Oracle Corporation et al v. SAP AG et al

Filing 408

Transcript of Proceedings held on 8-4-2009, before Elizabeth D. Laporte, Magistrate Judge. Court Reporter/Transcriber Debra L. Pas, CSR, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/2/2009. (Pas, Debra) (Filed on 8/6/2009)

Oracle Corporation et al v. SAP AG et al

Doc. 408

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Pages 1 - 59 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE ELIZABETH D. LAPORTE, MAGISTRATE ORACLE CORPORATION, ) ) Plaintiff, ) ) VS. )NO. C 07-1658 ) SAP AG, et al, ) )San Francisco, California Defendants. )Tuesday )August 4, 2009 ___________________________________)2:00 p.m. TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: BY: BINGHAM, MCCUTCHEN LLP Three Embarcadero Center San Francisco, California 94111-4067 GEOFFREY M. HOWARD, ESQ. JOHN POLITO, ESQ. ZACHARY J. ALINDER, ESQ.

For Defendants:

BY:

JONES DAY 717 Texas Suite 300 Houston, Texas 77002 SCOTT W. COWAN, ESQ. JONES DAY 1755 Embarcadero Road Palo Alto, California 94303 JACQUELINE K.S. LEE, ESQ. HEATHER FUGITT, ESQ.

BY:

Reported By: Reported

Debra L. Pas, CSR 11916, CRR, RMR, RPR 11916, CRR,
Official Reporter - US District Court Computerized Transcription By Eclipse

Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]
Dockets.Justia.com

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PROCEEDINGS 2:06 p.m.

THE CLERK:

Calling Civil 07-1658, Oracle

Corporation versus SAP AG, et al. Counsel, please state your appearances for the

MR. HOWARD: Howard for Oracle.

Good afternoon, your Honor.

Geoff

With me, Zach Alinder, John Polito and Holly House. And Jennifer Boss may arrive mid-proceeding. MR. COWAN: Cowan for defendants. Good afternoon, your Honor. Scott

With me is Jackie Lee and Heather

Fugitt, also associates from our office, as well as a summer associate, Dara Lettinson, is here today as well. THE COURT: associates? MR. COWAN: THE COURT: Just a few. All right. We are on our last weeks. Well, go ahead. I know I'm There are still a few summer

there are some things you want to present to me I think. not sure which one of you. MR. COWAN: I can't remember.

Your Honor, in terms of a formal

presentation, I don't think -- we hadn't intended on doing any kind of dog and pony, if you will. If it aids any

questions you may have or any analysis you may do during the Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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hearing, we are prepared to do that. There may be a couple points where it makes sense, but if the Court has questions regarding the papers or would like the parties to present on the motions, we can continue to -THE COURT: I know you brought some equipment in.

I think you were going to do some kind of demonstration, or not? MR. COWAN: I'm prepared to do that, depending what

the Court's questions are with respect to the SAS system, for example. I have a PowerPoint with respect to some of the download issues. I certainly could go straight into that. I didn't want

I know the Court's time is limited.

to go through all that if you don't have questions for it. MR. HOWARD: And we just filed ours, your Honor,

because we didn't know what they were going to do and we wanted to have the ability to say something in response. THE COURT: Okay. Well, I have to say, despite,

you know, lots and lots of paper, I find it very difficult to tell who is right on these questions. And, you know, maybe

that's -- I would like to think that's not a statement about me, but maybe it is a statement about the system at this point. You know, I will give you some thoughts, but, yes, Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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certainly I do have questions and I believe it's difficult for a judge to judge. For on 13, interrogatory 13, I would agree that it's limited to the downloads referred to in the answer; i.e., the downloads beyond those as set forth in the answer. It's not, you know, where did they come from and things like that, but even as so interpreted, that still leaves the question, you know, is, rule -- I don't think including but not limited to broadens it beyond that. But that still leaves the question of, you know, is Rule 33(d) the appropriate approach? on one side or the other, or not? Here is a very simple question. MR. HOWARD: What is an ESU? Is it more burdensome

An ESU is a -- one of the support

files that is packaged up by Oracle and sent out to customers that provides update information, has code within it. It has

other objects within it, but it's one of these downloadable support patch files that gets sent out that customers then apply to their underlying software. MR. COWAN: And, your Honor, that is actually one

thing I do have some graphics on that may help the Court understand what an ESU is. You may recall, the parties originally did a bit of a dog and pony, as I referenced earlier, back in May of 2008. We have some of those same slides, I think, back then Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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probably then didn't make a lot of sense both to the Court and to the parties in some ways, because we certainly learned a lot more since then as well. But if you have time now, I've got a PowerPoint presentation, but I also have a little booklet that you can follow along with the pages numbers that may help. THE COURT: Probably so. So the extent that the

defendant is saying the download request forms, which are part of response to 10, would -- interrogatory 10, would also apply to 13, I'm not really sure what -- you know, how the download request forms do or don't -- to what extent they do or don't cover the answer to what material beyond those licensed to a particular customer may have been downloaded. In other words, it sounds to me as if a download request form has some of the information, but whether it has all of them, I have no idea really. Then the defendants then raise the issue, Well, we can't provide the level of detail you ask for, exactly which downloads were beyond what the customers said they were entitled to without product mapping information. know if I understand that whole issue. I don't

