Oracle Corporation et al v. SAP AG et al

Filing 608

Declaration of Mark White in Support of 607 Response in Support of Plaintiffs' Administrative Motion to Permit Plaintiffs' to File Under Seal Information Supporting Oracle's Opposition to Defendants' Motion to Compel filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Signature Page (Declarations/Stipulations))(Related document(s) 607 ) (Delahunty, Patrick) (Filed on 1/11/2010) Modified on 1/12/2010 (vlk, COURT STAFF).

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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.

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., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) STIPULATION AND [PROPOSED] ORDER TO AMEND THE STIPULATED PROTECTIVE ORDER

STIPULATION AND [PROPOSED] ORDER TO AMEND THE SPO Case No. 07-CV-1658 PJH (EDL)

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Plaintiffs Oracle USA, Inc. Oracle International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. ("Plaintiffs") and Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. ("Defendants," and together with Oracle, the "Parties") jointly submit this Stipulation and Proposed Order to Amend the Stipulated Protective Order. WHEREAS, on June 6, 2007, the Court issued a Stipulated Protective Order in this matter (D.I. 32); WHEREAS, the Parties have agreed, with the permission of the Court, Exhibit D to the Stipulated Protective Order ("Exhibit D"), titled "SAP Coverage Counsel Addendum," and its related acknowledgement form titled "SAP Coverage Counsel Declaration of Compliance" ("Exhibit E") shall be made part of the Stipulated Protective Order; and WHEREAS, the Parties have agreed, with the permission of the Court, Exhibits D and E, attached to this Joint Stipulation and Proposed Order as Attachment 1, shall immediately follow Exhibit C in the Stipulated Protective Order. IT IS SO STIPULATED. DATED: January 6, 2009 JONES DAY

By: /s/ Scott Cowan Scott Cowan Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. In accordance with General Order No. 45, Rule X, the above signatory attests that concurrence in the filing of this document has been obtained from the signatory below.

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STIPULATION AND [PROPOSED] ORDER TO AMEND THE SPO Case No. 07-CV-1658 PJH (EDL)

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DATED: January 6, 2009

BINGHAM McCUTCHEN LLP

By:

/s/ Holly House Holly House

Attorneys for Plaintiffs ORACLE USA, INC., ORACLE INTERNATIONAL CORPORATION, ORACLE EMEA LIMITED, and SIEBEL SYSTEMS, INC.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

January 7, 20 Date: ____________10

______________________________ Judge Elizabeth D. Laporte United States Magistrate Judge

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STIPULATION AND [PROPOSED] ORDER TO AMEND THE SPO Case No. 07-CV-1658 PJH (EDL)

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Exhibit D SAP COVERAGE COUNSEL ADDENDUM This is an addendum to the Stipulated Protective Order ("Protective Order") dated June 6, 2007, and the Amendment to the Stipulated Protective Order ("Protective Order Amendment") dated November 19, 2009, in the matter Oracle Corp. et al. v. SAP AG, et al. (the "Action"), 07-CV1658, filed in the United States District Court for the Northern District of California, San Francisco Division, and shall be made part of the Protective Order and Protective Order Amendment. I. Definitions All capitalized terms herein shall have the same meanings as those terms that are capitalized in the Protective Order and the Protective Order Amendment. In addition, "SAP Coverage Counsel" shall refer to SAP's retained outside counsel who have been retained to provide counsel to SAP as to SAP Insurers and who also receive Discovery Materials designated as "Confidential Information" or "Highly Confidential Information ­ Attorneys' Eyes Only" under the Protective Order ("Designated Material") under this SAP Coverage Counsel Addendum to the Protective Order and Protective Order Amendment. SAP Coverage counsel shall also include members of the outside counsel firm, associate attorneys, contract attorneys, paralegals, secretarial staff, clerical and other regular employees. In addition, "Software and Support Materials" means, without limitation, all program updates, software updates, bug fixes, patches, custom solutions, and instructional materials, created or owned by Oracle, or derived from, copied from, or based on any such materials, including by SAP AG, SAP America, or SAP TN, across the entire family of Oracle products (including Oracle Database products, PeopleSoft products, JDE Products, and Siebel products). In addition, "Material Subject to Export Control Laws" includes any material subject to export control laws and regulations of the United States and other relevant export control laws and regulations worldwide (collectively referred to as "export control laws"), and includes Oracle software, Oracle products including software (including object code, source code, interpreted code or any other code), materials incorporating or referring to object code, source code, interpreted code or any other code, Software and Support Materials (including paper fixes), and documentation applying to Oracle software or Oracle products including software, as well as configuration files and translations, and any technical or functional documents (such as architectural plans, project plans, and system diagrams). II. SAP Coverage Counsel Access to Designated Materials Notwithstanding all provisions contained in the Protective Order and the Protective Order Addendum, pursuant to this SAP Coverage Counsel Addendum, upon request, SAP Coverage Counsel shall be provided with copies of Discovery Materials including, but not limited to, Designated Materials, which are in SAP's possession, custody, or control. SAP Coverage Counsel will not only use this information to provide counsel to SAP in regard to coverage issues arising from the Action, but will also provide this information where necessary and on behalf of SAP to the Insurer Receiver Parties, as defined in the Protective Order Addendum. The SAP Insurers and SAP share a common and mutual interest in the defense of the Action,

