Oracle Corporation et al v. SAP AG et al

Filing 589

Memorandum in Opposition to 566 Defendants' Motion to Compel filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Proposed Order)(Alinder, Zachary) (Filed on 1/5/2010) Modified on 1/6/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 589

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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: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] 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) ORACLE'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL Date: January 26, 2010 Time: 2 p.m. Place: Courtroom E, 15th Floor Judge: Hon. Elizabeth D. Laporte

SAP AG, et al., Defendants.

Case No. 07-CV-01658 PJH (EDL)

ORACLE'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL
Dockets.Justia.com

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TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................. 1 SAP'S THREE TOPICS ARE EACH PROCEDURALLY DEFECTIVE........................ 2 A. Each of SAP's Topics Differs From What It Told the Court and the Court Required of It ......................................................................................................... 2 B. None of SAP's Three New Topics Should Be Before the Court ........................... 3 1. The First Topic Re "Mapping" Is Old and Overbroad............................... 3 2. SAP Concedes That Its Second Topic Is Contrary to the Parties' Agreement .................................................................................................. 4 3. The Post-Litigation Custodian Topic Is Not Related to Siebel or to New Claims, as SAP Promised .................................................................. 5 THE COURT ALSO SHOULD DENY EACH OF SAP'S THREE TOPICS FOR MULTIPLE SUBSTANTIVE REASONS ........................................................................ 5 A. A Complete Review of the Facts Demonstrates That the Relief SAP Seeks Re Mapping Is Inappropriate ................................................................................. 5 1. Relevant Chronology of Events ................................................................. 7 a. August 2006-March 22, 2007: SAP Creates Its Own Mapping Spreadsheets From Customer Connection and Oracle Investigates Downloads...................................................... 8 b. September 2007-March 2008: Early Discovery and Judge Legge's Rulings Regarding Mapping ............................................ 9 c. April 2008-February 2009: Oracle Produces the Customer Connection Databases .................................................................. 14 d. March 2009-December 3, 2009: Oracle Provides Technical Help but SAP Takes No Discovery.............................................. 15 e. December 4, 2009: Mr. Rice Confirms Oracle Had Produced Complete Mapping Information................................... 16 2. The Court Should Deny SAP's Motion for Further Mapping Information for Any of Five Reasons ...................................................... 18 a. SAP Knew When It Filed This Motion That It Had the Data It Says Oracle Withheld ............................................................... 18 b. SAP's Own Failures to Accept or Pursue More Discovery Preclude Relief on This Issue....................................................... 20 c. SAP's Own Contrary Statements and Positions Preclude Relief on This Issue...................................................................... 21 d. SAP Has Suffered No Prejudice .................................................. 22 e. SAP's Requested Relief Invades Oracle's Work Product and Is Unnecessary, Inappropriate, and Unduly Burdensome ................................................................................. 22 i
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Page

The Unproduced Documents Are Protected Work Product ............................................................................. 23 2. There Is No Justification for Invading Oracle's Work Product ................................................................... 23 3. Mr. Rice's Spreadsheets Were Produced in a Timely Manner as Part of Expert Discovery.................... 24 4. Beyond the Inappropriate Request for Relief Invading Work Product, SAP's Requests for Relief Are Unnecessary and Unduly Burdensome ..................... 25 B. The Court Should Deny SAP's Motion for Discovery of Irrelevant Documents Maintained by Folger Levin.............................................................. 25 C. The Court Should Deny SAP's Motion to Compel Production of PostLitigation Documents........................................................................................... 28 1. SAP Long Ago Abandoned Its Improper Request for PostLitigation Custodians ............................................................................... 28 2. The Request for Post-Litigation Custodians Was Not Proper per the Expanded Discovery Timeline Agreement Either ............................. 29 3. SAP's Request For Post-Litigation Custodians Is Unduly Burdensome ............................................................................................. 30 CONCLUSION ................................................................................................................ 30

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TABLE OF AUTHORITIES Page

Fletcher v. Union Pacific R.R. Co., 194 F.R.D. 666 (S.D. Cal. 2000)............................................................................................. 24 Hickman v. Taylor, 329 U.S. 495 (1947) ................................................................................................................ 25 In re Vioxx Products Liability Litigation, No. MDL 1657, 2007 WL 854251 (E.D. La. Mar. 6, 2007)................................................... 23 Khalil v. Transunion, LLC, No. 08-10303, 2008 WL 4642857 (E.D. Mich. Oct. 20, 2008) .............................................. 29 U.S. v. Estrada-Lucas, 651 F.2d 1261 (9th Cir. 1980)................................................................................................. 22 Wixon v. Wyndham Resort Dev. Corp., No. C 07-2361-JSW, 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009)................... 25 Wixon v. Wyndham Resort Dev. Corp., No. C 07-2361-JSW, 2009 U.S. Dist. LEXIS 86349 (N.D. Cal. July 17, 2009) .............. 24, 25 OTHER AUTHORITIES Fed. R. Civ. P. 26(a)(2) ................................................................................................................ 24 Fed. R. Civ. P. 26(b)(2)(C)(iii) ..................................................................................................... 25 Fed. R. Civ. P. 26(b)(3)........................................................................................................... 23, 25 Fed. R. Civ. P. 26(b)(3)(A)(ii) ...................................................................................................... 23 Fed. R. Civ. P. 45(c)(3)(A)(iv)...................................................................................................... 25

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A/73257332.5/2021039-0000324170

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I.

INTRODUCTION The motion filed by Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc.