And the plaintiff, as

I saw it, didn't -- I might have missed it, but didn't seem to really respond to that. If it's needed and no -- and neither the plaintiff can't or won't, I don't know which, give it to the Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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defendants, then that does hobble the defendants apparently. Now, the plaintiffs raise a good point, or a seemingly good point. What information do defendants have --

and this is certainly a question I want answered -- that led you to be able to answer insofar as you did and how did you get to that point? And I think, you know, that raises a question, well, exactly how did you get there? And that is certainly Then does

something the plaintiffs are entitled to know.

that lead us anywhere further to answer the question of whether there is more that can be done. MR. COWAN: Do you want me to answer that? I'm

making notes, if I can certainly answer that now. THE COURT: I have anything else. So then the plaintiffs come up with a proposal, which is what I just asked you an explanation of how you reached the view, both -- I think in the answer to the interrogatory and then more general in the press release that certain things weren't authorized. more essentially, say so. So those -- I think maybe it's enough to start with 13, but those are all to me issues that I don't -- either don't know the answer to or don't really understand. MR. HOWARD: May I start then, your Honor, since I And if you can't say any Let me get through 13 and let me see if

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think most of those are directed at us? Taking your Honor's interpretation of 13, that it's limited to the answer -- to Paragraph 15 of the answer, that, then, by our reading of Paragraph 15 would then extend to all downloads that they had concluded were inappropriately downloaded. And so the question then is: What are they? And

by file, because this is -- this is our basic proof.

If we

have to prove that downloads were taken inappropriately, and they have identified ones that were, that really goes to the very basic facts of the case. There is then -- we tried to come up with in both 13 and 14 some creative ideas for how to cut through this. And the ideas for 13, which sounds like your Honor has picked up on, is say what you did and which forms you can identify, with what specificity you can identify them. And then I

think there is one additional step that is a crucial one and it goes to the mapping question, so let me answer it. The other part of our proposal is that they said that they could not identify the impropriety of additional downloads because they -- and the reason is important. It's

because they cannot identify the credentials, the customer log-in credentials that were used to download any particular file. If that's true, and it appears to be because they Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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have said it, the mapping information -- which we have provided by the way, but the mapping information is irrelevant, and let me explain why. The point of the mapping is that once you have identified a file, an ESU for example, you need to be able to link that ESU to a particular licensed piece of software. The ESU's have numbers that identify them. And you have to

open the ESU in order to see what information it contains and then you have to map, which is where the word comes from, that coding information to a particular piece of software. We have given them the information -THE COURT: And for the reason that, then, you know

what specific product was downloaded without permission? MR. HOWARD: Exactly. Because then you -- once you

know what piece of software the ESU correlates to, provided you know the credential, you can then assess was the customer whose credentials was used, were they licensed to that piece of software to which the ESU correlates? THE COURT: MR. HOWARD: Okay. And "credential" being what? So you log in -- at

The log-in I.D.

the opening screen of the website you put in an user name and a password, and that user name and password is what I mean by -- is what I'm including in the term "credential." THE COURT: So the Oracle system was such that you

-- if you had a password and user name, you could log in and Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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then get access to things you weren't entitled to? MR. HOWARD: As long as you clicked on the terms of

use agreement saying you would not do that, yes. But, yes, you could go in there, and that's so that customers can go in there and find what they want according to the code that applies to their software. So now just circling back to the credential issue, if you don't know what credential was used to take that ESU, it doesn't matter what software it maps to because you can never match it to any particular customer's software. And

all we are saying is if that's true, please say so because that is really important information for us to have, that you can't figure it out from your own records because you didn't keep track of the credentials that you used to take the various files that are now sitting on the computers. THE COURT: So I'm not -- I think this is the first I'm not

time you have probably tried to explain it to me. sure that I understand it.

You are saying the customer log-in basically gives a customer access to anything, even though it may have only licensed half of the products that it can then get access to. And if you don't know -- so if you don't know the customer log-in, you can't, therefore, just figure out what it was or wasn't entitled to? MR. HOWARD: Right. You can figure out on a

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customer basis what they're entitled to because you have their license agreements and you know what software. And so for any given ESU on Tomorrow Now system, you know whether Customer A or B was licensed to that software, but what you can't do is know whether that ESU was taken improperly or not because the propriety of the taking is tied to the credential that you use when you logged into the system to download that file. THE COURT: MR. HOWARD: THE COURT: Well, the customer's identity. Exactly. So you are saying if you don't know

from which customer you downloaded something, you can't tell whether they had the right to it or not. MR. HOWARD: right. brief. They say it's technically impossible to identify what customer -- what customer user name and password was used to take any particular downloaded file that is now sitting on their computer systems. And our review of their You That's what they are saying, that's

That's what I understand them to be saying in their

records and the testimony appears to bear that out.

can't -- you can't go pick a downloaded file on their server and know what credential was used to take that file. THE COURT: MR. COWAN: Okay. It's a hyper technical distinction that

