Oracle Corporation et al v. SAP AG et al

Filing 1155

Declaration of Thai Le in Support of 1154 Opposition/Response to Motion In Limine filed byOracle International Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z)(Related document(s) 1154 ) (Howard, Geoffrey) (Filed on 5/10/2012)

EXHIBIT L

Geoffrey M. Howard
Direct Phone: [phone]
Direct Fax:
415.262.9212
[e-mail]

March 28, 2012
Via Email
Greg Lanier, Esq.
Jones Day
1755 Embarcadero Road
Palo Alto, CA 94303
Re: Oracle USA, Inc., et al. v. SAP AG, et al., Case No. 07-CV-1658
Dear Greg:
We agree that it is time to begin the meet and confer process in advance of the retrial.
Please see our responses to the various topics in your Sunday, March 25 email, and some
further issues of our own that we raise, and then let us know if Friday morning is a good
time for an initial discussion.
(1) Scope of New Trial, Jury Questionnaire, Instructions, Verdict Form
We disagree with your initial premise that the new trial will “address a subset of issues
already tried.” Since we will be trying essentially the same case to an entirely new jury,
we do not believe the trial can be substantially reduced without depriving Oracle of its
right to the present the case to a jury. In addition, we intend to provide more evidence on
virtually every issue than we did in the last trial to address the Court’s concerns about the
sufficiency of the evidence. If you are intending to refer to the fair market value measure
of actual damages, we intend to seek clarification from the Court that Oracle may pursue
the hypothetical license remedy. We assume you disagree with Oracle’s position on this
issue, but please let us know immediately if that is not the case. However, from our
perspective that then leaves two categories of material from the last trial – those that
involve the hypothetical license remedy and those that don’t, and the proof necessary for
each category. For both categories, we generally agree that the prior jury materials can
provide the starting point for the retrial, with some modifications that we will propose.
(2) Stipulations
Regarding the pre-trial stipulations reached by the parties in advance of and during the
last trial, we believe the way those materials were presented to the jury – in a binder, with
a chart of the relevant players – is the best way to present them again in the retrial. We
propose to retain the prior exhibit markings (JTX1-5) and pre-admit them into evidence.
We are also in the process of modifying the pre-trial statement to reflect these and
various other stipulations reached and shifting of the issues before and during the last

Greg Lanier, Esq.
March 28, 2012
Page 2
trial. We will consider your proposed additional factual stipulations when you provide
them, and will undoubtedly have some of our own.
(3) Deposition Designations
Oracle agrees that the parties should follow the same practice for resolving objections to
deposition designations as we did during the first trial. In order to have the most
information possible when making objections and then to resolve as many disputes as
possible prior to presenting them to the Court, Oracle proposes to begin the objection
process after the Pretrial conference as follows (note that all dates are proposed based on
the existing trial schedule, which Oracle does not concede is appropriate, either as to start
date or duration):
(a) The parties exchange objections to deposition designations on May 29;
(b) The parties meet and confer about the objections on June 4;
(c) The parties exchange final objections on June 8;
(d) The parties submit a chart of the designations and objections (as with the last
trial, lodging, not publically filing the disputed testimony) on June 11; and
(e) The parties would request that the Court rule on the objections prior to the
playing of deposition testimony at the new trial.
(4) Trial Exhibits
(a) Oracle agrees that the parties should use the same exhibit numbers for
exhibits included on the original trial exhibit lists and/or marked during the original trial
(although Oracle may number the pages of a given exhibit in the convention of, for
example, PTX 2 Page 1 of 8). To avoid confusion, for any new exhibits, Oracle proposes
that the parties number them sequentially starting with the number after the last exhibit
number used in the original trial.
(b) While we appreciate that SAP will not need more than 200 trial exhibits,
perhaps in part because it refuses to bring to trial most of its witnesses, Oracle is not in
the same position and does not agree to limit the exhibit list at this time. Of course, we
do not intend to list exhibits that we will not potentially use.
(c) Regarding a stipulated request to the Court to resolve objections to exhibits at
the pretrial conference, Oracle notes that the Court's Pretrial Order Re Retrial (docket
#1110) specifically states that "The parties shall not file separate objections, apart from
those contained in the motions in limine, to the opposing party's witness list, exhibit list
or discovery designations." The Court is clear that it does not want the parties to expand
their Motions in Limine by submitting separate exhibit objections, nor does it want to
address evidentiary objections that are premature given the fluid nature of trial.

