Oracle Corporation et al v. SAP AG et al

Filing 657

Declaration of Zachary J. Alinder in Support of 649 MOTION for Partial Summary Judgment filed byOracle International Corporation, Oracle USA Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54 - 1, # 55 Exhibit 54 - 2, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63, # 65 Exhibit 64, # 66 Exhibit 65, # 67 Exhibit 66, # 68 Exhibit 67, # 69 Exhibit 68, # 70 Exhibit 69, # 71 Exhibit 70, # 72 Exhibit 71, # 73 Exhibit 72, # 74 Exhibit 73, # 75 Exhibit 74, # 76 Exhibit 75, # 77 Exhibit 76, # 78 Exhibit 77, # 79 Exhibit 78, # 80 Exhibit 79, # 81 Exhibit 80, # 82 Exhibit 81, # 83 Exhibit 82, # 84 Exhibit 83, # 85 Exhibit 84, # 86 Exhibit 85, # 87 Exhibit 86, # 88 Exhibit 87, # 89 Exhibit 88, # 90 Exhibit 89, # 91 Exhibit 90, # 92 Exhibit 91, # 93 Exhibit 92, # 94 Exhibit 93, # 95 Exhibit 94, # 96 Exhibit 95, # 97 Exhibit 96, # 98 Exhibit 97, # 99 Exhibit 98, # 100 Exhibit 99, # 101 Exhibit 100, # 102 Exhibit 101, # 103 Exhibit 102, # 104 Exhibit 103, # 105 Exhibit 104, # 106 Exhibit 105, # 107 Exhibit 106, # 108 Exhibit 107, # 109 Exhibit 108, # 110 Exhibit 109, # 111 Exhibit 110, # 112 Exhibit 111, # 113 Exhibit 112, # 114 Exhibit 113, # 115 Exhibit 114, # 116 Exhibit 115, # 117 Exhibit 116, # 118 Exhibit 117)(Related document(s) 649 ) (Howard, Geoffrey) (Filed on 3/3/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 657

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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., Plaintiffs, v. SAP AG, et al., Defendants. CASE NO. 07-CV-01658 PJH (EDL) DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF ORACLE'S MOTION FOR PARTIAL SUMMARY JUDGMENT [REDACTED EXS. 17, 18, AND 115-17]

DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF ORACLE'S MOTION FOR PARTIAL SUMMARY JUDGEMENT
Dockets.Justia.com

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Table of Contents
I. Index of Attached Exhibits........................................................ 2 II. Deposition Transcripts............................................................ 6 III. Authenticity and Admissibility of Electronic Records........................ 7 IV. Plaintiffs' Deposition Exhibits....................................................7 V. Defendants' Deposition Exhibits................................................. 13 VI. Copyright Registrations............................................................ 14 VII. Discovery Responses............................................................... 14 VIII. Pleadings.............................................................................17 IX. Other Documents................................................................... 17 X. Expert Report........................................................................19

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I.

INDEX OF ATTACHED EXHIBITS

Index of Deposition Transcripts Exhibit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Deponent Shai Agassi Richard Allison Leo Apotheker Thomas Bamberger John Baugh John Baugh John Baugh Werner Brandt Mark DeLing Christopher Faye Christopher Faye Catherine Hyde Catherine Hyde Catherine Hyde Henning Kagermann Ann Kishore Uwe Koehler Uwe Koehler Mark Kreutz George Lester Andrew Nelson Greg Nelson Shelley Nelson Shelley Nelson Owen O'Neil Gerhard Oswald John Ritchie Keith Shankle Arlen Shenkman Jochen Scholten Pete Surette Josh Testone William Thomas Mark White John Zepecki Thomas Ziemen Deposition Date January 5, 2009 November 12, 2009 October 2, 2008 January 29, 2009 February 6-7, 2008 August 13, 2009 December 3, 2009 November 12-13, 2008 August 27, 2009 October 22, 2008 March 18, 2009 April 1-2, 2008 February 12, 2009 May 12, 2009 September 25-26, 2008 April 14, 2009 December 4, 2008 December 5, 2008 October 29-30, 2007 April 23, 2009 February 26, 2009 & April 29, 2009 February 19, 2009 & December 3, 2009 October 30, 2007 & December 6, 2007 April 18, 2008 & September 3, 2009 March 10, 2009 December 10-11, 2008 December 2, 2009 June 16, 2009 June 4-5, 2008 November 30, 2009 June 19, 2009 June 3, 2009 December 4, 2009 March 5, 2009 September 9, 2008 September 30 ­ October 1, 2008

