Oracle Corporation et al v. SAP AG et al

Filing 254

Declaration of Zachary J. Alinder in Support of 253 Memorandum in Opposition, Declaration of Zachary J. Alinder in Support of Oracle's Opposition to Defendants' Motion to Compel Discovery Concerning Third Party Support Provided by Oracle's Partners filed byOracle International Corporation, Oracle EMEA Limited, Oracle USA Inc.. (Related document(s) 253 ) (Alinder, Zachary) (Filed on 1/23/2009)

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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 USA, Inc., Oracle International Corporation, and Oracle EMEA Limited UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE USA, INC., et al., v. Plaintiffs, CASE NO. 07-CV-01658 PJH (EDL) DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF ORACLE'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL DISCOVERY CONCERNING THIRD PARTY SUPPORT PROVIDED BY ORACLE'S PARTNERS

SAP AG, et al., Defendants.

Date: February 10, 2009 Time: 2 p.m. Place: Courtroom E, 15th Floor Judge: Hon. Elizabeth D. Laporte

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

DECLARATION OF ZACHARY J. ALINDER

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I, Zachary J. Alinder, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am

a partner at Bingham McCutchen LLP, counsel of record for plaintiffs Oracle USA, Inc., Oracle International Corporation and Oracle EMEA Ltd. (collectively, "Oracle"). I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. 2. Following service of Oracle's Responses to TomorrowNow's First Set of

Requests for Production of Documents and Oracle's Responses to TomorrowNow's First Set of Interrogatories, the parties met and conferred. I was involved in those conferences. Initially, during these meet and confer discussions, Defendants took the position that Oracle's responses to certain of their requests should include Oracle's Partners, similar to CedarCrestone. Oracle disagreed, and in response to Defendants' overbroad discovery requests, Oracle properly objected and limited its responses to relevant information concerning independent third party support providers, like SAP TN. Though, for example, Oracle's policies towards other third party competitors are also at-best tangential to what Defendants did here, Oracle nonetheless agreed to produce information on that topic. Following several weeks of meet and confer discussions, Defendants agreed that Oracle could limit certain discovery to these independent support providers (confirmed in a December 12, 2007 and January 4, 2008 meet and confer correspondence). During a meet and confer session on January 10, 2008 that I was involved in, Defendants switched course and demanded that Oracle identify and produce information about Oracle's Partners as well. 3. Attached as Exhibit 1 is a true and correct copy of the relevant excerpted

pages from Defendants' Letter Brief in Support of their First Motion to Compel, dated January 28, 2008, including pages 1, 3-6 and 9. Attached as Exhibit 2 is a true and correct copy of the relevant excerpted pages from Oracle's Letter Brief in Opposition to Defendants' First Motion to Compel, dated February 7, 2008, including pages 1, 4-8 and 13. 4. Attached as Exhibit 3 is a true and correct copy of certain relevant pages

from the unofficial transcript of the August 28, 2008 Discovery Conference, including pages 602
DECLARATION OF ZACHARY J. ALINDER
Case No. 07-CV-01658 PJH (EDL)

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62 of that transcript, transcribed from an audio CD from the Court. 5. Oracle served CedarCrestone with a subpoena duces tecum on October 31,

2008. This was one of several subpoenas served on the companies that Defendants had identified as having received information from them in connection with the potential purchase of SAP TN. The intended scope of the subpoena was to be limited to (i) CedarCrestone's consideration of investment in, and possible acquisition of, TomorrowNow, including due diligence documents, communications concerning such due diligence documents, and (ii) any representations that were made in connection with negotiations between Defendants and CedarCrestone, particularly relating to any liability issues. We mistakenly included in that subpoena other topics relating to the provision of software support for Oracle products by CedarCrestone, having served roughly 100 third party subpoenas. Even so, the subpoena did not seek "partner" information from CedarCrestone. Further, I have been informed by my partner, Geoff Howard, that when queried by Defendants about the scope of the subpoena, Mr. Howard explained to Defendants' counsel on a conference call shortly after Oracle withdrew the subpoena (referred to in paragraph 15 of the McDonell Declaration in support of the motion) about the mistake and indicated that Oracle had intended the subpoena to only cover the two acquisition-related topics described above. On January 9th, my colleague, Lucia MacDonald, sent CedarCrestone's counsel a corrected subpoena limited to the acquisition topics and requested that CedarCrestone accept service of the corrected subpoena. 6. Attached as Exhibit 4 is a true and correct copy of the Oracle website page

related to CedarCrestone located at <http://solutions.oracle.com/partners/cedarcrestone> containing the following excerpt: "CedarCrestone is the largest, dedicated PeopleSoft Enterprise Systems Integrator....With 24 PeopleSoft Enterprise applications in production, CedarCrestone invests heavily in the vision of Oracle." 7. Attached as Exhibit 5 is a true and correct copy of a CedarCrestone

website page located at <http://www.cedarcrestone.com/about-corporate.php> stating that CedarCrestone "provid[es] consulting, technology, and managed services for full life-cycle solutions designed to optimize Oracle applications." 3
DECLARATION OF ZACHARY J. ALINDER
Case No. 07-CV-01658 PJH (EDL)

