Oracle Corporation et al v. SAP AG et al

Filing 572

EXHIBITS re 571 Declaration in Support, of Chad Russell filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J, # 6 Exhibit K, # 7 Exhibit L, # 8 Exhibit M)(Related document(s) 571 ) (Russell, Chad) (Filed on 12/11/2009)

Oracle Corporation et al v. SAP AG et al

Doc. 572 Att. 2

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page1 of 34

EXHIBIT H

Dockets.Justia.com

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page2 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, Plaintiffs, vs. SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive, Defendants. ______________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-CV-1658 (PJH)

VIDEOTAPED DEPOSITION OF SCOTT TRAINOR _________________________________ TUESDAY, OCTOBER 13, 2009

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-423026)

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page3 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 9

09:41:38 10 09:41:39 11 09:41:42 12 09:41:44 13 09:41:44 14 09:41:48 15 09:41:48 16 09:41:49 17 09:41:51 18
time. A.

MR. PICKETT:

Q.

You worked as an attorney

for PeopleSoft from February 2002 to November 2004. Correct? A. Q. A. Q. That is correct. You were Senior Director, Field Legal? That's correct. And your client was PeopleSoft at that Correct? Correct.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page4 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 17

09:49:28 18 09:49:29 19 09:49:35 20 09:49:37 21

MR. PICKETT:

Q.

You helped negotiate the Correct?

contracts with the TomorrowNow customers. A.

I helped negotiate some contracts with the

customers, yes.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page5 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 22

09:54:58 15 09:55:00 16 09:55:03 17 09:55:04 18 09:55:08 19 09:55:11 20 09:55:16 21 09:55:22 22 09:55:24 23 09:55:28 24 09:55:31 25

Q.

You moved from PeopleSoft to SAP in What were the circumstances of

November of 2004. that move?

MR. McDONELL: THE WITNESS:

Vague and ambiguous. I had received an inquiry

from a salesperson that I had worked with at Annuncio Software. She said that there was a

position open at SAP. And I was interested, because the Oracle acquisition effort was going on, and I was concerned about my future employment. So I sent a resume, got

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page6 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 23 09:55:38 09:55:41 09:55:46 09:55:49 1 2 3 4
a call from a recruiter, decided that the position was too junior, got another call, and went through the interview process for an attorney-level position.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page7 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 24

09:56:46 11 09:56:47 12 09:56:55 13 09:56:56 14 09:56:57 15 09:56:59 16 09:57:04 17 09:57:08 18 09:57:12 19 09:57:17 20 09:57:20 21 09:57:22 22 09:57:25 23 09:57:29 24 09:57:30 25
with? Q.

MR. PICKETT:

Q.

And what was your

immediate job when you first came on with SAP? Assistant General Counsel? A. Q. A. That's the title, correct. What were your duties and responsibilities? I supported a region of the United States

in negotiating -- the Southeast and Southwest regions of the US in negotiating license agreements. I supported the consulting organization on a national basis. That's what occurs to me now. What license agreements were you involved

MR. McDONELL: ambiguous.

Overly broad, vague and

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page8 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 25 09:57:30 09:57:31 09:57:33 09:57:37 09:57:41 09:57:47 09:57:49 09:57:50 09:57:53 1 2 3 4 5 6 7 8 9
A. THE WITNESS: I was negotiating the SAP license agreements with the customers. MR. PICKETT: Any product. Q. For what product?

So any software product, I But any deal could

guess minus maybe online CRM.

have been escalated to me if it came out of that region. Q. How were those responsibilities different,

if at all, from your responsibilities at PeopleSoft? MR. McDONELL: broad. Vague and ambiguous, overly

09:57:56 10 09:57:57 11 09:58:00 12 09:58:06 13 09:58:11 14 09:58:14 15 09:58:18 16 09:58:20 17 09:58:25 18 09:58:29 19 09:58:33 20 09:58:37 21 09:58:40 22 09:58:44 23 09:58:47 24 09:58:48 25
A.

Don't disclose any privileged information in

giving your response, please. THE WITNESS: I did not have the corporate

responsibilities on committees, the templates, et cetera. The -Q. At SAP? The license agreement On a larger scale, but

MR. PICKETT:

At SAP, correct.

negotiations were similar. similar. Q. A.

