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 Att. 92

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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)
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.

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ACCESS TO AND USE OF ORACLE INTELLECTUAL PROPERTY
INTERROGATORY NO. 82: For each Environment listed in the "ENV_NAME" column of Exhibit C, which is a copy of Oracle's Deposition Exhibit 75, Identify the Customer and/or other Person or source from which SAP TN received the original software media from which that Environment was created, Copied, or installed. RESPONSE TO INTERROGATORY NO. 82: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow Answer Defendant TomorrowNow objects to this interrogatory on the grounds stated in the General Objections and Responses. Defendant TomorrowNow further objects to this interrogatory to the extent it requires Defendants to evaluate and chronicle information that involved numerous employees, took place over several years, and is too complex and detailed to describe in an interrogatory response. Defendant TomorrowNow further objects to the extent the interrogatory purports to require Defendants to create a compilation, abstract, or summary from materials that Defendants have already produced, will produce, or have made available for review through the parties' agreed Data Warehouse protocol. Defendant TomorrowNow also objects to the extent this interrogatory is cumulative of prior discovery requests. Defendant TomorrowNow further objects that the undefined term "created" as used in this interrogatory is vague and ambiguous. Defendant TomorrowNow objects that the terms "environment," "copied," and "installed" are also vague and ambiguous. Subject to and without waiving its Objections, Defendant TomorrowNow responds as
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follows: There has been extensive deposition testimony and records produced that provide the information sought by this interrogatory. For example, Plaintiffs requested Rule 30(b)(6) testimony on "the manner and method by which customer local environments were created, stored and used by you," "the identify of all PSFT and JDE customers for whom you created any type of customer local environment," and "the name, release, and version of all PSFT or JDE branded software obtained and/or copied to create each identified customer local environment." January 22, 2008 Amended Notice of Deposition of TomorrowNow, Inc. Pursuant to Fed. R. Civ. P. 30(b)(6), at Topics 1(b), (c), and (e). In responding to this notice, TomorrowNow presented numerous witnesses who testified on issues relating to these topics, including the environments and components of environments listed in this exhibit. See February 6-7, 2008 Rule 30(b)(6) Depositions of John Baugh; April 1, 2008 Rule 30(b)(6) Deposition of Kathy Williams; April 1-2, 2008 Rule 30(b)(6) Depositions of Catherine Hyde. In fact, the exhibit referenced in this interrogatory is a print out from TomorrowNow's BakTrak database that was introduced during Kathy Williams' Rule 30(b)(6) Deposition on April 1, 2008 and on which she was questioned extensively. See April 1, 2008 Rule 30(b)(6) Deposition of Kathy Williams, pp. 42:1-85:16. Catherine Hyde was questioned for countless pages over two days on this exhibit as well, including specific questions on the sources for the environments and components of environments listed. See April 1, 2008 Deposition of Catherine Hyde, 48:7-61:14; April 2, 2008 Deposition of Catherine Hyde, 72:1-157:17. Moreover, this exhibit "is the same list of environments from Backtrack as Exhibit 38, except sorted by environment name." April 1, 2008 Rule 30(b)(6) Deposition of Kathy Williams, 42:6-9 (statement by Geoff Howard). Exhibit 38 was introduced during John Baugh's Rule 30(b)(6) Deposition on February 7, 2008, and he testified extensively on the environments and components of environments listed. See Rule 30(b)(6) Deposition of John Baugh, 251:16-273:4. Defendants further have produced the BakTrak database itself. See, e.g., TN-OR01005523, TN (Disc). 56; TN-OR06125330, TN (Disc).202. Plaintiffs, therefore, have had ample opportunity to obtain information responsive to this interrogatory during these numerous hours of depositions and by reviewing the BakTrak database. Specifically, John Baugh and Catherine Hyde testified on how to interpret the naming
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conventions conventions used by TomorrowNow for environments and environment components. For customers receiving Critical Support Services ("CSS") from TomorrowNow, John Baugh testified that the naming convention for a particular customer's environment (or component of an environment) was to use an eight character name where the first character designates the product environment) installed, the next three characters designate the product version and service pack, characters five through seven are the three digit client code for the particular customer as noted in the SAS through database, and the final character designates the database platform. See February 6, 2008 Rule database, 30(b)(6) Deposition of John Baugh, 133:18-134:5. For