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notwithstanding the SAP Insurers' ongoing reservation of rights, and the exchange of information between SAP, by way of SAP Coverage Counsel, and the SAP Insurers shall not affect any privilege or attorney work-product protection that may apply to such information, or the protections granted by the Protective Order. Nothing in this addendum shall be deemed to permit SAP to use any Designated Materials that were created by or owned by Oracle in any litigation between SAP and the SAP Insurers. a. Access to Materials Designated as "Confidential"

In addition to those persons listed in paragraph 9 of the Protective Order and those listed in the Protective Order Addendum, counsel for a Receiving Party may disclose or make available any Discovery Material designated as "Confidential Information" and/or any information derived from such Discovery Material to SAP Coverage Counsel including necessary secretarial, clerical, administrative or support staff. b. Access to Materials Designated as "Highly Confidential"

In addition to those persons listed in paragraph 10 of the Protective Order and those listed in the Protective Order Addendum, counsel for a Receiving Party may disclose or make available any Discovery Material designated as "Highly Confidential ­ Attorneys' Eyes Only" and/or any information derived from such Discovery Material to SAP Coverage Counsel. c. Compliance Access Contingent upon Signing the Coverage Counsel Declaration of

Each person seeking to receive Designated Materials shall execute a SAP Coverage Counsel Declaration of Compliance in the form attached to this Protective Order as Exhibit E prior to receiving access to such materials. The SAP Coverage Counsel Declaration of Compliance(s) shall be submitted by electronic mail to [e-mail] and [e-mail]. III. Additional Provisions Applicable to SAP Coverage Counsel.

The following provisions shall be added to the Protective Order and Protective Order Addendum, and shall apply to SAP Coverage Counsel who shall have the same rights and obligations, and be subject to the same restrictions, as the Receiving Parties under the Protective Order and the Insurer Receiving Parties under the Protective Order Addendum, with the following caveats: a. Use of Materials

Subject to the restrictions on access in Section II, SAP Coverage Counsel may use Discovery Material for the purposes of: (i) preparation and creation of SAP Coverage Counsel of confidential written analyses, summaries, memoranda or other documents or records derived from Discovery Material for coverage evaluation, the evaluation of potential liability and exposure, the determination of insurance payments and/or the resolution of any non-public coverage dispute and (ii) responding to court order, subpoena, or like obligation.

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b.

Obligations under Paragraph 20

Further, SAP Coverage Counsel's obligations under Paragraph 20 of the Protective Order do not arise until final resolution between SAP and all SAP Insurers of all coverage determinations and issues (and related payments, if any) pertaining to the relevant policies. SAP Coverage Counsel will not be required to return or destroy any materials prepared solely by SAP Coverage Counsel and shall be entitled to retain all information and materials which it is required to retain by regulation or law. However, where SAP Coverage Counsel retains such information and materials, SAP Coverage Counsel shall keep them confidential in the same manner as during the pendency of the Litigation.

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Exhibit E SAP COVERAGE COUNSEL DECLARATION OF COMPLIANCE

I, _______________________________________________ [print or type full name], counsel for SAP America, Inc., declare that I have read in its entirety and understand the Stipulated Protective Order as amended by Exhibit B ­ Insurance Carrier Addendum and as amended by Exhibit E ­ SAP Coverage Counsel Addendum ("Stipulated Protective Order") that was amended by the United States District Court for the Northern District of California on _______________________________________[date] in the case of Oracle Corporation, et al. v. SAP AG, et al. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order. I promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in compliance with the provisions of this Stipulated Protective Order.

Date: _______________________ City and State where sworn and signed: ________________________________________

Printed name: _______________________________________ [printed name] Title:______________________________________

Signature: _____________________________________________ [signature]