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(Index Continued) Index of Documents Exhibit 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 Document Stipulation re Admissibility of TN Databases, October 30, 2009 Plaintiffs' Deposition Exhibit 9 Plaintiffs' Deposition Exhibit 19 Plaintiffs' Deposition Exhibit 20 Plaintiffs' Deposition Exhibit 31 Plaintiffs' Deposition Exhibit 41 Plaintiffs' Deposition Exhibit 42 Plaintiffs' Deposition Exhibit 75 Plaintiffs' Deposition Exhibit 149 Plaintiffs' Deposition Exhibit 210 Plaintiffs' Deposition Exhibit 244 Plaintiffs' Deposition Exhibit 245 Plaintiffs' Deposition Exhibit 252 Plaintiffs' Deposition Exhibit 316 Plaintiffs' Deposition Exhibit 388 Plaintiffs' Deposition Exhibit 436 Plaintiffs' Deposition Exhibit 449 Plaintiffs' Deposition Exhibit 450 Plaintiffs' Deposition Exhibit 451 Plaintiffs' Deposition Exhibit 452 Plaintiffs' Deposition Exhibit 484 Plaintiffs' Deposition Exhibit 513 Plaintiffs' Deposition Exhibit 601 Plaintiffs' Deposition Exhibit 608 Plaintiffs' Deposition Exhibit 909 Plaintiffs' Deposition Exhibit 1045 Plaintiffs' Deposition Exhibit 1255 Plaintiffs' Deposition Exhibit 1255 (Sorted by Date) Plaintiffs' Deposition Exhibit 1259 Plaintiffs' Deposition Exhibit 1259 (Sorted by Date) BakTrak Restore Records for "HR810" Environments Plaintiffs' Deposition Exhibit 1413 Plaintiffs' Deposition Exhibit 1454 Plaintiffs' Deposition Exhibit 1459 Plaintiffs' Deposition Exhibit 1461 Plaintiffs' Deposition Exhibit 1544 Plaintiffs' Deposition Exhibit 1549 Plaintiffs' Deposition Exhibit 1550 3
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(Index Continued) Exhibit 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 Document Plaintiffs' Deposition Exhibit 1786 Plaintiffs' Deposition Exhibit 1821 Plaintiffs' Deposition Exhibit 1829 Plaintiffs' Deposition Exhibit 1839 Defendants' Deposition Exhibit 167 Defendants' Deposition Exhibit 246 Defendants' Deposition Exhibit 822 Defendants' Deposition Exhibit 824 Defendants' Deposition Exhibit 827 Defendants' Deposition Exhibit 828 PeopleSoft Customer Connection Terms of Use HRMS 7.0 Copyright Registration HRMS 7.5 Copyright Registration HRMS 8.1 Copyright Registration Database 8.1.6 Copyright Registration Database 9.2 Copyright Registration Database 10.2 Copyright Registration Defendants' Eighth Amended and Supplemental Response to Plaintiff Oracle Corp.'s Fourth Set of Interrogatories to Defendant TomorrowNow, Inc. and Third Set of Interrogatories to Defendants SAP AG and SAP America, Inc., No. 82 TN-OR08720040 (Relied on in Exhibit 92) Defendant TomorrowNow, Inc.'s Second Amended and Supplemental Response to Plaintiff Oracle Corp.'s First Set of Requests for Admission, No. 13 Defendants' Responses to Oracle's Fifth Set of Requests for Admissions, No. 1 Defendants' Supplemental Written Responses to Oracle Database Rule 30(b)(6) Testimony Defendant TomorrowNow, Inc.'s Eighth Amended and Supplemental Response to Plaintiff Oracle Corp.'s First Set of Interrogatories, Responses to No. 3 Defendants' Responses to Oracle's Second Set of Requests for Admissions, Responses to No. 501 Defendant TomorrowNow, Inc.'s Sixth Amended and Supplemental Response to Plaintiff Oracle Corp.'s Third Set of Interrogatories and SAP America, Inc.'s and SAP AG's Fifth Amended and Supplemental Responses to Plaintiff Oracle Corp.'s Second Set of Interrogatories, Responses to No. 4