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he is making and trying to expand that into the whole mapping issue, and let me explain. Tomorrow Now had records, and we have produced those records, as to what log-in, what customer connection user name and password was given by the customer to Tomorrow Now. And they have obtained testimony indicating -- and a

whole chain of records, from email communication from the client giving the password and log-in, the password log-in name, put on the request forms they used to do the downloads. So we do have records of customer names and customer passwords and customer user names being used for specific downloading activity. What we don't have, nor do they have any way to do it either, once a file exists anywhere on our system there is no electronic way, no technical way, there is no tag on that file that says this file was downloaded for that customer. We do know the manner in which the downloads were kept by Tomorrow Now, that they were segregated by customers. When they were downloaded, they were put in separate customer folders and that's where I think some of the show-and-tell may help explain that process and help explain what we are talking about on the issues. So I disagree vehemently with Mr. Howard's suggestion that there is no way to say for a given file -there is no evidence to suggest for a given file what Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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customer's user name and password were used. To the contrary. evidence. We have got plenty of documentary

There is just no electronic tag or technical way

now to go back and look at those files in the literally millions of files and say for each file which -- for that specific file taken in isolation to have some electronic proof through an electronic tag on the file itself. That was

the only point we made in the brief and that point is tied to the mapping issue. If the Court would allow, I think now is probably a good time for me to get into some of the graphics. THE COURT: Okay. But let me just -- I do think

so, but let me just ask you to make sure I follow on what you said. You are saying, you have a customer request form to download certain things. Okay. You download them. Then

the way you would be able to now say you downloaded for Customer A and not for Customer B, this is kept only in Customer A's file. MR. COWAN: THE COURT: file it's in. MR. COWAN: THE COURT: Correct. So I take it by that you are saying you Correct. So you can identify it by seeing whose

didn't take something Customer A was authorized to get, but Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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Customer B wasn't, and then given to Customer B. MR. COWAN: I can't say with certainty that that

didn't happen in any instance and I think there has been some evidence that in some instances it did happen. But -- but -- and we can show and we have established in the case that for a large portion of these downloads, they were done on a customer-by-customer basis using that customer's password and log-in and then stored in a separate location. There are groups of downloads that are

stored on a non-customer specific basis as well. MR. HOWARD: Your Honor, that last point is

important and the factual statement that the downloads were segregated by customer is of recent vintage. For many years downloads were downloaded into what they called the master library, where they were not kept according to customer, for JD Edwards or PeopleSoft. that continued even after SAP acquired Tomorrow Now. Now, it is true that in the last year and a half or so before Oracle sued, there had been a change in policy, but only at that point, that downloads were downloaded into customer specific folders. There was also an effort to dreg up some of those master libraries into couple specific folders. But that And

doesn't help us because nobody knows whose credentials were used to take those downloads in the first place when they Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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were then assigned into the various customer specific folders. So the customer specific folder fact doesn't answer the question here. There were many downloads that were taken

before those were in place and even after they were in place, there were many, many downloads that we know were just put in there that were not taken with that customer's credential. THE COURT: Well, if they weren't taken with a

customer credential, but then they were assigned to -- they were taken with Customer A's credential and later taken out of the master file and stuck in Customer B's file is what you're saying. MR. HOWARD: THE COURT: That's what happened. According to what? According to the

fact that Couple B was allowed to have them? MR. HOWARD: No. They had one criteria for making So they

that decision, and that was the date of the file.

decided that -- that if the file existed on Oracle's system at a time when Customer B could have downloaded it, then it was okay to copy it over into Customer B's folder even though they did not know and likely had not he ever downloaded it with Customer B's credential at the time that Customer B was licensed to go into the site and download it. So it was

purely the date of the file that was the criteria that they used. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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MR. COWAN:

But in answer to the Court's question,

there was some criteria when they -- because Mr. Howard is correct. There was a period of time when the downloads --

you had to separate this between PeopleSoft and JD Edwards because the time is different and the process is sort of a little different. Speaking in general terms where there were master libraries, but JD Edwards, that period was a shorter period of time than PeopleSoft overall. And they did use a process

similar to what Mr. Howard just described to try to get downloads in -- copy the downloads into customer specific folders in a way that they thought the customer was permitted to have those downloads by using criteria such as date and -maintenance and dates. But going back to the interrogatory, I think it's very important for the Court to understand the content and the quantity of the files we're talking about. And rather

than put something on the screen, I have got all of this in a little booklet that may help us walk through this fairly quickly. THE COURT: Okay. Well, you can certainly hand it

MR. COWAN:

Okay.

(Whereupon, document was tendered to the Court.) Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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MR. COWAN:

The first page, your Honor, Page 1, is

-- you asked about the product verification form and what was that. This is an example, in the JD Edwards situation -and this really goes to interrogatory 13 relative to the inappropriate download comment. You see on this form that's completed with the client's input certain types of applications that they check that they are licensed for and certain types that they are not. The X's indicate those things that they believe they And this is only one piece of one set of

are licensed for.

products for a particular customer. And this -- if you look over to the left, it's kind of hard to read under "Company Information", but this is for Ocne on Page 1. THE COURT: So this is something the customer gave

to JD Edwards or the customer gave info and then -MR. COWAN: It's a form -- it's a Tomorrow Now form

that the customer completed, either by themselves or with the assistance of Tomorrow Now, in trying to determine what the customer was licensed for before the downloading activity occurred. That information then was -- and on Page 2 is an example of the download request form. And, again, these To the

product verification forms have all been produced. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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extent they have been located, they have been produced to Oracle. The download request form, again, have all been

produced to the extent they have been located. Here is an example. For Merck, another one of the

companies that was named in the original complaint and continues to be named in the current complaint. And it shows

the customer connection password and user name, just as I told the Court. It's the third and fourth entry there.

