Oracle Corporation et al v. SAP AG et al

Filing 1206

Declaration of Nargues Motamed in Support of 1202 Statement Joint Statement in Support of Evidentiary Issues filed byOracle International Corporation. (Attachments: # 1 Exhibit A-0059, # 2 Exhibit A-6329-1, # 3 Exhibit A-0367, # 4 Exhibit A-5042, # 5 Exhibit A-5997, # 6 Exhibit A-6042-1, # 7 Exhibit A-6205-1, # 8 Exhibit A-5193, # 9 Exhibit A-5995, # 10 Exhibit A-5058, # 11 Exhibit A-5002-1, # 12 Exhibit A, # 13 Exhibit B, # 14 Exhibit C, # 15 Exhibit D, # 16 Exhibit E, # 17 Exhibit F, # 18 Exhibit G, # 19 Exhibit H, # 20 Exhibit I, # 21 Exhibit J, # 22 Exhibit K, # 23 Exhibit L, # 24 Exhibit M, # 25 Exhibit N, # 26 Exhibit PTX 0008, # 27 Exhibit PTX 0014, # 28 Exhibit PTX 0161, # 29 Exhibit O, # 30 Exhibit P, # 31 Exhibit Q, # 32 Exhibit R, # 33 Exhibit PTX 4809, # 34 Exhibit PTX 4819, # 35 Exhibit PTX 0012, # 36 Exhibit PTX 0024, # 37 Exhibit PTX 0960, # 38 Exhibit PTX 7028, # 39 Exhibit S, # 40 Exhibit T, # 41 Exhibit U, # 42 Exhibit V, # 43 Exhibit W, # 44 Exhibit PTX 8040, # 45 Exhibit PTX 2582, # 46 Exhibit X, # 47 Exhibit Y, # 48 Exhibit PTX 8112, # 49 Exhibit PTX 8111, # 50 Exhibit PTX 8108)(Related document(s) 1202 ) (Howard, Geoffrey) (Filed on 8/2/2012)

PAGE 1 - 129
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.
)
____________________________)

NO. C 07-01658 PJH
WEDNESDAY, MAY 24, 2012
OAKLAND, CALIFORNIA

REPORTER'S TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
FOR PLAINTIFFS:
BY:

BY:

FOR DEFENDANTS:
BY:

BY:
REPORTED BY:

BINGHAM MCCUTCHEN LLP
THREE EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111-4607
GEOFFREY M. HOWARD, ESQUIRE
DONN P. PICKETT, ESQUIRE
ANTHONY FALZONE, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
1999 HARRISON STREET, SUITE 900
OAKLAND, CALIFORNIA 94612
STEVEN C. HOLTZMAN, ESQUIRE
FRED NORTON, ESQUIRE
JONES DAY
1755 EMBARCADERO ROAD
PALO ALTO, CALIFORNIA 94303
THARAN GREGORY LANIER,
JONES DAY
555 CALIFORNIA STREET, 26TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104
ROBERT A. MITTELSTAEDT, ESQUIRE
JASON MCDONELL, ESQUIRE
DIANE E. SKILLMAN, CSR #4909, RPR, FCCR
OFFICIAL COURT REPORTER, USDC

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

12

1

THE 50 PERCENT EXPENSE DEDUCTION, AND TESTIFIED TO IT

2

THEREAFTER, INCLUDING AT TRIAL BEFORE YOUR HONOR IN WHICH HE

3

PRESENTED AN INFRINGER'S PROFITS CLAIM THAT DEDUCTED 50 PERCENT

4

PROFITS.

5

IT WAS NOT UNTIL THE PROPOSED JURY INSTRUCTIONS FOR

6

THIS NEW TRIAL THAT THE PLAINTIFFS HAVE SURFACED THE IDEA THAT

7

A WILLFUL INFRINGER SHOULD NOT BE ALLOWED TO DEDUCT ANY

8

EXPENSES.

