Oracle Corporation et al v. SAP AG et al

Filing 1157

Declaration of Tharan Gregory Lanier in Support of 1156 Opposition/Response to Motion Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's 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, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 1156 ) (Froyd, Jane) (Filed on 5/10/2012)

EXHIBIT 5

STEPHEN K. CLARKE
June 8, 2010
HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND 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
STEPHEN K. CLARKE
_________________________________
VOLUME 1; PAGES 1 - 323
TUESDAY, JUNE 8, 2010

HIGHLY

REPORTED BY:

CONFIDENTIAL - ATTORNEYS' EYES ONLY

HOLLY THUMAN, CSR No. 6834, RMR, CRR
(1-427117)

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Page 24

TEXT REMOVED - NOT RELEVANT TO MOTION

09:38:20

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second supplemental report, 3201, that references

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declarations of TomorrowNow customers produced to

MR. PICKETT:

Q.

With reference to the

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STEPHEN K. CLARKE
June 8, 2010
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MR. McDONELL:

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THE WITNESS:

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A.

That's my understanding.

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Q.

And do you know why they came in after you

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A.

No.

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Q.

What did you do, if anything, to obtain

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A.

They came from Jones Day.

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Q.

So whatever declarations you refer to in

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your report were simply something that came to you

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from the SAP attorneys?

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Oracle for the first time on May 7.
A.

Correct?

I don't know when the declarations were

produced to you.
Q.

After the March 26 report?
Lack of foundation.
I really don't know when

they were produced to Oracle.
MR. PICKETT:

Q.

Well, you do recall that

some of the customers' declarations came in after
your initial report.

Correct?

had submitted your report?

declarations from customers?
A.

I don't recall doing anything to obtain

declarations from customers.
Q.

So how did you receive customer

declarations?

MR. McDONELL:

Misstates the testimony and

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Page 26
09:39:40

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09:39:47

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THE WITNESS:

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MR. McDONELL:

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you're not intending to ignore the declarations

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that you produced, are you?

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it to be vague and ambiguous.

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MR. McDONELL:

Vague and ambiguous.

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THE WITNESS:

Of the customers, no.

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MR. PICKETT:

Q.

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MR. McDONELL:

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communications with counsel.

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answer.

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in your mind customers for whom you had a

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declaration and those for whom you did not?

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MR. McDONELL:

Vague and ambiguous.

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THE WITNESS:

I don't understand that

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09:40:37

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statements from some of the customers, and you

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didn't have statements from some of the other

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customers.

misstates the reality of what you know.

MR. PICKETT:
Q.

That's my understanding.
Counsel, for the record,

Just -- I don't want

I'm not.

Let's go.

If a customer didn't have a declaration,

did you make inquiry?

MR. PICKETT:

Of Jones Day?

Don't disclose

Q.

I instruct you not to

How did you distinguish

question.
MR. PICKETT:

Q.

Well, you had some

Did it make any difference to you?

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instances.

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used or I didn't have a declaration.

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submitted declarations after your March 26 report

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are not new to the case.

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A.

I don't know what you mean.

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Q.

Well, they didn't just suddenly pop up

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A.

Q.

It obviously made a difference in some
So I either had a declaration that I

And when you didn't have a declaration,

did you seek to get a declaration?
MR. McDONELL:

Again, don't disclose

communications with counsel.
THE WITNESS:

I can't answer that

question.
MR. PICKETT:

Q.

The customers who

Correct?

after March 26, did they?
MR. McDONELL:
Argumentative.

Vague and ambiguous.

Object to the form.

THE WITNESS:

You mean the customer didn't

pop up, or the declaration didn't pop up?
MR. PICKETT:
popped up.

Q.

Well, the declaration

The customer, I'm talking about.

MR. McDONELL:

Argumentative, vague and

ambiguous.
THE WITNESS:

Well, I think the customers

at issue have been known for quite some time.

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HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 28
09:41:59

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that SAP or you could not have obtained a

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declaration prior to the March 26 report being

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submitted?

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compound.

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counsel.

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attempts to secure additional customer declarations

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that failed?

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disclose communications with counsel.

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answer without disclosing communications with

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counsel, you may do so.

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MR. PICKETT:

MR. McDONELL:

Q.

Was there any reason

Lack of foundation,

Don't disclose communications with

THE WITNESS:

I can't answer that

question.
MR. PICKETT:

MR. McDONELL:

Q.

THE WITNESS:

Do you know of any

Same instruction.

Don't

If you can

I can't answer that

question.

TEXT REMOVED - NOT RELEVANT TO MOTION

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TEXT REMOVED - NOT RELEVANT TO MOTION