93 94 95 96 97 98 99

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(Index Continued) Exhibit 100 101 Document Defendant TomorrowNow Inc.'s Seventh Amended and Supplemental Response to Plaintiff Oracle USA, Inc.'s First Set of Interrogatories, Responses to No. 6 Defendants' First Supplemental Responses and Objections to Plaintiff Oracle Corp.'s Fifth Set of Interrogatories to Defendant TomorrowNow, Inc. and Fourth Set of Interrogatories to Defendants SAP AG and SAP America, Inc., Responses to Nos. 122, 124 Charts Created from Exhibit 101 Oracle's First Amended Complaint, Dkt. 31, June 1, 2007 (relevant paragraphs) Defendants' Answer to Oracle' First Amended Complaint, Dkt. 36, July 2, 2007 (relevant paragraphs) Oracle's Fourth Amended Complaint, Dkt. 418, August 18, 2008 (relevant paragraphs) Defendants' Answer to Oracle' Fourth Amended Complaint, Dkt. 437, August 26, 2009 (relevant paragraphs) PeopleSoft/JDE LLC / OIC Asset Transfer Agreement PeopleSoft Inc. / Oracle Corporation Certificate of Ownership and Merger Wind Down Operational Program, TN-OR08720699 Declaration of Buffy Ransom in Support of Oracle's Opposition to Defendants' Motion to Compel, Dkt. 591, January 5, 2010 (relevant paragraphs) Senate Report NO. 99­432 for P.L. 99­474, Computer Fraud and Abuse Act of 1986 18 U.S.C. § 1030, 2006 Edition of the United States Code SAP TN Inventory Report Declaration of Brady Mickelsen Supplemental Expert Report of Paul K. Meyer, February 24, 2009 (relevant paragraphs) Oracle's Lost Support Revenue From Lost Customers, Schedule 34.SU to Meyer Report Chart created from Exhibit 116

102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117

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I, Zachary J. Alinder, declare as follows: 1. I am an attorney at law licensed to practice in the State of California and

before this Court, and am a partner with at Bingham McCutchen LLP, counsel of record for Plaintiffs Oracle International Corp. ("OIC") and Oracle USA, Inc. ("OUSA," predecessor to Oracle America, Inc., and together with OIC, "Oracle") in this action. I have personal knowledge of the facts stated below by virtue of my representation of Oracle in this action and if called as a witness could competently testify as to them. 2. For ease of use and reference and to the extent possible without losing

context, for all exhibits attached to this Declaration, including deposition transcripts, only the relevant pages and information have been provided. Unless otherwise noted below for a particular document, we have provided all highlighting and/or circling in these Exhibits to further assist in identifying the information relevant to Oracle's Motion for Partial Summary Judgment (the "Motion") against Defendants SAP AG, SAP America, Inc. (together, "SAP"), and TomorrowNow, Inc. ("SAP TN," and together with SAP, "Defendants"). II. DEPOSITION TRANSCRIPTS 3. Attached as Exhibits 1 through 36 are true and correct copies of excerpts from

transcripts of depositions in this case cited by Oracle in support of the Motion. The index at the beginning of this declaration identifies the cited Exhibit, the deponent, and the date(s) of each deposition. 4. Several of the depositions Oracle cites were conducted pursuant to Rule

30(b)(6). Two were initially individual depositions, but by the agreement of the parties, are also corporate testimony. First, after his deposition, Defendants designated John Baugh's December 3, 2009 testimony as Rule 30(b)(6) testimony for certain topics related to Oracle Database software. See ¶ 3 above, and Ex. 7 at 79:10-80:3. Second, while Catherine Hyde's April 1-2, 2008 testimony was pursuant to a Rule 30(b)(6) notice (see ¶ 3 above, and Ex. 12), Defendants also rely on the entirety of her individual testimony of February 12, 2009 and May 12, 2009 pursuant to Rule 33(d) in response to questions about the source of software used to create environments at SAP TN. See ¶ 58 below, and Ex. 92 (In response to Oracle's Interrogatory No. 6
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82, regarding the "source from which SAP TN received the original software media from which [environments were] created, Copied, or installed," Defendants stated in part, "TomorrowNow relies on all of the individual testimony of Catherine Hyde in response to this interrogatory. See February 12, 2009 Deposition of Catherine Hyde and May 12, 2009 Deposition of Catherine Hyde."). III. AUTHENTICITY AND ADMISSIBILITY OF ELECTRONIC RECORDS 5. As explained in Oracle's Motion, Defendants have stated that SAP TN

maintained a database called "Baktrak" to track information about its copies of PeopleSoft environments over time. See generally, Motion at pp. 2-3 and 5-7. Defendants have produced native data from BakTrak in multiple volumes. Defendants have produced at least three volumes for BakTrak (at TN-OR01005523, TN-OR01818628, and TN-OR06125330) between March 12, 2008 and April 20, 2009.1 The Parties have stipulated that this data is authentic and admissible, with certain exceptions not relevant here. This stipulation is attached as Exhibit 37. Defendants have not yet executed this stipulation, but Defendants last wrote, "[i]f these changes are acceptable, please send us the finalized version you intend to file for our approval before filing," after which Oracle confirmed that it accepted Defendants' changes entirely. Oracle emailed Defendants confirming this agreement again on March 2, 2009, requesting Defendants' immediate response if they disagreed, but received no further response prior to this filing. IV. PLAINTIFFS' DEPOSITION EXHIBITS 6. Attached as Exhibit 38 is a true and correct copy of a portion of Plaintiffs'