(collectively, "SAP") should be denied on both procedural and substantive grounds. The Court should deny it on procedural grounds because SAP has violated the Court's requirement that the Parties' final motions to compel should include only three discrete topics, and because the first topic is overbroad (it combines multiple old discovery requests on tangentially-related issues already the subject of past motions, such as Oracle's communications with its customers (RFP 45)). On November 17, the Court required the Parties to identify two narrow topics for a final motion to compel, with a third to be identified later. SAP identified its first two topics as related to: (1) Siebel and discovery on new claims, and (2) pre-2005 financial information. SAP's actual motion relates to three different topics. Each topic either violates the Court's rules regarding scope, contradicts SAP's representations to the Court about the topics on which it would move, or both. The Court also should deny each of SAP's three new topics for a long series of substantive reasons. On the first topic, mis-described by SAP as relating to a single "mapping" topic, SAP confuses two very different concepts, and omits important history that Oracle sets forth below. The confusion arises when SAP says Oracle has "consistently maintained throughout this case that any download-to-product mapping that can be done has to be done manually, on a file-by-file basis." Motion at 4. Oracle has "maintained" just the opposite, and has produced huge volumes of electronic data and documents to facilitate the automation by SAP of "download-to-product" mapping (data which SAP already had and knew how to generate, despite its contention now that it received it only in November 2009). The quotes from Oracle that SAP cites go to a different issue: there is no automated way to do "download-to-contract" mapping, which involves the analysis of whether an individual download taken by SAP is licensed to a specific customer. This distinction becomes clear through the history of these issues omitted by SAP, history which includes SAP's own creation, in February 2007, of similar spreadsheets from the same source (Customer Connection), and its request for, and receipt of, the underlying Customer Connection databases from which Oracle generated the very spreadsheet
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SAP claims it did not receive until November 16, 2009. All told, this "mapping" topic fails for at least five reasons, including that SAP had the information at least two years ago, refused Oracle's offers for more, and now seeks protected work product SAP knew how to create itself as far back as February 2007. The second topic, related to the Folger Levin files, untimely seeks irrelevant material, such as a five-year old motion in limine regarding Larry Ellison's "character." The Court should deny the third topic, post-litigation custodians, because SAP abandoned it, made statements to Oracle and the Court that directly contradict it, and because SAP's delay has increased the undue burden to collect and produce the information. II. SAP'S THREE TOPICS ARE EACH PROCEDURALLY DEFECTIVE A. Each of SAP's Topics Differs From What It Told the Court and the Court Required of It

At the November 17 Discovery Conference, the Parties discussed the topics and scope of this Motion with the Court. The Court required each side to identify two topics, in part to make sure that those topics were sufficiently discrete and fair to both sides in terms of scope: So, as you know, I like to know a fair amount about the dispute before I decide it in a formal way. And, if I am going to do that, there is going to be a limited number of things I will decide, because I can't decide them all in time. Declaration of Zachary J. Alinder in Support of Oracle's Opposition to Motion to Compel ("Alinder Decl."), Ex. A at 52:23-53:2; see also id. at 54:8-9. The Court also gave specific guidance as to the permissible scope of the topics, responding to one of SAP's "topics" relating to "new claims": "I won't entertain a matter in that amorphous state" and further noting, "you'll have to narrow it beyond that or I will just say no." Id. at 63:17-18, 67:9-10. The Parties identified on the record two of a maximum three issues for their final motion to compel, and agreed that on December 4, each side would identify one final discrete issue to the other for inclusion in the motion. See id. at 53:9-16, 58:16-19. At the hearing, SAP identified its first motion topic as: "[Siebel] and the new claims-related discovery . . . The things that they added in the fourth amended complaint." Id. at 63:12-14. SAP then identified its 2 Case No. 07-CV-01658 PJH (EDL)
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second motion topic as: "pre-2005 damages-related discovery." Id. at 63:25-64:1. Without seeking leave from the Court or meeting and conferring with Oracle, SAP then identified three different "topics" on December 4: (1) a request for Oracle to review and certify its entire production relating to six different requests, labeled "mapping," but in reality covering topics ranging from customer communications, to SAP customer license issues, to documents "sufficient to show" the link between SARs and ESUs; (2) a request for production of pleadings and transcripts identified in an index of documents related to the 2003 PeopleSoft/Oracle case that are maintained by Folger Levin; and (3) a request for "updated production[s]" from six Oracle employees. See id., Ex. B. Oracle objected to SAP's topics, and asked SAP to reconsider, but SAP refused. See id., ¶4. In light of SAP's disregard for the Court's instructions, the Court should require SAP to choose one topic between its second and third to pursue, and should not allow SAP to pursue the first, as it is too amorphous. B. None of SAP's Three New Topics Should Be Before the Court 1. The First Topic re "Mapping" Is Old and Overbroad

The Court should reject SAP's first "topic" re "mapping" on three procedural grounds. First, it bears no relation to SAP's counsel's promised "placeholder for those things that are still hanging that we can't articulate the nature of the problem yet, if any." Id., Ex. A at 53:17-19. The Parties both identified "mapping" as an issue (and had it decided) years ago. Second, the topic is too broad in its scope and requested relief. The discovery requests for which SAP seeks relief (RFPs 44-45, 47, and 51 and Interrogatory 7), are not one topic. Defendants' Motion to Compel ("Motion") at 3. For example, RFP 51 ("Documents sufficient to show all Electronic Software Updates (ESUs) and Software Application Requests (SARs) relating to the Software and Support Materials, and the system code for each such SAR and ESU") focuses on download-to-product mapping, while others, such as Interrogatory 7 ("For each TN Customer and Named Customer . . .") and RFP 44 ("All Documents from which a TN Customer or Named Customer can determine. . .") focus on determining whether a download is licensed to a particular customer, i.e., download-to-contract mapping. See Declaration of Scott Cowan in Support of Defendants' Motion to Compel ("Cowan Decl.") at Appendices 1-5. Other 3 Case No. 07-CV-01658 PJH (EDL)
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requests barely relate to any kind of effort to determine the license status of any download. For example, RFP 45 ("All Documents relating to Communications between Oracle and an TN Customer or Named Customer concerning which Software and Support Materials the customer is entitled to access or Download") focuses on Oracle's communications with its customers, and RFP 47 ("All Documents relating to which Software and Support Materials any TN Customer or Named Customer is, or was at any time, entitled to access or Download") addresses issues of access beyond just downloading. See Cowan Decl. at Appendices 2, 3. Despite SAP's attempt to group these various types of requests together, they involve different issues. Further, RFPs 44, 45, and 47 and Interrogatory 7 were the subject of SAP's very first motion to compel in this action, decided by Judge Legge. See Alinder Decl., Ex. C at 12:3-7. Third, SAP did not identify Interrogatory No. 7 as included in this "topic" even in the Parties' mutual exchange on December 4. See Alinder Decl., Ex. B. Oracle learned that SAP considered this an issue when Oracle received SAP's Motion. Because the discovery requests listed by SAP show that only RFP 51 specifically addresses download-to-product mapping, Oracle focuses below on that issue in the space available. Had Oracle known, and the Court approved, this broad collection of discovery responses within a single topic, Oracle would have requested additional space to address them. To the extent the Court is willing to entertain SAP's Motion, even after past motion practice on these other requests, Oracle respectfully requests a further opportunity to brief any other issues the Court believes should be addressed. 2. SAP Concedes That Its Second Topic Is Contrary to the Parties' Agreement