But it also references through a series of boxes that are filled out on this form down at the very bottom it says "Electronic Software Updates." And it says that there's

two types of releases, Xe and 8.10, which are just the various releases of the product. But four columns over it says "All." And in that

instant, even though Merck may not have been licensed for all or represented to Tomorrow Now that it was licensed for all, we know from this form that at least the instructions were to go get all of the ESU's for those two releases, the JD Edwards product. So Page 3 shows where those -- JD Edwards delivered updates and fixes. And the first -- Page 3 shows a screen

shot of the highest level folder and page four are the subfolders under that highest level folder, and you see it's divided by customer. And, again, this has all been produced in Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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electronic form to the plaintiffs. And by way of example, about halfway down on this list on Page 4 you see the client Electrolux. If you click

on that folder, which is on Page 5, you see that that folder is 4.78 gigabytes in terms of size. It's a sizable folder. When you open that up,

And you keep going, Page 6. there's two subfolders.

One divided by OneWorld, which is

one version of the JD Edwards product, which is a Windows-based solution, and World is another version of the JD Edwards product, which is an old IBM green screen technology product. But you get to page -- that's on Page 6.

Page 7, once you click into the OneWorld folder, you see the "Electronic Software Update" subfolder in that. Everything that's downloaded is in this typical file folder structure for the JD Edwards customers after the period of time that Mr. Howard indicated that they were divided. There are a few categories, I think three or four, that still were maintained in a master file basis, but for the most part everything that was downloaded was organized this way after that period of time. Then when you click into the "Electronic Software Update" folder -- and I hate to do this in a painful way, but you see how -- I'm trying to have the Court understand how this is organized electronically and how it's been produced. These are the various versions fourth which Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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Electrolux purportedly indicated they were licensed for. is one of those releases or versions of the product. on Page 8.

XE

That's

And then when you finally get down to the actual ESU's, which is on Page 9, as you see, many, many layers into this folder structure, which are the actual downloaded artifacts, you see circled there there's 5,057. Just for

this one customer for that one release there is 5,057 items that were downloaded for that customer. Page 10 gives another example of a specific file that's JD374_exe. And when you open that up, what's inside

that is an image of an html file, a web page, if you will. THE COURT: MR. COWAN: What page are you on? I'm on Page 11 now. And this is the

actual description of the ESU itself. And down at that level at the very bottom, the bottom circle on Page 11, you finally have some information in that one download out of the 5,000 that starts to tell you something about how that download relates to the licensed products that Oracle made available for license. THE COURT: MR. COWAN: B03B0128." THE COURT: MR. COWAN: What does that mean? I think the second and third character You are looking at what? This -- the circle that says "Object

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indicate the system code for that particular object, which then tracks back to that product verification form that was on Page 1, for example, "Accounts Receivable." But you see how far into this -THE COURT: MR. COWAN: So you mean the 03 -The 03 should correspond in the object.

Now, that doesn't mean that that particular ESU only relates to that system code. There may be a number of

system codes that this particular ESU relates to. And so trying to map these downloads to what the customer was entitled to have, it's a very tedious process. So early on in the case, even before Judge Legge, we wanted to know the answer as much as Oracle did. We went to Judge

Legge and we said, "Oracle has to have some electronic mapping information to be able to say for this ESU, this JD 384 ESU that we are looking at that's represented on Page 11 here, they have to have some electronic way to say, okay, that that ESU is related to these licensed products. And if

they give us that data, we can run through electronically all of the files that are on the Tomorrow Now systems tying it back through this folder structure to given customers and tell you which ESUs we have for which customers and make some -- ascertain in a broad way which ones we believe represent these downloads that are -- relate to the licensed products the customer told us they were licensed to and which Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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ones do not. They couldn't give us that. And Tab I of our

opposition is the colloquy between me, Judge Legge and Mr. Howard where we talk about this very thing. And the last page of Exhibit I to our opposition, he says I -- oh, I'm sorry. On Page 33 of the transcript,

which is the second to the last page of Exhibit I, Judge Legge says, asking to Mr. Howard: "Do you have presently existing any mapping device or program or code which would eliminate the necessity for doing it one by one?" And what he's referring to is not having to go through the process that I've just -- pages and pages that I just walked you through to get down to that little piece in doing it onesey-twosey. it? We asked some electronic way to do

And you can read there Mr. Howard's answer to that, "Not And he indicates

that we have been able to generate so far." that they had a similar instance.

But here is -- and this is in answer to one of your first questions you asked, because Mr. Howard says: "It wasn't our preference to limit the complaint to ESUs for the single system code in them, because we recognize that other ESUs in his view were illegally downloaded, that Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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happened to have more than one system code." But that was after -- in front of Judge Legge when Mr. Howard had explained they actually went through this manual process to identify some specific ESUs that they knew through their logs, because they were watching what Tomorrow Now was doing at a point in time, knew that we had -- that Tomorrow Now had downloaded using a specific customer credential. And then they went back in the complaint and

made very, very specific allegations saying you, You downloaded this ESU using this customer's I.D. and that customer's not licensed for that download. We then -- and that was in the first amended complaint. It's the first time they gave that specificity. Go look and see if it And we

We, hen, were able to take that ESU.

is, in fact, in that customer's file, and we did.

were able to compare what that customer told us that they were licensed to, using that information they provided in the complaint, is how the executives reached the conclusion they did that was indicated in the public statements they allude to and the answer. So -THE COURT: So you are saying that that answer was

based on the allegations in the first amended complaint? MR. COWAN: Yes. Because before then we had no

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We knew we had a lot of downloads that Tomorrow Now had downloaded. We knew that at the time they -- what we were saying were located in folders, but we had no way of looking at these files and knowing anything about any of the data in them to be able to map it back. Once they gave us a specific

reference, we were able to go back and then trace through the very detailed level at the very minutiae as I have shown the Court to say, yeah, for at least those four it looks like there may be an issue there. We are not conceding liability on that. I don't

want any statements I'm making here in the hearing on that. But it certainly is one of those -- before they listed the first amended complaint were some that it appears may relate to products for which the customer told us -- the customer did not indicate they were licensed for. the answer. And we said that in

We said that in our discovery responses.