9

SOMETHING THAT NO CASE HAS EVER HELD, BY THE WAY,

10

EVER.

THE MOST THE CASES HAVE EVER INDICATED, AND WE THINK

11

THESE ARE OFF BASE AND CAN BE EXPLAINED, IS THAT SOME PORTION

12

OF OVERHEAD EXPENSES NOT BE DEDUCTED.

13

SECOND POINT, YOUR HONOR, WE THINK THE LAW IS

14

OVERWHELMINGLY IN FAVOR OF A FINDING AS A MATTER OF LAW THAT A

15

WILLFUL INFRINGER CAN DEDUCT EXPENSES FROM INFRINGER'S PROFITS.

16

I SAY THAT FOR A VARIETY OF REASONS.

FIRST OF ALL,

17

THE LAST APPELLATE COURT, THE LAST FEDERAL CIRCUIT COURT TO

18

ADDRESS THE ISSUE WAS THE HAMIL CASE IN 2000 IN THE SECOND

19

CIRCUIT.

20

WILLFUL INFRINGER, THE COURT LOOKED AT THE ISSUE AND FOUND THAT

21

DEFENSE CAN DEDUCT EXPENSES.

CRYSTAL CLEAR HOLDING IN AN ACTUAL CASE OF AN ACTUAL

22

IN THIS CIRCUIT, THE ONLY CASES THAT ARE DISCUSSED

23

BY COUNSEL IN THEIR PLEADING ARE THE KAMAR CASE AND THE FRANK

24

MUSIC CASE.

25

TALKS ABOUT AN OLDER NEW YORK CASE, THE SHELDON CASE, AND NEVER

KAMAR DOESN'T SAY THAT AT ALL.

KAMAR BASICALLY

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

41

THE COURT:

1
2

OKAY.

AND YOU BELIEVE THAT ORACLE

SHOULDN'T BE ABLE TO DO ANYTHING WITH THAT INFORMATION?

3

AS I UNDERSTAND IT, ORACLE SIMPLY WANTS TO BE ABLE

4

TO ARGUE THAT THEIR FIGURES ARE CONSERVATIVE, THAT BASED UPON

5

THIS 86, WHEN POTENTIALLY THERE ARE SEVEN OTHERS OR SIX OTHERS

6

IF YOU CAN AGREE ON A NUMBER.
MR. MCDONELL:

7

THAT IS OUR POSITION, YOUR HONOR.

8

AND ALL OF THE FINANCIAL -- MY CONCERN IS THEY ARE GOING TO GET

9

THEIR NOSE UNDER THE TENT AND THEN MAKE THIS MORE THAN WHAT IT

10

IS, AND ARGUE THAT THE WHOLE THING IS UNRELIABLE.

11

WERE --

12
13
14

THE COURT:

IF IT

WE DON'T KNOW EXACTLY WHAT THEY ARE

GOING TO DO AND WE WILL LET MR. HOWARD EXPLAIN.
BUT FROM THE PAPERS, IT APPEARS TO ME THAT ORACLE IS

15

NOT OFFERING ANY PARTICULAR FIGURE THAT WOULD REPRESENT THIS

16

EXTRA UNIVERSE GROUP, BUT THAT YOU DO WANT TO BE ABLE TO USE IT

17

IN SOME WAY; IS THAT RIGHT?

18

MR. HOWARD:

AT A MINIMUM, YOUR HONOR.

WE'RE -- WE

19

MAY DEVELOP SOMETHING, BUT WE DON'T -- I AM NOT HERE TELLING

20

YOU THERE'S A NUMBER NOW.

21

I THINK THE POINT IS, WE SHOULDN'T BE PRECLUDED

22

BECAUSE THE TRANSPARENCY THAT COUNSEL SAYS OCCURRED WITH

23

RESPECT TO THE SEVEN CUSTOMERS HAPPENED IN A THREE-PAGE LETTER

24

THE DAY AFTER WE COULD SERVE WRITTEN DISCOVERY.