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EXHIBIT 3

Hearing, Discovery before Judge Laporte 8/28/2008
PAGES 1 - 76 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE ELIZABETH D. LAPORTE, MAGISTRATE JUDGE ORACLE CORPORATION, ET AL., ) ) PLAINTIFFS, ) VS. ) SAP AG, ET AL., ) DEFENDANTS. ) THURSDAY ) AUGUST 28, 2008 ___________________________________) 9:00 O'CLOCK A.M. TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BINGHAM MCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4067 BY: GEOFFREY M. HOWARD, ESQUIRE AND DONN PICKETT, ESQUIRE AND HOLLY HOUSE, ATTORNEY AT LAW 262-9212 AND JENNIFER GLOSS, SENIOR CORPORATE COUNSEL ORACLE 500 ORACLE PARKWAY REDW OOD SHORES, CALIFORNIA 940656 650-506-7114 FURTHER APPEARANCES ON NEXT PAGE REPORTED BY: KATHERINE WYATT, CSR #9866, RMR OFFICIAL REPORTER - U.S. DISTRICT COURT 23 24 25 A STATISTICALLY-VALID METHODOLOGY TO SAMPLE THE VAST AMOUNT OF DATA, WE, AT LEAST, CAME TO THE CONCLUSION -- AND I'LL LET MR. COW AN SPEAK FOR HIMSELF, BUT I THINK HE MAY AGREE -- THAT JUST 16 17 18 19 20 21 22 THE COURT: ALL RIGHT. GOOD MORNING. ALL RIGHT. SO LET'S GO THROUGH THE UPDATE, AND THEN W E WILL ALSO ADDRESS THE MOTION ON THE CLAWED BACK. SO WHERE ARE THINGS ON SAMPLING AND EXTRAPOLATION? MR. HOWARD: THANK YOU, YOUR HONOR. WE HAVE HAD EXTENSIVE DISCUSSIONS, AS REPORTED. THERE IS, I WOULD SAY, BAD NEW S AND GOOD NEWS. THE BAD NEWS IS THAT IN THE EFFORT TO FIND 14 15 AND FROM THE SAP LEGAL DEPARTMENT ARE KEVIN HAMEL AND JOHN HICKEY, BOTH OF WHOM HAVE BEEN HERE BEFORE. ) ) SAN FRANCISCO, CALIFORNIA ) NO. C07-1658 PJH (EDL) 7 8 9 10 11 12 13 MR. HOWARD: GOOD MORNING, YOUR HONOR. GEOFF HOWARD FOR ORACLE. WITH ME JENNIFER GLOSS FROM ORACLE, AND MY PARTNERS HOLLY HOUSE AND DONN PICKETT. THE COURT: GOOD MORNING. MR. MCDONELL: GOOD MORNING, YOUR HONOR. JASON MCDONELL FROM JONES DAY FOR DEFENDANTS. ALSO HERE FROM JONES DAY IS SCOTT COWAN, ELAINE WALLACE AND JANE FROYD. ) 5 6 VERSUS SAP AG, ET AL. COUNSEL PLEASE STATE YOUR APPEARANCES FOR THE RECORD. ) 1 2 3 4 AUGUST 28, 2008, 9:00 O'CLOCK AM PROCEEDINGS 3

THE CLERK: CALLING CIVIL O7-1658, ORACLE CORPORATION

FURTHER APPEARANCES: FOR DEFENDANTS: JONES DAY 555 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94104-1500 BY: JASON MCDONELL, ESQUIRE AND ELAINE WALLACE, ATTORNEY AT LAW AND JONES DAY 717 TEXAS SUITE 3300 16 HOUSTON, TEXAS 77002-2712 BY: SCOTT W. COWAN, ESQUIRE AND 20 JONES DAY 1755 EMBARCADERO ROAD PALO ALTO, CALIFORNIA 94303 24 BY: JANE FROYD, ATTORNEY AT LAW 25 TESTIMONY THAT APPLIES TO THE PROCESS BY WHICH THOSE FIXES WERE DEVELOPED AND AGREE THAT THAT TESTIMONY IS GENERALLY APPLICABLE 21 22 23 THEM UP INTO THE PROPER POPULATIONS, BECAUSE THEY DIFFER BY WHAT RELEASE OF SOFTWARE IT IS; WHAT TIME PERIOD THE FIX WAS BEING DEVELOPED IN, POTENTIALLY. AND THOSE ARE POTENTIAL FILTERS. AND THEN, TO TAKE 17 18 19 W HAT WOULD OTHERWISE BE A QUOTE/UNQUOTE "STATISTICALLY-VALID METHODOLOGY," IT DOES CREATE SOME OTHER ISSUES. SO THE DISCUSSIONS OF LATE HAVE FOCUSED ON STILL IDENTIFYING A SET OF FIXES THAT WE'RE GOING TO -- AND DIVIDE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 THAT, JUST A STATISTICALLY-VALID SAMPLE AND TO FIND THE FACTS FROM THAT SAMPLE THAT ARE RELEVANT AND THAT WE WOULD WANT TO GET W OULD EFFECTIVELY CONSUME ALL OR MORE OF THE DISCOVERY LIMITS THAT YOUR HONOR HAS SET JUST IN THAT PART OF THE CASE. THE COURT: NOW, WHICH LIMITS WE TALKING ABOUT? MR. HOWARD: WE'RE TALKING ABOUT CUSTODIANS AND HOURS, POTENTIALLY. THE COURT: DID I SET AN HOUR LIMIT? YOU MEAN THE HOURS IN DEPOSITIONS? MR. HOWARD: JUDGE HAMILTON SET AN HOUR LIMIT FOR DEPOSITIONS. THE COURT: RIGHT. MR. HOWARD: NOBODY WANTS TO GO DOWN THAT ROAD BECAUSE THERE OTHER AREAS OF THE CASE. AND WE'VE BEEN TRYING HARD TO FIND A WORKAROUND FOR THAT. BUT ONCE YOU STEP BACK FROM