But now what they want us to do is to go back and do that for every single download, and I just showed the Court just for this one release for this one customer -there is 5,000 of them. You expand that times 300 customer And

times multiple releases, the numbers are mind boggling.

this is not a -- nothing that could be done electronically. And Mr. Howard admitted to Judge Legge that it can't be done electronically. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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THE COURT:

And you're saying that they could go

through exactly the same process as you? MR. COWAN: THE COURT: Correct. Have you looked at the instances where

the customer requested "All" on the request form and had than all of the boxes checked on their authorization? MR. COWAN: Well, and that's -- that question

presupposes that the customer filled out the download request form. They did not. That was a Tomorrow Now completed form

on Page 2. THE COURT: filled it out. Well, but it doesn't really matter who

In other words -You are saying on Page 1? How many instances -- I'm just looking

MR. COWAN: THE COURT:

at what potentially would be more manageable and straightforward, because you would only need to compare two pieces of paper potentially. MR. COWAN: But they could do that as easy as we

could because it's not going to require us referring to any of our witnesses or any evidence that hasn't already been produced in the case. we can. They can do that analysis as easy as

The data is there. THE COURT: MR. COWAN: Has anyone done that analysis? On our end, not that I'm aware of. I

would assume they have either not done it or maybe they have Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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attempted it.

I have no idea. Your Honor, we haven't done that.

MR. HOWARD:

What we are talking about right now is whether or not the downloads that were indisputably taken, copied, were appropriately taken, were legally taken or within the scope of a license taken. THE COURT: MR. HOWARD: Right. That's -- that's their burden. That

is their burden because license is an affirmative defense. THE COURT: burden. But let them worry about their own

If they can't prove their own case, that's too bad. MR. HOWARD: Right, but we are certainly

entitled -- when they say, "We inappropriately took downloads," we are absolutely entitled to ask, "Which ones?" And the question before the Court is: Are they

allowed to rely on 33(d) and refer to all these documents because -- because you can't go through. If the Court is going to interpret the interrogatory as narrowly related to the specific downloads referenced from Paragraph 15 of the answer, then it doesn't seem, based on the explanation that Mr. Cowan just gave, which could very easily be converted into an interrogatory response, which is admissible, that that is burdensome at all to go through and give that answer in the narrative form that you have would get in an admissible interrogatory response. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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THE COURT:

Well, just to bite that one last issue

And what you're saying is they only did it for four? MR. COWAN: We did it for -- the four that they And, of

identified in the complaint to tie that down.

course, we looked broader to see if it was just an isolated issue or not. But in terms of any kind of systematic customer-by-customer trying to get our arms around any specifics, we never did that. THE COURT: Well, okay. I mean, I think they are

entitled to know the results of what you did and what the results were. MR. COWAN: But if that's done, your Honor, by

counsel in responding to the complaint, that was another point that we raised in the papers. We are stepping on the

side of work product at that point because the question really relates to what did SAP's representative -- what was he referring to when he said it and what's referenced in the answer? And we provided in our answer to interrogatory No. 13, which is at Tab C in Mr. Howard's declaration in the original motion, I mean, we told them. The download request Metro Machine and

forms, you know, for Merck, both say SPX.

Izaki instructed the download team to download all ESUs for all system codes on a particular release level. So we have

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told them that. THE COURT: MR. COWAN: THE COURT: This is your original response? That's the original response. Well, I don't really -- I'm not very I just think the

impressed by the work product argument.

facts of what was learned by doing what and then what hasn't been done by implication, you know, is a whole different thing from asking you to do more. And I think the plaintiffs are entitled to know what did you -- what led you to give the answer you did, which is what you just gave in open court, except the part you just added was not fleshed out, which is -- and we looked at some other things, although it wasn't 100 percent. MR. COWAN: Right, because we didn't do any kind of

systematic analysis because we didn't have -THE COURT: Right, but you got -- I mean, I would

hope, you kept notes on what you looked at and what you found, that there were these four plus there were some others. MR. COWAN: In terms of the process of looking at

the product verification forms and looking at the download request forms, just those two documents we can do that for more than just the four I mentioned. But their request goes to a fixed level. not getting down to a fixed level. That's

That's just looking at

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generally did a customer check less than all and then did we download all. And the answer to that is yes, there was some Was it a complete, thorough No.

analysis of that.

customer-by-customer analysis?

