Oracle Corporation et al v. SAP AG et al

Filing 356

Declaration of Jennifer Gloss in Support of 338 MOTION to Seal Document Defendants' Administrative Motion to Permit Defendants to File Under Seal Documents Supporting Defendants' Motion for Sanctions and Motion to Compel filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc.. (Related document(s) 338 ) (Alinder, Zachary) (Filed on 7/20/2009)

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Oracle Corporation et al v. SAP AG et al Doc. 356 Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page1 of 10 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 26 27 28 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: (415) 393-2000 Facsimile: (415) 393-2286 donn.pickett@bingham.com geoff.howard@bingham.com holly.house@bingham.com zachary.alinder@bingham.com bree.hann@bingham.com DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: (650) 506-4846 Facsimile: (650) 506-7114 dorian.daley@oracle.com jennifer.gloss@oracle.com 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 JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Date: August 18, 2009 Time: TBD Place: Courtroom E, 15th Floor Judge: Hon. Elizabeth D. Laporte SAP AG, et al., Defendants. Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Dockets.Justia.com Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page2 of 10 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 26 27 28 I, Jennifer Gloss, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am Senior Corporate Counsel at Oracle USA, Inc. ("Oracle"). I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. Exhibits Submitted in Support of Defendants' Motion for Sanctions 2. I have reviewed the documents and testimony identified as Exhibits D, J, K, L, P and Q of the Declaration of Elaine Wallace in support of Defendants' Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(c) and 16(f) (the "Wallace Declaration"). Other than Exhibit D, which Oracle agrees can be filed publicly, each of these exhibits contains non-public, commercially sensitive and confidential information, the disclosure of which would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 3. Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific passages, documents and information that contain the most commercially sensitive and confidential information. These exhibits contain the following types of confidential and commercially sensitive information justifying their protection under the sealing rules of this Court, including Rule 26(c), Local Rule 79-5, and this Court's Standing Order on Confidential and Sealed Documents, particularly given that the cited testimony and documents come from the highest possible executive levels at Oracle: a. Ex. J contains testimony from the deposition of Larry Ellison, Oracle's CEO, taken May 5, 2009 (pages 10-17 and 64-65). These portions of Mr. Ellison's testimony contain non-public, commercially sensitive and confidential financial figures and estimates with regard to harm Oracle has suffered, as well as non-public, commercially sensitive statements regarding internal competitive strategy. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. b. Ex. K contains testimony from the deposition of Charles Phillips, Oracle's co-President, taken April 17, 2009 (pages 17-21). These 2 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page3 of 10 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 26 27 28 c. portions of Mr. Phillips' testimony contain non-public, commercially sensitive and confidential financial figures and estimates with regard to harm Oracle has suffered, non-public, commercially sensitive and confidential internal competitive strategies, and non-public, commercially sensitive and confidential information concerning Oracle's business model and related strategic policies. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Ex. L contains testimony from the deposition of Juergen Rottler, Executive Vice President Oracle Customer Services, taken May 13, 2009 (pages 33-44, 47-54, 80-82, 90-97, 200-201 and 254). Portions of Mr. Rottler's testimony contain discussions of confidential, commercially sensitive and internal customer negotiations, as well as Oracle's internal analyses and decision-making and approvals procedures relating to such confidential negotiations and exceptions to Oracle's standard policies. They also contain private and confidential customer-specific financial information, non-public, commercially sensitive and confidential information regarding Oracle's pricing strategies and approvals processes, and non-public, commercially sensitive and confidential information regarding competitive strategy. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. d. Ex. P consists of pages 44-51 of Plaintiff's May 22, 2009 Supplemental and Amended Initial Disclosures. Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific number calculations included in these Disclosures. Those specific financial calculations are non-public, commercially sensitive and confidential. The disclosure of such confidential information would create a risk of 3 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page4 of 10 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 26 27 28 4. significant competitive injury and result in particularized harm and prejudice to Oracle. e. Exhibit Q consists of Exhibit 440 to deposition of Juergen Rottler, Executive Vice President Oracle Customer Services. This exhibit is comprised of an email from Mr. Rottler, dated November 11, 2005, sent to a high-level approvals organization, Gary Miller, Priscilla Morgan and Juan Jones (Bates stamped ORCL00319502-00319506). Exhibit Q is an internal email exchange among a handful of senior Oracle employees involved in Oracle's support pricing and customer negotiations which contains confidential, commercially sensitive, internal customer negotiations, as well as Oracle's internal analyses and decision-making and approvals procedures regarding such confidential negotiations and policy exceptions. In addition, this document contains private and confidential customer-specific financial information. Absent the requested sealing, Exhibit Q would provide valuable insight into Oracle's pricing and support strategies, giving Oracle's current and prospective customers and Oracle's competitors specific competitive leverage to use against Oracle. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Portions of Defendants' Motion for Sanctions and portions of the Declaration of Stephen K. Clarke in Support of Defendants' Motion for Sanctions (the "Clarke Declaration") contain quotes or other descriptions from documents identified herein that have been designated by Oracle as "Confidential Information" or "Highly Confidential Information - Attorneys' Eyes Only." Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific passages that contain non-public, commercially sensitive confidential information, the disclosure of which would create a significant risk of competitive injury and particularized harm and prejudice to Oracle. Those passages include direct quotation of the confidential deposition 4 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page5 of 10 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 26 27 28 testimony described above in Paragraph 3(a) above, and contained in the Clarke Declaration, as well as internal commercially sensitive customer financial information contained in paragraph 27 of the Clarke Declaration. Defendants' Motion for Sanctions quotes liberally from the confidential, commercially sensitive deposition testimony and documents discussed in Paragraph 3 above, including on pages 10-12, 16-19 and 22-23. Consistent with Paragraph 3 above, the disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 5. Plaintiffs have protected information in Exhibits J, K, L, P and Q from improper public disclosure through the Stipulated Protective Order that is designed to prevent the Parties' private commercial information from being improperly disclosed. Under the terms of that Order, Plaintiffs designated certain documents, deposition transcripts and discovery responses containing private commercial information as either "Confidential" or "Highly Confidential Attorneys' Eyes Only" prior to producing such documents in the course of discovery. As attested to above, Exhibits J, K, L, P and Q contain certain information taken from documents and testimony that was designated either "Confidential" or "Highly Confidential - Attorneys' Eyes Only". Absent the requested sealing, these exhibits would provide valuable insight into Oracle's competitive strategies, financial systems, pricing structures, and internal corporate structure, giving current and prospective customers and competitors specific leverage to use against Oracle. Further, Oracle has narrowly tailored its request for sealing by agreeing that the testimony and information contained in the above exhibits and pleadings, but not discussed in the paragraphs above, may be filed publicly. Exhibits Submitted in Support of Defendants' Motion to Compel Production of Financial Information 6. I also have reviewed the documents identified as Exhibits 2, 6, 7, 8, 9, 10, 11, 18 and 19 to the Declaration of Jason McDonell in Support of Defendants' Motion to Compel Production of Financial Information of Plaintiffs (the "McDonnell Declaration"). Each of these exhibits contains non-public, commercially sensitive and confidential information the disclosure 5 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page6 of 10 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 26 27 28 of which would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 7. Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific passages and information that contain the most commercially sensitive and confidential information. These exhibits contain the following types of confidential and commercially sensitive information justifying their protection under Rule 26(c) and Local Rule 79-5, particularly given that it includes cited testimony from the highest possible executive levels at Oracle: a. Ex. 2 consists of a Letter from Jason McDonnell to Holly House, dated July 13, 2009. This exhibit contains quotations and recitations of nonpublic, commercially sensitive and confidential testimony from Oracle regarding Oracle's internal financial accounting, reporting systems, and corporate structure. Oracle has narrowly tailored this request in particular by only requesting redaction or sealing of the specific testimonial quotations or recitations in the letter. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. b. Ex. 6 contains testimony from the deposition of Ivgen Guner, Oracle's Vice President Financial Planning & Analysis, taken September 4, 2008 (pages 63-64 and 72-73). These portions of Ms. Guner's testimony contain non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting, reporting systems, and corporate structure. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. c. Ex. 7 contains testimony from the deposition of Safra Catz, Oracle's CoPresident, taken March 27, 2009 (pages 179-180). This specific testimony represents non-public, commercially sensitive and confidential 6 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page7 of 10 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 26 27 28 d. information relating to Oracle's internal financial accounting and reporting systems. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Ex. 8 contains testimony from the deposition of Corey West, Senior Vice President, Corporate Controller and Chief Accounting Officer, taken April 9, 2009 (pages 69-70 and 170-179). These portions of Mr. West's testimony contain non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting, reporting systems, and corporate structure. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. e. Ex. 9 contains testimony from the deposition of Larry Ellison, Oracle's CEO, taken May 5, 2009 (pages 47-49). This specific testimony represents non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting, reporting systems, and corporate structure. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. f. Ex. 10 contains testimony from the deposition of Juergen Rottler, Executive Vice President Oracle Customer Services, taken May 13, 2009 (pages 177-180 and 194-196). This testimony contains non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting, reporting systems, and corporate structure. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. g. Ex. 11 is comprised of Exhibit 445 to the deposition of Juergen Rottler, 7 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page8 of 10 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 26 27 28 Executive Vice President Oracle Customer Services. This exhibit contains confidential and commercially sensitive information justifying its protection, particularly given that the information comes from the highest executive levels at Oracle. More specifically, Exhibit 11 is an email from Juergen Rottler, to Charles Phillips, Oracle's Co-President, entitled "Slides for Today's Services review," and attaching a PowerPoint entitled "lje review sept 7th.ppt". My understanding is that this exhibit was created for a high-level executive presentation to Oracle's CEO, Larry J. Ellison. Exhibit 11 is Bates stamped ORCL00368543-00368544 and ORCL00368549. Exhibit 11 is an internal exchange among the highest-level Oracle executives that attaches non-public, commercially sensitive and confidential financial information across Oracle's product lines. Absent the requested sealing, Exhibit 11 would provide valuable insight into competitively sensitive financial information at Oracle concerning its product lines. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. h. Ex. 18 consists of a Letter from Jason McDonnell to Zac Alinder, dated June 12, 2009, that contains quotations and recitations of non-public, commercially sensitive and confidential testimony from Oracle regarding Oracle's internal financial accounting, reporting systems, and corporate structure. Oracle has narrowly tailored this request in particular by only requesting redaction or sealing of the specific testimonial quotations or recitations in the letter. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. i. Ex. 19 contains testimony from the deposition of Uyen Ngoc Anne Kishore, Senior Director of Oracle's Tax Department, taken April 14, 8 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page9 of 10 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 26 27 28 8. 2009 (Pages 63, 67, 78-79, 82-83, 94-95, 105-107, 122-126, 135, 150, 155, 159-160, 183-188, 195, 206, 208 and 222-226). These portions of Ms. Kishore's testimony contain non-public, commercially sensitive and confidential information regarding Oracle's internal financial accounting, reporting systems, royalty payments, tax strategies, cost allocations, transfer pricing policies and corporate structure. The disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Further, portions of Defendants' Motion to Compel contain quotes or other descriptions from documents identified herein that have been designated by Oracle as "Confidential Information" or "Highly Confidential Information - Attorneys' Eyes Only." Oracle has narrowly tailored its request by only requesting redaction or sealing of the specific passages that contain non-public, commercially sensitive confidential Oracle or Oracle customer information. Those passages include direct quotation of the confidential deposition testimony described above in Paragraph 7. Defendants' Motion to Compel quotes from the confidential, commercially sensitive deposition testimony and documents discussed in Paragraph 7 above, including on pages 3 and 6-16. Consistent with Paragraph 7 above, the disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 9. Plaintiffs have protected information in Exhibits 2, 6, 7, 8, 9, 10, 11, 18 and 19 from improper public disclosure through the Stipulated Protective Order that is designed to prevent the Parties' private commercial information from being improperly disclosed. Under the terms of that Order, Plaintiffs designated certain documents, deposition transcripts and discovery responses containing private commercial information as either "Confidential" or "Highly Confidential - Attorneys' Eyes Only" prior to producing such documents in the course of discovery. As attested to above, Exhibits 2, 6, 7, 8, 9, 10, 11, 18 and 19 contain certain information taken from documents and testimony that was designated either "Confidential" or "Highly Confidential - Attorneys' Eyes Only". Absent the requested sealing, these exhibits 9 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' ADMINISTRATIVE MOTION TO FILE PLAINTIFFS' DOCUMENTS UNDER SEAL Case4:07-cv-01658-PJH Document356 Filed07/20/09 Page10 of 10

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