SAP concedes that the second topic it disclosed to the Court ­ pre-2005 financial information ­ was "resolved." Motion at 2. SAP substituted the Folger Levin topic, and justified doing so on the grounds that the topic was "discussed" at the November 17 Discovery Conference. Id. That is true but irrelevant. The Parties discussed numerous topics at the hearing, but agreed to leave one open topic, and to work to resolve the other two. SAP, like Oracle, had one open topic. Oracle would have liked to have an additional issue in its motion to 4 Case No. 07-CV-01658 PJH (EDL)
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compel as well, but abided by the agreement and its representations at the November 17 Discovery Conference, and also undertook to avoid motion practice by resolving one of the issues on which SAP said it would move. Since the equally-undisclosed topic re "mapping" is impermissibly overbroad (among other defects), at a minimum the Court should require SAP to use its open topic on this topic or the next, and decline to consider the mapping topic. 3. The Post-Litigation Custodian Topic Is Not Related to Siebel or to New Claims, as SAP Promised

SAP contends that its topic of post-litigation custodian document productions relates to its first disclosed topic, because it relates to Oracle's "[Fourth Amended Complaint], Plaintiffs' expanded claims, and Siebel issues." Motion at 1-2. That is wrong. This new topic only relates to Oracle's Fourth Amended Complaint in the sense that every issue in the case is now included in the Fourth Amended Complaint. SAP's attempt to connect its post-litigation document request to Oracle's new claims through the Parties' Expanded Discovery Timeline Agreement is inappropriate because (1) that Agreement does not relate to the Fourth Amended Complaint or to Siebel issues, and (2) the Parties reached that agreement in November 2008, a half-year before the Parties began negotiating the filing of Oracle's Fourth Amended Complaint. See Declaration of Jason McDonell in Support of Motion to Compel ("McDonnell Decl."), Ex. J. SAP's Motion further proves the point. SAP identifies the subject matter areas for which it believes these employee documents are relevant ­ (a) TomorrowNow/SAP customers, (b) damages causation and mitigation, and (c) TomorrowNow business model documents. See Motion at 19-20; see also McDonell Declaration, Ex. J. None of those three topics first appeared in the Fourth Amended Complaint, nor are they specific to Siebel. III. THE COURT ALSO SHOULD DENY EACH OF SAP'S THREE TOPICS FOR MULTIPLE SUBSTANTIVE REASONS A. A Complete Review of the Facts Demonstrates That the Relief SAP Seeks re Mapping Is Inappropriate

At the November 17, 2009 Discovery Conference, Oracle objected to SAP's nine-topic Rule 30(b)(6) deposition notice related to these downloading allegations. In discussing the overbreadth of this notice, the Court observed that downloading had been an original issue in the 5 Case No. 07-CV-01658 PJH (EDL)
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case, and indicated that SAP should have taken such broad discovery on that topic sooner. See Alinder Decl., Ex. A at 22:6-12, 25:2-24, 27:14-28:10. The Court then granted SAP 25 hours of final deposition discovery, and left the division to SAP (subject to Oracle's objections). See id. at 28:3-9. SAP then voluntarily cancelled the downloading deposition (to use its time on other topics) and filed this Motion instead, the ultimate thrust of which is to preclude Oracle from introducing evidence of SAP's illegal downloading at trial. As part of this second effort to recover from not taking downloading discovery, SAP's Motion confuses two important issues: download-to-product mapping, which means associating a download with its corresponding Oracle product, and download-to-contract mapping, which means actually looking at the individual contracts to determine whether a specific download related to a specific customer was licensed. Oracle has always agreed that download-to-product mapping information exists in electronic form and, as shown below, has produced everything to SAP it has requested and that it needed on that topic. The statements by Oracle that SAP says are misleading relate to a different issue than the one SAP complains about in its Motion ­ they relate to download-to-contract mapping, which cannot be automated and which Oracle did not automate. Those statements by Oracle, selected by SAP out of context, are as true today as they were when Oracle made them: Oracle did the hard, time-consuming work of matching up downloads to individual customer contracts to determine licensed status, and SAP will have to do it too. In addition to this basic confusion between the two types of mapping, SAP's Motion fails for at least five additional substantive reasons, each of which independently warrants denial: 1. Since as early as February 2007, and no later than January 2008, SAP has had the same download-to-product data reflected by the spreadsheets identified in SAP's Motion. SAP used its own former JD Edwards employees to generate its own similar spreadsheets from the same source (Customer Connection) long ago, and it had those same databases in its physical possession in February 2009. 2. SAP is estopped by its own failures to take or accept more discovery than it did, including its rejection of Oracle's offer to produce work product spreadsheets in January 2008 and its failure to pursue the engineer assistance Judge Legge ordered (which SAP's experienced JD Edwards employees did not need anyway). 3. SAP is estopped from the argument it now makes by its own contrary statements, failures to disclose what it already had, and positions about what it already had 6 Case No. 07-CV-01658 PJH (EDL)
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and what it needed. 4. SAP has suffered no prejudice. 5. Any download-to-product material SAP now seeks beyond what Oracle has already provided is work product and SAP cannot justify invading that protection. Accordingly, the relief SAP seeks is unrelated and disproportionate to the requests it made. Oracle has provided the Court with the Declaration of Buffy Ransom and the exhibits attached to it, including the same PowerPoint slides Oracle presented to Judge Legge and SAP at the Parties' first motion to compel hearing on February 13, 2008. Declaration of Buffy Ransom in Support of Oracle's Opposition to Motion to Compel ("Ransom Decl."). Ms. Ransom describes the meaning of mapping, as it relates to the system codes found in the licensed portions of JD Edwards software, and the support products related to that software. Ransom Decl., ¶¶3-9. She explains the difference between mapping downloads to products (download-to-product), and mapping downloads to specific customer contracts (download-to-contract). Id. Oracle also provides the prior Declaration of Jason Rice, provided to SAP and the Court on March 14, 2008, which gives background regarding the Customer Connection databases discussed at length below. See Alinder Decl., Ex. D. These databases contain within them all of the system codes associated with all of the downloads and related product information available on Customer Connection at the time Oracle copied them. As the discussions regarding mapping trace back to the beginning of the case, it is necessary, with this backdrop in mind, to set forth a far more detailed record than what SAP included in its Motion. After doing so, Oracle then returns to the five substantive reasons why the Court should deny the Motion. 1. Relevant Chronology of Events