Deposition Exhibit 9, a document entitled "New Client OnBoarding Checklist." 7. Attached as Exhibit 39 is a true and correct copy of Plaintiffs' Deposition

Exhibit 19, an email produced by Defendants entitled "SAP and TomorrowNow." 8. Attached as Exhibit 40 is a true and correct copy of Plaintiffs' Deposition

Exhibit 20, an email produced by Defendants entitled "SAP and TomorrowNow Integration." 9. Attached as Exhibit 41 are true and correct copies of two pages from a native

Excel file produced by Defendants entitled "PeopleSoft Environment Spreadsheet.XLS." Oracle
1

We refer to each of these productions below as "BakTrak." 7
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marked a printout of this file as Plaintiffs' Deposition Exhibit 31. Attached Exhibit 41 includes the first page of the copy marked as Deposition Exhibit 31, and another page re-printed from the original native file for legibility. 10. Attached as Exhibit 42 are true and correct copies of two pages from a native

Excel file produced by Defendants on or about February 5, 2008 as "BakTrak_Backup.xls." Oracle previously marked a printout of portions of this file as Plaintiffs' Deposition Exhibit 41. Attached Exhibit 42 includes the first page of the copy marked as Deposition Exhibit 41, and a second page showing the first four rows of data re-printed from the original native file for legibility. 11. Attached as Exhibit 43 are true and correct copies of two pages from a native

Excel file produced by Defendants on or about February 5, 2008 as "BakTrak_Restore.xls." Oracle marked a printout of portions of this file as Plaintiffs' Deposition Exhibit 42. Attached Exhibit 43 includes the copy marked as Deposition Exhibit 42, and a second page showing the same data re-printed from the original native file for legibility. 12. Attached as Exhibit 44 is a true and correct copy of portions of Plaintiffs'

Deposition Exhibit 75, which was created by printing information from BakTrak. 13. Attached as Exhibit 45 is a true and correct copy of a document produced by

Defendants entitled "Business Case TomorrowNow." Oracle marked this document as Plaintiffs' Deposition Exhibit 149, in its originally-produced scanned "TIFF" form. Defendants later produced the native PowerPoint version. Therefore, attached Exhibit 45 includes the first page of the copy marked as Deposition Exhibit 149, and the more legible version printed from the native file of the same document comprises the rest of the exhibit. We have provided the highlighting and circling at p. 10, only. 14. Attached as Exhibit 46 is a true and correct copy of a portion of Plaintiffs'

Deposition Exhibit 210, an email produced by Defendants entitled "PeopleSoft 1-2-3." 15. Attached as Exhibit 47 is a true and correct copy of portions of Plaintiffs'

Deposition Exhibit 244, a document produced by third-party Andrews Kurth entitled "Stock Purchase Agreement." 8
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16.

Attached as Exhibit 48 is a true and correct copy of portions of Plaintiffs'

Deposition Exhibit 245, a document produced by third-party Andrews Kurth entitled "Disclosure Schedules to the Stock Purchase Agreement." 17. Attached as Exhibit 49 is a true and correct copy of Plaintiffs' Deposition

Exhibit 252, an email produced by Defendants entitled "Board of Directors." 18. Attached as Exhibit 50 is a true and correct copy of Plaintiffs' Deposition

Exhibit 316, an email produced by Defendants entitled "TNow." 19. Attached as Exhibit 51 is a true and correct copy of a portion of Plaintiffs'

Deposition Exhibit 388, an email produced by Defendants entitled "PeopleSoft 1-2-3." 20. Attached as Exhibit 52 is a true and correct copy of a document produced by

Defendants entitled "Supervisory Board Meeting ­ TomorrowNow Status Update." Oracle marked this document as Plaintiffs' Deposition Exhibit 436, in its originally-produced scanned "TIFF" form. Defendants later produced the native PowerPoint version. Therefore, attached Exhibit 52 includes the first page of the copy marked as Deposition Exhibit 436, and the more legible version of the same document printed from the native file comprises the rest of the exhibit. We have provided the highlighting and circling at pp. 3, 6, and 10, only. 21. Attached as Exhibit 53 is a true and correct copy of an email and attachment

produced by Defendants entitled "Business Case." Oracle marked these documents as Plaintiffs' Deposition Exhibit 449 in their originally-produced scanned "TIFF" form. Defendants later produced the native PowerPoint version of the attachment. Therefore, attached Exhibit 53 includes the first page of the copy marked as Deposition Exhibit 449, and the more legible version of the same document printed from the native file comprises the rest of the exhibit. We have provided circling at pp. 7-8, only. 22. Attached as Exhibit 54 is a true and correct copy of Plaintiffs' Deposition

Exhibit 450, a document produced by Defendants entitled "TomorrowNow Acquisition Monitoring ­ Status Update." 23. Attached as Exhibit 55 is a true and correct copy of Plaintiffs' Deposition

Exhibit 451, an email produced by Defendants entitled "TNow info/guideline update." 9
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24.

