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 S

TRANSCRIPTION

November 17, 2009

C-07-1658 PJH (EDL)
ORACLE CORP. V. SAP AG, et al.
TRANSCRIPT OF AUDIO RECORDING OF CONFERENCE
DATED NOVEMBER 17, 2009, HELD BEFORE
MAGISTRATE JUDGE ELIZABETH D. LAPORTE

Transcribed by:

Freddie Reppond

Merrill Legal Solutions
[phone]

TRANSCRIPTION

November 17, 2009

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MS. HANN: What Mr. Cowan just said is
actually more detailed than we had previously heard,
particularly the specific request to de-designate the
damages amount from HC to C. The protective order has a
procedure for exactly this issue. If you have something
you think the other side should de-designate, it -THE COURT: Well, I think I've indicated in
the pas t-- I know I've said [inaudible] in this one
[inaudible] all the decision-makers know the amount of
damages. And, furthermore, now you're getting close to
trial. I think you know that Judge Hamilton [inaudible]
MS. HANN: We're definitely familiar with the
change.
THE COURT: [inaudible]
MS. HANN: No, we're definitely familiar with
it, Your Honor, but this is literally the first time
that we've heard specifically that they want the number
de-designated. So I think we can talk about that
off-line.
THE COURT: I'm inclined to give it to you,
but why don't you meet and confer about it. There might
be some nuances I don't -- I don't know exactly
[inaudible].
MR. COWAN: Right. We're fine with it being
confidential. We just need to be able to communicate it

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safe-passage program pursuant to which SAP was looking
to recruit Oracle customers to leave Oracle and come to
SAP. But through a lot of discussion, that got reduced
down to a smaller category of those customers that
actually made a purchase of SAP software, you know -- as
something to do with the safe-passage program and they
were also a TomorrowNow customer at the time.
So we put a lot of work into this. And it's
very difficult. They're large companies. A lot of
changes in the ownership, a lot of affiliates. And
you'd be surprised at how the records the company keeps
aren't just pull off the shelf and it tells you the
whole story immediately. So we made very -- very strong
good-faith efforts to try to come up with this list -THE COURT: Okay. Let me say -- I think I
read the -- and what I understand is that these
additional people are people you don't know whether they
took one of the -- out of the bundle of licenses the
company had bought for its subsidiaries or affiliates,
et cetera, whether they used [inaudible]
MR. MCDONNEL: Our belief is that the
TomorrowNow customer, a corporation, did not purchase
SAP software. But there were some hints in the
custodian documents produced by Oracle that maybe some
of these customers went on a parent's license, without

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to a broader audience within our clients.
MS. HANN: Thank you.
MR. HOWARD: Hi, Your Honor. I think the next
issue is ours, which is on November 3rd, we learned from
Defendant's counsel that they had uncovered seven new
customers who we were not previously aware of. And they
appear to fall within the definition of the agreed
relevant customers which were involving SAP sales to
TomorrowNow customers after acquisition of TomorrowNow.
Since then, we've followed up. We've tried to
learn more about these and really have not received much
information about them and appears they're refusing to
provide the financial backup regarding those customers.
And so we would just ask that they be required to live
up to the agreement between the parties and produce all
the information about these customers. And, further, I
think we'll probably need to address that at some point
in our expert reports, because they were due yesterday.
And so, obviously, this information has not been built
into that.
MR. MCDONNEL: Your Honor, the broader
background of this is early in the case there was a
discussion and an effort by Plaintiffs to get discovery
of the so-called safe-passage customers. There's been a
lot of discussion about the fact that there was a

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buying it, you know, but just piggy-backed on a parent's
license. We raise this to be transparent, because it's
an issue we don't think we should have to produce this.
It's going to be burdensome if we have to go further -THE COURT: -- in other words, my question was
for Oracle. There would be no new purchase. Now, I
guess you could argue that if they hadn't given it to
this subsidiary, they'd give it somebody else. But
presumably they purchased the total number they were
going to get and they were only going to be allowed that
number. So I think -MR. HOWARD: Right. But we lost that
customer, right? So those are lost profits to us
regardless of whether they have a new purchase with SAP
or not. If TomorrowNow -- and the reason why they left
Oracle was because of TomorrowNow and then they end up
at SAP, we've still lost that, correct?
MR. MCDONNEL: But they lost -- they lose
customers every day anyway; and the question here is how
far are we going to go down this road of tangential,
immaterial.
THE COURT: Well, I guess my answer to this it
seems much less directly relevant, because you could
have lost them for a different reason here. It's not as
clearly relevant and I don't [inaudible]. That's the