25

SO THE REASON WHY THERE'S NO DISCOVERY AND THE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

76

1

VARIETY OF EFFORTS TO REVIVE A VARIETY OF DAMAGES THEORIES THAT

2

WE HAD THOUGHT HAD BEEN FAIRLY CLEARLY STRUCK FROM THIS TRIAL.

3

NOT JUST THE HYPOTHETICAL LICENSE, BUT THE SAVED ACQUISITION

4

COSTS AND OTHER THINGS THAT WERE USED TO SUPPORT THAT LICENSE

5

THEORY.

6

THERE IS POSSIBLY A SPECIFIC DOCUMENT THAT MIGHT

7

HAVE RELEVANCE TO MORE THAN ONE PURPOSE.

WE CANNOT IN THE

8

THOUSANDS OF EXHIBITS ON THEIR LIST OR THE 345 ON OURS, CAN'T

9

IDENTIFY EVERY PURPOSE FOR WHICH A PARTY MAY OFFER A DOCUMENT.

10

BUT AS THE COURT DID AT THE LAST TRIAL, IT IS -- OR

11

AS THE COURT DID ON FRIDAY, IT'S ENTIRELY APPROPRIATE TO SAY

12

DON'T OFFER A DOCUMENT -- DON'T OFFER A PIECE OF EVIDENCE THAT

13

RELATES SOLELY TO THE HYPOTHETICAL LICENSE THEORY, DON'T MAKE

14

ARGUMENTS ABOUT THE HYPOTHETICAL LICENSE THEORY, DON'T ASK YOUR

15

WITNESSES WHAT WOULD YOU HAVE EXPECTED TO GET IN A NEGOTIATION.

16

IF ONE LOOKS AT THE AMENDED WITNESS LIST FILED

17

YESTERDAY, THE -- ONE OF THE REASONS THAT MR. CATZ,

18

MR. PHILLIPS AND MS. CATZ, MR. ELLISON AND MS. PHILLIPS ARE

19

LISTED ARE HYPOTHETICAL LICENSE FACTORS.

20

ISSUE AND WE CANNOT ANTICIPATE EVERY SINGLE SPECIFIC THING THAT

21

MIGHT COME UP.

22

THE COURT:

SO THIS IS A REAL

WELL, MY RULING IS THAT, OBVIOUSLY,

23

BASED UPON THE ORDERS THAT I HAVE ISSUED IN THE LAST TWO WEEKS,

24

THE HYPOTHETICAL LICENSE EVIDENCE IS OUT OF THE CASE AND YOU

25

MAY NOT CALL WITNESSES OR ASK QUESTIONS DESIGNED PRIMARILY TO

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

80

1

TO THE STIPULATED CLAIMS THAT THEY STIPULATED TO ON BEHALF OF

2

TOMORROWNOW IN THE FIRST STIPULATION.

3

SO THERE ARE A VARIETY OF WAYS THAT THIS EVIDENCE

4

COMES IN BECAUSE IT RELATES SPECIFICALLY TO THE DAMAGES

5

THEORIES AND TO CAUSATION, IT RELATES TO THE CONTEXT, WHICH WE

6

ARE ENTITLED TO PUT IN, AND YOUR HONOR ALLOWED AND I ASSUME IS

7

GOING TO CONTINUE TO ALLOW IN THIS TRIAL, AND IT --

8

SPECIFICALLY THE OBJECTIONS TO IT HAVE BEEN SPECIFICALLY WAIVED

9

THROUGH THE, THROUGH THE TRIAL STIPULATION.

10

THE COURT:

11

YOU KNOW, THIS IS A WASTE OF TIME.

ALL RIGHT.
I CAN'T FIGURE

12

OUT WHAT EVIDENCE IT IS.

13

EVIDENCE IT IS THAT THERE'S AN OBJECTION TO, THEN I NEED TO

14

HEAR YOU OUT, AND THEN MAKE A DECISION.