Footnote 8 of SAP's Motion supposedly supports the argument heading that SAP has "continuously sought all electronic download-to-product mapping in Plaintiffs' possession." The footnote hints at a story not told by SAP's Motion. The first three dates on which SAP says it sought download-to-product mapping information are November 19, 2007, December 12, 2007, and January 28, 2008. However, the next date identified by SAP is not until June 16, 2009 (and SAP did not request anything then, as explained below). This gap is telling, but the history is 7 Case No. 07-CV-01658 PJH (EDL)
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even worse for SAP. a. August 2006-March 22, 2007: SAP Creates Its Own Mapping Spreadsheets From Customer Connection and Oracle Investigates Downloads

Prior to its Complaint, Oracle identified massive downloads from Customer Connection originating from a TomorrowNow IP address. Oracle undertook a time-consuming analysis of its download logs to isolate the downloads, and the credentials used to take them, and then to determine which ones were unlicensed. See Ransom Decl., ¶3. There is no automated way to do this download-to-contract analysis. See id., ¶¶3-10. Oracle laid out the non-privileged factual details and conclusions of the investigation in its Complaints and interrogatory responses. See, e.g., Fourth Amended Complaint ("FAC") ¶¶ 97-100, Dkt. No. 418; see also Alinder Decl., ¶7 & Ex. E (investigation directed by counsel, including creating certain spreadsheets that correlated system codes from the JD Edwards downloads to JD Edwards products); see also Cowan Decl., Ex. C (Interrogatory No. 7). SAP, unbeknownst to Oracle, also used Customer Connection to generate very similar spreadsheets in the same time period. Attached as Exhibit F to the Alinder Declaration (and submitted in full on CD due to its size as Exhibit G), are excerpts from a 3,500+ page document created in February 2007 (according to the metadata), just days apart from the Jason Rice spreadsheet SAP says Oracle improperly withheld. SAP produced this spreadsheet from the files of SAP's former Director for North American Support Services, Mark Kreutz, an experienced former JD Edwards and Oracle employee, and one of seven employees SAP retained as a paid litigation consultant after it shut down TomorrowNow in October 2008. Alinder Decl., ¶¶9, 13 & Ex. H. SAP produced this 2007 spreadsheet in February 2009 (labeling it "minor clean-up"), more than a year after the initial Kreutz document production (and his deposition), and three days after Oracle produced the Customer Connection databases. Alinder Decl., ¶9. The February 2007 Kreutz document was apparently created using access to Customer Connection, and contains detailed information linking downloads to their related products. Rice Decl., ¶ 6. Indeed, the first ESU on the Kreutz document is the same as the first one on the Rice Spreadsheet, and contains virtually the same SAR, Object, and system code information. See 8 Case No. 07-CV-01658 PJH (EDL)
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Alinder Decl., ¶11 & Ex. LL at 216:17-218:11. At a minimum, the Kreutz document and others like it from SAP's files evidence detailed knowledge about how to use Customer Connection to generate exactly the type of spreadsheet that SAP complains about in this Motion. SAP employees have admitted as much in deposition. Keith Shankle, another former SAP employee, who reported up to Mr. Kreutz, created a "master" SAR spreadsheet to catalogue all the SARs on Customer Connection and index them by system code: Q. Did you populate a spreadsheet with every SAR available from Customer Connection for certain JD Edwards World subsets? A. Yes. Q. How did you do that? A. I used the Customer Connection to get that information. Alinder Decl., Ex. I at 79:14-20, 114:4-17. A later version of the spreadsheet Shankle was referring to above shows that between August 2006 and February 2007, Shankle scoured Customer Connection to collect and index system code and product information for SARs across 20 different update levels for both major releases of JDE World software, making more than 27,000 mapping determinations. Id. at ¶12 & Exs. K and L. b. September 2007-March 2008: Early Discovery and Judge Legge's Rulings Regarding Mapping