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Hearing, Discovery before Judge Laporte 8/28/2008
57 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. WALLACE: THERE WAS ONE OTHER COPYRIGHT-RELATED ISSUE THAT I WAS HOPING WE COULD GET SOME GUIDANCE FROM THE COURT, BECAUSE IT MAY AVOID -- MAY AVOID US HAVING TO INCLUDE IT IN A MOTION OR SERVE ADDITIONAL REQUESTS. THE COURT: ALL RIGHT, IF IT'S BRIEF. AND WE STILL HAVE TO DISCUSS THE FINANCIAL DOCUMENTS AND THIRD-PARTY SUPPORT, W HICH WE HAVEN'T GOTTEN TO. MS. WALLACE: I'LL MAKE IT VERY BRIEF. ESSENTIALLY, ORACLE JUST FILED A SECOND-AMENDED COMPLAINT. AND IN THAT COMPLAINT THERE ARE ADDITIONAL COPYRIGHT REGISTRATIONS. WE HAVE ORACLE AT LEAST FOR THE MATERIALS THAT IT HAS AGREED TO PRODUCE FOR THE REGISTRATIONS IDENTIFIED IN THE FIRST-AMENDED COMPLAINT TO SUPPLEMENT ITS PRODUCTION SO THAT WE HAVE THE SAME MATERIALS FOR THE NEW REGISTRATIONS IN THE SECOND-AMENDED COMPLAINT. MR. HOWARD: WE'RE GOING TO PRODUCE THOSE, YOUR HONOR. THE COURT: YOU ARE GOING TO PRODUCE THEM. MR. HOWARD: YES. THE COURT: SO WHEN? MR. HOWARD: WE ARE EXPECTING TO HAVE A SUPPLEMENTAL PRODUCTION SOMETIME IN THE NEXT COUPLE OF WEEKS. AND WE'RE GOING TO INCLUDE THEM IN THAT PRODUCTION WHICH WILL HAVE SOME OTHER COPYRIGHT-RELATED MATERIALS IN IT. THE COURT: ALL RIGHT. THAT'S FINE. OKAY. SO LET'S 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 DEPARTMENT, THAT WOULD SEEM TO BE TOO MUCH. THAT MAY NOT BE WHAT YOU'RE ASKING FOR. I DON'T KNOW. MR. MCDONELL: IT'S GOING TO BE AN ELECTRONIC REPORT THAT CAN BE READ ELECTRONICALLY. BUT, YOUR HONOR, WE WILL TAKE YOUR COMMENTS -THE COURT: AND IF IT'S TOO BURDENSOME, I EITHER W ON'T ALLOW IT, OR I'LL SHIFT THE COST OF IT. MR. MCDONELL: WE UNDERSTAND. THE COURT: YES. BUT -MS. HOUSE: COULD WE ALSO ASK FOR YOUR GUIDANCE THAT W E COULD WORK ON A MUTUALLY-CONVENIENT SCHEDULE THAT TAKES INTO ACCOUNT THE UPCOMING DEPOSITIONS AND THE TRAVEL AND ALL OF THE OTHER THINGS THAT ARE BEING -THE COURT: WELL, YOU OUGHT TO TAKE THAT INTO ACCOUNT. AND I'LL HAVE TO LOOK AT MY OWN SCHEDULE, FRANKLY. I MEAN, I'M GOING TO BE IN TRIAL PROBABLY FOR THE ENTIRE MONTH OF OCTOBER. SO IT IS GOING TO BE A DIFFICULT MONTH FOR ME. MR. MCDONELL: WE WERE GOING TO SUGGEST A FILING ON SEPTEMBER 19, YOUR HONOR. THE COURT: FOR A DATE OF 35 DAYS AFTER THAT? THAT'S THE USUAL MOTIONS SCHEDULE. MR. MCDONELL: THAT WOULD BE, ALTHOUGH IN THE MOTION W E'VE JUST RESPONDED TO, IT WAS ON A MUCH MORE ACCELERATED -THE COURT: I DON'T HAVE IN MIND A SCHEDULE RIGHT NOW . YOU CAN -- YOU CAN PROPOSE ONE, AND I WILL DISPOSE 59

