Oracle Corporation et al v. SAP AG et al

Filing 601

Declaration of Scott Trainor in Support of 599 Memorandum in Opposition, to Oracle's Motion to Modify the Protective Order and to Compel Deposition Testimony and Further Responses to Requests for Admission filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Signature Page (Declarations/Stipulations))(Related document(s) 599 ) (McDonell, Jason) (Filed on 1/5/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 601

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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 SCOTT TRAINOR IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO MODIFY THE PROTECTIVE ORDER AND TO COMPEL DEPOSITION TESTIMONY AND FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS Date: January 26, 2010; Time: 9:00 am Courtroom: E, 15th Floor Judge: Hon. Elizabeth D. Laporte
TRAINOR DECL. ISO DEFS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL Case No. 07-CV-1658 PJH (EDL)

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I, SCOTT TRAINOR, declare: I am a Vice President for SAP America, Inc., one of the Defendants in this case. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. I was deposed on October 13, 2009 by Plaintiffs Oracle USA, Inc., Oracle

International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. (collectively "Oracle"). I am an attorney licensed to practice within the State of California. During that deposition, I was represented as an employee of SAP by Jason McDonell of Jones Day and separately as an individual by Pamela Phillips of Howard Rice Nemerovski Canady Falk & Rabin. I have reviewed the transcript of the deposition. I have also reviewed pages 9-18 of Oracle's Motion to Modify the Protective Order and to Compel Deposition Testimony and Further Responses to Requests for Admissions ("Motion to Compel" or "Mot.") and portions of the Declaration of Chad Russell in Support of Oracle's Motion to Modify the Protective Order and to Compel Deposition Testimony and Further Responses for Admissions ("Russell Decl."). 2. During the portion of my deposition reflected on pages 11 and 12 of Oracle's

Motion to Compel, under the "Compartmentalize" line of questions, Oracle's counsel asked me if I "compartmentalize[d]--[my] experience" at PeopleSoft. In order to answer this question with any more detail than I have already testified to in response to similar questions, I believe I would have to disclose information that is privileged and confidential to both PeopleSoft and SAP. 3. During the portion of my deposition reflected on page 14 of the Motion to Compel

under the heading "Communications with Prospective Customers," I understood Oracle's counsel to be asking me to explain the phrase "you don't want us accessing" as I understood it at the time of the deposition. I believed that for me to answer, it would require me to do a legal analysis of some of Oracle's allegations in the case pending before this Court. I did not understand Oracle's counsel to be asking me to explain my prior understanding of the phrase "you don't want us accessing," specifically, my understanding of that phrase at the time I sent the email reflected in Exhibit 1681. See Russell Decl. ¶ 24, Ex. R. (Exhibit 1681). If Oracle's counsel was asking me to explain my understanding of the phrase as I understood it at the time Exhibit 1681 is dated, I -1TRAINOR DECL. ISO DEFS' OPPOSITION
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apologize for misunderstanding the question, and I can answer that question without disclosing attorney client privileged communications or protected work product. 4. During the portion of my deposition reflected on page 14-15 of the Motion to

Compel, under the heading "Misrepresentations to Customers," Oracle's counsel asked me: "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?" Mot. at 14-15. In response, I testified that that statement was in the document I sent to Waste Management, although I did not and do not recall if I actually drafted that statement. Counsel then asked me: "Was that a true statement as far as you knew?" If by that question counsel intended to ask me whether it is true that TomorrowNow took the position with Waste Management that "TomorrowNow's rights to use the PeopleSoft software come entirely by way of the Waste Management license with PeopleSoft," then I can answer that question directly without disclosing confidential or privileged information. If, however, by that question counsel sought from me a legal analysis of that statement, I am concerned that it could require me to disclose confidential and privileged information of PeopleSoft and Defendants. My understanding during the deposition was that Oracle's counsel had instructed me not to divulge such information. 5. During the portion of my deposition reflected on page 14-15 of the Motion to

Compel, under the heading "Misrepresentations to Customers," Oracle's counsel asked me: "To your knowledge, did SAP or TomorrowNow ever misrepresent facts to customers during negotiation of terms?" I am aware that there is a legal doctrine of "misrepresentation," and I interpret counsel's question to request that I perform a legal analysis and draw legal conclusions about whether I am aware of any communications by SAP or TN that constituted actionable misrepresentations. 6. During the portion of my deposition reflected on page 15 of the Motion to Compel,

under the heading "Indemnification Policy," Oracle's counsel asked me: "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?" -2TRAINOR DECL. ISO DEFS' OPPOSITION
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I cannot answer this question without revealing attorney client privileged communications between employees of TomorrowNow and me. Over the course of my work for TomorrowNow, I had confidential and privileged discussions with Bob Geib, TomorrowNow's head of sales, concerning legal considerations relating to this very same subject matter. 7. During the portion of my deposition reflected on page 17 of the Motion to Compel,

under the heading "Compliance with ethical obligations," Oracle asked me about my compliance with my ethical obligations. I have consulted with my attorney, Pamela Phillips, in regard to my past and current ethical obligations, and I would not be able to answer these questions without revealing privileged attorney-client communications. 8. During the portion of my deposition reflected on page 18 of the Motion to Compel,

under the heading "Willfulness of copyright infringement," Oracle's counsel asked me whether SAP or TomorrowNow had taken "any steps to determine whether a particular customer's allowance of access to software constituted copyright infringement?" or ever analyzed "in connection with a negotiation of a contract the general topic of a customer's rights to provide access to software?" I did have discussions with TomorrowNow employees, including Vice President of Sales Bob Geib, about the legal strategy for interacting with customers on the issue of the customers' rights to provide PeopleSoft software to TomorrowNow. Those discussions are privileged. If asked to provide more information, that would cause me to disclose the content of privileged discussions that I had with TomorrowNow employees. 9. I have reviewed an unredacted version of TN-OR00852363. This document

describes efforts to modify the TomorrowNow Support Services Agreement, which was the form agreement between TomorrowNow and its customers. The redacted sections reflect the content of communications between Bob Geib and myself about legal advice I gave him in regard to modifying the Support Services Agreement. // //

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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 _______ day of January 2010 in Palo Alto, California.

____________________________ Scott Trainor

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TRAINOR DECL. ISO DEFS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL Case No. 07-CV-1658 PJH (EDL)