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. 99

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page1 of 11

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

Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY San Francisco Office 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 Silicon Valley Office 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)
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
DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

HUI-121367v1

Dockets.Justia.com

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page2 of 11

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-121367v1

INTERROGATORY NO. 4: Describe all efforts undertaken by the SAP AG executive board of directors to ensure that SAP TN did not violate any Oracle copyright (or other intellectual property right) in the provision of its services, the time frame for each described effort, and the Identity, roles, and responsibilities of all involved individuals. RESPONSE TO INTERROGATORY NO. 4: ALL ANSWERS TO THIS REQUEST ARE DESIGNATED AS CONFIDENTIAL INFORMATION TomorrowNow, SAP America, and SAP AG Answer - 28 DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page3 of 11

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

In addition to Defendants' General Objections and Responses, Defendants object that the request is overly broad and unduly burdensome. In addition, Defendants object to the extent the Interrogatory purports to require Defendants to create a compilation, abstract, or summary from business records that Defendants have already produced or will produce. Defendants also object that the information being requested is unreasonably cumulative or duplicative of discovery already being conducted by Plaintiffs. Defendants further object that the information being sought can be obtained by a more convenient source, namely, depositions that Plaintiffs have already noticed. Defendants further object that this is an improper contention Interrogatory as it seeks Defendants to define what actions constitute legally impermissible conduct. Defendants also object to the extent this Interrogatory calls for information that is inadmissible under Federal Rule of Evidence 407. Lastly, Defendants object to the extent that this Interrogatory calls for information protected by the attorney-client or work product privileges. Defendants will not provide such privileged information. Subject to and without waiving their Objections, Defendants respond as follows: The fact that Defendants are providing an answer to this Interrogatory is not intended to be, and should not be read as, an admission that TomorrowNow was in fact in violation of any copyright or other intellectual property right. SAP AG's executive board issued the directives listed below and TomorrowNow management was responsible for the implementation of these directives. 1. In early 2005, the SAP AG executive board issued rules governing the interaction

between SAP and TomorrowNow. These rules were known as the Rules of Engagement. The stated purpose of these rules was to "ensure that both TN and SAP continue[d] to respect the intellectual property rights in PeopleSoft (PS) and JD Edwards (JDE) software." See Bates Nos. TN-OR00000016 ­ 20. The Rules of Engagement were first circulated to employees at both SAP and TomorrowNow on March 9, 2005. An update version of the Rules of Engagement were further circulated on March 15, 2006. See Bates Nos. TN-OR00000016 ­ 20, TN-OR00000021 ­ 24.
DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

HUI-121367v1

- 29 -

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page4 of 11

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

2.

By March 2005, the SAP AG executive board issued a directive to

TomorrowNow's management to remove customer local environments from TomorrowNow computers. On behalf of SAP AG's executive board, Thomas Ziemen instructed TomorrowNow CEO Andrew Nelson to evaluate and implement removal of customer Local Environments from TomorrowNow computers. In response to this direction, TomorrowNow initiated a project to investigate removal of customer Local Environments from TomorrowNow computers. Some have referred to this project as "Project Blue." Periodically, Andrew Nelson would communicate the status of the project to Thomas Ziemen. The following current and former TomorrowNow employees were involved in the evaluation and execution of the project: Julio Guzman, Catherine Hyde, Beth Lester, George Lester, Andrew Nelson, Greg Nelson, Shelley Nelson, Owen O'Neil, Josh Testone, and Eskander Yavar. 3. In July 2007, the SAP AG executive board appointed SAP employee Mark White

as the new chairman of TomorrowNow to manage TomorrowNow's operations and compliance programs. 4. In August 2007, the SAP AG executive board ordered that all customer local

environments still remaining on TomorrowNow computers must be moved to customer computers. Pursuant to this directive, all customer local environments on TomorrowNow computers were shut down permanently on April 30, 2008. The SAP executives involved in overseeing the implementation of this directive were Martin Breuer and Mark White. The TomorrowNow employees involved in implementing this directive include: John Baugh, Mark Kreutz, Shelley Nelson, and numerous other lower-level TomorrowNow employees. Identifying information for the above-named SAP and TomorrowNow employees is provided below:

