Oracle Corporation et al v. SAP AG et al

Filing 568

Declaration of Jason McDonell in Support of 566 MOTION to Compel Redacted Defendants' Motion to Compel filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B-F, # 3 Exhibit G, # 4 Exhibit H-M)(Related document(s) 566 ) (McDonell, Jason) (Filed on 12/11/2009)

Oracle Corporation et al v. SAP AG et al

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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 OAKLAND DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DECLARATION OF JASON MCDONELL IN SUPPORT OF DEFENDANTS' MOTION TO COMPEL Date: January 26, 2010 Time: 2:00 pm Courtroom: E, 15th Floor Judge: Hon. Elizabeth D. Laporte

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I, JASON MCDONELL, 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. Attached hereto as Exhibit A is a true and correct copy of the Redacted Public

Version of the Second Amended Complaint for Violations of Cal. Bus. & Prof. Code §§ 17200 & 17500, etc. in the matter of PeopleSoft, Inc., et al. v. Oracle Corporation, et al., Case No. RG031010434. 2. Attached hereto as Exhibit B is a true and correct copy of the subpoena that was

served on Folger Levin & Kahn LLP on or about September 22, 2009. 3. Attached hereto as Exhibit C is a true and correct copy of Non-Party Folger Levin

& Kahn LLP's Objections to Third Party Subpoena Served by Defendants. 4. Counsel for Plaintiffs in this action has confirmed that this motion to compel need

only be directed at Oracle and Defendants do not need to move against Folger Levin & Kahn LLP. Attached hereto as Exhibit D is a true and correct copy of my email exchange with Geoff Howard, counsel for Oracle, ending with an email dated December 9, 2009. 5. Attached hereto as Exhibit E is a true and correct copy of Geoff Howard's

October 26, 2009 letter to me. 6. Attached hereto as Exhibit F are true and correct copies of the cover page and

pages 28 through 37 of the unofficial transcript of the November 17, 2009 Discovery Conference. 7. Attached hereto as Exhibit G is a true and correct copy of Geoff Howard's

November 30, 2009 email to my colleague, Elaine Wallace, with attachment thereto. 8. Attached hereto as Exhibit H is a true and correct copy of my December 1, 2009

email to Geoff Howard requesting production of deposition transcripts and eighty-four documents. 9. Attached hereto as Exhibit I is a true and correct copy of my December 10, 2009

email to Geoff Howard revising the request for production of documents from eighty-four to sixty-four documents
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10.

I have personally participated in various discussions with counsel for Plaintiffs to

attempt to resolve Plaintiff's objections to the subpoena served on Folger Levin & Kahn LLP. In those discussions, Oracle has refused to produce any of the requested documents, asserting among other things that Defendants must first identify with particularity the relevance of each requested document. Because the descriptions of the documents on the index are short and often cryptic, Defendants declined the offer as impractical and the issue was joined for this motion. 11. I am informed and believe that Plaintiffs have served approximately 156 third

party subpoenas, compared to approximately 20 served to date by Defendants. Moreover, Oracle has served discovery on four of Defendants' outside law firms. 12. Attached hereto as Exhibit J is a true and correct copy of the parties' November

2008 Expanded Discovery Timeline Agreement, which was submitted to the Court as Exhibit A to the parties' November 18, 2008 Joint Discovery Conference Statement. 13. Attached hereto as Exhibit K is a true and correct copy of my May 20, 2009 email

to Oracle's counsel requesting updated productions for certain key custodians under the parties' Expanded Discovery Timeline Agreement (the "Agreement"). 14. I personally participated in a telephonic meet and confer with Oracle's counsel on

June 4, 2009 regarding various discovery matters, including the request in my May 20 email for updated custodian productions pursuant to the Agreement. 15. On November 17, 2009, Elaine Wallace sent a letter to Geoff Howard addressing

various discovery issues and requesting confirmation that the custodian productions identified in my May 20 email had been updated under the Agreement as requested. I was copied on and have reviewed that letter. 16. Attached hereto as Exhibit L is a true and correct copy of a November 30, 2009

letter from Zachary Alinder, counsel for Oracle, responding to Elaine Wallace's November 17 letter. 17. I participated in the parties' June 4, 2009 meet and confer, which included a

discussion of Defendants' request for updated custodian productions relating to the Agreement.