example, he noted that the environment name F890AOSO would refer to an environment with Financials (F), on version 8.90 (890), for (F), customer AO Smith (AOS) and an Oracle database (O). Id. at 134:6-12. Shortly after the start of the critical support model, TomorrowNow's policy was to build environments for a customer using that customer's software media. Therefore, pursuant to this policy, the naming convention itself should generally indicate the specific customer in BakTrak (and on Exhibit 75) whose original software media was used to create the environment or environment component. John Baugh testified that environments in the extended support model had a different the naming convention. Typically, environments in the extended support model followed an eight letter naming convention where the first two characters designated the product installed, the next three characters relate to the product version and service pack, and the final three characters relate pack, to the PeopleSoft release update. See February 7, 2008 Rule 30(b)(6) Deposition of John Baugh, to 179:13-22. For example, HG70205C would refer to the Education and Government product line, the 7.02 version, and the 05C tax update from PeopleSoft. Id. There were also other variation of names that were used during the extended support that model to identify "replication," "development" and "test" environments, which would follow the "development" same naming convention but would have REP, DEV, or TST as the last three characters (e.g. HR702REP, HR702DEV, HR702TST). See April 2, 2008 Rule 30(b)(6) Deposition of Catherine Hyde, 114:13-127:25. Additionally, some of the environments used a naming convention that contained "CSS" as the last three characters (e.g., HR751CSS). When TomorrowNow stopped performing retrofit updates in the extended support model and moved to the critical support
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model, model, Catherine Hyde testified that this environment was renamed from an extended support environment. See April 1, 2008 Rule 30(b)(6) Deposition of Catherine Hyde, 45:8-20. She also testified that, most likely, one set of customer CDs was used to build the environments in the extended support model. This customer was likely either Washington Gas Light Company or extended Safeway Stores Inc.. See, e.g., id. at 45:21-47:20; see also April 2, 2008 Rule 30(b)(6) Deposition of Catherine Hyde. Under the ENV_NAME column of Exhibit 75, there are also references to components of environments which have "DAT" in the name. See, e.g., D702DATM. Catherine Hyde testified that the naming convention for such databases revealed whether the database was used in the critical support model or the extended support model. The "D" prefix indicates that it would be used as part of the critical support model. See April 2, 2008 Rule 30(b)(6) Deposition of Catherine Hyde, 74:4-16. Instances in which the prefix referenced the application, however, like HR702DAT4, indicate that the database was used as part of the extended support model. See id. Catherine further testified regarding what she believed to be the sources of these databases. For example, she testified that D702DATM was probably created from Washington Gas Light Company or Safeway Stores Inc.. See id. at 75:4-9. The aforementioned are non-exclusive examples of Catherine Hyde's testimony on this subject, and Defendants rely on Rule 33(d) and refer Plaintiffs to her deposition testimony regarding sources for other "DAT" components of environments and the sources discussed for other environments and components of environments listed in Exhibit 75. See April 1, 2008 Deposition of Catherine Hyde, 48:7-61:14; April 2, 2008 Deposition of Catherine Hyde, 72:1-157:17; see also generally May 12, 2009 Deposition of Catherine Hyde. Further, the BakTrak database itself has fields that point out the source of a restored itself Further, environment by listing the name of the environment from which a restoration was done under "SOURCE_ENV." For example, in Exhibit 1253, the very first row shows the source environment as HG75103G and that the target environment was HG751REP. The stated environment "create description in BakTrak is to "create 03G rep." This entry combined with the testimony above provides provides information on how the HG751REP environment was created and its source.
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Information responsive to this interrogatory may also be contained in the dotProject database and the SAS databases. See TN-OR 01361344, TN(Disc).62 (dotProject); TNOR06220764, TN(Disc).214 (dotProject); TN-OR03775478, TN(Hard Drive).67 (SAS); TN-OR 0446717, TN(Disc).173 (SAS); TN-OR 04446719, TN(Hard Drive).75 (SAS). Further, TomorrowNow has made available for Plaintiffs' inspection numerous CDs potentially containing PeopleSoft and JDE software materials which were housed at TomorrowNow. The proper way to find this information in SAS, to the extent it was recorded, is to use the following view in either the Enterprise, World, or OneWorld databases: 1. Support\1. All\By Customer\[Click on a Customer Name]\ [Click on an Application]\[Click on Engagement]\[Look under Service Information]\[Look under Demo Software].