Greg Lanier, Esq.
March 28, 2012
Page 3
(d) Oracle does, however, agree that the parties should meet and confer in
advance of trial in order resolve as many evidentiary objections as possible. Oracle
therefore proposes the following schedule:
(i) The parties exchange agreed admissions and objections to all exhibits
on May 14 (understanding that in some instances, client consultation may be
necessary before a final position is articulated);
(ii) The parties meet and confer regarding objections on May 21 (and
thereafter as necessary);
(iii) The parties exchange revised, final objections on June 1;
(e) As in the initial trial, the parties would then create a detailed schedule for
identifying which exhibits are to be used with which witnesses, thus teeing up any
outstanding evidentiary objections for the Court to address either the afternoon prior to
the day the witness will be called or the morning of that witness' testimony according to
the Court's preference.
(5) Discovery
Given the passage of time, we believe a limited amount of discovery is appropriate, as
follows:
1. Updated transactions. Since the Court has found that Oracle’s evidence was
insufficient to support the hypothetical license remedy at the last trial, in part
based on the Court’s finding of insufficient benchmark licenses, we request that
SAP provide discovery regarding all transactions in which it has been involved,
since its last production on that issue, that included rights to copyrighted
enterprise applications or database software. This material should include any
contemplated or consummated acquisitions of companies that provide enterprise
applications or database software (including but not limited to SyBase).
2. Recent SAP benchmark licenses. Because of the importance the Court has
placed on benchmark licenses in its post-trial orders, we request discovery into
whether SAP has negotiated or granted any licenses since trial involving SAP
support services.
3. Updated SAP Revenues. SAP’s revenues are a fundamental element in
measuring infringer’s profits. SAP has continued to profit from its continued
relationship with at least some of the customers that left Oracle due to TN and
the Safe Passage program. In order to more accurately measure infringer’s
profits, we request updated revenue information from SAP for all TN customers.
4. The current status of Safe Passage program. At trial, SAP repeatedly argued that
TomorrowNow was a small part of the Safe Passage program aimed at
convincing customers to leave Oracle for SAP. See e.g., Trial Tr. 404:23-406:4,

Greg Lanier, Esq.
March 28, 2012
Page 4
1464:23-1465:9. We request updated information about the success of the Safe
Passage program in the years following the close of TomorrowNow.
5. SAP disciplinary action. At trial, SAP’s co-CEO Bill McDermott stated that he
was “sure” that an SAP investigation into the SAP “employees that may or may
not have had a hand in something to do with TomorrowNow . . . will be
forthcoming.” Trial Tr. 1474:1-18. Furthermore, Mr. McDermott stated that this
issue “will be dealt with once we [SAP] get through this phase of the process.”
Id. at 1474:19-25. Oracle requests discovery regarding whether an investigation
occurred, what its results were, and whether any employee was ever disciplined
for the admitted infringement.
6. Rimini Street. Oracle also requests discovery into any licenses between SAP and
Rimini Street, Inc., and any discussions SAP has had with Seth Ravin or Rimini
Street, Inc. regarding Rimini’s support of SAP’s software.
7. Statements Regarding Last Trial. Oracle requests production of all statements
made by any prior or expected SAP trial witness on the topics of the last trial or
jury verdict.
If SAP is amenable to discovery on any of these topics, we will meet and confer with you
to determine the most efficient and appropriate form that discovery should take.
Sincerely yours,

Geoffrey M. Howard
cc: Steven C. Holtzman, Esq.
Jane L. Froyd, Esq.
Joshua L. Fuchs, Esq.