Oracle Corporation et al v. SAP AG et al

Filing 125

DECLARATION of Holly A. House in Support of 124 Plaintiffs' Opposition to Defendants' Motion to Stay or Extend Time to Comply with July 3, 2008 Discovery Order filed by Oracle International Corporation, Oracle Corporation, Oracle USA Inc. (House, Holly) (Filed on 7/21/2008) Modified on 7/23/2008 (far, COURT STAFF).

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BINGHAM McCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, v. Plaintiffs, CASE NO. 07-CV-01658 PJH (EDL) DECLARATION OF HOLLY A. HOUSE IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO STAY OR EXTEND TIME TO COMPLY WITH JULY 3, 2008 DISCOVERY ORDER

SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive, Defendants.

Case No. 07-CV-01658 PJH (EDL)

DECLARATION OF HOLLY A. HOUSE

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I, Holly A. House, declare: I am an attorney admitted to practice law in the State of California and before this

Court, and a partner in the law firm of Bingham McCutchen LLP, counsel of record for plaintiffs Oracle Corporation, Oracle USA, Inc., and Oracle International Corporation (together "Oracle" or "Plaintiffs") in this matter. I have personal knowledge of the matters contained within this Declaration and could testify competently as to them if called to do so. 2. On August 2, 2007, Oracle served its First Set of Requests for Production on

Defendant TomorrowNow, Inc. ("SAP TN"). On August 30, 2007, Oracle served its First Set of Requests for Production on Defendants SAP AG and SAP America, Inc. Among those requests, Oracle sought documents from TomorrowNow, SAP AG, and SAP America (collectively, "Defendants") relating to government investigations (No. 55 to SAP AG and SAP America and No. 84 to SAP TN, together the "Request"): All Documents relating to Department of Justice, Federal Bureau of Investigation, or other federal, state, or local government agency's request or investigation into the allegations in the Complaint and First Amended Complaint, including without limitation all Documents provided by You to any such agency in response to a request or investigation of those allegations. This Request is therefore not limited to, and does not specifically mention, documents subpoenaed by a grand jury ­ though they would be included. 3. Counsel for Oracle and for Defendants met and conferred about the Request in the

fall of 2007. Defendants refused to produce any documents in response, citing a grand jury privilege. 4. In January 2008, before then-Discovery Magistrate Legge, Oracle moved to

compel production of documents responsive to the Request. A month later, Judge Legge ordered Defendants to comply. Oracle's Request had then been outstanding for six months. Defendants then filed an objection with Judge Hamilton in March 2008; after referral to this Court, they filed another objection on May 16, 2008. See Docket Items 68, 88. This Court heard argument on July 1 and, on July 3, affirmed Judge Legge's ruling and ordered Defendants to produce responsive documents by July 15 (the "July 3 Order"). See Docket Item 106. 2
DECLARATION OF HOLLY A. HOUSE
Case No. 07-CV-01658 PJH (EDL)

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5.

Defendants then asked Oracle to agree to a short extension of time for their

compliance with the July 3 Order. Among the bases for the request were Defendants' asserted difficulties in eliminating from the production the narrow subset of non-responsive private information the Court allowed as a carve-out in the July 3 Order. Oracle agreed to this courtesy, which gave Defendants another week, until July 23, to comply. See Docket Item 113. 6. On July 17, 2008, I participated in a telephonic meet and confer with Defendants'

counsel on unrelated topics. At the end of the discussion, Jason McDonell of Jones Day informed me that Defendants intended to appeal the July 3 Order to Judge Hamilton. Mr. McDonell requested that Oracle stipulate to a stay of that order until after that appeal is resolved. I asked Mr. McDonell to memorialize his request in writing. Attached as Exhibit A is a true and correct copy of the email I received from Mr. McDonell that afternoon, containing Defendants' request. 7. Because of the significant additional delay that such a stay would impose, and the

need for the documents in connection with the current deposition schedule of crucial SAP AG and SAP America witnesses, Oracle was unwilling to agree unconditionally to such an extension. In an attempt at compromise, I conveyed our offer to agree to the requested stay if Defendants would then consent to the public filing of Oracle's Second Amended Complaint ("SAC"). Defendants have had Oracle's draft SAC in its essentially final form since April and now have it in its fully final form. (At the April 24, 2008 case management conference, which I attended, Judge Hamilton told the parties that her general expectation is that parties consent to the filing of amended complaints, and that such complaints generally should not be filed under seal.) Oracle's request stems from its frustration with Defendants' unwillingness to say whether they would agree to the SAC's filing. Attached as Exhibit B is a true and correct copy of the email I sent to Mr. McDonell on July 17, 2008, containing that proffered compromise. 8. Mr. McDonell and I continued to discuss the proffered compromise over email on

July 18, but ultimately Defendants refused to agree to the public filing, or any filing, of Oracle's Second Amended Complaint. Attached as Exhibit C is a true and correct copy of that email 3
DECLARATION OF HOLLY A. HOUSE
Case No. 07-CV-01658 PJH (EDL)