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)

PROCEEDINGS

February 13, 2008

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information. So we're part way through the looking glass
with that alone.
JUDGE LEGGE: I saw that.
MR. McDONELL: Obviously TomorrowNow is a
third-party support provider for Oracle products, and it
is accused of the things it is accused of in the
complaint.
The relevance for coming to understand the
nature, scope and extent of this third-party support
market has many dimensions to it, all of which are quite
significant.
First of all -- and I'll take these in no
particular order. Oracle would very much like to leap to
the conclusion that because a customer -- an Oracle
support customer became a TomorrowNow customer -- that
that proves Oracle's damages. They lost that customer
because, and only because, TomorrowNow allegedly infringed
their copyrights.
That's not necessarily so. There is this market
of other third-party support providers. If a customer
that chose to leave Oracle because they were dissatisfied
with Oracle -- of which there's no doubt there are such
customers -- elected to go to TomorrowNow, but had
TomorrowNow not been there -- that same customer could
have, and would have, gone to Rimini Street, or any of

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certainly would have gone to another third-party support
provider -- that presents a causation-of-damages defense.
JUDGE LEGGE: It does.
MR. McDONELL: We need to know what there is to
know about these other third-party -JUDGE LEGGE: The question is why the customer
might migrate to a different platform. How is that
answered by what you find out about Oracle's relationship
with other third-party providers?
MR. McDONELL: Because we need to find out if
these other third-party support providers were providing
similar types of services in the nature of what
TomorrowNow is doing. Because it helps make the case that
they could have, and would have, gone to those other
support providers to get the same kind of service.
Otherwise, we would be faced with this argument
from Oracle, I'm quite sure, when we try to argue that
customers would have gone somewhere else, they would say,
"Oh, no, that's speculation; you don't know what might
have been provided."
JUDGE LEGGE: If you are going to make the
argument, or the defense or -- I guess causation as a
whole is their problem, but still, you want to raise lack
of causation -- aren't you going to have to go to the
individual clients and say, "Why did you do this; why did

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these other support providers.
That prevents a defense to causation of damages,
and there's case law smack on point, that in the context
of copyright infringement, causation of the damage is an
element.
So we are looking at a black box right now. We
know nothing from Oracle about the nature and scope of its
other third-party support vendors. We know from public
sources -JUDGE LEGGE: But isn't your causation issue
determined by examining what happened to the actual
clients? Not what Oracle's relation might be with other
third-party providers.
MR. McDONELL: It doesn't necessarily have to be
Oracle's relationship with those third-party providers,
but what those third-party providers are; what they can
do; how they do it.
JUDGE LEGGE: That is going to ask why the client
migrated to another platform.
MR. McDONELL: That's exactly right, I think.
My point here, Your Honor -- and I'll give you a
case cite here in a moment -- is if a customer became
dissatisfied with Oracle; made the decision that they are
leaving Oracle come what may; elected to go to
TomorrowNow -- but had TomorrowNow not been there, they

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you leave?" But that's where the evidence is going to be.
MR. McDONELL: Part of the evidence. But don't
we also need to know, Your Honor, what the third-party
support market had available for that customer? That's
the other side of the same coin.
One side of that coin is customer's desire to
leave Oracle. The other side of the coin is what were the
options available to that customer. Right now we're
looking at a black box. We need the information that
there were other opportunities for these customers to go
get the type of support that was available from
TomorrowNow.
And just so I get this on the record -- and I can
provide a copy shortly after the hearing to one and all -in Data General Corp. v. Groom and System Support
Corporation, 36 F 3rd, 1147, First Circuit Court of
Appeal, 1994 -- similar situation. And it was, in fact, a
company and a support provider.
The company who stood in Oracle's shoes claimed
that the support provider was providing support to
customers using copyrighted material. The support
provider offered in defense that, "Well, we did use some
copyrighted material, but we could have done the same
support without infringing, and therefore you still,
inevitably, would have lost that customer."

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