
5

AND THE JURY CAN DECIDE.

AND

THAT'S

IT'S -- IT'S THE WAY THE SECOND MEASURE OF DAMAGES,
FAIR MARKET VALUE OF USE, IS DETERMINED.

6

THE COURT:

7

MR. McDONELL:

OKAY.

ALL RIGHT.

YES, YOUR HONOR.

LAST WORD.
THAT WAS JUST A

8

CIRCULAR POINT.

9

DIDN'T NEED AND DON'T NEED DISCOVERY ABOUT THE PROJECTIONS.

HE'S SAYING -- BECAUSE THEY HAVE PROJECTIONS WE

10

HE'S SAYING THAT WE SHOULD HAVE NOW DONE OUR DISCOVERY ON THAT

11

ISSUE HERE IN THIS COURTROOM BY EXAMINING ORACLE EXECUTIVES

12

ABOUT IT.

13

IT'S FAR TOO LATE FOR THAT.
JUDGE LAPORTE WAS CRYSTAL CLEAR IN HER FOCUS ON THE

14

FACT THAT WE HAD NOT RECEIVED A FAIR OPPORTUNITY TO CHALLENGE IN

15

ANY WAY, SHAPE, OR FORM A CLAIM OF LOST UPSELL AND CROSS-SELL

16

OPPORTUNITIES AS YOU SEE ON THE SLIDE, THAT'S PRECISELY WHAT

17

THEY'RE PRESENTING HERE TODAY.

18

THIS IS A -- IT'S A CONTAINED ISSUE RIGHT NOW.

THEY

19

HAVE DEVELOPED THEIR EXPERT APPROACHES ON THIS PRECISE ISSUE SO

20

THEY'RE PREPARED TO PUT THEIR EXPERT ON TODAY WITH EITHER

21

UPSELL/CROSS-SELL IN OR UPSELL/CROSS-SELL OUT.

22

IT HAS BEEN CRYSTAL CLEAR THAT WE'VE BEEN OBJECTING

23

TO AND ACTING UNDER THE UNDERSTANDING THAT THIS IS OUT FOR ALL

24

PURPOSES, AND WE ASK THAT YOU ENFORCE WHAT WE HAVE UNDERSTOOD TO

25

BE YOUR ORDER.

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THE COURT:

AND THE -- THE -- IS MR. PICKETT NOT

2

CORRECT THAT YOU HAD THIS PARTICULAR DATA, AND ARE YOU TELLING

3

ME THAT YOU CHOSE NOT TO TAKE DISCOVERY ON THIS PARTICULAR DATA

4

BECAUSE YOU THOUGHT THAT IT WAS BLOCKED BY JUDGE LAPORTE'S

5

ORDER?

6

MR. McDONELL:

7

THE COURT:

8

NO.

AND IF THAT'S THE CASE, I DON'T QUITE --

I DON'T UNDERSTAND HOW THAT WORKS.

9

MR. McDONELL:

HERE'S THE POINT, YOUR HONOR.

BY THE

10

TIME IT BECAME KNOWN THAT ORACLE WAS SEEKING DAMAGES BEYOND LOST

11

SUPPORT PROFITS, IT WAS FAR, FAR LATE IN THE FACT DISCOVERY

12

PERIOD; IN FACT, JUST MONTHS FROM THE CLOSE OF FACT DISCOVERY.

13

THE ISSUE GOT LITIGATED BEFORE JUDGE LAPORTE AND THEN

14

LITIGATED BEFORE YOUR HONOR THROUGH THE OBJECTIONS, AND JUDGE

15

LAPORTE FOUND THAT THIS WAS OUT OF BOUNDS, PERIOD.

16

PURPOSES OF YOUR ADOPTING ORDER, WE UNDERSTOOD THAT YOU TOOK

17

THAT EVEN ONE STEP TOWARDS FURTHER CLARIFICATION BY SAYING THIS

18

IS NOT COMING IN THROUGH THE BACK DOOR EITHER.

19

AND FOR

WE UNDERSTOOD THAT LOST UPSELL AND CROSS-SELL

20

OPPORTUNITIES WERE OFF THE TABLE.

21

DOCUMENTS.

22

THE COURT:

YES, WE HAD SOME PROJECTION

SO YOU THINK THE DISTINCTION BETWEEN THE

23

ACTUAL SALES, WHICH IS WHAT I WAS CONCENTRATING ON, AS OPPOSED

24

TO THE PROJECTED SALES -- YOU THINK THERE'S NO -- YOU HAVE

25

CONSTRUED THE ORDER AS NOT PROVIDING A DISTINCTION BETWEEN THOSE

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1
2

TWO.
MR. McDONELL:

IT'S MORE THAT -- IT -- IT'S -- THE

3

SUBSTANCE I COME BACK TO IS WE DIDN'T HAVE ACTUAL DATA EITHER

4

BEFORE OR AFTER THE DATE OF THE INFRINGEMENT.

5

COULDN'T ASSESS THE -- THE CREDIBILITY OF THE PROJECTIONS AT THE

6

TIME THEY'RE MADE OR WITH THE BENEFIT OF HINDSIGHT, WHICH THE

7

CASE LAW PERMITS.

8
9
10
11

THE COURT:

AND SO WE

SO YOUR EXPERT DIDN'T LOOK AT THE

PROJECTIONS AND HAS NO OPINION AS TO THE MERIT OF THE
PROJECTIONS?
MR. McDONELL:

HE HAS -- HE WILL HAVE OPINIONS.