58 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 W AIT. MS. HOUSE: ON THE BASIC LEVEL, AT THE WEEDS LEVEL THAT I WAS DESCRIBING TO YOU, WE STILL HAVE NOT GOTTEN A SINGLE PIECE OF CORRESPONDENCE THAT EXPLAINS -THE COURT: WELL, THEN, YOU CAN FILE THAT MOTION. MR. MCDONELL: OKAY. THE COURT: BUT, YOU KNOW, SOUNDS TO ME FROM THE DESCRIPTION THAT THIS IS GOING TO BE -- CALL FOR THE USUAL SOLOMAN-LIKE RULING BY ME, WHICH IS THAT YOU'VE PROBABLY ASKED FOR TOO MUCH AND THEY ARE PROBABLY GIVING YOU TOO LITTLE. AND I'M SORT OF, YOU KNOW -- NOT EVERY ASPECT OF ORACLE'S OPERATIONS ARE PROBABLY RELEVANT TO YOU. SO IF YOU'RE ASKING FOR EVERYTHING THEY HAVE IN GRANULAR DETAIL, EVERY GO BACK TO THE FINANCIAL DOCUMENTS. I MEAN, I -- YOU KNOW, AGAIN, IF THERE'S GOING TO BE ACTUAL PRODUCTION OF FINANCIAL DOCUMENTS IN THE TARGETED SEARCHES, I'D BE INCLINED TO HOLD OFF ON THE MOTION FOR A SHORT WHILE. MR. MCDONELL: THESE DOCUMENTS THEY WILL NOT PRODUCE. IF THEY SAY THEY WILL EVEN CONSIDER PRODUCING THEM, THAT'S A DIFFERENT ISSUE. THE COURT: IT'S SORT OF THE SAME RULING I DID BEFORE. IN OTHER WORDS, IF YOU'RE GOING TO SAY TO THE TARGETED SEARCHES: "WE WON'T PRODUCE WHAT WE SAID WE'RE NOT GOING TO PRODUCE IN RESPONSE TO THIS," THERE'S NO REASON TO 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 ACCORDING TO WHAT WILL WORK FOR MY SCHEDULE. I JUST CAN'T -- I W ANT YOU TO MEET AND CONFER. IF YOU CAN'T AGREE, YOU CAN PROPOSE COMPETING SCHEDULES AND I'LL DECIDE WHAT SCHEDULE -MR. MCDONELL: BY LETTER TO YOUR HONOR? THE COURT: THAT'S FINE. MR. MCDONELL: AND THEN, THE OTHER PIECE OF THIS THE MOTION WOULD ALSO TAKE INTO ACCOUNT THE FOUNDATIONAL 30 (B) (6) ON THE PARTNERSHIP PROGRAM. THE COURT: THAT MAY END UP BEING ON THIS -- OKAY. SO WE'VE TALKED ABOUT FINANCIAL. WE'VE TALKED ABOUT -MR. MCDONELL: COPYRIGHT. THE COURT: -- COPYRIGHT. AND WHAT DID WE SAY ABOUT THIS PART? MR. MCDONELL: I THINK WE DIDN'T SAY, BUT I'M INFERRING THAT WOULD BE TREATED THE SAME AS FINANCIAL, THAT WE W OULD MOVE AND PROPOSE A SCHEDULE. THE COURT: YEAH. I MEAN, IF YOU'RE MAKING -- I MEAN, I WILL SAY THAT, YOU KNOW, ON THIRD-PARTY SUPPORT AT FIRST BLUSH I WOULD TEND TO THINK THAT PARTNERS WITH ORACLE DON'T SEEM VERY -- DON'T SEEM SIGNIFICANTLY RELEVANT TO OPEN IT UP. I MEAN, IF THEY ARE ORACLE PARTNERS, BY DEFINITION, THEY ARE GIVING THEM PERMISSION TO DO THINGS. AND WHEREAS, THE ONES THAT ARE IN A SIMILAR POSITION TO TOMORROWNOW DO SEEM TO BE. AND DID JUDGE LEGGE ALREADY RULE ON THIS?

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Hearing, Discovery before Judge Laporte 8/28/2008
61 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 MR. MCDONELL: HE DENIED IT WITHOUT PREJUDICE SUBJECT TO OUR MAKING A FURTHER FOUNDATIONAL SHOWING. THE COURT: ALL RIGHT. MR. MCDONELL: AND IF THEY DON'T GIVE US ANY INFORMATION ABOUT THE PARTNERSHIP PROGRAM, WE ARE HAMSTRUNG IN OUR ABILITY TO MAKE THAT -THE COURT: WELL, ISN'T THERE A CERTAIN AMOUNT THAT IS PUBLIC ON THAT? MR. MCDONELL: THERE IS. THERE IS. AND WE WILL CERTAINLY INCLUDE THAT. THE COURT: I MEAN, YOU KNOW, I WOULD -- I MEAN, AND IF THERE'S SOME, YOU KNOW, READILY ACCESSIBLE SAMPLE AGREEMENTS ABOUT -- THAT ARE NONPUBLIC THAT YOU CAN GIVE TO THEM THAT GIVES THEM JUST A LITTLE MORE DETAIL ABOUT IT WITHOUT GOING INTO EXCRUCIATING DETAIL ABOUT ALL THE PARTNERS AND HOW IT ACTUALLY W ORKS AND HOW MUCH MONEY THEY MAKE, BUT JUST THE STRUCTURE OF IT, YOU OUGHT TO JUST GIVE IT TO THEM. AND MAYBE THAT WILL HELP YOU ASSESS WHETHER IT IS OR ISN'T RELEVANT. I'M DUBIOUS ABOUT WHETHER IT'S RELEVANT. I'LL TELL YOU THAT RIGHT NOW. MR. MCDONELL: THAT WILL BE OUR BURDEN ON THE MOTION, YOUR HONOR. THE COURT: SO, I MEAN, YOU KNOW, I THINK OVER THE YEARS I'VE HEARD ABOUT IT IN SOME CONTEXT OR ANOTHER. I CAN'T REMEMBER WHAT. AND IT DOES SEEM LIKE A COMPLETELY DIFFERENT 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 OF ME. CAN YOU -MR. PICKETT: THERE'S A SPECIFIC PARAGRAPH IN THAT. MR. COWAN: NOT IN THE ORDER, YOUR HONOR. MR. PICKETT: IT'S IN THE -MR. COWAN: THE PARTIES HAD A SEPARATE AGREEMENT -THE COURT: THE AGREEMENT. MR. COWAN: FOR LOGISTICAL PURPOSES, RATHER THAN GOING TO THE EXPENSE OF HAVING OUR EXPERTS CREATE NEW CD'S THAT HAVE THOUSANDS AND THOUSANDS OF DOCUMENTS -THE COURT: RIGHT. MR. COWAN: -- THAT WE WOULDN'T YANK BACK THE ONES, ERASE THE THING OFF AND SEND THEM NEW CD'S. WE SAID: "YOU CAN KEEP THOSE FOR DISASTER RECOVERY PURPOSES. DON'T LOOK AT THEM." THAT'S WHAT THE PARTIES AGREED. THAT IS THE ONLY AGREEMENT. THE COURT: BUT THERE WAS NO DISASTER RECOVERY HERE. MR. COWAN: THERE WAS ANALYSIS OF THE DOCUMENTS. MR. PICKETT: NO, BUT THERE'S WHAT I WOULD SAY IS A COMPLETELY INCONSISTENT PROVISION THAT SAYS YOU CAN USE THE DOCUMENTS IN CONNECTION WITH ANY CLAWED BACK MOTION. THE COURT: WELL, TO ME -MR. PICKETT: BUT USE -THE COURT: YEAH. YEAH. YEAH. I GUESS I WOULD 63

