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)

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Oracle Corporation et al v. SAP AG et al Doc. 657 Att. 97 Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page1 of 8 EXHIBIT 97 Dockets.Justia.com Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page2 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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: (415) 626-3939 Facsimile: (415) 875-5700 ramittelstaedt@jonesday.com jmcdonell@jonesday.com ewallace@jonesday.com Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 tglanier@jonesday.com jfroyd@jonesday.com Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 swcowan@jonesday.com jlfuchs@jonesday.com 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., Case No. 07-CV-1658 PJH (EDL) DEFENDANT TOMORROWNOW, INC.'S EIGHTH AMENDED AND SUPPLEMENTAL RESPONSE TO PLAINTIFF ORACLE CORPORATION'S FIRST SET OF INTERROGATORIES (SET ONE) 24 25 Defendants. 26 27 28 HUI-121363v1 TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL) Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page3 of 8 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 INTERROGATORY NO. 3: Describe in as much detail as possible how You access, store, maintain, retrieve and provide any support materials to Your Customers, including Software and Support Materials, including but not limited to Identifying on what computers, servers or other devices the Software and Support Materials are stored, the names of Person(s) who have access to the Software and Support Materials, how those Software and Support Materials are accessed by Your Employees and Customers, and describing any policies, procedures, protocols or safeguards involved in the provision of Software and Support Materials to Customers, including ensuring they have a valid license for the material. RESPONSE TO INTERROGATORY NO. 3: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. HUI-121363v1 - 11 - TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL) Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page4 of 8 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 TomorrowNow objects that this interrogatory seeks information not reasonably calculated to lead to the discovery of admissible evidence to the extent that it seeks information about unspecified "support materials" other than the Software and Support Materials at issue in this case. TomorrowNow further objects that this interrogatory is compound, is actually several interrogatories, is wholly or partially duplicative of several other interrogatories served by Oracle (including Nos. 6, 7, 8, 10 and 12 of this set and 1, 2 and 4 of the set served by Oracle USA Inc.), and is unduly burdensome and oppressive to the extent it seeks a narrative answer as to a laundry list of disparate subjects. Subject to and without waiving the foregoing objections and the General Objections and Responses, TomorrowNow responds by incorporating by reference and relies on its responses to Interrogatories Nos. 6, 7, 8, 10 and 12 of this set and Interrogatories 1, 2 and 4 of the set served by Oracle USA Inc., including those documents cited in those responses. TomorrowNow further responds as follows: TomorrowNow has accessed, downloaded and/or stored Software and Support Materials on behalf of its new customers. TomorrowNow has done so after receiving from the customer certain representations and warranties that the customer is entitled to permit TomorrowNow such access on its behalf. TomorrowNow's policy was only to conduct downloads for a customer using the specific password and user id. provided by that customer and only before the relevant Maintenance End Date for that customer. Until recently, TomorrowNow conducted the downloads and stored the relevant materials on its computers. The downloads were conducted by TomorrowNow's employees using certain laptop and desktop m computers computers as well as dedicated download servers located at TomorrowNow's data center in Bryan, Texas. TomorrowNow then transferred and stored downloaded materials on certain file servers, the relevant files and file folders from which will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). TomorrowNow set forth the policies and procedures governing the downloading and storage of relevant materials in procedure documentation, including emails, which will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). Beginning in July 2007, TomorrowNow revised its procedures to have its customers conduct all appropriate downloads HUI-121363v1 - 12 - TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL) Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page5 of 8 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 they wish to be conducted from the customers' own computers, and to store any such downloaded materials on the customers' computers. Beginning in July 2007, TomorrowNow may on occasion assist or advise its customers in conducting downloads, but it is TomorrowNow's policy that each customer makes the ultimate decision regarding which materials that customer downloads. TomorrowNow has taken other steps to update its business processes, in part to address the uncertainty caused by Oracle's allegations and Oracle's refusal to provide information underlying its claims. Documents describing these process changes will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its policies and procedures documents include but are not limited to TN-OR00001278 TN-OR00004196. Downloaded material (in native format) includes but is not limited to TN-OR00004203, TN-OR00005106 and TN-OR00005147. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. This compound interrogatory would require TomorrowNow to chronicle information that involved numerous employees, took place over several years, and is too complex and detailed to describe in an interrogatory response. Pursuant to Rule 33(d), TomorrowNow points Plaintiffs to the SAS database, which is a tool TomorrowNow used to chronicle its business efforts to service clients. See TN-OR 03775478, TN(Hard drive).67, TN-OR 04446717, TN(Disc).173, TN-OR 04446719, TN(Hard drive).75. Further, in addition to the policies and procedures cited above, policies and procedures documents related to the provision of Software and Support Materials to Customers include, but are not limited to, SAP-OR00251437, TN-OR00411402, TNHUI-121363v1 - 13 - TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL) Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page6 of 8 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 OR00209243, TN-OR00209244, TN-OR03775488, SAP-OR00631478. For information regarding how TomorrowNow stores and maintains Software and Support Materials, including the identification of the computers, servers or other devices the Software and Support Materials are stored, TomorrowNow relies on all of its current responses to Interrogatory No. 11 of this set, which is incorporated by reference. The most complete record of the TomorrowNow employees who had access to the Software and Support Materials prior to the wind down of TomorrowNow can be derived from the SAS database. See TN-OR 03775478, TN(Hard drive).67, TN-OR 04446717, TN(Disc).173, TN-OR 04446719, TN(Hard drive).75. The SAS database also contains the most complete record of how TomorrowNow employees accessed those Software and Support Materials. Id. The most complete record regarding the fixes TomorrowNow provided its customers can be derived from TN-OR 00009557, TN(Disc).9, TN-OR04497673, TN(Disc).186 (client fixes from Web 01, DCWEB01); TN-OR04497668, TN(Hard drive).78 (client fixes from Mail 03). In addition, some of the overly broad and unduly burdensome information that this request seeks can be derived from the hours of overlapping 30(b)(6) testimony. See October 29, 2007 Deposition of Bill Thomas Pursuant to Rule 30(b)(6); October 29-30, 2007 Deposition of Mark Kreutz Pursuant to Rule 30(b)(6); October 30, 2007 Deposition of Shelley Nelson Pursuant to Rule 30(b)(6); December 6, 2007 Deposition of Shelley Nelson Pursuant to Rule 30(b)(6); February 67, 2008 Deposition of John Baugh Pursuant to Rule 30(b)(6); February 19, 2008 Deposition of Mark Kreutz Pursuant to Rule 30(b)(6); June 25, 2008 Deposition of Rod Russell Pursuant to Rule 30(b)(6); April 1, 2008 Deposition of Kathy Williams Pursuant to Rule 30(b)(6); April 1, 2008 Deposition of Catherine Hyde Pursuant to Rule 30(b)(6). SIEBEL SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: HUI-121363v1 - 14 - TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL) Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page7 of 8 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 HUI-121363v1 Dated: December 4, 2009 JONES DAY By: /s/ Jason McDonell Jason McDonell Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. - 95 - TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL) Case4:07-cv-01658-PJH Document657-98 Filed03/03/10 Page8 of 8

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