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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 Finally, Finally, in addition to the Rule 30(b)(6) testimony cited above, TomorrowNow relies on Rule of all of the individual testimony of Catherine Hyde in response to this interrogatory. See February 12, 12, 2009 Deposition of Catherine Hyde and May 12, 2009 Deposition of Catherine Hyde. a Given the information obtained through deposition testimony and documents produced to Plaintiffs, the burden of obtaining further information for this interrogatory is substantially the same on Plaintiffs as it is on Defendants. Pursuant to Rule 33(d), therefore, TomorrowNow relies upon all testimony and each document cited in the response to further respond to this interrogatory. SAP AG and SAP America Answer Defendants SAP AG and SAP America object to this interrogatory on the grounds stated in the General Objections and Responses. Defendants SAP AG and SAP America object to this interrogatory to the extent it requires Defendants to evaluate and chronicle information that involved numerous employees, took place over several years, and is too complex and detailed to describe in an interrogatory response. Defendants SAP AG and SAP America further object to
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the extent the interrogatory purports to require Defendants to create a compilation, abstract, or summary from materials that Defendants have already produced, will produce, or have made available for review through the parties' agreed Data Warehouse protocol. Defendants SAP AG and SAP America also object to the extent this interrogatory is cumulative of prior discovery requests. Defendants SAP AG and SAP America further object that the undefined term "created" as used in this interrogatory is vague and ambiguous. Defendants SAP AG and SAP America object that the terms "environment," "copied," and "installed" are also vague and ambiguous. Subject to and without waiving their Objections, Defendants SAP AG and SAP America respond as follows: SAP AG and SAP America have no additional knowledge other than what is reflected in TomorrowNow's answer to this interrogatory. SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 82 THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow Answer Consistent with the parties meet and confer discussions regarding Interrogatory 82 and subject to the TomorrowNow's objections above, TomorrowNow supplements its response as follows: TomorrowNow has undertaken an extensive review of the SAS database, TomorrowNow's BakTrak program, and the deposition testimony taken to date to further respond to this overly broad, unduly burdensome, vague, and confusing request. TomorrowNow incorporates incorporates and relies on the modified Exhibit 75 ("Exhibit C") which has been produced as Bates Bates number TN-OR08720040. Exhibit C has a column added named "Source of Original Media" Media" which provides TomorrowNow's current reasonable belief as to the source of the original media used to create the environments or environments components identified. or For those TomorrowNow's customers receiving service for PeopleSoft related applications for whom TomorrowNow created local environments or environment components on TomorrowNow's network, it was TomorrowNow's general practice to build the environment component on the respective customer's behalf using that customer's PeopleSoft application files provided to TomorrowNow by that customer on either CD, tape, or some other form of electronic
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delivery. TomorrowNow's standard naming convention for the customer environment components TomorrowNow maintained on its network on behalf of each such customer included the following: (1) the first character was the type of application being used (H for human resources or F for financials); (2) the next three characters corresponded to the PeopleSoft release (i.e., 801 for 8SP1 or 842 for 8.4SP2); (3) the next three characters identified the customer (i.e., RHI for Robert Half International); and (4) the final character represented the type of database the environment was built to access (i.e., O for Oracle or M for Microsoft). Based on that naming convention, TomorrowNow reasonably believes that the majority of the client specific environment components listed on Exhibit C were built from media provided by that client to TomorrowNow. As noted in Exhibit C, TomorrowNow has listed those clients in the column "Source of Original Media." After an extensive review of the SAS database and BakTrak, TomorrowNow has not currently found any indication that these clients did not provide TomorrowNow the media TomorrowNow used to build the specific environment components listed in Exhibit C. See TN-OR04446719, TN (Hard Drive).75; TN-OR 06125330, TN (Disc).202 BakTrak\Search Restore Log. A number of environment components listed on Exhibit C do not follow that standard naming convention. Although TomorrowNow is not certain of the specific source, TomorrowNow reasonably believes based on testimony from the April 1, 2008, April 2, 2008, February 12, 2009 and May 12, 2009 depositions of Catherine Hyde, that some of the February environments listed in Exhibit C that do not follow the standard naming convention were created from CDs provided by either Safeway Stores, Inc., Washington Gas Light Company, and Rentway Corporation (Rent-A-Center, Inc.). See April 1, 2008 Deposition of Catherine Hyde; .S April 2, 2008 Deposition of Catherine Hyde; February 12, 2009 Deposition of Catherine Hyde; and May 12, 2009 Deposition of Catherine Hyde. Therefore, TomorrowNow has indicated, in the column "Source of Original Media" in Exhibit C, these environment components which were column likely built from CDs provided by Safeway Stores, Inc., Washington Gas Light Company, or Rentway Corporation (Rent-A-Center, Inc.). Likewise, based on testimony provided by Catherine Hyde in her April 2008 depositions,
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TomorrowNow reasonably believes that a number of PeopleSoft HRMS 8SP1 environment components originated from media provided by a customer or customers receiving support during 2003 for HRMS 7.02 or 7.51. See April 2, 2008 Deposition of Catherine Hyde at 54:25-56:12; 2003 April 2, 2008 Deposition of Catherine Hyde at 83:9-22 and 140: 14-141:22. However, TomorrowNow is currently unable to determine after extensive effort and review of BakTrak and TomorrowNow the SAS database the exact source of those environment components. Further, after an extensive review of the available data, TomorrowNow has not currently review been able to determine the specific source of the media used to build some of the environment been components and for those environments components, TomorrowNow has indicated the lack of that information in the column "Source of Original Media" in Exhibit C by leaving the space blank. Finally, Plaintiff listed a number of remote environments on Exhibit C. TomorrowNow does not have control, custody, or possession over these environment components as they reside on the customers' networks, and thus cannot respond as to the source for those environment components. Given the information obtained through deposition testimony and documents produced to Plaintiffs, the burden of obtaining further information for this interrogatory is substantially the same on Plaintiffs as it is on Defendants. Pursuant to Rule 33(d), therefore, TomorrowNow relies upon all testimony and each document cited in the response to further respond to this interrogatory. SAP AG and SAP America Answer Consistent with the parties meet and confer discussions regarding Interrogatory 82 and subject to the SAP AG and SAP America's ("SAP") objections above, SAP supplements its response as follows: SAP has no additional knowledge other than what is reflected in TomorrowNow's responses to this interrogatory. INTERROGATORY NO. 83:

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Dated: December 21, 2009

JONES DAY

By: /s/ Jason McDonell Jason McDonell Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

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