62 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 THING. AND THAT THE RELEVANCE WOULD BE -- IF THERE IS ANY -W OULD BE OUTWEIGHED BY THE BURDENSOME. MR. MCDONELL: I WON'T ARGUE THE MOTION NOW. THE COURT: OKAY. OBVIOUSLY, I COULD CHANGE MY MIND, YOU KNOW, DEPENDING ON WHAT THE SHOWING WAS. SO I WON'T PRECLUDE YOU FROM ARGUING THAT. BUT YOU SHOULD THINK ABOUT W HETHER THERE'S SOME STEP SHORT OF THAT, YOU KNOW. OKAY. MR. MCDONELL: OKAY. THE COURT: SO NOW LET'S GO TO THIS MOTION ABOUT THE CLAW ED BACKED DOCUMENTS. I HAVE LOOKED AT THE DOCUMENTS THAT W ERE SUBMITTED. I DO AGREE THAT UNDER THE PROTECTIVE ORDER THAT WAS ENTERED INTO, I DON'T THINK ORACLE SHOULD HAVE KEPT THE COPIES. I DON'T -- I MEAN, I JUST DON'T THINK THAT'S THE PLAIN LANGUAGE OF IT. MR. PICKETT: I THINK WE WERE EXACTLY PERMITTED TO KEEP A COPY UNDER THE PLAIN LANGUAGE FOR PURPOSES OF DISASTER RECOVERY. THE COURT: WELL, I DON'T THINK SO. I MEAN, I'M NOT ISSUING ANY SANCTIONS OR ANYTHING LIKE THAT. BUT READING THE ORDER, IT DOESN'T SEEM TO PERMIT KEEPING COPIES. IT SAYS: "GIVE THEM BACK," I THINK. MR. PICKETT: THERE'S A SPECIFIC -THE COURT: I DON'T HAVE THE EXACT LANGUAGE IN FRONT 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 RECONCILE THOSE. I THINK THEY ARE IN SOME TENSION. BUT I THINK IT MEANT YOU HAD TO GIVE IT BACK AND THEN ASK THEM TO FILE THEM UNDER SEAL. MR. PICKETT: WE DID. THE COURT: WELL, BUT, YEAH. YOU KEPT AND ANALYZED THE COPIES. I DON'T THINK THAT WAS CONTEMPLATED BY THE AGREEMENT. I DON'T THINK THE AGREEMENT MAYBE MADE TOTAL SENSE BUT -MR. PICKETT: JUST FOR CLARIFICATION, IN CASE THIS COMES UP AGAIN, ARE WE PERMITTED TO TAKE NOTES FROM THE DOCUMENTS AT ANY POINT? THE COURT: I DON'T KNOW WHAT SHOULD BE THE RIGHT STANDARD. MR. PICKETT: BECAUSE OTHERWISE -THE COURT: I THINK WHAT YOU AGREED TO IN THE PAST IS NO. AND I'M NOT TOTALLY UP ON WHAT -- I MEAN, I'VE SEEN THERE'S SOME A.B.A. OPINIONS AND THINGS LIKE THIS. AND I DON'T HAVE A CLEAR UNDERSTANDING IN MY OWN MIND OF WHAT THE RIGHT PROCEDURE IS. THIS IS COMING UP MORE AND MORE. AND I'VE HAD VERY, YOU KNOW, HEATED ARGUMENTS ABOUT IT. AND I'M NOT REALLY SURE. MR. PICKETT: IT'S A TOUGH ISSUE, I AGREE. THE COURT: YEAH. I'M REALLY NOT SURE ABOUT IT. BUT I JUST THINK THE PLAIN LANGUAGE OF THE AGREEMENT SAYS: "NO, YOU CAN'T."

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Hearing, Discovery before Judge Laporte 8/28/2008
77 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 S/S KATHY WYATT CERTIFICATE OF REPORTER I, KATHERINE WYATT, THE UNDERSIGNED, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED BY ME INTO TYPEW RITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS. I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR ATTORNEY FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING PROCEEDINGS AND CAPTION NAMED, OR IN ANY WAY INTERESTED IN THE OUTCOME OF THE CAUSE NAMED IN SAID CAPTION. THE FEE CHARGED AND THE PAGE FORMAT FOR THE TRANSCRIPT CONFORM TO THE REGULATIONS OF THE JUDICIAL CONFERENCE. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS 4TH DAY OF SEPTEMBER, 2008.

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EXHIBIT 4

OPN Solutions Catalog - CedarCrestone, Inc.

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CedarCrestone, Inc.
Partner Summary
CedarCrestone provides Oracle's PeopleSoft Enterprise consulting, hosting, and managed services for the deployment, management, and optimization of Human Capital Management (HCM), Financial Management (FMS), and Campus Solutions (CS).

http://www.cedarcrestone.com

Phone (primary): 1 866 8273786 1255 Alderman Drive Alpharetta Geor gia Zip/Postal Code: 30005 United States

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Partner Profile
CedarCrestone, a Certified Advantage Partner of Oracle Corporation, is the proud recipient of OracleâTMs 2007 âoePeopleSoft Solutionâ Titan Award. This is the second Titan Award CedarCrestone received, the first being in 2005 for âoePeopleSoft Partner of the Year.â CedarCrestone is the largest, dedicated PeopleSoft Enterprise Systems Integrator, with extensive expertise in Oracle technology and PeopleSoft Enterprise applications. With 24 PeopleSoft Enterprise applications in production, CedarCrestone invests heavily in the vision of Oracle. The Managed Services division of CedarCrestone hosts nearly 40 PeopleSoft Enterprise clients on Oracle database technology with diverse industry credentials, superior service levels, and a focus on customer service and success. CedarCrestone assessed the potential benefits and risks of offshoring business in 2003, resulting in the opening of an India business unit in Hyderabad in March of 2004. Investments have been made to ensure that the India facilities are modern and well equipped with secure connectivity from Hyderabad to the CedarCrestone Managed Services Center. While US resources sleep, India personnel work through the night to ensure client systems are being supported, maintained and