But I think what they're -- and I understand what you are saying. You are trying to craft something -I'm saying it's not at all burdensome

THE COURT:

for you to give them what you did find. MR. COWAN: THE COURT: what they asked for. Based on? That doesn't mean it's 100 percent of It's much less than that, but there is

nothing burdensome about giving them that. MR. COWAN: Stating the fact of -- well, we would

have to go back and do just what you talked about, which is compare those two forms and state what -THE COURT: comparisons. I must say, I find this like swimming in a fog and completely not -- you know, I don't know whether it's inherently something that is not well suited for judicial resolution or what. I feel like we have now spent 40 minutes on this. I'm taking this, you know, one percent of this whole problem which seems very clear to me. completely opaque. Everything else seems I'm not telling you to do new

And, yet, you keep asking me, Well, what

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do you mean, why and so forth.

Maybe because I'm unclear.

But to me it's like, can't we clear this piece of underbrush out of the way. I'm not telling you -- right now I'm not tackling do something new, which is the main thrust of all of this. MR. COWAN: If what the Court is asking, do we have

any records that we could go refer to of work we did at the time we answered the complaint, to look at that, I think the answer is probably no. Because with the -- you have got to

look at all the other things that were going on in the summer of 2007 when we did this. I can tell you that we do have some evidence of some of the stuff we did, but I don't think there's a systematic record of every conclusion we have reached on the fly in doing that analysis. THE COURT: MR. HOWARD: Whatever there is, there is. Right. And -- but I guess, your

Honor, and I apologize for this, it's me being unclear -THE COURT: MR. COWAN: Not obviously, but... But here is the point. If you were to

order us to do that, what I would go back and do is do what you just suggested, which is compare the product verification form, because anything we would have from the '07 time period from a records standpoint is not going to be in a format that's going to yield the kinds of facts you are looking for, Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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because it's the way -- and the reason why I say this, I know. I personally was involved in doing it. I was torched

with finding that out. And I know I wasn't focused on documenting what I was doing. I was focused on trying to find the answer to

some of these questions, not taking tedious notes along the way of the process. THE COURT: So you were just making a qualitative

assessment, not specific instances? MR. COWAN: Correct, correct.

And I don't want to lead the Court and I certainly don't want the record to reflect that we don't have some written indicia of some of this. THE COURT: I'm sure we do, but --

I think that it may very well be as one

of the things that comes out of this hearing you should do what plaintiffs propose; provide an explanation of how you concluded certain downloads were inappropriate, as stated in the press release and to the extent it's stated in the answer, which is not so much inappropriate, but didn't match what the customer representative authorized. MR. COWAN: THE COURT: Right. And to the extent you can't identify

those by problem product, which sounds like you mostly can't but somewhat can, to do that. with that. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] I don't see anything wrong

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Now, I'm not asking you to the extent that you can't recall any more and you don't have a record of it, well, then, the answer to that part of that is we don't know, but this is what we do know. In any event, it sounds like that won't get us very

MR. COWAN:

It's certainly not going to get down to

the file level, because beyond those four that I have referred to they're -- by the complaint, I'm unaware of. THE COURT: Well, so far, I mean, from the

demonstration at least, it seems those things could be done equally by either party. MR. HOWARD: probably right. Well, your Honor, I think it's

Each party can unpack an ESU, look at the

system code and match it up with a contract. The point of the interrogatory was a little different than that. some inappropriate. It was: You have said that there were

What are they?

We thought interrogatory also went to the others, and we read in their brief that they said that they can't do it as to the others. And I think that's because they can't

link umm up credential. So whether or not the Court orders a statement to that effect as part of a supplemental interrogatory response or whether, I guess, we just serve another discovery response Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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aimed at that question, we can go at it either way, but it is very important to us to have an admissible form that they cannot do that analysis for whatever it is that's outside the boundary of Paragraph 15 and the press release. THE COURT: MR. HOWARD: THE COURT: MR. HOWARD: THE COURT: MR. HOWARD: Paragraph 13? Paragraph 15 of the answer. Okay. Right. Right. Okay.

And -Just a minute. Sure.

(Brief pause.) THE COURT: MR. COWAN: Well, okay. And your response?

Our response is going to be to the

extent we say it, we are going to say something along the lines of what we have already said in the opposition, which is the reason why we can't do it is because we need the data that should be exclusively in their possession. THE COURT: fine. Now, okay. Well, that's -- that's

But you are allowed to -- I think the interrogatory is

proper. But now we have got to get into this thing of whether you told me you did give him the mapping information and you say you didn't. on this. I'm not going to be your trial judge

Some people could say... MR. HOWARD: This is -- now I feel like I'm in a

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fog, your Honor, because I think what he just said and what you just said is both sides can do this. I think that -- so it can be done. they don't want to do it. THE COURT: It's very, very burdensome and it's an It's just that

equal burden for both, which is a legitimate argument under Rule 33. MR. HOWARD: available form. But that is very different from saying we haven't given them the mapping information. What he has just done is Absolutely. And it is, obviously, in

gone through a long explanation of why they do have the mapping information. We gave them all of the ESUs in this database so that for any given one on their system they could go find it in the database that Oracle keeps for itself. at it. They can see the system code. They can look

They can match it to a

piece of software.

They can match that piece of software to

what a customer has licensed. I think the complaint is that there isn't an easy way to do it. I'm sorry, but it's true. There is not an

easy way to do that. But if they are going to prove that they had a license to any one of these files, then that is something that they are going to have to do. Nobody has written a

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program. THE COURT: I'm going to take a recess. I feel as

if I cannot follow anything anybody is saying.