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TRANSCRIPTION

November 17, 2009

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issue. I mean it's only -- it's a fairly small number
of additional, so I'm not -- seven customers -- I guess,
you know, I don't have -- I mean I can see requiring you
to produce some more information.
MR. MCDONNEL: It does implicate, then, a
whole -- everybody's fighting over what it all means.
In our view you should draw the -- you got to cut it off
somewhere. And we feel we've gone way past the extra
mile on this one. And we're surfacing this. We did
want to get it out on the table. We did want -THE COURT: Well, the most I can tell you is
that I think it's -- I agree with the Defendant that
it's of a lot less relevance than the original list
because I don't think it's as damaging. It's arguably
-- arguably slightly damaging. I think it's getting
into a more nebulous category. And so I probably
wouldn't -- I mean if it's going to be very burdensome,
I wouldn't order very much discovery on it. And that's
the most I can say. So I mean I'm not saying you
should -- you automatically get nothing. I feel there's
a proportionality thing, which I don't have enough. But
I can tell you I view it as less important and less
relevant than the others.
MR. HOWARD: And, Your Honor, I appreciate
that guidance. Our problem is we -- they haven't given

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I'm not going to let you file a motion on everything, so
you should also be thinking about that.
MR. HOWARD: Do we still have twenty minutes,
Your Honor, remaining?
THE COURT: You know, roughly that. You know.
If you can eliminate issues, I'm willing to give you a
half hour. I just want to -- but I'm not ruling then to
[inaudible]. I want you to be able to take the guidance
I've been giving you and resolve these things.
MR. COWAN: Your Honor, to help us in the
conversation we're going to have while you're out, I
interpret what you said as, at least as from the Court's
perspective, being the volume of materials that you need
to resolve once we've filed these motions but in terms
of the quantity. Is it also the number of issues?
THE COURT: Yes, the number of issues
primarily. I mean I don't -- you can shrink the ratio
to where you're ready to tell me anything about the
dispute and I still have to decide it and then I can't
do it.
MR. COWAN: Fair enough.
THE COURT: Which is somewhat what this filing
looks like, you know. So, as you know, I like to know a
fair amount of the dispute before I decide it in a
formal way. And if I'm going to do that, there's going

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us any information for us to even evaluate how damaged
we've been or anything like that.
MR. MCDONNEL: But we have. We've told them
we've searched. And we were unable to determine from
central records, which is what we're all looking at on
these targeted search requests, that this customer -the TomorrowNow customer -- made any additional purchase
and that there was this evidence that maybe they had
piggy-backed on an affiliate's license. But if the
affiliate had already made the purchase, we think it's
just going beyond the line. We've got so much other
stuff to do, as we're all talking about here today.
THE COURT: Well, as I say, I tend to agree -I just don't see it as a bright line, as you're arguing
it. It's a relationship proportionality. I don't think
it has a whole lot of relevance, but it doesn't have
zero. So I don't know whether there's something that
could be different that would matter. I mean you've
given them the names. And I guess -- I don't why
someone can't just call them up and find out if they -you know -- informally. I don't know who they are, but
I'm not going to spend any more time.
I'm going to take a five-minute recess and,
number one, try to figure out how many issues are left.
And it's already after 3:00 o'clock. [inaudible] And

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to be a limited number of things I will decide, because
I can't decide them all in time. Otherwise, I hold you
up. So, you know, if you want ten minutes to talk about
them -- how much time do you want? I'm happy to take a
longer recess, if you think -MR. HOWARD: Five minutes is fine with us,
Your Honor.
THE COURT: Okay.
MR. COWAN: Okay. I think we have made some
progress. We have agreed that on the motions that are
due on December 11th that each party would have,
assuming the Court agrees, three issues, thirty pages.
Two of those issues have to be identified today; and
then the one remaining issue could be identified among
counsel and included in that motion before December
11th.
That leaves us kind of a placeholder for those
things that are still hanging that we can't articulate
the nature of the problem yet, if any. And I think the
Court's agreeable to that. We really have one open
issue.
THE COURT: So one open issue among --- but
that's something that's in this -MR. COWAN: Well, we've put a placeholder, for
example, for what we call future discovery disputes

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