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PeopleSoft Enterprise Consulting PeopleSoft Enterprise Consulting services which include Implementations, Upgrade, eApps & Portals - with complementary services available from the CedarCrestone Managed Service Center. more... PeopleSoft Enterprise Hosting CedarCrestone's Managed Services Center offers a state-ofthe-art application Hosting solution to provide an alternative to acquiring, maintaining, and monitoring a PeopleSoft infrastructure. more...

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OPN Solutions Catalog - CedarCrestone, Inc.

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monitored 24x7 consistent with the service level agreements. Today, CedarCrestone's India operation delivers strategic services to customers across Commercial, Higher Education, and Public Sector Industries.

Partner Information
Partner Systems Integrator Category/Type:(SI) Secondary Hosting Service Category: Provider Tertiary Management Category: Consultancy Sell to Small Yes and Medium Business (SMB)?: Partner Certified Advantage Membership Level: Partner United States Membership Location: Main Office United States (HQ) Location: Public or Private Private Company: Year 1995 Company Founded: Number of 501 - 1000 Employees:

CedarCrestone and Oracle's history of collaborating to deliver real client success is long, diverse, and multifaceted. A few examples of our partnership in action follow:

Oracle and CedarCrestone "Tour de HCM" CedarCrestone 2007 - 2008 HR Systems Survey: HR Technologies, Service Delivery Approaches, and Metrics PeopleSoft Hosting Solution

What Oracle and CedarCrestone, Inc. are Doing

Oracle's PeopleSoft Partner of the Year 2007 Economic Justification for PeopleSoft Hosting

Oracle and CedarCrestone, Inc. in the News

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OPN Solutions Catalog - CedarCrestone, Inc.

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CedarCrestone, Inc. Collateral
DistinguishingEnabling HRIS Featur es: Transformation

(IHRIM.link, January 2008) Product PeopleSoft Hosting Reviews: Solution DistinguishingOracle Names Featur es: CedarCrestone as Recipient of "PeopleSoft Solution" 2007 Titan Award

The partners listed in the Oracle PartnerNetwork (OPN) Solutions Catalog are part of the Oracle PartnerNetwork Program, however Oracle does not endorse any of the partners or their software, solutions, services or training listed on this site. Oracle disclaims any and all liability arising out of your use of the partners, software, solutions, services and training listed on the site. All software, solutions, services and training are provided âoeas isâ and without warranty, unless provided by the authoring partner.

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EXHIBIT 5

EXHIBIT 6

DISCOVERY CONFERENCE

January 15, 2009

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MAGISTRATE JUDGE ELIZABETH D. LAPORTE ORACLE CORPORATION, a Delaware ) Corporation; ORACLE, USA, INC.,) a Colorado corporation; and ) ORACLE INTERNATIONAL ) CORPORATION, a California ) corporation, ) ) Plaintiffs, ) ) vs. ) ) ) SAP AG, a German corporation; ) SAP AMERICA, INC., a Delaware ) corporation; TOMORROWNOW, INC.,) a Texas corporation; and DOES ) 1-50, Inclusive, ) ) Defendants. ) _________________________ ) Case No. C07-1658 (PJH)

FURTHER DISCOVERY CONFERENCE

January 8, 2009 TRANSCRIPT OF AUDIO RECORDING OF DISCOVERY CONFERENCE

TRANSCRIBED BY:

FREDDIE REPPOND

Merrill Legal Solutions [phone]

DISCOVERY CONFERENCE
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of support, that the terms and conditions of that kind of relationship and what is paid in consideration for that right is directly relevant to an analysis of damages in this case. The theory of the Plaintiffs' case is that TomorrowNow did this kind of work without an express agreement with Oracle. If we know how much a third-party partner pays for that right, it's relevant to damages. Secondly, it's related to causation of damages. If there are companies like Cedar Crestone, who have now told us in this letter from their lawyer that they provide support much the way TomorrowNow does, that are available to support customers of Oracle and indeed some customers that just left TomorrowNow because TomorrowNow shut its doors have gone to Cedar Crestone. That helps us to break the causal link that it was just TomorrowNow's activities that caused a customer to leave Oracle. We now see that customers were going to leave Oracle anyway. They could have gone to Cedar Crestone -THE COURT: Well, that seems to me a little farther fetched. In other words, if there's an issue of reasonable royalties or the equivalent, there might be a relationship to damages. But Oracle can choose to have partners that it authorizes to use its IP; and
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So the motion is we get the chart of accounts, which is a list of the types of accounts they have, but we don't want all 80,000 but the general ledger accounts at this time. But we do want that basic blueprint of what the accounts are. Then we will look at them. Then we'll make a follow-up request for the general ledger information that we think is most pertinent for the type of analysis that needs to be done. THE COURT: Okay. MS. HOUSE: We are happy to -- I don't want to take more of your time. We will be ready to oppose this. It's another way I think is going to be akin to just it's a needle-in-a-haystack type of request -THE COURT: Well, they are absolutely entitled to some profit data if you're going to go after lost profits. MS. HOUSE: And they have been given it. They've been given it the way Oracle keeps it, which is exactly the same way SAP keeps it, which is that profit margins are rolled up by lines of business. They're not kept on a product-by-product basis. THE COURT: Well, we'll just have to see, but I mean I would err on the side of giving them what they think they need to have their expert analyze the
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profits, not what Oracle thinks they need. And as long as it's not completely disproportionate. But, you know, you're seeking millions and millions of dollars for them and you're not giving up on the lost-profit theory and they have the right to challenge it. So exactly how you keep it and how complicated -- I don't know why you wouldn't at least give them the chart of accounts if it's true that that's essentially a list of what you've got. I don't see that -- that's not very burdensome. MS. HOUSE: Hopefully we can convince you when we -THE COURT: Well, I don't know. But, again, I would urge you to -- you might as well disclose what you've got in terms of chart of accounts, because it would be much more concrete for me to look at that and say, Well, why should you get this and not that if they think they should get this and you say, no, they shouldn't. Why? MS. HOUSE: The charts of accounts -- I think this came up before [inaudible] THE COURT: I don't remember. MS. HOUSE: Charts of accounts are extremely voluminous. There's different charts of account for different Oracle entities. They have -- from the