HUI-121367v1

- 30 -

DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page5 of 11

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-121367v1

AMENDED RESPONSE TO INTERROGATORY NO. 4: Defendants amend subparagraph 2 of their response to this Interrogatory as follows: 2. By March 2005, the SAP AG executive board issued a directive to

TomorrowNow's management to remove customer local environments from TomorrowNow computers. CEO Andrew Nelson was instructed to evaluate and implement removal of customer Local Environments from TomorrowNow computers. In response to this direction, TomorrowNow initiated a project to investigate removal of customer Local Environments from TomorrowNow computers. Some have referred to this project as "Project Blue." On certain occasions, Andrew Nelson would communicate the status of the project to Thomas Ziemen. The following current and former TomorrowNow employees were involved in the evaluation and - 31 DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page6 of 11

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

execution of the project: Julio Guzman, Catherine Hyde, Beth Lester, George Lester, Andrew Nelson, Greg Nelson, Shelley Nelson, Owen O'Neil, Josh Testone, and Eskander Yavar. SECOND AMENDED RESPONSE TO INTERROGATORY NO. 4: Defendants amend subparagraph 2 of their response to this interrogatory as follows: 2. In January 2005, the SAP AG executive board issued a directive to

TomorrowNow's management to remove customer local environments from TomorrowNow computers. By March 2005, on behalf of the SAP AG executive board, Chris Faye communicated the Executive Board's instruction to CEO Andrew Nelson to evaluate and implement removal of customer Local Environments from TomorrowNow computers. In response to this direction, TomorrowNow initiated a project to investigate removal of customer Local Environments from TomorrowNow computers. Some have referred to this project as "Project Blue." On certain occasions, Andrew Nelson would communicate the status of the project to Chris Faye and on limited occasions to Thomas Ziemen. The following former TomorrowNow employees were involved in the evaluation and execution of the project: Julio Guzman, Catherine Hyde, Beth Lester, George Lester, Andrew Nelson, Greg Nelson, Shelley Nelson, Owen O'Neil, Josh Testone, and Eskander Yavar. Extensive Rule 30(b)(6) deposition testimony has been taken on "Project Blue" and the efforts of SAP AG's executive board of directors to ensure that TomorrowNow did not violate Plaintiffs' intellectual property rights. For example, Plaintiffs have sought corporate representative testimony on "[t]he investigation and action that resulted in Your executive board directive[] . . . , including without limitation: a. all related discussions, analyses, Documents or Communications leading up to the decisions to issue the referenced March 2005 [directive] . . . ; b. the actual content of the directive[] . . . ; c. the names of the individual(s) who conveyed the directive[], the date [] issued, the method of conveyance, and the recipient(s) of [the] directive; d. the method and frequency discussed, envisioned and/or expressed by You for how progress of the Board directive['s] implementation would be conveyed from SAP TN to You . . . ; e. the timeframe and/or deadlines discussed, envisioned, and/or expressed by You for the completion of the Board directive[] at the time [it] was issued, or at any other time during the implementation
HUI-121367v1
DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

- 32 -

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page7 of 11

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

stages; . . . [and] h. the name(s) of Your Board member(s), executive(s) or other personnel who were responsible for any aspect of the Board directive[], including their approval, issuance and implementation, and his/her knowledge of or involvement in any of the above activities. . . ." See February 25, 2009 Amended Notice of Deposition of SAP AG and SAP America Pursuant to Fed. R. Civ. P. 30(b)(6) re Project Blue. See also February 25, 2009 Amended Notice of Deposition of TomorrowNow, Inc. Pursuant to Fed. R. Civ. P. 30(b)(6) re Project Blue. Multiple days of deposition testimony were taken in response to these noticed topics. See March 18, 2009 Deposition of Chris Faye Pursuant to Rule 30(b)(6); February 5, 2009 Deposition of Mark White Pursuant to Rule 30(b)(6). See also February 19, 2009 Deposition of Tim Crean. Pursuant to Rule 33(d), TomorrowNow incorporates this testimony by reference and relies on this testimony to further respond to this interrogatory. Defendants amend subparagraph 4 of their response to this interrogatory as follows: 4. In August 2007, the SAP AG executive board reiterated its original directive, and

specifically ordered that all customer local environments still remaining on TomorrowNow computers must be moved to customer computers. Pursuant to this directive, all customer local environments on TomorrowNow computers were shut down permanently on April 30, 2008. The SAP executives involved in overseeing the implementation of this directive were Martin Breuer and Mark White. The TomorrowNow employees involved in implementing this directive include: Julio Guzman, John Baugh, Mark Kreutz, Shelley Nelson, John Tanner, Kathy Williams, and numerous other lower-level TomorrowNow employees. Identifying information for the above-named SAP and TomorrowNow employees is provided below:

HUI-121367v1

- 33 -

DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page8 of 11

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-121367v1

Paragraphs 1 and 3 from the original response remain unchanged, are fully incorporated herein and apply equally to TomorrowNow's support of Siebel products. ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4: ALL RESPONSES TO THIS REQUEST ARE DESIGNATED AS CONFIDENTIAL INFORMATION TomorrowNow, SAP America, and SAP AG Supplemental Answer Subject to and without waiving their objections, Defendants respond that the efforts undertaken by the SAP AG executive board of directors to ensure that TN did not violate any Oracle intellectual property rights in the provision of its services with respect to Oracle database products are described in the original response and all supplemental or amended responses to this Interrogatory above. Specifically, and as set forth more fully above, the Rules of Engagement governed the interaction between SAP and TomorrowNow. The stated purpose of these Rules of Engagement was to "ensure that both TN and SAP continue[d] to respect the intellectual property rights in
DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

- 38 -

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page9 of 11

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

PeopleSoft (PS) and JD Edwards (JDE) software," which included intellectual property rights in the underlying Oracle database products. See Bates Nos. TN-OR00000016 ­ 20. Further, the SAP AG executive board directive to remove all copies of local environments from TomorrowNow systems also logically applied to TomorrowNow's use of Oracle database products. As more fully described above, by March 2005, on behalf of the SAP AG executive board, Chris Faye communicated the Executive Board's instruction to CEO Andrew Nelson to evaluate and implement removal of customer Local Environments from TomorrowNow computers. The Executive Board's directive logically applied not only to TomorrowNow's support of PeopleSoft, JDE, and later Siebel products, but also to Oracle database related components. See October 20, 2009 Deposition of Werner Brandt, at 89:24-90:24 (stating that the 2005 directive should have applied to the application software on TomorrowNow's servers as well as the Oracle database software) (rough transcript). In June 2007, the SAP AG executive board reiterated its original directive, and specifically ordered that all customer local environments still remaining on TomorrowNow computers must be moved to customer computers. The reiteration of the directive also included TomorrowNow's use of Oracle database products. See id. at 96:20-97:4 (stating that the reissuance of the 2005 directive in 2007 should also have applied to TomorrowNow's copies of Oracle database software) (rough transcript). Pursuant to this directive, all customer local environments on TomorrowNow computers, including any underlying Oracle database products, were shut down permanently on April 30, 2008. Pursuant to Rule 33(d), TomorrowNow incorporates the above-cited testimony by reference and relies on this testimony to further respond to this interrogatory. INTERROGATORY NO. 5: Describe any effort any Defendant has made to determine whether SAP TN had authority or license to possess, Use, or transfer any Local Environment or Software and Support Material on its computer system as of March 22, 2007.

HUI-121367v1

- 39 -

DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page10 of 11

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

program. Defendants will timely supplement this response in accordance the Courts guidance on the 61 Customers and the parties meet and confer discussions. SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 14: ALL ANSWERS TO THIS REQUEST ARE DESIGNATED AS CONFIDENTIAL INFORMATION TomorrowNow, SAP America, and SAP AG Answer Defendants further respond that they are not aware of any instance in which the availability of TomorrowNow's services was a material contributing fact to any sales of licenses of SAP software as part of the Safe Passage program.

Dated: December 4, 2009.

JONES DAY

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

HUI-121367v1

- 84 -

DEF TN'S 6TH AMEND & SUPP RESP TO 3RD SET AND SAP'S 5TH AMEND RESP TO 2ND SET OF ROGS Case No 07-CV-1658 PJH (EDL)

Case4:07-cv-01658-PJH Document657-100

Filed03/03/10 Page11 of 11