HE

12

WILL, HOWEVER, STATE THAT HE HAS BEEN -- AND HE HAS STATED THIS

13

IN THE DECLARATION HE FILED WITH JUDGE LAPORTE, THAT HE'S BEEN

14

SEVERELY LIMITATED (PHONETIC) -- LIMITED IN HIS ABILITY TO

15

CHALLENGE HIM BECAUSE HE DOESN'T HAVE THE UNDERLYING DATA.

16
17

AND HE IS -- AS A RESULT, THERE'S A FAIR AMOUNT OF
PRESSURE ON OUR SIDE TO SIMPLY ACCEPT THEM.

18

THE COURT:

19

MR. PICKETT:

20

THE COURT:

21

MR. PICKETT:

22

THE COURT:

OKAY.

I DON'T QUITE --

I NEED TO CORRECT -EXCUSE ME.

EXCUSE ME.

SORRY.
I'M NOT EXACTLY SURE HOW I'M SUPPOSED TO

23

RESOLVE IT WITH ONE SIDE SAYING THE DATA HAS BEEN PROVIDED AND

24

THE OTHER SIDE SAYING WE DON'T HAVE ACCESS AND HAVEN'T HAD

25

ACCESS TO THE UNDERLYING DATA.

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GENERALLY, THESE KINDS OF MATTERS ARE DETERMINED

2

BEFORE TRIAL.

3

THESE, SHE MADE A DETERMINATION.

4

TO ME THAT THERE WAS THE DISTINCTION THAT YOU'RE NOW DRAWING.

5

WHEN THE MAGISTRATE JUDGE LAPORTE LOOKED AT
I AFFIRMED IT.

DIDN'T OCCUR

YOU ALL NEED TO GIVE ME SOME ASSISTANCE IN

6

DETERMINING HOW I'M SUPPOSED TO DECIDE AN ISSUE OF -- DISCOVERY

7

ISSUE THAT SHOULD HAVE BEEN RESOLVED BEFORE TRIAL.

8
9
10

MR. PICKETT:
THING.

LET ME BE CRYSTAL CLEAR ABOUT ONE

THIS DATA WAS PRODUCED PRIOR TO THEIR FILING THE RULE 37

MOTION WITH MAGISTRATE JUDGE LAPORTE.

11

THE DEPOSITIONS OF MR. ELLISON, MS. CATZ,

12

MR. PHILLIPS WERE PRIOR TO THEIR MOTION TO MAGISTRATE JUDGE

13

LAPORTE.

14

IF THEY HAD SOME QUARREL WITH WHAT THESE PROJECTIONS

15

WERE OR WHETHER THERE WAS SOMETHING MORE THEY NEEDED, OR THERE

16

WAS SOMETHING MISSING, WOULDN'T THEY HAVE TOLD JUDGE LAPORTE

17

ABOUT IT RATHER THAN TRYING TO SWEEP THIS IN NOW AND SAY THAT

18

WELL, PROJECTIONS, YOU KNOW, AREN'T GOOD ENOUGH.

19

ARE PRECISELY THE ISSUE.

20

PROJECTIONS

KEEP IN MIND THE CASE LAW ON THIS HYPOTHETICAL

21

NEGOTIATION.

22

IT'S BASED ON PROJECTIONS IN THE MIND AT THE TIME.

23

EVIDENCE.

24

IT'S FAR TOO LATE TO COME IN HERE NOW AND TRY AND CUT THIS OUT,

25

PARTICULARLY WHEN THEY'VE OPENED THE DOOR AGAIN AND AGAIN AND

IT'S NOT BASED ON -- YOU KNOW, AFTER THE FACT.

THEY'VE HAD IT.

THAT'S THIS

THEY'VE HAD AN OPPORTUNITY -- AND

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AGAIN.

2

MR. McDONELL:

YOUR HONOR, LET'S COME BACK TO WHAT'S

3

BEEN PRECLUDED.

4

CLAIMS FOR LOST UPSELL AND CROSS-SELL OPPORTUNITIES.

5

OPPORTUNITIES.

6

GET IN CROSS-SELL AND UPSELL IS NOTHING MORE THAN A PROJECTION

7

OF THAT OPPORTUNITY.

8
9

JUDGE LAPORTE PRECLUDED THEM FROM PURSUING

A PROJECTION OF WHAT THEY THINK THEY'RE GOING TO

IT'S AN EMBODIMENT OF THAT OPPORTUNITY.

JUDGE LAPORTE FOUND THAT WE HAD NOT HAD ADEQUATE
DISCOVERY ON THAT ISSUE TO CHALLENGE IT ONE WAY OR THE OTHER.

10

WE STILL HAVE NOT HAD IT.

11

POWER AND AUTHORITY TO SIMPLY AFFIRM THAT RULING AND ALLOW

12

PLAINTIFFS TO PROCEED WITH THEIR ALTERNATIVE THEORY THAT THEIR

13

EXPERT'S READY TO PROCEED WITH HERE TODAY.

14

THE COURT:

IT IS ABSOLUTELY WITHIN THE COURT'S

RIGHT.

RIGHT.

WELL, I THINK YOU'VE BOTH

15

MADE GOOD ARGUMENTS.

16

COURT AT THE TIME OF THE PRETRIAL RULING.

17

THE DEFENSE POSITION.

18

OPPORTUNITY IS CLOSE ENOUGH.

19

IT CLEARLY WASN'T CONTEMPLATED BY THE
BUT I'M PERSUADED BY

I THINK IT'S CLOSE ENOUGH -- I THINK

I'M GOING TO REAFFIRM THE RULING.

UPSELL,

20

CROSS-SELL, WHICH I HAVE DENIED ALL ALONG, CONTINUES TO BE

21

DENIED.

TEXT REMOVED - NOT RELEVANT TO MOTION

Raynee H. Mercado, CSR, CRR, FCRR & Diane E. Skillman, CSR, RPR, FCRR

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