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that's completely different from somebody ripping it off. And I don't really think it's the same at all. So that -- but, you know, I think that we are just going to have brief it. But that one does not grab me very much in the first instance. Okay. Then there's this chart of accounts. MR. MCDONELL: Another issue we've talked about time and again, but it seems like it's at loggerheads. I am prepared to file a motion. It all has to do with Oracle's alleged profit margins. So we believe that one of their measures of damages that they're reserving to right to pursue is lost profits. THE COURT: Is that true? I mean is that being preserved -- the right to pursue that? MS. HOUSE: Absolutely. But -MR. MCDONELL: And then we have taken the deposition -- a 30(b)(6) -- of an Oracle witness and asked that witness whether Oracle was to give us their profit margins on their work for PeopleSoft and JD Edwards support. And she said, No, we can't do that. Our expert very much wants now to get to the underlying data to see what expenses seem like that would be relevant to the revenues that pertain to service and try to build his own profit model or analysis. And we have nothing from them that would allow him to do that.

15 (Pages 54 to 57) Merrill Legal Solutions [phone]

DISCOVERY CONFERENCE
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January 15, 2009
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pretty full calendar. THE COURT: Yeah, that's very full. No, I wouldn't want -- yeah -- I don't want to -- right. I want to put you on the 13th; and I think it's the afternoon -MR. COWAN: What about the following week? That may give us more time. THE COURT: I'm gone; and that's the reason. That's why I am moving it -- otherwise, I have to move it quite a bit later. MR. HOWARD: I think the 13th is fine. THE COURT: Yeah, but if you want to, for example, file about everything else on the 9th and then just on the stipulation issue closer to the 13th, that's all right. MR. HOWARD: Why don't we just try and file on the 9th? THE COURT: Okay. MR. HOWARD: And we'll do our best to get it wrapped up by then. THE COURT: Okay. That's fine. All right. And if you need to put something supplemental about the stipulation -- and the stipulation, obviously, the more concrete I know about what your issues are, the more I might possibly be able to be helpful, but -Page 67

STATE OF CALIFORNIA ) COUNTY OF SAN FRANCISCO ) CERTIFICATE OF REPORTER/TRANSCRIBER I, the undersigned, a Shorthand Reporter and licensed Notary Public, do hereby certify that the above referenced recording was transcribed by me and that this transcript is a true record of that recording. IN WITNESS WHEREOF I have hereunto set my hand on this 16th day of January, 2009. __________________________ FREDDIE REPPOND

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MR. HOWARD: I think our goal would be to actually give you a stipulation. THE COURT: Well, that would be best, obviously. MR. HOWARD: So you see what it looks like and you have some flesh on the bones here and maybe two. THE COURT: So. All right. Thank you. MS. HOUSE: [inaudible] THE COURT: Yeah. Thank you. THE CLERK: Court's in recess. [END OF AUDIO]

18 (Pages 66 to 68) Merrill Legal Solutions [phone]

EXHIBIT 7

SAP United States - SAP Partners: Partnering with SAP ­ Innovation through Collaborati... Page 1 of 2

United States SAP PARTNERS
PARTNERING WITH SAP ­ INNOVATION THROUGH COLLABORATION
Getting the Most from Your Partnership with SAP
The combined expertise, experience, and insights of the SAP ecosystem and partner network lead to better solutions for our customers. As an SAP partner, you can tap into resources that will help you grow and maximize business results. When you join our partner network, you gain access to more than 30 years of experience spanning 25 industry segments. Benefits of becoming an SAP partner include:

PARTNER SPOTLIGHT: ATos ORigin
SAP global services partner and hosting partner, Atos Origin is also a technology partner for the Olympics games. Find out more.

Access and exposure to SAP's customer base Entry into a collaborative environment where partners support one another and work toward greater customer success Access to our partner-only portals for product, marketing, sales, and competitive information Sales and marketing assistance Technical support Participation in SAP events SAP Referral Program ­ Many kinds of partners and organizations, even those who do not have a direct relationship with SAP, can earn substantial referral fees through our SAP Referral Program.

APPLY FOR PARTNERSHIP
Check out the SAP partnership and certification application.

APPLY INTEGRATION AND CERTIFICATION
SAP Integration and Certification Centers (SAP ICCs) help vendors integrate their software with SAP solutions seamlessly. Read how.

Partnering with SAP puts the strength of one of the most successful, respected software brands behind you. After joining one of SAP's nine partner categories, you'll interact with many professionals globally in our ecosystem. Our channel manager program ensures that each partner receives appropriate SAP support resources, including sales, marketing, and business planning assistance, specific business opportunities, online collaboration tools, and technical support. We are dedicated to ensuring that our partners have tools and information to succeed.