Attached as Exhibit 56 is a true and correct copy of a portion of Plaintiffs'

Deposition Exhibit 452, an email produced by Defendants entitled "PeopleSoft 1-2-3." 25. Attached as Exhibit 57 is a true and correct copy of Plaintiffs' Deposition

Exhibit 484, an email (and attachment) produced by Defendants entitled "Safe Passage Launched in N.A. ­ Important Information enclosed." 26. Attached as Exhibit 58 is a true and correct copy of Plaintiffs' Deposition

Exhibit 513, a document produced by Defendants entitled "Business Case." We have provided the circling at pp. 6-7, only. 27. Attached as Exhibit 59 is a true and correct copy of Plaintiffs' Deposition

Exhibit 601, which includes an email produced by Defendants entitled "FC7 accuracy," as well as the certified English translation of the same document. 28. Attached as Exhibit 60 is a true and correct copy of a native PowerPoint

document produced by Defendants entitled "Business Case TomorrowNow 2006." Oracle marked this document as Plaintiffs' Deposition Exhibit 608 in its originally-produced scanned "TIFF" form. Defendants later produced the native PowerPoint version. Therefore, attached Exhibit 60 includes the first page of the copy marked as Deposition Exhibit 608, and the more legible version of the same document printed from the native file comprises the rest of the exhibit. The document is redacted at p. 4 per Defendants' request. We have provided the highlighting and circling at pp. 4, 6, and 7, only. 29. Attached as Exhibit 61 are true and correct copies of three pages of data from

Plaintiffs' Deposition Exhibit 909 (originally printed from BakTrak). The first two attached pages are printed directly from Deposition Exhibit 909, and the third page contains the data from the rows in the Deposition Exhibit 909 referred to in cited testimony by Catherine Hyde (see attached Ex. 13 at 85:24-89:2), re-printed again from the native BakTrak file for legibility. 30. Attached as Exhibit 62 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1045, an email produced by Defendants entitled "TomorrowNow Employee Communication." 31. Attached as Exhibit 63 are true and correct copies of five pages of data from 10

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Plaintiffs' Deposition Exhibit 1255 (originally printed from BakTrak). The first attached page is printed directly from Deposition Exhibit 1255, and the other four pages are re-printed from the native BakTrak file for legibility. 32. The first screenshot at p. 7 of Oracle's Motion is a true and correct copy of

data from Plaintiffs' Deposition Exhibit 1255 (see ¶ 31, above). 33. The second screenshot at p. 7 of Oracle's Motion is a true and correct copy of

data from Plaintiffs' Deposition Exhibit 1255 (see ¶ 31, above). 34. Attached as Exhibit 64 is a true and correct copy of a printout of data from

BakTrak. We created attached Exhibit 64 using the same entries from BakTrak as Plaintiffs' Deposition Exhibit 1255 (see ¶ 31, above), but removed several columns for legibility and resorted the data by the "RESTORE_DATETIME" column. Dates before January 19, 2005 are highlighted in green and dates after January 19, 2005 are highlighted in yellow. For a general description of these columns, see ¶ 3 above, and Ex. 5 at 278:18-279:9 (Baugh), above. 35. Attached as Exhibit 65 are true and correct copies of three pages of data from

Plaintiffs' Deposition Exhibit 1259 (originally printed from BakTrak). The first attached page is printed directly from Deposition Exhibit 1259, and the other two pages are re-printed from the native BakTrak file for legibility. 36. Attached as Exhibit 66 is a true and correct copy of a printout of data from

BakTrak. We created attached Exhibit 66 using the same entries from BakTrak as Plaintiffs' Deposition Exhibit 1259 (see ¶ 35, above), but removed several columns for legibility and resorted the data by the "RESTORE_DATETIME" column. Dates before January 19, 2005 are highlighted in green and dates after January 19, 2005 are highlighted in yellow. For a general description of these columns, see ¶ 3 above, and Ex. 5 at 278:18-279:9 (Baugh). 37. Attached as Exhibit 67 is a true and correct copy of a printout of data from

BakTrak, reflecting certain columns from BakTrak's "Restore" table for "HR810" environments indicated. The data is sorted by the "RESTORE_DATETIME" column, and dates before January 19, 2005 are highlighted with green, and dates after January 19, 2005 are highlighted in yellow. 11
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38.