15

I NEED TO SEE A LIST OF WHAT SPECIFIC

BUT THEORETICALLY, ANY BIT OF EVIDENCE COULD

16

ARGUABLY BE USED TO SUPPORT ONE THEORY OR ANOTHER.

17

BE ABLE TO PUT IT IN CONTEXT.

18

ALL RIGHT.

I NEED TO

THIS IS NOT HELPING ME AT ALL.

SO THE MOTION'S DEFERRED UNTIL SUCH TIME

19

AS THE EVIDENCE IS OFFERED OR IF WE COME UP WITH ANOTHER

20

MECHANISM FOR RESOLVING THESE THINGS BEFORE TRIAL.

21

MR. LANIER:

22

OUR MOTION IN LIMINE NUMBER TWO SOUGHT TO EXCLUDE

THANK YOU, YOUR HONOR.

23

THE INTRODUCTION OF EVIDENCE OF THE FACT OF OR EVIDENCE

24

SURROUNDING THE CONVICTION OF TOMORROWNOW THAT RESULTED FROM

25

ITS GUILTY PLEA IN SEPTEMBER OF 2011.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

85

1

THE COURT:

2

MR. HOWARD:

3

THE COURT:

WELL, THEY ARE DIFFERENT.
WELL -THE CONVICTION DOESN'T, IN AND OF

4

ITSELF, DOESN'T ESTABLISH THE CAUSATION.

5

ADMISSIONS MADE AT THE TIME OF THE PLEA THAT GO TO THAT EFFECT.
MR. HOWARD:

6

YES.

IT'S THE ACTUAL

I THINK THEY ARE WRAPPED UP IN

7

EACH OTHER.

8

MADE IN THE COURSE OF PLEADING GUILTY TO THE COUNTS THAT ARE

9

REFLECTED IN THE PLEA AGREEMENT.

10

AND THESE ARE -- THESE ARE STATEMENTS THAT WERE

THERE'S NO QUESTION THAT -- I DON'T THINK YOU CAN

11

SEPARATE THE BASIS FOR THE CONVICTION FROM THE CONVICTION

12

ITSELF.

13

OF THE -- BECAUSE THESE ARE THE BASIS FOR A CRIMINAL PLEA.

14

AND, IN FACT, IT MAKES IT EVEN MORE RELEVANT BECAUSE

IT'S NOT HEARSAY.

IT'S NOT HEARSAY BECAUSE IT'S THE

15

STATEMENT OFFERED AGAINST THE PARTY, AND THEIR OWN STATEMENT.

16

AND IT'S NOT PREJUDICIAL.

17

COUNSEL POINTS OUT, IT IS NOT LIKE A CASE WHERE YOU'RE TRYING

18

TO, FOR EXAMPLE, USE A TAX EVASION CONVICTION IN AN OIL SPILL.

19

THIS GOES DIRECTLY TO THE CONDUCT THAT IS THE BASIS FOR THE

20

CASE AND SPEAKS IN TERMS OF THE IMPACT OF THAT CONDUCT ON

21

ORACLE.

22

ITS RELEVANCE TO THE DAMAGES AND TO THE OTHER ISSUES.

23

NOT UNDULY PREJUDICIAL.

BECAUSE AS

SO IT -- IT -- IT CANNOT BE UNDULY PREJUDICIAL GIVEN

IT IS ALSO PERMISSIBLE IMPEACHMENT.

AND UNDER RULE

24

609, BECAUSE IT IS A CRIME OF DISHONESTY, IT COMES IN WITHOUT A

25

403 BALANCING TEST.

AND IT IS A CRIME OF DISHONESTY; IT SPEAKS

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

93

1

DOING ANY RESEARCH AND/OR ANY ONLINE POSTING.

2

I DON'T THINK THAT WE SHOULD SINGLE OUT THE ISSUE OF

3

THE PREVIOUS TRIAL AS ONE BECAUSE I JUST THINK THAT SENDS A

4

SIGNAL DIRECTLY TO THEM TO DO EXACTLY THAT TO ANYONE WHO IS

5

TEMPTED.

