Oracle Corporation et al v. SAP AG et al

Filing 337

Declaration of Joshua L. Fuchs in Support of 334 Memorandum in Opposition, Declaration of Joshua L. Fuchs in Support of Defendants' Motion to Compel Production of Documents Related to Damages Model filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit A-4, # 5 Exhibit A-5, # 6 Exhibit B, # 7 Exhibit C-1, # 8 Exhibit C-2, # 9 Exhibit C-3, # 10 Exhibit D-1, # 11 Exhibit D-2, # 12 Exhibit D-3, # 13 Exhibit D-4a, # 14 Exhibit D-4b, # 15 Exhibit D-5, # 16 Exhibit D-6, # 17 Exhibit D-7a, # 18 Exhibit D-7b, # 19 Exhibit D-8, # 20 Exhibit D-9, # 21 Exhibit D-10a, # 22 Exhibit D-10b, # 23 Exhibit D-11, # 24 Exhibit D-12, # 25 Exhibit D-13, # 26 Exhibit D-14, # 27 Exhibit E, # 28 Exhibit F, # 29 Exhibit G, # 30 Exhibit H, # 31 Exhibit I, # 32 Exhibit J, # 33 Exhibit K, # 34 Exhibit L, # 35 Exhibit M)(Related document(s) 334 ) (Fuchs, Joshua) (Filed on 7/14/2009)

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Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DECLARATION OF CATHERINE HYDE

DECLARATION OF CATHERINE HYDE Case No. 07-CV-1658 PJH (EDL)

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I, Catherine Hyde, declare as follows: 1. I am a former TomorrowNow, Inc. employee. I have personal knowledge of the

facts stated in this declaration and could competently testify to them if required. 2. I was employed by TomorrowNow as a developer for the PeopleSoft product lines

from October 2002 through October 31, 2008. During my employment at TomorrowNow, I used a TomorrowNow-created database, referred to as the SAS database, which was created to document the support activity for TomorrowNow's customers. As a general practice, the SAS database was used by TomorrowNow employees to document the scoping (researching of an issue), development and testing of the fixes and regulatory updates created for TomorrowNow customers. This documentation often included information about the environments and/or environment components that were accessed or used during that process. In my experience at TomorrowNow, these researching, development and testing activities documented in SAS were usually performed on a daily basis, and included use of several TomorrowNow customer environments and/or environment components in servicing customers' needs. 3. For a portion of the time I was employed by TomorrowNow, I used a

TomorrowNow-created database, referred to as BakTrak, to track the backup, restore, check-in and check-out of TomorrowNow customers' environments and environment components. As a general practice, TomorrowNow used BakTrak to track when and why TomorrowNow customer environments and/or environment components were backed-up and/or restored. As a general practice, TomorrowNow also used BakTrak to track which environments and/or environment components were being used, and by whom, through a check-in and check-out process. 4. Based on my experience, the SAS database is the best record, if any, of how and

when TomorrowNow customer environments and/or environment components were used to support customers. The SAS database is relatively easy to use, and, with minimal training, relevant material can be easily extracted. The SAS database has a self-contained index and is fully searchable. The data can be sorted and reviewed in a number of different ways including, but not limited to, by customer, fix, case and product line. All of the different ways to view the data can be determined by the index. The BakTrak database has self-explanatory buttons that -1DECLARATION OF CATHERINE HYDE Case No. 07-CV-1658 PJH (EDL)

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allow the user to view the restores, backups, and check-in and check-out information. Within these views, the user can pick the product line or environment/environment component they want to see. 5. So far, in this case, I have been deposed as a 30(b)(6) witness and in my individual

capacity for approximately 22 hours collectively on April 1, 2008, April 2, 2008, February 12, 2009 and March 12, 2009. During those 22 hours, Oracle's attorneys have questioned me regarding numerous printouts and documents from the SAS database and regarding spreadsheets generated from BakTrak. Those printouts and documents appear exactly as they would if I had printed them at TomorrowNow while I was an employee. It is apparent to me that whoever printed these documents from the SAS and BakTrak databases for Oracle's attorneys is a competent user of both the SAS database and BakTrak. It was also apparent to me from Oracle's counsel's questions that they understand how to locate the necessary information from both sources. Much of Oracle's counsel's questioning of me has involved reference to specific TomorrowNow's customer environments and/or environment components. And a substantial portion of those questions involved simply asking me to confirm the information in the SAS database printouts and/or the BakTrak spreadsheets. In fact, the 30(b)(6) deposition that took place on April 1 and 2, 2008 was focused principally on the creation and use of TomorrowNow customer environments and/or environment components. 6. I have read Oracle's Motion to Compel and Geoff Howard's supporting

declaration, and I acknowledge that during my individual deposition on March 12, 2009, Mr. Howard asked me questions about the CDs used to build TomorrowNow customer environments and/or environment components. However, Mr. Howard also asked almost the exact same questions during my 30(b)(6) deposition regarding the same TomorrowNow customer environments and/or environment components, in addition to many more that he did not ask me about during my individual deposition. In preparing for my 30(b)(6) testimony, I spent numerous hours reviewing the SAS database and BakTrak to help educate myself for that deposition because I believed these to contain the most complete and accurate record of the creation and use of environments and/or environment components at TomorrowNow. I also relayed some of the -2DECLARATION OF CATHERINE HYDE Case No. 07-CV-1658 PJH (EDL)

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results of my research from my 30(b)(6) testimony in my individual deposition. During all of the deposition testimony I have provided, I believe I have exhausted all of my personal knowledge regarding the source of environments; therefore, I do not believe I could provide any additional information regarding the sources of environments. Also, the source of each TomorrowNow customer environment and/or environment component is a different question than how each and every environment and/or environment component was used, about which Oracle's attorneys also exhaustively questioned me. 7. I also read Mr. Howard's statement that I am a paid litigation consultant. It is true

that I have a consulting agreement with TomorrowNow to help locate and provide information relating to the litigation. However, the consulting agreement does not prevent me from being employed elsewhere, and I am actively seeking that employment. When I entered into the consulting agreement, I did not envision and do not now believe that it requires me to spend months or even years extracting information out of the SAS and BakTrak databases. I have further read Plaintiff Oracle USA, Inc.'s Second Set of Interrogatories to Defendant TomorrowNow, Inc. Interrogatory No. 14 and believe that it would takes thousands of man-hours to go through the SAS database and provide the most complete answer possible to interrogatory 14, and that answer would still be incomplete. I also believe that with Oracle's attorneys' knowledge of the databases that was demonstrated during their questioning of me, they are in substantially the same position as I would be to conduct the review. This is particularly true because I have no independent recollection of the specific information Oracle seeks and the information in the SAS databases is essentially the best information available to answer Interrogatory No. 14.

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DECLARATION OF CATHERINE HYDE Case No. 07-CV-1658 PJH (EDL)