The screenshot at p. 8 of Oracle's Motion at is a true and correct copy of data

from attached Exhibit 67 (see ¶ 37, above). 39. Attached as Exhibit 68 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1413, an email produced by Defendants entitled "TomorrowNow WINS! Waste Management Inc," as redacted at p. 2 per Defendants' request. 40. Attached as Exhibit 69 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1454, an email produced by Defendants entitled "Customer #2 - Koontz-Wagner!!" 41. Attached as Exhibit 70 is a true and correct copy of portions of Plaintiffs'

Deposition Exhibit 1459, an email (and attachment) produced by Defendants entitled "OneWorld Download Change Assistant Client.doc." 42. Attached as Exhibit 71 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1461, an email produced by Defendants entitled "Keep our download docs as is... ." 43. Attached as Exhibit 72 are true and correct copies of five pages of data printed

from a native Excel file produced by Defendants as TN-OR06515456 and entitled "TomorrowNow Internal PS Support Environments." Oracle marked TN-OR06515456 as Plaintiffs' Deposition Exhibit 1544, and the first attached page is a copy of the first page of the deposition exhibit. The next four pages have been re-printed from the original native file and depict the same data as Deposition Exhibit 1544, but filtered to show only entries where "Oracle" is in the "Database Server Platform" column, and sorted on the "Database Server Release Column" (see ¶ 3 above, and Ex. 7 at 250:17-253:1). 44. Attached as Exhibit 73 is a true and correct copy of pages from Plaintiffs'

Deposition Exhibit 1549, an email produced by Defendants entitled "Privileged and Confidential: Level Set ­ `Cross-Use' Environments." The first two pages are re-printed from the original production copy of this email for legibility purposes, and the third page is printed directly from Deposition Exhibit 1549 for reference. 45. Attached as Exhibit 74 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1550, an email produced by Defendants entitled "Privileged: Clients with environments needs a full or partial rebuild." 12
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46.

Attached as Exhibit 75 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1786, an email produced by Defendants entitled "Oracle Database Licenses." 47. Attached as Exhibit 76 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1821, an email produced by Defendants entitled "PeopleSoft login info." 48. Attached as Exhibit 77 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1829, an email produced by Defendants entitled "ORACLE DEVELOPMENT LICENSE AGREEMENT." 49. Attached as Exhibit 78 is a true and correct copy of Plaintiffs' Deposition

Exhibit 1839, an email (and attachment) produced by Defendants entitled "Environment Build List." V. DEFENDANTS' DEPOSITION EXHIBITS 50. Attached as Exhibit 79 is a true and correct copy of Defendants' Deposition

Exhibit 167, a document entitled "Nature of Harm/Damage," which is referred to in the Declaration of Uwe Koehler in Support of Oracle's Motion for Partial Summary Judgment, filed concurrently with this Declaration. 51. Attached as Exhibit 80 is a true and correct copy of Defendants' Deposition

Exhibit 246, a document produced by Oracle entitled "OC/OIC Asset Transfer Agreement." 52. Attached as Exhibit 81 is a true and correct copy of Defendants' Deposition

Exhibit 822, a document produced by Oracle entitled "Customer Connection Terms of Use." 53. Attached as Exhibit 82 is a true and correct copy of Defendants' Deposition

Exhibit 824, a document produced by Oracle entitled "Customer Connection Terms of Use." 54. Attached as Exhibit 83 is a true and correct copy of Defendants' Deposition

Exhibit 827, a document produced by Oracle entitled "Legal Disclaimer." 55. Attached as Exhibit 84 is a true and correct copy of Defendants' Deposition

Exhibit 828, a document produced by Oracle entitled "Terms of Use." 56. Attached as Exhibit 85 is a true and correct copy of a document produced by

Oracle and Bates-labeled ORCL00051969 through 970, which was not marked as a separate deposition exhibit, but was referenced at the Deposition of Richard Allison as a version of the 13
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PeopleSoft Customer Connection Terms of Use (see ¶ 3 above, and Ex. 2 at 169:3-23). VI. COPYRIGHT REGISTRATIONS 57. Attached as Exhibits 86 through 91 are true and correct copies of Oracle's

copyright registrations for the software indicated in the table below, each bearing the United States Copyright Office seal, the signature of the Register of Copyrights and the indicated registration number: Exhibit 86 87 88 89 90 91 VII. Software PeopleSoft HRMS 7.0 PeopleSoft HRMS 7.5 PeopleSoft 8 HRMS SP1 Oracle 8i Enterprise Edition, Release 2 (8.1.6) Oracle9i Database Enterprise Edition, Release 2 (9.2.0.1) Oracle Database 10g Release 2 Registration Number TX 4-792-577 TX 4-792-575 TX 5-501-312 TX 5-222-106 TX 5-673-282 TX 6-942-003