6

SO, I AM NOT GOING TO GIVE THIS ONE.
BUT YOU CAN TELL ME WHAT YOU THINK ABOUT THE ONE,

7

THE NINTH CIRCUIT MODEL.

8

MODIFICATION, YOU CAN MODIFY IT.

9

ANYTHING, YOU CAN MODIFY.

10

AND IF YOU HAVE ANY SUGGESTIONS FOR
IF YOU JOINTLY AGREE TO

THIS IS JUST A GUIDE FOR NOW.

I DO WANT TO ANTICIPATE, THOUGH, HOW THE PRIOR

11

TRIAL -- HOW WE ARE GOING TO DEAL WITH THAT.

12

IT WILL COME UP.

13

SEE SOMETHING ABOUT IT IS IN THE VOIR DIRE QUESTIONNAIRES.

14

I WOULD JUST LIKE YOUR INPUT ON HOW YOU WISH TO HANDLE IT.

AND I ANTICIPATE THAT THE FIRST TIME WE WILL

MR. LANIER:

15

I ANTICIPATE THAT

AND

YOUR HONOR, WE ANTICIPATE IT COMING UP

16

IN TWO WAYS.

ONE WAS THERE AND ONE WAS IF WE ARE GOING TO

17

IMPEACH PEOPLE EITHER SIDE WITH TESTIMONY.

18

REFER TO "A PREVIOUS PROCEEDING" OR "YOU TESTIFIED PREVIOUSLY"

19

WITHOUT SAYING IN A PREVIOUS TRIAL.

20

DONE IT.

21

THE COURT:

22

I DIDN'T EVEN RAISE THAT.

EXACTLY.

TYPICALLY THERE WE

THAT'S HOW I HAVE USUALLY

I HAVE, TOO.

THAT'S EASY.

THAT'S EASY.

WE DON'T

23

NEED TO LABEL THE PRIOR TESTIMONY, WE ALL KNOW WHAT IT WAS.

24

IT'S PRIOR RECORDED TESTIMONY.

25

BUT IN ADDITION TO THE IMPEACHMENT ISSUE, IT'S GOING

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

99

1

RELATIONSHIP THAT THE DEFENDANT IS REQUIRED TO SHOW.

2

TO CONNECT THE EXPENSES TO THE PRODUCTION, SALE, OR

3

DISTRIBUTION OF THE INFRINGING GOODS.

4

THE COURT:

5

MR. FALZONE:

6

SECOND CIRCUIT CASE 193 F. 3D 92.

7

IF YOU WANT.

THAT IS

WHAT CASE ARE YOU RELYING ON?
THIS IS THE HAMIL VERSUS GFI CASE,
I CAN READ YOU THE LANGUAGE

IT SHOWS UP ON PAGE 107.

8

IT SAYS:

"WHEN INFRINGEMENT IS FOUND TO BE

9

WILLFUL, THE DISTRICT COURT SHOULD GIVE EXTRA

10

SCRUTINY TO THE CATEGORIES OF OVERHEAD EXPENSES

11

CLAIMED BY THE INFRINGER TO ENSURE THAT EACH

12

CATEGORY IS DIRECTLY AND VALIDLY CONNECTED TO

13

THE SALE AND PRODUCTION OF THE INFRINGING

14

PRODUCTS.

15

THE COURT SHOULD NOT PERMIT A DEDUCTION FOR THE

16

OVERHEAD CATEGORY."

17

AND THAT CITES THE KAMAR CASE FROM THE NINTH CIRCUIT

18
19

UNLESS A STRONG NEXUS IS ESTABLISHED,

WHICH SAYS THAT'S A FACT ISSUE FOR THE JURY.
SO IF WE ARE GOING TO ALLOW THEM TO DEDUCT THE

20

OVERHEAD, WE AT LEAST NEED TO FOLLOW THE CASE THAT ANNOUNCES

21

THAT RULE THAT THEY CITED TO YOUR HONOR AND MAKE SURE THE JURY

22

IS CLEAR ON THE HEIGHTENED BURDEN.