Beginning on September 21, 2007, with its initial production of customer contracts, Oracle began producing mapping information that would enable SAP to perform the same type of download-to-contract mapping analysis that Oracle performed prior to filing the Complaint. See, e.g., Alinder Decl., ¶ 15. The Parties met and conferred regarding SAP's request for download-to-product mapping information. See, e.g., id., Ex. N & ¶16. Throughout these discussions, Oracle made clear that it did have, and could create, spreadsheets to link system codes to products ­ and offered to provide them, as explained below. See id., Ex. N at 2-3 & ¶16. SAP did not disclose that it already had similar ones. On November 19, 2007, SAP asked for "information and documents that map the Oracle products at issue in this case to the Software and Support Materials available on Customer 9 Case No. 07-CV-01658 PJH (EDL)
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Connection to which Oracle believes a licensee of these products is entitled." Cowan Decl., Ex. L. On November 27, 2007, Oracle responded (in relation to RFPs 44-47): "As discussed on November 16, 2007, we have collected documents that tie together system codes and the software modules for the JD Edwards SSMs that TomorrowNow downloaded on behalf of its customers. We'll review these documents and will produce them as soon as reasonably possible in a meta-data scrubbed native form for word tables and excel files . . . ." Alinder Decl., Ex. O at 2. (The Parties use "SSM" to refer to the software and support materials available on Oracle's support websites.) In the same letter, Oracle separately responded to SAP's complaint about the RFP 51 response: "SAP is also not entitled to SAR and ESU information unrelated to the SSMs that it took, unless it contends that it took every available SAR and ESU improperly (which may well be the case, but Oracle has not yet made that allegation)." See id., Ex. O at 4. This was a key point. Oracle did not, at that time, know what SAP had on its systems because Oracle did not yet have that discovery from SAP. Oracle produced certain pre-existing spreadsheets and related documents that provided download-to-product mapping SAP had requested. See Alinder Decl., ¶15 & Ex. P. Oracle did not produce other, work product spreadsheets with download-to-product information (such as the one SAP identifies in its Motion) because it did not want to risk any waiver argument. See id., ¶15. On January 4, 2008, Oracle explained by letter to SAP that Oracle had granted SAP access to Customer Connection, which provided "the product mapping information." Id., Ex. N at 2-3. Through that access, as evidenced by the February 2007 Kreutz document that SAP produced in February 2009 and confirmed by Kreutz's Rule 30(6)(6) testimony and in the Rice Declaration, SAP could have recreated, at that time in January 2008, an index of system codes and ESUs, exactly like the spreadsheet created by Jason Rice and produced with Oracle's Expert Report. See id., ¶¶9-12, 45 & Exs. F, G, I, K, L, LL, and SS; Rice Decl., ¶¶3, 5-6. But Oracle went even further: it offered to create "spreadsheets that link the system codes for the JD Edwards SSMs to the licensed support product" provided SAP would agree to three conditions: "if you agree that you will not (1) claim that Oracle has waived any privileged 10 Case No. 07-CV-01658 PJH (EDL)
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or immunity, including but not limited to work product protection; (2) request any other data that Oracle has compiled in the process of creating the system code mapping we will produce, or (3) attempt to depose any Oracle consulting expert or attorney regarding the preparation of the system code documents." Alinder Decl., Ex. N at 2-3. Oracle did not make up these conditions. It took them, almost verbatim, from a similar offer made by SAP in October 2007, and accepted by Oracle, prior to SAP's production of a work product TomorrowNow network topology map. See Alinder Decl. Ex. Q. SAP rejected Oracle's offer on January 24, 2008. See id., Ex. R. This response affirmed Oracle's concerns about creating or producing work product, which it otherwise had no obligation to do (see below, Section (III)(A)(2)(e)). Instead, on January 25, 2008, Oracle produced detailed pre-existing spreadsheets (i.e., not ones created at the direction of counsel or experts related to the litigation) that it had located showing how the system codes for the JD Edwards downloads related to software licensed by customers in their license contracts. See id., ¶15 & Ex. P. These spreadsheets contain electronic download-to-product information similar to the information contained in the spreadsheets that are the subject of SAP's Motion (and found in SAP's own files). See id., ¶18. At the ensuing February 13, 2008 hearing, from which SAP selectively quotes in its Motion, SAP acknowledged Oracle's production of download-to-product information, and said so to Judge Legge: "So what Oracle has provided us is the link between the system code and the licensed product." Alinder Decl., Ex. C at 27:3-4. Thus, that hearing did not focus on whether Oracle had produced adequate download-to-product mapping, because SAP counsel confirmed that Oracle had produced that information. Rather, the "mapping" focus of that proceeding related to SAP's ability to automate the determination of whether the specific downloads on its system were licensed (i.e., download-to-contract mapping).1 See id. at 15:21-

While the quotes contained in this Opposition identify some key points made during the February 13, 2008 hearing, Oracle encourages the Court to review the relevant portion of the hearing transcript as a whole (provided as Exhibit C to the Alinder Declaration). 11
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25. Mr. Cowan reiterated: "Really, the issue is what data do they have in their possession that will speed the analysis of the TomorrowNow downloaded files, to allow us to segregate those things that our customers are rightfully entitled to under their licenses, and those things that we both agree they shouldn't have under their licenses." Id. at 22:25-23:5 (emphasis supplied). Judge Legge verified this key point "in English": LEGGE: In English, what you want is a mapping system which relates the subfiles, as I recall them here, to the products, and to the contracts. Is that right? MR. COWAN: Correct. Id. at 32:20-24 (emphasis supplied). Judge Legge then asked Oracle "Do you have, presently existing, any mapping device or program or code which would eliminate the necessity for doing it [i.e., mapping downloads to products to contracts] one by one?" to which Oracle responded "The answer to that, Your Honor, is: `Not that we have been able to generate so far.' We're still working on it, because we have the same interest in this that they do." Id. at 33:6-12. That was true then, and is true now. There still is no automated program that will tie a customer's license agreement to any particular download. Judge Legge's Order further confirmed these points: "Defendants want more detail in the mapping information, primarily to relate the information directly to defendants' sub-files, and the connections between the sub-files, the products and the contract. . . ." and recommended "that Oracle be directed, at its expense, to send an engineer . . . to the premises of defendants to work with one of defendants' engineers to see if a method of access can be developed." Cowan Decl., Ex. E at 4:3-16 (emphasis supplied). Judge Legge also ruled that it is SAP's burden to determine the licensed status of each download because license is an affirmative defense. See id., Ex. E & Ex. S at 119:15-25. Oracle prepared to send its engineer as Judge Legge had instructed. See id., ¶23 & Ex. W at 6. On February 19, 2008, SAP filed another motion to compel, seeking: (1) the source code for "Change Assistant" and (2) Customer Connection's underlying databases. See Alinder Decl.,

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Ex. U.2 In that motion, SAP said (in language not disclosed or referenced by the timeline in footnote 8): "Moreover, the databases that Change Assistant uses to perform its search and retrieval functions will provide part of the data defendants continue to seek regarding the mapping of all downloadable software and support materials to all of the licensed products that are implicated by Oracle's claims in this case." Id. at 7. As described in Oracle's responding papers, these databases comprised 1.2 Terabytes of data, from "at least nine separate databases" and "approximately 65 million individual records." Alinder Decl., Ex. T at 8. Oracle disagreed that production was necessary or appropriate because Oracle had already "allowed Defendants unfettered access to inspect Customer Connection with a special log-in credential, and even allowed them to download SSMs using the Change Assistant tool."3 Id. at 8. Nevertheless, Oracle agreed to produce these databases related to this further request for "mapping" information as a compromise to resolve the request for Change Assistant, its source code, and the Customer Connection databases. See id. Dissatisfied with this proposal, SAP continued to press for the Change Assistant source code, in a further round of briefing to Judge Legge. Alinder Decl., Ex. V. Oracle again explained the necessity of matching downloads to individual contracts to determine whether the download was licensed. Id., Ex. W at 3. Oracle reiterated its offer to produce these databases, but continued to object to producing the source code. See id. With its brief, Oracle also submitted a declaration from Jason Rice explaining the nature of the Customer Connection databases and the function of Change Assistant to search them by system code. See Alinder Decl., Ex. D at ¶¶4-5. SAP never sought to depose Jason Rice after receiving this declaration, and only ever sought to depose him related to communications between him and Oracle's experts as disclosed in Oracle's November 16, 2009 Expert Reports. See Alinder Decl., ¶28. Oracle
2