To whom did you report initially at SAP? I believe that in the HR system I reported

directly to Brad Brubaker; and on a day-to-day management, I worked with both Bob Dillon and Mary Beth Hanss. Q. You were Assistant General Counsel from

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page9 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 26 09:58:51 09:58:53 09:58:55 09:58:56 09:58:58 09:58:59 09:58:59 09:59:03 09:59:04 1 2 3 4 5 6 7 8 9
yes. Q. And throughout that period, were you an November 2004 through March 2007? A. That's about right. February or March,

employee of SAP? A. Q. Correct. And you reported up the chain through SAP? MR. McDONELL: THE WITNESS: MR. PICKETT: Vague and ambiguous. Correct. Q. Ultimately, someone

09:59:05 10 09:59:06 11 09:59:09 12 09:59:10 13 09:59:13 14 09:59:14 15 09:59:17 16 09:59:18 17 09:59:21 18 09:59:22 19 09:59:25 20 09:59:26 21

reported to the Board of Directors, I take it? MR. McDONELL: and ambiguous. THE WITNESS: Yes. Eventually somebody Lack of foundation, vague

reported to the CEO and us. MR. PICKETT: Q. You understood that your

client was SAP while you worked at SAP? MR. McDONELL: as to time. MS. PHILLIPS: THE WITNESS: Overbroad. I did. Vague and ambiguous, vague

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page10 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 44

10:30:59 19 10:31:00 20 10:31:04 21 10:31:07 22 10:31:08 23 10:31:10 24 10:31:17 25

MR. PICKETT:

Q.

Well, you knew that

TomorrowNow was going after PeopleSoft's customers by trying to get them to switch over to service contracts with TomorrowNow. MR. McDONELL: Right?

Argumentative, assumes facts

not in evidence, vague and ambiguous. THE WITNESS: I did know the general

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page11 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 45 10:31:18 10:31:19 10:31:20 10:31:22 10:31:23 10:31:24 10:31:26 10:31:32 10:31:34 1 2 3 4 5 6 7 8 9
business. TomorrowNow model. MR. PICKETT: Q. And the general

TomorrowNow model was to take away service business from PeopleSoft. MR. McDONELL: THE WITNESS: Argumentative. It was to sign up customers Generally

for after-market support services, yes. PeopleSoft, but not exclusively, yes. MR. PICKETT: True? MR. McDONELL: foundation. THE WITNESS: Q.

And that was now Oracle's

10:31:35 10 10:31:37 11 10:31:38 12 10:31:40 13 10:31:41 14

Misstates testimony, lack of

Based on Oracle's acquisition

of PeopleSoft, that is accurate.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page12 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 60

10:48:50 10:48:52

8 9

Q.

And you assisted in the negotiation of

TomorrowNow customer contracts. A. I did.

10:48:54 10

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page13 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 65

11:07:30 16 11:07:33 17 11:07:37 18 11:07:39 19 11:07:41 20 11:07:42 21 11:07:43 22 11:07:45 23 11:07:46 24 11:07:48 25

MR. PICKETT:

Q.

Do you recall an effort

by TomorrowNow to revise its model support services contract? MR. McDONELL: THE WITNESS: MR. PICKETT: that, were you not? MR. McDONELL: THE WITNESS: MR. PICKETT: You may answer yes or no. Yes. Q. Did TomorrowNow in fact Vague and ambiguous. Yes. Q. You were involved with

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page14 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 66 11:07:50 11:07:54 11:07:54 11:07:55 1 2 3 4
"no." THE WITNESS: Yes. develop a new model contract? MR. McDONELL: You may answer "yes" or

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page15 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 71

11:15:00 23 11:15:02 24 11:15:03 25

Q.

Did anyone other than you at SAP approve

the final model contract? MR. McDONELL: Lack of foundation, vague

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page16 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 72 11:15:04 11:15:08 11:15:11 11:15:11 11:15:12 11:15:14 11:15:16 11:15:17 11:15:22 1 2 3 4 5 6 7 8 9
evidence. THE WITNESS: the final review. MR. PICKETT: Q. Were you satisfied with I don't recall the -- who did and ambiguous. information. MS. PHILLIPS: Assumes facts not in Don't disclose privileged

the new model agreement at the end? MR. McDONELL: MS. PHILLIPS: MR. McDONELL: answer. MR. PICKETT: work product? MR. McDONELL: MR. PICKETT: A. Asked and answered. Q. Who? I don't recall if I was Q. Who approved the final Vague. Objection. Work product.