23

MR. LANIER:

24

FIRST OF ALL, THAT IS NOT REQUIRED BY THE ZZ TOP

25

YOUR HONOR, A COUPLE OF RESPONSES.

CASE OR THE SECOND CIRCUIT CASE.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

100

1

SECOND OF ALL, THE SCRUTINY THAT WOULD BE APPLIED TO

2

SOMETHING THAT SHOULD HAVE BEEN TESTED DURING DISCOVERY, THEY

3

SHOULD HAVE -- MR. MEYER SHOULD HAVE SAID, LOOK, THAT'S AN

4

OVERHEAD EXPENSE OF THE TYPE YOU'RE NOT ENTITLED TO DO.

5

THIS WILL BE ANOTHER TRIAL BY SURPRISE ON AN ISSUE

6

THAT GIVEN THAT WILLFULNESS WAS RAISED IN THE THIRD AMENDED

7

COMPLAINT BEFORE THEY HAD MADE THEIR ELECTION OF STATUTORY OR

8

ACTUAL DAMAGES, WHICH DOESN'T HAVE TO BE MADE UNTIL TRIAL,

9

GIVEN THAT THEY COULD HAVE AND SHOULD HAVE TESTED THIS THEN, WE

10

SHOULD HAVE BEEN ABLE TO RESPOND AND DEVELOP THE CASE ON THAT.

11

IT IS ANOTHER WHOLLY NEW ISSUE WHEN -- AGAINST A

12

RECORD WHERE MR. MEYER HAD ACCEPTED THAT AND TESTIFIED IN THIS

13

COURT ONE FLOOR BELOW TO THAT 50 PERCENT MARGIN.

14

SO THEY HAD THE OPPORTUNITY TO ASK FOR THE SCRUTINY.

15

THEY HAD THE OPPORTUNITY TO DO IT.

16

SERVED FOR TELLING THE JURY BE EXTRA -- GIVE EXTRA SCRUTINY

17

WHEN OUR EXPERTS AGREED TO IT.

18

INFLAMMATORY SUGGESTIONS FOR THE ANALYSIS THAT OUGHT TO HAPPEN

19

HERE.

20
21

THE COURT:

THERE IS NOTHING TO BE

IT'S AGAIN SUBSTITUTING

BOTH SIDES SUBMIT AN INSTRUCTION, AND I

WILL DECIDE IT.

22

MR. FALZONE:

23

MR. LANIER:

THANK YOU.
OKAY.

THEN THE OTHER ISSUE ON THE

24

INFRINGER'S PROFITS INSTRUCTION WAS THIS WORD "FULL" AGAIN, BUT

25

WE WILL SUBMIT INSTRUCTIONS AND YOUR HONOR WILL DEAL WITH THAT.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

127

1

THAT HAS BEEN IDENTIFIED IN THEIR MOTION IN LIMINE NUMBER TWO

2

SHOULD COME IN.

3

OBVIOUSLY OVERLAPS, TOO.

4

AND I THINK PROBABLY THE OTHER CATEGORY

AS TO THE AT RISK REPORT, YOUR HONOR HAS RULED ON

5

THAT TWICE.

THE LAST TIME THEY ACTUALLY REQUESTED LEAVE TO

6

FILE A MOTION FOR RECONSIDERATION.

7

INTO THEIR TRIAL BRIEF.

THIS TIME THEY JUST PUT IT

8

SO, YOU KNOW, I AM ASSUMING THAT YOUR HONOR IS NOT

9

GOING TO CHANGE HER RULING ON THAT, BUT WE WILL RE-BRIEF THAT

10
11

FOR A THIRD TIME IF THAT'S REALLY NECESSARY.
AND THEN I THINK THERE ARE PROBABLY SOME CATEGORIES

12

THAT WILL FALL OUT OF THE MEET AND CONFER PROCESS.

