Oracle Corporation et al v. SAP AG et al

Filing 428

Declaration of Scott W. Cowan in Support of 427 Response in Support of Plaintiffs' Administrative Motion filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Related document(s) 427 ) (Cowan, Scott) (Filed on 8/25/2009)

Oracle Corporation et al v. SAP AG et al

Doc. 428

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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 DECLARATION OF SCOTT W. COWAN IN SUPPORT OF DEFENDANTS' RESPONSE TO PLAINTIFFS' ADMINISTRATIVE MOTION Date: N/A Time: N/A Courtroom: E, 15th Floor Judge: Hon. Elizabeth D. Laporte

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COWAN DECL. ISO OF RESP. TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH

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I, SCOTT W. COWAN, declare: I am a partner with the law firm of Jones Day and counsel for Defendants in the abovecaptioned matter. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. Exhibit "B" to the August 18, 2009 Joint Discovery Conference Statement is a

"snapshot" from the Parties' inchoate compromise discussions regarding Plaintiffs' claims regarding PeopleSoft HRMS environments and updates/fixes. Exhibit "B" is Defendants' current proposed stipulation that Plaintiffs have not accepted. Defendants' counsel has made clear throughout the negotiation process regarding the proposed stipulation that Defendants' continued negotiation with Plaintiffs is an attempt to reach a compromise regarding how certain facts in this case can be established and presented in a more streamlined fashion regarding the claims and defenses in this case. Defendants' counsel has also informed Plaintiffs' counsel that Defendants are engaging in such compromise discussions under Fed. R. Evid. 408. 2. Defendants' counsel has further made clear that: (a) no statement (or conversely,

lack of comment) made during the negotiations is intended to be, or should otherwise be construed as, an agreement, stipulation, concession or admission regarding any fact whatsoever; and (b) unless and until the Parties negotiate, finalize and fully execute a formal stipulation, there will be no such agreement, stipulation, concession or admission. 3. In addition, Defendants have protected certain information contained in Exhibit

"B" from improper public disclosure through the Stipulated Protective Order (D.I. 32) that is designed to prevent the Parties' private commercial information from being improperly disclosed. Under the terms of that Order, Defendants designate certain documents, deposition transcripts, and discovery responses containing private commercial information as either "Confidential" or "Highly Confidential" prior to producing such documents in the course of discovery. Exhibit "B" contains certain information taken from documents and testimony that was designated as "Confidential." 4. Given that Exhibit "B" is a "snapshot" from the Parties' inchoate compromise

discussions relating to Plaintiffs' claims regarding PeopleSoft HRMS environments and
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updates/fixes, it reveals, at least in part, the substance of those compromise discussions. The policy of Fed. R. Evid. 408 is to promote the out-of-court settlement of claims. Thus, if the information contained in Exhibit "B" were publicly disclosed, such disclosure could prejudice, chill or otherwise harm the Parties' bilateral negotiations relating to Plaintiffs' claims regarding PeopleSoft HRMS environments and updates/fixes. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 25th day of August 2009 in San Francisco, California.

/s/ Scott W. Cowan Scott W. Cowan

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COWAN DECL. ISO OF RESP. TO PLAINTIFFS' ADMIN. MOTION Case No. 07-CV-1658 PJH