I don't think

you have any idea what it's like to be on this side of the bench. I have a 3:00 o'clock meeting that I could postpone a little bit, but not much, about a settlement conference that's tomorrow which I'm co-mediating with a mediator from our ADR unit. The parties have given permission to meet and He has

catch up on what he's done in the first two sessions. been away until today.

This is the only time I could do it. We haven't even

We have gotten almost nowhere. started 14.

I think that you -- from my point of view right I don't

now, it's -- I cannot decide the mapping issue. understand it any more. I thought I did.

I have already

forgotten it from half an hour ago because we have moved on to this other side issue where it turned out to be almost a complete waste of time. I mean, this is just not working and I spent a lot of time looking at your papers. I have the impression that The mapping issue I came in here

it's all very burdensome on both sides.

was not -- it wasn't addressed in your reply. understanding it.

Now I'm back to not understanding it. I don't know

You know, this is just not working.

if you all understand that it's just -- you know, you have Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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been very good in the past and managed to tee things up that more or less I thought somewhat I could decide them, but, you know, right now I'm leaning to only let them answer that interrogatory essentially. Fine. I agree that anything that

they are saying they can't do or won't do you should know, have an admissible form and make of it what you will when you come to trial. I get the impression right now that it's equally burdensome on both sides, so I'm inclined to stop there. there is something further that you are arguing, I don't understand it right now. MR. HOWARD: All I was saying, your Honor, is that If

whatever information we have that would allow you to map, we have given it to them. THE COURT: Well, you know, I don't know what to I think it wasn't adequately So I have nothing to

say on the mapping issue. briefed. add.

Nothing on the reply in it.

I'm not prepared. Whether you have given it or not, you know, I'm not

going to decide that issue. MR. COWAN: But to at least put on cap on. I think

where your headed on what additional we need to do on 13, is -- because as I have explained to your Honor, trying to go back and reconstruct what we did in the summer of '07, in my view having been personally involved in it, would be more Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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difficult than simply going through and comparing the product verification forms with the download request forms. If the Court is ordering us to do that -THE COURT: Well, I don't know how burdensome that

would be and they can do that, too. MR. COWAN: I'm not going to say to the Court it's It's just an

not doable, because it's certainly doable. issue of the amount of time.

At that instance you are talking maybe 300 or 400 customers for the forms we do have. That may be something

that is doable, but I agree with you and I'm not waiving the argument that it's an equal burden. THE COURT: No, I think it's an equal burden. I'm

not inclined to ask you to do that. I am still inclined to ask you to do what you can subject to the limits of your records and your memory, which is saying how you came to the conclusion. I think the answer is, We looked at the allegations -- if I understand it, this is probably what the answer is going to be. We looked at the four instances in the And we looked at

complaint and we verified blah, blah, blah.

some additional instances, and I can or can't remember which ones they were, or this may be some of them, but it may or may not be all of them, and found a similar thing with some others. I mean, that sounds like that's about what you are Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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going to say. MR. COWAN: I think so. And your Honor raised the

work product issue earlier. I guess if the Court is inclined to give me some guidance on that issue. We certainly don't want to be in a

waiver issue where we are divulging everything -THE COURT: Well, I don't think -- I don't view

that as any waiver and I would -- but I need to hear from the plaintiff. Do you agree that that would not be a waiver of any kind? MR. HOWARD: THE COURT: Yes, yes. In other words, answer along the lines

I just said and that doesn't constitute a waiver for anything. MR. HOWARD: THE COURT: MR. COWAN: That's just reporting facts. That's my opinion. I think that's fine. I just felt we I

have had all kinds of other privilege issues come up. don't want to bump up against that line or go over it. THE COURT: MR. COWAN: THE COURT: MR. HOWARD: interrogatory 14. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] But he just said that -Okay, that's fine. It's 2:52. Now what?

We would like a chance to address

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THE COURT: MR. HOWARD:

Well -It doesn't sound like it's productive

to continue talking about 13 at this point. THE COURT: No. I mean, as far as I can tell, the And if I were you, I

burden is the same on both of you.

would probably do what I thought would be the most bang for the buck initially, is I would start with where it was a "download all" situation and you knew -- you can glance at this for one second and say, Those are not all. happens to be the first two pages you have. probably something wrong there. And that's pretty simple, but I think it's equally burdensome on both sides. If you were you, I might pool my That just

There is

money and just hire somebody in India to make that comparison and split the cost. don't know. I mean, you both want to know it. I

I think Rule 33 three is appropriate for

something like that. MR. HOWARD: And I have asked the Court also that

there be also included a supplemental response, the same statement they make in their brief; that there is no technical way to tie the credential to the downloaded file. That I think is also equally important. THE COURT: in an interrogatory. No electronic tag. I think that can go

That's perfectly fine.

I do actually think if you got the transcript and Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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it's been represented in open court, that's probably just as good, but I don't think there is any harm in putting it in an interrogatory. MR. COWAN: And we don't have -- in particularly in I think we

light of how Mr. Howard has argued that point.

want to be very explicit in an answer and we certainly would include that in a supplemental answer as to what we meant. THE COURT: MR. HOWARD: interrogatory 14? THE COURT: Well, let me look at it again. All right. What is your Honor's preference as to

As I see it, the defendant is saying it's all in the SAS database. Defendant is saying that's user friendly.