DISCOVERY RESPONSES 58. Attached as Exhibit 92 is a true and correct copy of Defendants' Eighth

Amended and Supplemental Response to Plaintiffs' Fourth Set of Interrogatories to Defendant TomorrowNow, Inc. and Third Set of Interrogatories to Defendants SAP AG and SAP America, Inc., No. 82. 59. Attached as Exhibit 93 is a true and correct copy of a printout of data from a

native Excel file produced by Defendants as TN-OR08720040, which Defendants relied upon in their response to Interrogatory No. 82. See ¶ 58 above, and Ex. 92 at 64:2-6 ("TomorrowNow incorporates and relies on the modified Exhibit 75 (`Exhibit C') which has been produced as Bates number TN-OR08720040. Exhibit C has a column added named `Source of Original Media' which provides TomorrowNow's current reasonable belief as to the source of the original media used to create the environment or environment components identified."). 60. Attached as Exhibit 94 is a true and correct copy of Defendant

TomorrowNow, Inc.'s Second Amended and Supplemental Response to Plaintiff Oracle Corporation's First Set of Requests for Admission, No. 13. 61. Attached as Exhibit 95 is a true and correct copy of Defendants' Response to 14
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Plaintiffs' Fifth Set of Requests for Admission to Defendants TomorrowNow, Inc., SAP AG, and SAP America, No. 1. 62. Attached as Exhibit 96 is a true and correct copy of portions of Defendant

SAP AG and SAP America, Inc.'s Supplemental Written Response to Oracle Database Rule 30(b)(6) Testimony. 63. Attached as Exhibit 97 is a true and correct copy of Defendant

TomorrowNow, Inc.'s Eighth Amended and Supplemental Response to Plaintiff Oracle Corporation's First Set of Interrogatories, No. 3. 64. Attached as Exhibit 98 is a true and correct copy of Defendants' Fourth

Amended Responses to Requests 496 Through 680 of Plaintiffs' Second Set of Requests for Admission to Defendants TomorrowNow, Inc., SAP AG, and SAP America, Inc, No. 501. Also included in attached Exhibit 98 is "Exhibit A," referred to in the Requests for Admission, as originally served by Oracle. 65. Attached as Exhibit 99 is a true and correct copy of portions of Defendant

TomorrowNow, Inc.'s Sixth Amended and Supplemental Responses to Plaintiff Oracle Corp.'s Third Set of Interrogatories and SAP America Inc.'s and SAP AG's Fifth Amended and Supplemental Responses to Plaintiff Oracle Corp.'s Second Set of Interrogatories, No. 4. The document is redacted at pp. 30-31, 33-34, and 38 per Defendants' Request. 66. Attached as Exhibit 100 is a true and correct copy of portions of Defendant

TomorrowNow, Inc.'s Seventh Amended and Supplemental Response to Plaintiff Oracle USA, Inc.'s First Set of Interrogatories, No. 6. 67. Attached as Exhibit 101 is a true and correct copy of Defendants' First

Supplemental Responses and Objections to Plaintiffs Fifth Set of Interrogatories to Defendant TomorrowNow, Inc. and Fourth Set of Interrogatories to Defendants SAP AG and SAP America, Inc., Nos. 122 and 124. 68. For the Court's convenience, we have attached three charts summarizing the

data in Defendants' Responses to Interrogatories Nos. 122 and 124 ("Interrogatories 122 and 124," see ¶ 67, above) on the topic of Oracle Database versions that existed at various places at 15
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SAP TN. These charts are attached as Exhibit 102. The first chart ("SAP TN's Oracle Database Installs and Install Media") summarizes the following information contained in Interrogatories 122 and 124: Column Path Install Media / Functional Release Oracle Copyright Server / Virtual Machine ("VM") Machine Name Machine / Download Platform Description Filepath identified for each instance of Database software Whether the Database software is identified as "likely installed" / "installed versions" or "could be used to install" Database release identified in Rogs 122 and 124 Copyright in Oracle's Complaint corresponding to "Release"2 Whether the identified Database software was stored on a "virtual machine" Identified name of the storage device on which the Database software was stored (e.g., "DCPSTEMP02)3 Operating system identified for either a) the version of install media if "could be used to install" or b) the Machine Name if "likely installed" or "installed versions"4

The second chart ("Summary Count of SAP TN's Oracle Database Installs and Install Media") counts the number of copies of Database software in the first chart by Oracle Copyright, Install Media / Functional, and Server / Virtual Machine ("VM"). These results are cited in Oracle's Motion at p. 9, and summarized in the first chart on the same page. The third chart ("SAP TN Oracle Database Platforms Where # Machines > # Copies of Install Media") counts the number of copies of Database software in the first chart, but instead by Install Media / Functional and Machine / Download Platform. The chart also identifies with highlighting the instances where the number of installs for an Oracle Copyright exceeds the number of copies of install media for the same platform. These results are cited in Oracle's Motion at p. 9, and summarized in the second chart on the same page.