11:15:23 10 11:15:24 11 11:15:25 12 11:15:26 13 11:15:27 14 11:15:28 15 11:15:29 16 11:15:29 17 11:15:31 18

Instruct you not not to

I don't recall.

the final or if it went to somebody else.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page17 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 109

12:52:43 12:52:45 12:52:47 12:52:50 12:52:52 12:52:57

4 5 6 7 8 9

THE WITNESS:

I don't know.

As I read it,

it doesn't -- I don't remember doing it, I don't remember any thinking about it. MR. PICKETT: Q. Do you deny that you were

telling Waste Management that it was to their advantage to provide access to software? MR. McDONELL: Vague and ambiguous, lack of

12:53:01 10 12:53:02 11 12:53:05 12 12:53:09 13 12:53:13 14 12:53:16 15 12:53:17 16

foundation, asked and answered. THE WITNESS: this, first of all. I don't recall if I drafted And second of all, as I read

this, I don't believe it coincides with what you just concluded. MR. PICKETT: Q. Why not?

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page18 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 111 12:54:45 12:54:46 12:54:49 12:54:51 12:54:52 12:54:55 12:55:00 12:55:01 12:55:04 1 2 3 4 5 6 7 8 9
THE WITNESS: That's not how I read the "you don't want us accessing." MR. PICKETT: MR. McDONELL: Q. How did you read it?

Same objections and same

instruction to you not to disclose privileged information. THE WITNESS: I feel like I'm going into

where I'm drawing legal conclusions as I interpret this. MR. McDONELL: Okay. So I instruct you not

12:55:05 10 12:55:07 11 12:55:10 12 12:55:11 13 12:55:19 14 12:55:25 15 12:55:28 16 12:55:29 17 12:55:31 18 12:55:34 19 12:55:35 20 12:55:55 21 12:56:03 22 12:56:06 23 12:56:07 24 12:56:08 25

to disclose your mental legal analysis. MR. PICKETT: Q. Do you recall other

instances in which SAP told TomorrowNow prospective customers that it was to their advantage to allow access to software? MR. McDONELL: for speculation. THE WITNESS: MR. PICKETT: the document. Under -- and this is -- actually, if you go back to page 4, you'll see the title is, paragraph 9, "Indemnity." A. Q. Yes. And that goes on for several paragraphs. I don't. Q. Let's turn to page 5 of Lack of foundation, calls

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page19 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 112 12:56:10 12:56:11 12:56:14 12:56:16 12:56:20 12:56:22 12:56:24 12:56:25 12:56:26 1 2 3 4 5 6 7 8 9
A. Q. A. Do you see that? A. Q. I do. There's a bracket right after the title We do not

which begins page 5 of the agreement:

have access to the terms of the PeopleSoft license. We therefore need this protection. Were those your words? I don't know. Were they SAP or TomorrowNow words? I -MR. McDONELL: for speculation. Don't disclose privileged information. THE WITNESS: redline who said it. MR. PICKETT: Q. Well, this was a redline I can't tell from this Lack of foundation, calls

12:56:30 10 12:56:30 11 12:56:31 12 12:56:32 13 12:56:35 14 12:56:38 15 12:56:43 16 12:56:45 17 12:56:49 18 12:56:52 19

that you sent to their outside counsel for purposes of negotiating the agreement. A. Yes. True?

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page20 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 113

12:57:20 12:57:23 12:57:26 12:57:29

6 7 8 9

MR. PICKETT:

Q.

Now, is it true that you

did not have access to the terms of PeopleSoft licenses? A. Q. Yes. You had worked with them for some time when True?

12:57:30 10 12:57:34 11 12:57:38 12 12:57:38 13 12:57:44 14 12:57:46 15 12:57:48 16 12:57:52 17 12:57:53 18 12:57:55 19 12:57:57 20 12:58:01 21 12:58:03 22 12:58:04 23 12:58:08 24 12:58:09 25

you worked as an attorney for PeopleSoft. A. Q. True.