Your expert Schwentler is saying, Well, it's not a user friendly database. It's very large. And then he draws the

conclusion that because it's a non-relational database, it would be easier for someone who knew about the data to understand it. That part I wasn't really sure whether that would be true or not true or what to make of that. Because in

other words, all of the predicate parts that's a difficult database don't really push it, push against Rule 33. That's

the only nugget in there because maybe one side has an advantage, the other side doesn't. Then there is further the argument that the Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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example of the screen shot, No. 1, it's not representative; and No. 2, even that doesn't go far enough. I mean, I -- then plaintiff also raises the issue about stipulating to the admissibility of facts. that's sort of -- it's in there. what your response is. There are so many issues and, you know, to the extent -- I'm not going to get into the whole opening the door. I don't think there is evidence, reason to require a You know,

There is no -- I don't know

declaration about what was done to preserve or not preserve, et cetera, et cetera. declaration. So I'm note going to order that

So we are just going to focus on 14.

And I don't think there is any workable suggestion there either. I mean, some number of hours. Then I'm going

to be told, Well, the hours weren't used the way they should have been, or productively or whatever. just don't know what to do. MR. HOWARD: Well, we were just trying to come up And we are I mean, I really

with some way to reduce the burden, your Honor. open to any other suggestions the Court has.

The interrogatory itself, I think -- this is the one that Judge Legge said was definitely relevant, and it goes to again a core liability issue, which is how the environments are being used to cross support customers. There are a couple of concerns we have about SAS Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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that explain why we think it's not appropriate as a Rule 33(d) response. And let me just say a sentence about SAS. It's a

database that collects data from all kinds of different sources. So the master fix record that you saw is a user Then that will have attached

created and filled out record.

to it documents that are authored by other people, emails that come in from people. So it collects -- as a database

should, it collects all kinds of information from different places. That creates a couple of different problems for a

33(d) situation. The first is, it doesn't have necessarily -- unless they agree, which is the point of our proposal on the stipulation, it doesn't necessarily have the same kind of admissible evidence to answer the interrogatory that an interrogatory response would have. To the extent that they are relying on it as a 33(d) response and they are willing to agree that when SAS for any particular fix record references an environment, then that is the environment in response to the interrogatory that was used to support the customers who received that fix. That, hopefully, seems like a fairly straightforward proposition. It's what we got out of their

opposition and it would go a long way towards, I think, to resolving this problem. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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THE COURT: MR. COWAN:

What's the answer to that? I think the answer is going to be it

depends, because what -- in terms of authenticity, we are not going to have authenticity issues in terms of whether it is the business record of Tomorrow Now, but he is starting to make -- trying to force us through an interrogatory to make qualitative assessments of any particular data point in this database to say if it says it, it is 100 percent true and there is no over evidence that will explain it away. And I

don't think that's the province of an interrogatory, to lock someone in to an entire database and say everything in there is what it factually purports to be, from -- and where we don't have any capability of refuting it. And, your Honor, this really all goes back to the whole issue we have been talking about with respect to the stipulation. They say in the reply that defendants are We have not. We sent a proposed We haven't heard

refusing to stipulate.

stipulation to them about three weeks ago. anything back.

They didn't reference that in the reply. There are other vehicles,

But the point is this.

alternatives in this case, that can possibly be used to accomplish the result that Mr. Howard wants to get out of some of these issues. But trying to force us to take

positions about what our data shows and doesn't show we think is inappropriate. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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It is what it is. they want to make out of it. witnesses.

They can make whatever arguments They can call their own

Lord knows, they have deposed plenty of ours, But I'm

300-plus hours, to try to test the accuracy of it.

unaware of any instance where a party has been forced to do what Mr. Howard is suggesting this Court force defendants to do with respect to this data. Back to the 33(d) issue and the balancing the We have told them, we've said in our opposition.

It is highly unlikely on a global basis that there is going to be any witness that has any specific recollection as to all of it. There may be one-off instances where these

witnesses will have some recollection here and there, but that is going to be a miniscule exception, I think, to the general rule that unless it's in SAS database, they are not going to have any specific recollection of it. them that. We have told We have

We told them that in the opposition.

pointed them to it in our answer to the interrogatory. What they are really wanting us to do is prepare a compilation, abstract and summary of the data we have already produced. We think it's inappropriate. THE COURT: Well, I think it's inappropriate unless

there is anything to -- as I say, it's kind of a one-line thing in the plaintiff's expert's declaration, which generally relates to -- well, it's not really a user-friendly Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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database, but that to a large extent is true of both sides. And the issue would be, is there some reason why it's harder for the defendant than for you? You have the aid Does

of the ex-Tomorrow Now people, who are consultants. that help? MR. COWAN:

It did originally in terms of us trying

to understand how to navigate the database, of course; but at this point not really, because at this point I think of lawyer that's involved in the technical side of this case knows how to navigate that database and knows what's in it. Mr. Howard just recited it. Mr. Polito put in a

declaration giving you very precise statistics on what their positions were of what that database contained and didn't. He said over 850, I think, of the 1800-plus entries have information about the environment, which is what they are seeking. How is he able to do that if he didn't know how to

work the database? He also made -- Mr. Mandya put in a declaration that said only three percent of the data that's in this database matched up to what Mr. Fox said in his declaration. How were they able to do that if they weren't able to understand and remanipulate the data? So it's, in our view, an effort to try to shift not the burden of production, because I think they've, in effect, stipulated to that their through their reply, be