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Defendants' record of the outcome of that discussion is unclear. At no time, however, did Defendants agree to waive their right to obtain that updated discovery. 18. On December 1, 2009, Elaine Wallace sent a letter in response to Mr. Alinder's

November 30 letter offering to reduce the number of key custodians from eleven to six. I was copied on and have reviewed that letter. On December 2, I personally participated in a telephonic meet and confer with Oracle's counsel in which Defendants' counsel reiterated that offer and also offered to limit the number of search terms to be used for the updated productions. Defendants' counsel also requested information regarding the locations of the custodians in order to assess the burden of collecting their documents. According to information provided by Oracle's counsel on December 2, three of the six custodians are located in California, two are in Denver, and one is no longer with Oracle, although Oracle's counsel did not indicate when he left Oracle. 19. On December 4, Elaine Wallace sent an email to Oracle's counsel attaching a

proposed list of 71 search terms (reduced from the approximately 900 search terms previously agreed to by the parties) to be used for the updated custodian productions. A true and correct copy of that email string is attached hereto as Exhibit M. Oracle has not responded to the email or otherwise indicated that it has changed its position regarding Defendants' request for updated productions. The issue is thus joined for motion. 20. I am informed and believed, based on deposition testimony that I obtained, have

reviewed, or that others have reviewed at my direction, and based on my review, or review by others at my direction, of documents produced by Oracle, that Juergen Rottler is Executive Vice President, Oracle Customer Services, with responsibility for Oracle's support services organization, including support sales, and that his document production for the original discovery time period includes thousands of pages relating to customers returning to Oracle from TN, customers lost by Oracle and efforts by Oracle to mitigate its damages, and customers gained by TN or SAP, damages causation and mitigation issues, and third party support issues. 21. I am informed and believed, based on deposition testimony that I obtained, have

reviewed, or that others have reviewed at my direction, and based on my review, or review by others at my direction, of documents produced by Oracle, that Juan Jones is Senior Vice
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President, Oracle Customer Services, North American Support Services, that he reports to Mr. Rottler and is responsible for sales of support services in North America, and that his document production for the original discovery time period includes thousands of pages relating to the same issues identified with respect to Mr. Rottler in paragraph 20 above. 22. I am informed and believed, based on deposition testimony that I obtained, have

reviewed, or that others have reviewed at my direction, and based on my review, or review by others at my direction, of documents produced by Oracle, that Chris Madsen is Oracle's Senior Director, Support Services, that he reports to Mr. Jones, and that his name appears on thousands of pages of Oracle documents relating to the same issues identified with respect to Mr. Rottler in paragraph 20 above. 23. I am informed and believed, based on deposition testimony that I obtained, have

reviewed, or that others have reviewed at my direction, and based on my review, or review by others at my direction, of documents produced by Oracle, that Rick Cummins is Oracle's Senior Director of Support Renewals for North America, that he reports to Mr. Madsen, that he was Oracle's Rule 30(b)(6) witness on topics relating to third party support providers, Oracle's communications with customers regarding third party support, and Oracle's efforts to stop customers going to third party support providers and to win customers back from third party support providers, including TomorrowNow, and that his document production for the original discovery time period includes thousands of pages relating to the same issues identified with respect to Mr. Rottler in paragraph 20 above. 24. I am informed and believed, based on deposition testimony that I obtained, have

reviewed, or that others have reviewed at my direction, and based on my review, or review by others at my direction, of documents produced by Oracle, that Robert Lachs was an Oracle Regional Sales Manager, Support Sales, responsible for numerous support sales representatives whose territories included dozens of TomorrowNow customers, and that his document production for the original discovery time period includes thousands of pages relating to the same issues identified with respect to Mr. Rottler in paragraph 20 above.

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25.

I am informed and believed, based on deposition testimony that I obtained, have

reviewed, or that others have reviewed at my direction, and based on my review, or review by others at my direction, of documents produced by Oracle, that Michael Van Boening is an Oracle Senior Support Sales Representative who, in addition to frequent interactions with customers as part of his sales duties, was involved in Oracle's efforts to collect information regarding third party support providers and in compiling information on customers won back from third party support providers, including TomorrowNow, and that his document production for the original discovery time period includes thousands of pages relating to the same issues identified with respect to Mr. Rottler in paragraph 20 above. 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 11th day of December, 2009 in San Francisco, California.

/s/ Jason McDonell Jason McDonell

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