And so did you compartmentalize that --

your experience? MR. McDONELL: of an attorney. Calls for mental impressions

I'll instruct you not to answer on

work product grounds. MR. PICKETT: Q. Did you take any steps to

avoid relying on your memory of the PeopleSoft licenses in negotiating the terms of these licenses with TomorrowNow customers? MR. McDONELL: Same objection, same

instruction not to answer. MR. PICKETT: Q. If you take a look at

paragraph 9A of the agreement, "TomorrowNow

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page21 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 114 12:58:11 12:58:14 12:58:17 12:58:20 12:58:23 12:58:24 12:58:26 12:58:30 12:58:34 1 2 3 4 5 6 7 8 9
Indemnity," there's a bracket that states: will need to be different from the license. This Our

rights to use the PeopleSoft software come entirely by way of the Waste Management license with PeopleSoft. Is it true that you were conveying to Waste Management the position that TomorrowNow's rights to use the PeopleSoft software come entirely by way of the Waste Management license with PeopleSoft? MR. McDONELL: itself. THE WITNESS: I don't recall drafting this. The document speaks for

12:58:37 10 12:58:38 11 12:58:39 12 12:58:42 13 12:58:45 14 12:58:47 15 12:58:51 16 12:58:54 17 12:58:57 18 12:58:58 19 12:59:01 20 12:59:03 21 12:59:07 22 12:59:10 23 12:59:11 24 12:59:13 25
knew?

However, that -- what you recited is what the document represents, yes. MR. PICKETT: MR. McDONELL: THE WITNESS: MR. McDONELL: Q. Was that SAP's position?

Document speaks for itself. Was that -By position, do you mean,

was that what SAP conveyed to the customer? MR. PICKETT: Q. Yes. Was that your

position to the customer? A. It appears -- yes, it appears that in this

document, that's the position we took. Q. Was that a true statement so far as you

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page22 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 115 12:59:15 12:59:17 12:59:24 12:59:26 12:59:30 12:59:31 12:59:32 12:59:34 12:59:36 1 2 3 4 5 6 7 8 9
analysis. second. Calls for a legal conclusion and legal I'll instruct you not to answer. MR. PICKETT: Q. So you can't tell me MR. McDONELL: I have -- hold on for a

whether it's true or not? MR. McDONELL: I've instructed you not to You're asking

answer on grounds of work product.

him to sit here and do legal analysis. MR. PICKETT: Q. To your knowledge, did

12:59:39 10 12:59:40 11 12:59:43 12 12:59:45 13 12:59:46 14 12:59:50 15 12:59:53 16 13:00:00 17 13:00:05 18 13:00:06 19 13:00:07 20 13:00:27 21 13:00:29 22 13:00:33 23 13:00:38 24 13:00:42 25
answer.

SAP or TomorrowNow ever misrepresent facts to customers during negotiation of terms? MR. McDONELL: I instruct you not to

It's argumentative, calling for legal

conclusions and work product and potential attorney-client. already said that. MR. PICKETT: argumentative. MR. McDONELL: MR. PICKETT: It's overbroad. Q. Did SAP or TomorrowNow You probably think it's And it's argumentative. I've

take any steps to determine whether a particular customer's allowance of access to software constituted copyright infringement? MR. McDONELL: Instruct you not to answer

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page23 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 116 13:00:43 13:00:46 13:00:48 13:00:51 13:00:56 13:00:59 13:01:01 13:01:06 13:01:08 1 2 3 4 5 6 7 8 9
on grounds of legal -- privilege and work product. MR. PICKETT: not what they did. MR. McDONELL: MR. PICKETT: Stand by my instruction. Q. Did TomorrowNow or SAP It's take any steps. It's

ever analyze in connection with a negotiation of a contract the general topic of a customer's rights to provide access to software? MR. McDONELL: Instruct you not to answer

13:01:09 10 13:01:10 11

on the grounds of attorney-client privilege and work product.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page24 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 129

13:17:27 20 13:17:29 21 13:17:32 22
A.

MR. PICKETT:

Q.

Who is Spencer Phillips?

Spencer was an account executive,

salesperson.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page25 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 132

13:20:48 22 13:20:51 23 13:20:56 24 13:20:57 25

MR. PICKETT:

Q.

Did you have access to a

PeopleSoft software license agreement in 2005? A. I -MR. McDONELL: Asked and answered.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page26 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 133 13:20:57 1
THE WITNESS: I did not.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page27 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 136

13:23:37 13:23:38 13:23:40 13:23:42 13:23:42 13:23:43 13:23:43

3 4 5 6 7 8 9

MR. PICKETT:

Q.