See Declaration of Mark Fallon in Support of Oracle's Motion for Partial Summary Judgment, ¶¶ 5-6. 3 Two installations (referenced by Defendants as TN-FS01_F\C\DellRestore\D Drive\oracle\ora81 and TN-FS01_F\C\DellRestore\D Drive\oracle\ora92) are each recorded twice in this first chart because Interrogatories 122 and 124 state: "Tomorrow [sic] reasonably believes that these specific versions were likely installed on a previous server named TN-Dell 2650-01 and the files were later moved to TN-FS01_F." See ¶ 67, Ex. 101 at p. 12, above. 4 See ¶ 3, Ex. 3 at 29:5-12 (Thomas) (identifying operating systems for relevant SAP TN servers), and ¶ 80, Ex. 113 (same, redacted to show relevant servers only) in this Declaration. 16
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VIII. PLEADINGS 69. Attached as Exhibit 103 are true and correct copies of pages from Oracle's

First Amended Complaint, Dkt. 31, filed on June 1, 2007, containing relevant paragraphs cited in Oracle's Motion. 70. Attached as Exhibit 104 are true and correct copies of pages from Defendants'

Answer to Oracle's First Amended Complaint, Dkt. 36, filed on July 2, 2007, containing relevant paragraphs cited in Oracle's Motion. 71. Attached as Exhibit 105 are true and correct copies of pages from Oracle's

Fourth Amended Complaint, Dkt. 418, filed on filed on August 18, 2008, containing relevant paragraphs cited in Oracle's Motion. 72. Attached as Exhibit 106 are true and correct copies of pages from Defendants'

Answer to Oracle's Fourth Amended Complaint, Dkt. 437, filed on August 26, 2009, containing relevant paragraphs cited in Oracle's Motion. IX. OTHER DOCUMENTS 73. Attached as Exhibit 107 is a true and correct copy of a document recording

with the United States Copyright Office Oracle's "PeopleSoft/JDE LLC OIC Asset Transfer Agreement," which bears the Volume and Document No. 3569-436 and the United States Copyright Office seal and signature of the Register of Copyrights. 74. Attached as Exhibit 108 is a true and correct copy of a document recording

with the State of Delaware Oracle's "Certificate of Ownership and Merger" for PeopleSoft, Inc. and Oracle Corporation. The document bears the "file" no. 2105895 and the seal of the State of Delaware, as well as the certification and signature of the Secretary of State of the State of Delaware. 75. Attached as Exhibit 109 is a true and correct copy of portions of an email and

attachment produced by Defendants entitled "Privileged and Confidential: Wind Down Operational Program - Daily Status - Meeting Minutes," and "Returning IP," respectively, and with the bates numbers TN-OR8720699-700 and TN-OR8720722-25, respectively. 76. The screenshot below is from the "Engagement" record for Rockwell 17

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Automation from the native version of the "SAS" Database produced by Defendants at TNOR04446719.5 We have circled the maintenance end date for the Court's convenience.

77.

Attached as Exhibit 110 is a true and correct copy of a portion of the

Declaration of Buffy Ransom in Support of Oracle's Opposition to Defendants' Motion to Compel, Dkt. 591, January 5, 2010. 78. Attached as Exhibit 111 is a true and correct copy of a document printed from

Westlaw entitled "SENATE REPORT NO. 99­432" for "P.L. 99­474, COMPUTER FRAUD AND ABUSE ACT OF 1986." 79. Attached as Exhibit 112 is a true and correct copy of 18 U.S.C. § 1030 as

published in the 2006 Edition of the United States Code, printed from HeinOnline (at http://heinonline.org). 80. Attached as Exhibit 113 is a true and correct copy of portions of two pages

(TN-OR01361328 and 337) of a document produced by Defendants entitled "Inventory Report." 81. Attached as Exhibit 114 is a true and correct copy of a Declaration by Oracle

Associate General Counsel Brady Mickelsen regarding certain aspects of Oracle's corporate structure after Oracle's acquisition of Sun Microsystems, Inc. Oracle sent this declaration to Defendants by email on or about February 23, 2010. Defendants have since made a request for more information, which Oracle is evaluating.

Defendants have represented that they maintained their "SAS" database to generally track their day-to-day customer support activities. See, e.g., Joint Discovery Conference Statement, February 9, 2009, Dkt. 265, at 5:11-16. 18
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