SAP PARTNERSHIP: TICKET TO SAP EVENTS
SAP participates in and hosts events worldwide that include partners. Participate, exhibit, sponsor, advertise, and network. Get the details.

Partner Categories
Business process outsourcing (BPO) providers ­ Deliver business process services based on SAP solutions, including human resources, procurement, finance, and accounting processes, to companies who want to outsource them Channel partners ­ Capitalize on the expanding small and midsize enterprise (SME) market by utilizing our broad portfolio of SME partnering opportunities that are designed to empower you. We have the programs and opportunities that fit your capabilities and business. Content partners ­ Integrate data, intellectual property, or information services with SAP solutions

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Education partners ­ Work with SAP to deliver high-quality, professional training for SAP solutions and technology Hosting partners ­ Offer a portfolio of hosting services for SAP Business Suite applications and the SAP NetWeaver technology platform, including application management services Service partners ­ Help SAP customers design, implement, and integrate SAP solutions; optimize business processes; and provide strategic business consultation Software solution partners ­ Develop applications integrated with SAP solutions and have passed SAP's certification or validation process. These third-party software vendors' applications extend and add value to SAP solutions across industries and business processes Support partners ­ Ensure that customers receive the best possible support throughout the life cycle of SAP solutions Technology partners ­ Provide infrastructure for SAP solutions, including hardware platforms, databases, storage systems, networks, and mobile devices

Whether you're looking to increase your customer base, develop your market, or collaborate with other industry leaders, becoming an active partner in the SAP ecosystem is your first step toward success. Want to learn more? Contact SAP for more information. Investors | Careers | Inside Access | Communities | Education and Training | ASUG | Contact SAP Copyright/Trademark | Privacy | Impressum | Using SAP.com | Text-Only View | Full-Page View Questions or comments about the Web site? Contact the [e-mail].

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EXHIBIT 8

SAP United States - Technology Partners: ORACLE and SAP

Page 1 of 2

United States TECHNOLOGY PARTNERS
ORACLE AND SAP
Alliance Overview
Oracle databases are available for SAP applications on all major operating systems, including Windows, Linux, and Unix. Oracle and SAP have long-term agreements to ensure continued development, optimization, and support of Oracle database technology under the SAP software for mutual, large-enterprise customer base.

Key Customer Benefits
Offering best-of-breed and optimized database technology for SAP products, Oracle features utilized by SAP software include:

Oracle Database 10g and Real Application Clusters (RAC) ­ Designed as the first database for grid computing, it is the most flexible and cost-effective way to manage enterprise information. The database cuts management costs, while providing quality of service and performance enhancements. Oracle Database 10g significantly reduces costs of managing the IT environment with a simplified installation, greatly reduced configuration and management requirements, and automatic performance diagnosis and SQL tuning. Oracle Advanced Security ­ Provides robust encryption solutions to safeguard sensitive data and address regulatory compliance requirements. With transparent data encryption, you get protection against unauthorized access to sensitive data at the operating system level or through theft of hardware or backup media. Oracle Partitioning ­ Enables tables and indexes to be split into smaller, more manageable components and is a key requirement for any large database with high- performance and high-availability requirements. Oracle Data Guard ­ Provides disaster recovery for the Oracle database and helps SAP customers increase availability and data consistency plus reduce downtime and adds a superior level of data protection. Oracle Data Mining Connector 2.0 ­ Provides SAP customers with advanced analytics embedded in the Oracle 10g database. Data and business analysts benefit from the wide range of state-of-the-art data mining functionality that is exposed through the SAP data mining framework.

Capabilities and Industry Expertise
Oracle and SAP have developed capabilities and expertise by coordinating a global support process for the following:

Proactive risk mitigation for introduction of new products with the goal to reduce the amount of support related assistance requests Single, consistent service relationship with a dedicated long-term team of Oracle technical analysts who provide queue management and direct customer contact to SAP customers using Oracle databases

Alliance Focus Areas
The Oracle databse development team onsite in St.Leon Rot, Germany , manages and executes joint Oracle/SAP database integration projects. The Oracle Global Technology Centers for SAP in Germany and the United States provide presales support. The Oracle database support teams are onsite at SAP support centers in Tokyo , Japan ; Palo Alto , California , USA ; and St.Leon Rot/Walldorf, Germany.

Oracle/SAP References

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Read details about Oracle databases for deploying SAP software.

Oracle/SAP Knowledge Corner
Oracle Real Application Clusters (RAC) software has become the clustering technology of choice for a growing number of SAP customers. Using SAP applications with Oracle RAC provides high availability, scalability, and cost reduction. The following documents provide best practices on how to migrate an existing single-instance SAP installation to a multipleinstance Oracle RAC cluster-database configuration:

SAP Customers Depend on Oracle Real Application Clusters for High Availabilityand Scalability Configuration of SAP NetWeaver for Oracle Database 10g Real Application Clusters SAP NetWeaver/Oracle Database 10gR2 RAC on Windows 2003. A Best Practices Guide Providing High Availability for SAP Resources SAP Note ­ Oracle License Scope: Required Oracle Options (740897) SAP Note ­ Oracle RAC Support in the SAP Environment (527843)

Contact
Oracle for SAP Global Technology Center in Walldorf Germany Altrottstr. 31. 69190 Walldorf, Germany [phone] Want to learn more? Contact the SAP sales office nearest you. Investors | Careers | Inside Access | Communities | Education and Training | ASUG | Contact SAP Copyright/Trademark | Privacy | Impressum | Using SAP.com | Text-Only View | Full-Page View Questions or comments about the Web site? Contact the [e-mail].

http://www.sap.com/usa/ecosystem/customers/directories/technology/oracle/index.epx?pag... 1/23/2009