You understand that you

have certain ethical obligations as an attorney in the State of California. MR. McDONELL: conclusion. THE WITNESS: MR. PICKETT: I do. Q. And you understood that Correct? Calls for a legal

13:23:45 10 13:23:48 11 13:23:51 12 13:23:52 13 13:23:53 14 13:23:56 15 13:24:00 16 13:24:01 17 13:24:01 18 13:24:02 19 13:24:06 20 13:24:09 21 13:24:09 22 13:24:11 23 13:24:13 24 13:24:15 25

you have the obligation to keep information you learned from a former -- a client strictly confidential. True? Depends on the

MR. McDONELL: circumstances.

It calls for a legal conclusion.

Object to the form of the question. MS. PHILLIPS: THE WITNESS: MR. PICKETT: Overbroad. I do. Q. And if you revealed this

type of information to Mr. Phillips, that violated your ethical obligation. MR. McDONELL: True? Object to the form of the

question, and I'm going to instruct you not to answer on the grounds of attorney work product and privilege. MR. PICKETT: Q. Is this information

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page28 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 137 13:24:16 13:24:17 13:24:18 13:24:22 13:24:24 13:24:27 13:24:29 13:24:30 13:24:33 1 2 3 4 5 6 7 8 9
confidential? MR. McDONELL: Vague and ambiguous,

overbroad, calls for a legal conclusion, calls for a legal analysis by an attorney of a legal issue collaterally related to the case. I'm going to instruct you not to answer. MR. PICKETT: confidential? Q. Is it private? Is it

That's not a privilege issue. Same objections. Same

MR. McDONELL: instruction. MR. PICKETT: MR. McDONELL:

13:24:34 10 13:24:39 11 13:24:40 12

On what ground? Privilege, work product.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page29 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 139

13:26:32 13:26:33 13:26:37

7 8 9

MR. PICKETT:

Q.

If you did convey it,

would you have felt comfortable conveying it, the portion that I just read? MR. McDONELL: Instruct you not to answer.

13:26:38 10 13:26:39 11 13:26:41 12 13:26:45 13

Grounds of attorney-client, attorney work product. It's unduly argumentative. the question. I object to the form of

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page30 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 151

13:59:55 25

MR. McDONELL:

Counsel, I've had a chance

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page31 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 152 13:59:57 14:00:01 14:00:09 14:00:10 14:00:13 14:00:17 14:00:20 1 2 3 4 5 6 7
to do a preliminary review of Exhibit 1683, which is Bates numbers SAP-OR00677719 through -25. I have reason to believe it was an inadvertently produced privileged document, and hereby exercise our right to claw it back. We'll

give you a more detailed request in writing soon with regard to that.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page32 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 157 14:08:16 14:08:17 14:08:22 14:08:26 14:08:26 14:08:28 14:08:30 14:08:33 14:08:36 1 2 3 4 5 6 7 8 9
evidence. THE WITNESS: MR. PICKETT: Yes. Q. And was a group of MR. PICKETT: Q. Do you recall that in the latter part of 2005, you along with others conducted training sessions for TomorrowNow? MR. McDONELL: Assumes facts not in

slides, Power Point slides, prepared for that purpose? A. They -- yes, they were.

14:08:39 10

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page33 of 34

SCOTT TRAINOR October 13, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 166

14:18:31 14:18:34 14:18:36

7 8 9

specific recollection of saying why exactly. MR. PICKETT: you convey to them? MR. McDONELL: ambiguous. THE WITNESS: That we couldn't see the -Overly broad, vague and Q. Well, generally, what did

14:18:38 10 14:18:39 11 14:18:40 12 14:18:41 13 14:18:45 14 14:18:47 15 14:18:49 16 14:18:57 17 14:19:00 18 14:19:04 19 14:19:10 20 14:19:14 21 14:19:19 22 14:19:20 23

that we couldn't see the agreement, because -- yeah, I guess -- I don't remember specifically saying it, but we couldn't see the agreement because it was arguably confidential. MR. PICKETT: Q. Turning to Exhibit 1684,

page ending -861, under the indemnification provision, it reads, "Key term -- no removing this." Was that true, that this was a key term for SAP, and it would not negotiate this term away? MR. McDONELL: Instruct not to answer on

the grounds of attorney-client and work product.

Merrill Legal Solutions [phone]

Case4:07-cv-01658-PJH Document572-3

Filed12/11/09 Page34 of 34