Change Assistant was a tool developed by Oracle for its customers to facilitate downloading of SSMs, including from Customer Connection. SAP used Change Assistant as one means of downloading from Oracle prior to the lawsuit, and as part of the 2008 access provided by Oracle. 3 After two days of this access, SAP requested no further access to Customer Connection for almost two years, and not until less than a month before the close of discovery. See November 10, 2009 Joint Discovery Conference Statement at 34, Dkt. No. 547. 13
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also reiterated that it was "prepared to sit down with one of its engineers at SAP's offices to examine those files and assist in the [download-to-contract] mapping exercise" pursuant to Judge Legge's February 22, 2008 Order. See id., Ex. W at 6. On March 19, 2008, Judge Legge denied the request for Change Assistant source code, and agreed with Oracle's proposed compromise of producing the Customer Connection databases, along with the engineer assistance. See id., Ex. X (the Report and Recommendation as to that issue became final on April 9, 2008). From that time until the nine-topic Rule 30(b)(6) deposition notice discussed with the Court on November 17, 2009, SAP did not ever make another request for any mapping information. c. April 2008-February 2009: Oracle Produces the Customer Connection Databases

After the March 19, 2008 Order, Oracle set about the time-consuming task of producing the Customer Connection databases. See Alinder Decl., ¶30. According to Oracle's records and recollection, SAP never asked about the status of the production. See id. By December 2008, Oracle had a set of the databases it was preparing for production, told SAP so, and further informed SAP that the databases also addressed certain pending copyright discovery issues. See id., ¶30 & Exs. Y and Z. To Oracle's surprise, SAP requested that Oracle prioritize other productions over the Customer Connection databases it had requested, including on January 30, 2009, stating: "Also, it appears from a number of your emails that the production of the Customer Connection database is slowing down Oracle's production of other documents. We are still not clear why Oracle is prioritizing production of that database over [custodial] documents that we have actually requested." Id., Ex. AA. Oracle produced the databases on February 9, 2009, and reminded SAP on February 13, 2009 that "the Customer Connection databases on drives labeled, ORCL062 and ORCL063 . . . contain large amounts of descriptive information concerning Oracle's software and support materials, including unregistered works." Id., Ex. BB. The timing compares favorably to SAP's own production of its downloaded SSMs (a necessary piece of the mapping exercise, according to Mr. Cowan at the February 13, 2009 hearing: "I think you need a combination of both, 14 Case No. 07-CV-01658 PJH (EDL)
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because you need the Oracle data that Mr. Howard has just presented to you ­ and we don't dispute any of the things he just said, in terms of the type of data and what it means."). Id., Ex. C at 22:20-24. SAP began that process in mid-2007 and did not produce them until October 29, 2008 (approximately twice as long as it took Oracle to produce the Customer Connection databases). See id., Ex. CC at ¶15. d. March 2009-December 3, 2009: Oracle Provides Technical Help but SAP Takes No Discovery

It was not until March 9, 2009, that SAP raised concerns about accessing the databases. See Alinder Decl., ¶36. Oracle responded on March 20, 2009 with further assistance. See id. On April 3, SAP requested assistance from Oracle in restoring the databases, which Oracle provided including by emails dated April 14 and 20. See id., ¶36 & Exs. DD and EE. After SAP agreed that doing so would not waive work product, Oracle created a thirteen-page technical instructional document with step-by-step instructions of how to restore and access the "Update Center" database (one of the Customer Connection databases). See id., ¶36 & Ex. EE. Mr. Rice confirmed during his deposition these databases were a primary source of the data that SAP complains of in this Motion. Cf. id., Ex. EE & Ex. FF at 119:7-9 (both discussing the Update Center databases). Oracle explained that these instructions "should be self-explanatory for your experts, but if you have questions, please let me know." See id., Ex. EE. SAP never responded with further questions. See id., ¶36. In May 2009, Oracle conformed its Interrogatory No. 7 response to reflect the earlierprovided Customer Connection databases and download-to-product electronic data provided in early 2008. See Cowan Decl., Ex. C. SAP incorrectly states it then requested additional mapping information in June 2009. See Motion at 12 n.8. The truth is that SAP merely asserted that it did not have the mapping information it needed in connection with Oracle's motion to compel further responses to Interrogatories 13 and 14 (which requested SAP to support its statements that it had taken "inappropriate" downloads from Oracle and to identify them). See Cowan Decl., Ex. O at 9. Despite having long had all the download-to-product mapping information and data, as 15
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described above, SAP maintained otherwise in its supplemental responses, ordered by the Court and served on September 23, 2009. See Alinder Decl., Ex. GG. Surprised, Oracle responded on October 13 by again detailing all of the "mapping" information, including the electronic spreadsheets produced in February 2008, that SAP had in its possession. See Cowan Decl., Ex. J at 2 ("Oracle has produced more download, mapping and licensing information to Defendants than it had when it first analyzed Defendants' illegal downloading . . . ."). SAP did not respond to Oracle until November 2, 2009, when it served the nine-part Rule 30(b)(6) deposition notice on "mapping" topics. See Alinder Decl., ¶39 & Ex. HH. At the November 17, 2009 Discovery Conference, the Court recommended that SAP seek information on a more informal basis than its deposition notice, and Oracle agreed to provide it. See id., Ex. A at 28:6-10. SAP did not proceed with its "mapping" deposition, using its allotted deposition hours examining other witnesses and on other Rule 30(b)(6) topics, and never requested any further "mapping" information from Oracle prior to its Motion. See id., ¶19. e. December 4, 2009: Mr. Rice Confirms Oracle Had Produced Complete Mapping Information

