Oracle Corporation et al v. SAP AG et al

Filing 486

Declaration of Holly A. House in Support of 483 Memorandum in Opposition, Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment Regarding Plaintiffs' Hypothetical [Fair Market Value] License Damages Claim filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 483 ) (House, Holly) (Filed on 9/23/2009)

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Oracle Corporation et al v. SAP AG et al Doc. 486 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page1 of 8 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, Oracle EMEA Limited, and Siebel Systems, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. Plaintiffs, Case No. 07-CV-01658 PJH (EDL) DECLARATION OF HOLLY A. HOUSE IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFFS' HYPOTHETICAL [FAIR MARKET VALUE] LICENSE DAMAGES CLAIM Date: Time: Place: Judge: DECLARATION OF HOLLY A. HOUSE SAP AG, et al., Defendants. October 28, 2009 9:00 am TBD Hon. Phyllis J. Hamilton 1 Dockets.Justia.com Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page2 of 8 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, Holly A. House, declare as follows: 1. I am an attorney licensed to practice law in the State of California and a partner at Bingham McCutchen LLP, counsel of record for plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Ltd. and Siebel Systems, Inc. (collectively, "Oracle"). I make this declaration in support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment Regarding Plaintiffs' Hypothetical License Damages Claim. I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. 2. Oracle has sought in discovery and Defendants have thus far refused production of SAP's research and development costs, which are relevant to proving the significant costs SAP avoided by infringing Oracle's copyrights rather than developing them legally and independently. Further, Oracle continues to seek supplemental production of SAP's profit margins and any assignments of value per existing or acquired customer, which will evidence SAP's reasonable revenue expectations as to customers they could lure away through TomorrowNow. Oracle also has recently asked for production of SAP's largest value license deals, which may provide reasonable benchmarks and which will be relevant to SAP's arguments that they would never agree to pay (or never agreed to charge) any significant amount for intellectual property. 3. Attached as Exhibit A is a true and correct copy of excerpts from the final transcript of the April 17, 2009 Deposition of Hasso Platter at 47:19-24; 48:12-49:6; 62:7-64:4 & 68:23-69-6 as well as the cover page of the transcript and the court reporter's certification. 4. I have reviewed Paul Meyer's Declaration in Support of Oracle's Opposition to Defendants' Motion for Partial Summary Judgment Regarding Plaintiffs' Hypothetical License Damages Claim ("Meyer Declaration") and the numerous supporting Exhibits he cites. I declare that the excerpts from deposition testimony attached to the Meyer Declaration (Exs. 7, 12, 13, 19, 52, 55, 56, 57, 60 and 69 for SAP witness depositions and Exs. 22, 35, 36, 37, 38 and 39 for Oracle witness depositions) are true and correct copies of pages from the final transcripts of those deposition along with the reporter's certification of the same DECLARATION OF HOLLY A. HOUSE 2 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page3 of 8 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 (with the exception of the recent deposition of Terry Hurst, Ex. 56, which is a true and correct copy of the transcript pages prior to the final 30 days available for correction). 5. I further declare that the Exhibits to the Meyer Declaration containing entire or excerpted documents produced by SAP or TomorrowNow in discovery (Exs. 6, 8, 11, 14, 23, 24, 25, 26, 27, 28, 44, 46, 47, 48, 49, 50, 51, 53, 54, 58, 61, 62, 63, 64, 66, 67, 68, 70, 71, 72 and 73) are true and correct copies of documents (or portions of documents) produced by Defendants in response to Requests for Production or Targeted Search Requests served by Oracle in the above-named litigation. All of the documents (with the exception of Exhibit 44) are, on their face, documents authored by Defendants. Exhibit 44 contains excerpts from a report apparently authored by Deloitte titled "SAP AG, Fair Value of Certain Assets, Liabilities and Legal Entities of Business Objects S.A. As of January 21, 2008" which was produced by Defendants to Oracle in response to a discovery agreement between the parties and can be further identified by the SAP Bates number Defendants inscribed on the bottom right corner of the document. 27 of these 31 documents were also attested to by SAP deponents in deposition. Oracle provided Defendants with copies of these exhibits before filing its opposition and Defendants agreed that they had no objections to the authenticity of those documents. Due to this agreement and to streamline this submission, Oracle does not submit the portions of the transcripts of depositions of SAP witnesses authenticating these Exhibits. However, should Defendants make an evidentiary objection to any of these Exhibits, Oracle reserves the right to respond to such objection. 6. The Exhibits to the Meyer Declaration containing entire or excerpted documents produced by Oracle in discovery (Exs. 9, 16, 18, 21, 29, 30, 33, 34, 40, 41) are true and correct copies of documents (or portions of documents) produced by Oracle in response to Requests for Production or Targeted Search Requests served by Defendants in the above-named litigation. Exhibit 9 was attested to by Larry Ellison at his deposition on May 5, 2009; a true and correct copy of the excerpt of his deposition transcript authenticating this Exhibit is attached hereto as Exhibit B. As for the other exhibits: DECLARATION OF HOLLY A. HOUSE 3 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page4 of 8 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 Exhibit 16 contains excerpts from the Standard and Poor Report "Oracle Corporation: Estimation of the Fair Value of Certain Assets and Liabilities of PeopleSoft, Inc. as of December 28, 2004," which was produced by Oracle in response to requests to discovery requests on January 23, 2009 with the Bates numbers ORCL 00313169-253. While Defendants have not asked any Oracle witness about it, Ms. Catz authenticates it in her accompanying declaration as an independent third-party valuation of the fair value of certain assets and liabilities Oracle acquired from PeopleSoft, including intangible assets, which was used to assist Oracle in its allocation of the purchase price for financial reporting purposes. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record or to show Oracle's state of mind; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 18 to the Meyer Declaration contains excerpts from the Duff & Phelps report "Estimation of the Fair Value of Certain Assets and Liabilities of Siebel Systems, Inc. as of January 31, 2006." It was produced by Oracle in response to discovery requests on February 6, 2009 and Bates numbered ORCL 00312747-819. While Defendants have not asked any Oracle witness about it, Ms. Catz authenticates it in her accompanying declaration as an independent third-party valuation of the fair value of certain assets and liabilities Oracle acquired from Siebel, including intangible assets, which was used to assist Oracle in its allocation of the purchase price for financial reporting purposes. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record or to show Oracle's state of mind; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. DECLARATION OF HOLLY A. HOUSE 4 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page5 of 8 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 Exhibit 21 to the Meyer Declaration contains an excerpt from an October 2004 IDC Report "Market Analysis Worldwide Enterprise Applications 2004-2008 Forecast and Analysis." It is Bates numbered ORCL 00313337-84 and was produced by Oracle on February 6, 2009 in response to Defendants' discovery requests in this litigation. There is no basis for questioning its authenticity or disputing its contents or its admissibility; moreover, Oracle's expert can rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 29 to the Meyer Declaration contains a worksheet labeled "PeopleSoft Operating Model." It is Bates numbered ORCL00313255 and was produced by Oracle on February 6, 2009 in response to Defendants' discovery requests in this litigation. While Defendants have not asked any Oracle witness about it, Ms. Catz authenticates it in her accompanying declaration as backup for Oracle's "Project Spice" financial model prepared at the time of its acquisition of PeopleSoft. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record or to show Oracle's state of mind; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 30 to the Meyer Declaration contains a worksheet labeled "SierraInput." It is Bates numbered ORCL00312843 and was produced by Oracle on February 6, 2009 in response to Defendants' discovery requests in this litigation. While Defendants have not asked any Oracle witness about it, Ms. Catz authenticates it in her accompanying declaration as backup for Oracle's "Project Sierra" financial model prepared at the time of its acquisition of Siebel. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record or to show Oracle's state of DECLARATION OF HOLLY A. HOUSE 5 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page6 of 8 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 mind; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 33 to the Meyer Declaration contains excerpts from an Oracle document titled "FY08 Applications Development Budget Request." It is Bates numbered ORCL 00545983-609 and was produced by Oracle on August 12, 2009 in response to Defendants' discovery requests in this litigation. While Defendants have not yet asked any Oracle witness about it, on information and belief, the portion of the document attached reflects the hundreds of millions of dollars of annual operating expense related to Oracle's Applications Unlimited program for its PeopleSoft, J.D. Edwards and Siebel product lines, the principle portion of which is the costs associated with ongoing research and development of those applications. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 34 to the Meyer Declaration contains excerpts from a December 2004 Oracle investor presentation titled "PeopleSoft." It is Bates numbered ORCL 00312888-939 and was produced on February 6, 2009 in response to Defendants' discovery requests in this litigation. It includes the following statement attributed to Charles Phillips, Oracle Co-President: "We are retaining [PeopleSoft's] very valuable maintenance revenue, again that's the real revenue stream behind this that makes this transaction work for us." While Defendants did not ask Mr. Phillips about this in his deposition, there is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record or for Oracle's state of mind; moreover, the law permits Oracle's expert to rely on such materials. However, should DECLARATION OF HOLLY A. HOUSE 6 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page7 of 8 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 Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 40 to the Meyer Declaration contains the native file of a spreadsheet titled "psoft cancellation rates 4-3-07.xls." It is Bates numbered ORCL 00103577 and was produced on January 18, 2008 in response to Defendants' discovery requests in this litigation. While Defendants have not yet asked any Oracle witness about it (including the Rule 30(b)(6) witness designated by Oracle on this topic), on information and belief, this reflects the actual PeopleSoft customer support renewal cancellation rates for Q3 2004 through Q3 2007. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. Exhibit 41 to the Meyer Declaration contains excerpts of a powerpoint with the Oracle logo titled "Implications of Maintenance Cancellations on Applications Product Strategy." The full presentation is Bates numbered ORCL 00285577-579 and was produced on January 22, 2009 in response to Defendants' discovery requests in this litigation. While Defendants have not yet asked any Oracle witness about it, on information and belief and based on the statements in the document, the excerpts show that maintenance revenue is highly important to Oracle's profitability that PeopleSoft and J.D. Edwards had higher customer support cancellation rates than other Oracle applications. There is no basis for questioning its authenticity or disputing its contents or its admissibility as a business record or to show Oracle's state of mind; moreover, the law permits Oracle's expert to rely on such materials. However, should Defendants make an evidentiary objection to this document, Oracle reserves the right to respond to such objection. DECLARATION OF HOLLY A. HOUSE 7 Case4:07-cv-01658-PJH Document486 Filed09/23/09 Page8 of 8 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 7. Attached as Exhibit C is a true and correct copy of an excerpt from the May 5, 2009 Deposition of Larry Ellison at 134:10-136:21. I declare under the laws of the United States and the State of California that the foregoing is true and correct and that this Declaration was executed on September 23, 2009, in San Francisco, California. ____/s/_Holly A. House____ Holly A. House DECLARATION OF HOLLY A. HOUSE 8

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