Oracle Corporation et al v. SAP AG et al

Filing 311

Declaration of Geoffrey M. Howard in Support of 309 MOTION Clarification of CMC Order re Deposition Hours Limitation filed byOracle USA Inc.. (Related document(s) 309 ) (Hann, Bree) (Filed on 5/19/2009)

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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 Corp., and Oracle EMEA Ltd. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE USA, INC., et al., v. Plaintiffs, Case No. 07-CV-1658 PJH (EDL) DECLARATION OF GEOFFREY M. HOWARD IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION FOR CLARIFICATION OF MAY 5, 2008 CASE MANAGEMENT ORDER

SAP AG, et al., Defendants.

Case No. 07-CV-1658 PJH (EDL)

DECLARATION OF GEOFFREY M. HOWARD IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION FOR CLARIFICATION OF MAY 5, 2008 CASE MANAGEMENT ORDER

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I, Geoffrey M. Howard, declare as follows: 1. I am an attorney licensed to practice law in the State of California and

before this Court, 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"). Except where stated below on information and belief, I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. 2. This case was originally assigned to Judge Jenkins. On September 25,

2007, I attended a Case Management Conference held before Judge Jenkins, at which counsel for Oracle and for SAP AG, SAP America, Inc., and TomorrowNow, Inc. (collectively, "Defendants," and together with Oracle, the "Parties") discussed fact depositions with the Court. Both Parties agreed that the standard 10 depositions of fact witnesses permitted by the Federal Rules would be far too few for this case. Judge Jenkins then set the fact deposition limit at 20 per side, indicating that the Parties could seek additional depositions if necessary. 3. By the time the case was reassigned to this Court, the Parties again agreed

that 20 fact witness depositions would be insufficient. I attended this Court's April 24, 2008 Case Management Conference, at which the Parties discussed their respective fact deposition time proposals. Although the hearing was not recorded or transcribed, my recollection is that the discussion was in the context of fact discovery, and that no one suggested that the deposition hours proposals should include expert depositions as well. 4. After the hearing, the Court issued the May 5 Case Management Order,

which states that each side may take 350 hours of depositions, but does not state whether those hours are intended for fact or expert depositions. Because the Parties' proposals to the Court had only discussed fact depositions, as had their conversations with Judge Jenkins and this Court, Oracle interpreted the statement of 350 hours to refer to fact depositions. Oracle also considered that the timing of expert disclosures supported this interpretation. Oracle planned its use of hours accordingly, believing it could use all 350 hours for fact witnesses. 5. As of today, Oracle has used approximately 325 deposition hours. Several

important fact witnesses, including third parties, remain before the close of fact discovery on 1 Case No. 07-CV-1658 PJH (EDL)
DECLARATION OF GEOFFREY M. HOWARD IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION FOR CLARIFICATION OF MAY 5, 2008 CASE MANAGEMENT ORDER

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June 19. The Parties will not exchange expert disclosures until June 1, 2009, so, until then, Oracle does not know how many experts Defendants intend to use, and vice versa. However, even if Defendants disclose only one testifying expert, 25 hours is not sufficient time for Oracle to depose that single expert and complete the necessary fact depositions remaining, including crucial third-party witness testimony. Further, Oracle expects Defendants to disclose significantly more than one testifying expert. If so, 25 hours will not be sufficient for even just expert depositions. 6. On May 12, 2009, Oracle filed on behalf of the Parties a joint

administrative motion, accompanied by a stipulation, to modify the case scheduling order on behalf of the Parties. As part of that motion, the Parties requested that the 350 deposition hours per side currently permitted by the May 5 Case Management Order be expanded to 450 hours. The Parties negotiated the language of the joint motion and accompanying documents over a period of seven weeks, exchanged over ten drafts, and had more than ten phone calls to meet and confer about it. I participated in several of these negotiations, and my colleagues participated in the others. During those discussions, Oracle repeatedly described its further need for fact depositions, but Defendants never mentioned that they believed the 350-hour limit included expert depositions. 7. Half an hour after Oracle filed the joint motion and stipulation on behalf

of the Parties, Defendants emailed Oracle to state, for the first time, their position that the original 350-hour deposition limit includes time for expert depositions, not just fact depositions. The Parties exchanged several emails discussing this interpretation, but were unable to come to agreement. A true and correct copy of the email chain is attached as Exhibit A. 8. On May 19, 2009, my colleague Bree Hann emailed counsel for

Defendants to inform them that Oracle intended to file this administrative motion and accompanying proposed order to seek clarification of the meaning of the 350-hour limit. Defendants declined to stipulate to Oracle's motion and order. A true and correct copy of that email chain is attached as Exhibit B. I declare that the above facts are true and correct, and that this Declaration was 2 Case No. 07-CV-1658 PJH (EDL)
DECLARATION OF GEOFFREY M. HOWARD IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION FOR CLARIFICATION OF MAY 5, 2008 CASE MANAGEMENT ORDER

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executed on May 19, 2009, in San Francisco, California. ____________/s/__________________ Geoffrey M. Howard

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Case No. 07-CV-1658 PJH (EDL)

DECLARATION OF GEOFFREY M. HOWARD IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION FOR CLARIFICATION OF MAY 5, 2008 CASE MANAGEMENT ORDER