All this brings us to Jason Rice's deposition on December 4. The only basis that SAP presents in support of its serious claim that Oracle has been withholding "critical" mapping documents is that deposition and related spreadsheets created by Mr. Rice that were produced with Oracle's Expert Report. Motion at 4. Mr. Rice is an Oracle software engineer who assisted Oracle's attorneys with technical issues during the investigation leading up to the filing of the Complaint and with technical requests from Oracle's technical expert, Kevin Mandia. See Alinder Decl., ¶37. Though omitted from SAP's papers, at his deposition, Mr. Rice confirmed what the chronology above reveals ­ SAP has had this same data in its possession for almost a year, and could have queried that data (and did) to create the same spreadsheets that SAP cites in its Motion. Mr. Rice explained: "Off the top of my head, we provided the SAR system database, we provided the Update Center database, and then we provided every single EnterpriseOne database that was listed at the point of time of collection, which would have been Xe, ERP 8, 8.9, 8.10, 16
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8.11, 8.11SP1, 8.12." Id., Ex. FF at 112:6-11; see also id., Ex. DD (April 14 email from Alinder to Charrington confirming the same). Mr. Rice confirmed what SAP's own Kreutz and Shankle spreadsheets prove, and which SAP knew, that the databases could be accessed to create these same types of spreadsheets: · "Q. And what did you validate? A. I validated more or less the same table information that you could do the queries similar to what I did to produce these types of documents." Id., Ex. FF at 110:20-23. "A. You could run queries to get the same data back, yes. Q. The same data that you had done ­ A. That created these artifacts that we discussed today." Id. at 117:4-8. "Q. This [Exhibit] was taken out of what database? A. The ­ That would be the Update Center database." Id. at 119:7-9.

·

·

The heart of SAP's Motion is the contention that Mr. Rice's spreadsheets represent "substantial and critical portions of [Oracle's] mapping information [that] were not produced by Plaintiffs" until Oracle's expert reports were produced. Motion at 8. SAP accuses Oracle of withholding these spreadsheets and at the same time "consistently maintain[ing] throughout this case that any download-to-product mapping that can be done has to be done manually, on a fileby-file basis." See id. at 4. Neither of those statements is true. As the chronology above shows, and Mr. Rice's testimony confirms, Oracle has actually always maintained the opposite, disclosing and providing to SAP, beginning in January 2008, multiple sources of electronic data to map downloads to products. SAP knew prior to its Motion that it had all of these data sources, including the databases Mr. Rice used to generate the spreadsheets that SAP cites in the Motion. SAP's real problem, as described by SAP counsel and confirmed by Judge Legge, is its inability to easily map the individual downloads on SAP's systems to individual customer license agreements, in part because SAP did not keep track of what credentials it used to take any of the 9 million downloads on its systems. Alinder Decl., ¶¶40-47 & Exs. II-NN. That is what Oracle has "consistently maintained" it cannot provide. Oracle has explained many times, and reiterates again now, that this license mapping can be done, but there is no existing automated way to do it to Oracle's knowledge. See id., ¶48; see also Ransom Decl., ¶¶3-10. 17
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2.

The Court Should Deny SAP's Motion for Further Mapping Information for Any of Five Reasons

Having set forth the detailed record of relevant events preceding SAP's Motion, Oracle returns to the five distinct substantive reasons that SAP's Motion fails. a. SAP Knew When It Filed This Motion That It Had the Data It Says Oracle Withheld

SAP had all of the necessary mapping information in its possession in at least seven different forms. SAP knew all of this before filing this Motion. First, SAP's Motion claims that the "critical" information it lacked was an "electronic spreadsheet showing which system codes relate to each ESU, SAR, and object that is available for downloading would be very useful in that exercise." Motion at 5. SAP's own documents, data, and Rule 30(b)(6) testimony disprove this contention. SAP created that mapping data itself, as part of its regular business practices, at least as early as February 2007, before Oracle filed its Complaint and before Jason Rice created the earliest spreadsheet for Oracle's investigation cited in SAP's Motion. See Alinder Decl., ¶¶9-12, 45 & Exs. F, G, I, K, L, LL, and SS; Rice Decl., ¶¶3, 5-6. Not only did SAP have at least 37 former JD Edwards employees, who likely knew which system codes related to which products, but it hired Mark Kreutz, a former longtime JD Edwards employee and former Director of North American Support Services at TomorrowNow, to be its litigation consultant during this case. Alinder Decl., ¶¶ 13-14 & Ex. H; Rice Decl., ¶¶56. Mr. Kreutz maintained his own "massive" Customer Connection spreadsheet ­ to use SAP's term ­ that lists SARs, ESUs, and Objects almost identical to the Rice Spreadsheet that SAP complains about, and testified that he understood and maintained instructional documents about how Customer Connection and system code mapping worked. See Alinder Decl., ¶¶9-11, 45 & Exs. F, G, LL, and SS. Indeed, the first ESU on the Kreutz document is the same as the first one on the Rice Spreadsheet, and contains similar information about SARs and Objects that tie to system codes. See id., ¶11. The Shankle documents and testimony reveal the same knowledge regarding how to compile electronic download-to-product mapping spreadsheets from Customer 18 Case No. 07-CV-01658 PJH (EDL)
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Connection. See id., ¶12 & Exs. I, K, and L. That SAP claims now that it had no idea this was possible from Customer Connection is belied by its documents, its testimony, and experience. The fact is that knowing how the system codes related to the JD Edwards products was the job of over 30 experienced TomorrowNow employees, and as Shankle testified, was basic and obvious to them: "The system codes are standard system codes in the JD Edwards software. It's the basis of how the software was originally designed." Alinder Decl., Ex. I at 114:11-13. Accordingly, SAP's own documents and testimony expose the fundamental flaw of its Motion ­ before Oracle even filed its Complaint, SAP had the very "mapping" information that it claims surprised it at the December 4, 2009 deposition, it had former JDE employee experts as employees and litigation consultants to explain this to it, and it had access to Customer Connection where all of this data resided. Second, SAP had litigation access to all of the mapping information available on Customer Connection starting on January 3-4, 2008. See id., ¶49. For example, the Customer Connection website classifies all of the JD Edwards support materials by software release and product version. See Ransom Decl., ¶6. Those support materials can be searched and downloaded by system code. See id.; see also Rice Decl., ¶3. Oracle told SAP this by letter on January 4, 2008. See Alinder Decl., Ex. N. SAP could have accessed, inspected, and downloaded any support materials, including all ESUs or SARs. See Sections III(A)(2)(b)-(c), above. Third, in January 2008, Oracle produced to SAP extensive pre-existing spreadsheets with download-to-product mapping information. See Section III(A)(1)(b), above. Fourth, Oracle served detailed interrogatory responses explaining Oracle's own process for mapping downloads to customer licenses. Oracle also explained this process to SAP and Judge Legge, using the PowerPoint slides attached as Exhibit A to the Ransom Declaration at the February 2008 motion to compel hearing.4 See Alinder Decl., ¶50. Oracle also identified, on
4