13

WE HAVE JUST BEGUN THE PROCESS OF LOOKING AT THE EXHIBIT LIST,

14

I'M NOT SURE I COULD IDENTIFY THEM ALL RIGHT NOW.

15

THE COURT:

SURE.

I CERTAINLY AM NOT GOING TO

16

PRECLUDE THEM FROM ARGUING THE SAME ISSUES.

17

MOTIONS IN LIMINE WERE ARGUING THE SAME ISSUES.

18

BOTH SIDES ARE DOING.

19

BUT SINCE

ALL OF YOUR
THAT'S WHAT

SO, OF COURSE, THEY CAN DO IT.

AS I RECALL, THOUGH, THE RULING WAS, AS STATED IN

20

THE PRETRIAL ORDER, IT DID JUST DEAL WITH THEIR -- THE

21

OBJECTION THAT WAS RAISED TO THE NOTES PORTION AND THE

22

COMMENTS, THE ACTUAL HEARSAY COMMENTS FROM THE CUSTOMERS.

23

MR. HOWARD:

24

THE COURT:

25

OTHER PURPOSES.

CORRECT.
I DIDN'T ACTUALLY LOOK AT IT FOR ANY

SO TO THE EXTENT THEY ARE RAISING OBJECTIONS

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

128

1

TO THE EXCLUSION OF OTHER ITEMS THAT DON'T FALL WITHIN THAT

2

CATEGORY, THEN IT WILL BE THE FIRST TIME THAT I WILL ACTUALLY

3

CONSIDER THAT.

4
5

SO, IN ANY EVENT, YOU WILL NEED TO PUT IT IN
WRITING.

6

MR. HOWARD:

7

THE COURT:

WE WILL.
I WILL NEED TO HAVE A WRITING FROM BOTH

8

SIDES.

YOU WILL PROBABLY BENEFIT FROM THE MEET AND CONFER

9

PROCESS, AND THEN YOU CAN MAKE YOUR SUCCINCT AND FOCUSED

10

ARGUMENTS ON THOSE EVIDENTIARY QUESTIONS.

11

HAVE A HEARING THEN ON THE 8TH.

12

MR. HOWARD:

13

THE COURT:

14

TO THE AFTERNOON.

AND WE WILL, WE WILL

AT WHAT TIME?
WE WILL DO IT IN THE MORNING AS OPPOSED

LET'S SAY --

15

THE CLERK:

NINE?

16

THE COURT:

9:00 O'CLOCK.

17

MR. MCDONELL:

18

THEN GUIDANCE AS TO HOW LONG IN

ADVANCE YOU WOULD LIKE TO SEE THE PAPER?

19

THE COURT:

20

MR. MCDONELL:

21

THE COURT:

AS SOON AS YOU CAN GET IT TO ME.
VERY WELL.

GIVE ME SOME TIME TO REVIEW IT BEFORE

22

THE HEARING.

23

YOU CAN GET THEM TO ME.

24

AS SOON AS YOU CAN GET THEM TO ME THE BETTER.

25

SO AS SOON AS YOU HAVE YOUR MEET AND CONFER AND

MR. HOWARD:

SAME WITH THE DEPOSITION DESIGNATIONS;

THEIRS IS ALREADY WRITTEN, SO IT'S

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

CERTIFICATE OF REPORTER
I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE UNITED
STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY
THAT THE FOREGOING PROCEEDINGS IN C-07-1658 PJH, ORACLE USA,
INC., ET AL., VERSUS SAP AG, ET AL., PAGES NUMBERED 1 THROUGH
129, WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND
WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO
TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE
RECORD OF SAID PROCEEDINGS AS BOUND BY ME AT THE TIME OF
FILING.

/S/ DIANE E. SKILLMAN
DIANE E. SKILLMAN, CSR 4909, RPR, FCRR

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]