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)

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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 (800) 869-9132 TRANSCRIPTION November 17, 2009 Page 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 13 (Pages 46 to 49) Merrill Legal Solutions (800) 869-9132 TRANSCRIPTION November 17, 2009 Page 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Page 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 14 (Pages 50 to 53) Merrill Legal Solutions (800) 869-9132

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