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September 21, 2007, the employees that had been involved in the process should SAP have wanted to depose them (SAP declined to use any of its 450 deposition hours this way). See id., Ex. E. Fifth, Oracle has produced the customer license agreements, support renewal information, and customer website terms of use, which Oracle had used to evaluate licensing of the downloads that SAP took as reflected in Oracle's log files.5 See id., ¶15. Sixth, Oracle has produced its log files showing the downloading activity Oracle can identify from its own records. See id. Seventh, at SAP's request, Oracle produced the underlying 65-million record Customer Connection databases on February 6, 2009. See id., ¶52. SAP knew about the mapping information in these databases from multiple sources, and (though omitted from SAP's Motion) received further confirmation from Jason Rice on December 4, 2009. See Sections III(A)(1)(c)(e), above. With these databases, SAP can create any spreadsheet it chooses and has access to the JD Edwards mapping data available through Customer Connection, even though Customer Connection is no longer available for live access. See Alinder Decl., Ex. II at 117:4-8. b. SAP's Own Failures to Accept or Pursue More Discovery Preclude Relief on This Issue

SAP is also estopped by at least seven of its own discovery decisions. First, SAP rejected Oracle's offer to produce additional, work product, spreadsheets in January 2008. See Section III(A)(1)(b), above. Second, SAP abandoned its inspection of Customer Connection, which SAP knew had product mapping information, after just two days in January 2008, and did not request further access until November 2009 (which Oracle promptly provided). See Section III(A)(1)(d), above; see also Alinder Decl., ¶49. Third, SAP failed to take advantage of the assistance of an Oracle engineer to help develop a mapping solution, as ordered by Judge Legge. See Section III(A)(1)(b), above. Fourth, SAP asked Oracle to not prioritize the production of
5

In addition to these sources of licensing information, SAP has additional customer licensing information at its disposal in the customer-specific financial reports supplementing the customer contract production. See Alinder Decl., ¶51. 20
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the very Customer Connection databases it had requested. See Alinder Decl., Ex CC. Fifth, SAP failed to depose any of the Oracle employees knowledgeable about the technical details of downloads or Customer Connection until the last day of discovery (and only then on the supposed ground of communications with experts). See id., ¶28. SAP had Jason Rice's declaration describing the Customer Connection databases in March 2008, it had his name from Oracle's interrogatory responses in September 2007, and it had ample opportunity to take Rule 30(b)(6) or individual deposition testimony to explore any or all of these issues. See id., Exs. D & E. Sixth, SAP voluntarily withdrew its Rule 30(b)(6) "mapping" deposition notice, set for December 1, 2009, after the Court suggested that SAP obtain download information informally instead. See id., ¶19. Seventh, SAP ignored this suggestion and (again) did not pursue the suggested informal exchange. See id. c. SAP's Own Contrary Statements and Positions Preclude Relief on This Issue

SAP's Motion also takes at least four positions that contradict what it has said, done, and not done. First, SAP had in its possession detailed electronic spreadsheets that map system codes to SARs and ESUs, created from Customer Connection by JD Edwards experts who SAP later retained as litigation consultants. See Section III(A)(1)(a), above. SAP never disclosed or produced these spreadsheets prior to the relevant depositions, and never asked Oracle to confirm their accuracy or to send the engineer ordered by Judge Legge to evaluate them. Second, SAP engaged in a similar mapping exercise before it filed its Answer, as part of its investigation, and has objected to producing any documents generated through that process on work product grounds. See Alinder Decl., Ex. OO. Indeed, the Parties stipulated that they would not list on privilege logs documents created after Oracle filed its Complaint. To the extent SAP now changes course and wants to throw open the gates to work product created by each side in its own investigation, a position contrary to the stipulation and all of SAP's discovery responses, then SAP must produce its own privilege log and the review, certification, and production must go both ways. Oracle submits that such an exercise makes no sense in this case and at this late 21
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date. Third, SAP contends that it need not disclose work product relied upon by experts until expert reports, which is what Oracle did here. See Alinder Decl., ¶54; see also Stipulation Regarding Expert Discovery, Dkt. No. 275, at 1. Fourth, Judge Legge has ruled, SAP has accepted, and it is now law of the case that it is SAP's burden to do its own time-consuming download-to-contract mapping. See Cowan Decl., Ex. E at 3-4; Alinder Decl., Ex. S at 119:15-25; U.S. v. Estrada-Lucas, 651 F.2d 1261, 1263-64 (9th Cir. 1980) ("A decision of law in a case, once made, becomes the `law of the case,' and should not be changed absent clear error in the original ruling or a change in the relevant circumstances."). As SAP said in opposing Oracle's motion to compel, "[Oracle] can do that [analysis] as easy as we could . . . The data is there." See, e.g., Alinder Decl., Ex. PP at 24:18-22. d. SAP Has Suffered No Prejudice

SAP has suffered no prejudice for two reasons. First, to the extent it seeks download-toproduct mapping information, it had that, as shown above. Second, other than the credentials reflected on the logs Oracle has produced, SAP has admitted it cannot do a full download-tocontract analysis for the downloads on its systems regardless of what Oracle provides because it does not have, and cannot re-create, the customer credential used for any given download on its system. See id., ¶40 & Ex. II, Ex. JJ at 43:10-19 and Ex. KK at 570:17-571:2. Further, SAP has also admitted to huge volumes of downloads that exceed the contract rights of the customers whose credentials it used. See id., ¶44 & Ex. JJ at 45:16-25, 123:18-124:1, Ex. KK at 578:12-16, 583:2-6, Ex. LL at 171:2-11, Ex. MM at 138:12-22 and Ex. NN at 72:18-75:9. Thus, SAP's license analysis, which is its affirmative burden, could not get off the ground because it cannot map most of its 9 million downloads to a customer license, either in a manual or automated way. e. SAP's Requested Relief Invades Oracle's Work Product and Is Unnecessary, Inappropriate, and Unduly Burdensome

SAP's failure to take downloading discovery does not justify access to Oracle's pre-trial work product or other unnecessary, inappropriate, untimely, and unduly burdensome relief. It also does not justify the serious, incorrect accusations leveled by the Motion. 22 Case No. 07-CV-01658 PJH (EDL)
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1.

The Unproduced Documents Are Protected Work Product

The spreadsheets put together by Jason Rice as part of Oracle's investigation, other than those relied upon by Oracle's experts and produced