Oracle Corporation et al v. SAP AG et al

Filing 671

Declaration of Tharan Gregory Lanier in Support of 670 Cross Motion For Partial Summary Judgment and Opposition to Plaintiffs' Motion For Partial Summary Judgment filed by SAP AG, SAP America Inc, Tomorrownow 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)(Related document(s) 670 ) (Froyd, Jane) (Filed on 3/31/2010) Modified on 4/1/2010 (vlk, COURT STAFF).

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Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. 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' OPPOSITION TO ORACLE'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION Judge: Hon. Elizabeth D. Laporte

DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL)

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I.

INTRODUCTION Plaintiffs' Supplemental Brief in Support of its Motion to Compel Further Responses to

Requests for Admissions (Dkt. 661, "Supplemental Motion" or "Supp. Mot.") lacks merit, relevant context and seeks relief beyond what was sought in Plaintiffs' December 11, 2009 Motion to Compel (Dkt. 570, "Motion" or "Mot."). Plaintiffs' Motion sought amended responses to 316 separate Requests for Admission ("RFAs") and now their Supplemental Motion seeks different relief relating to only 90 of those RFAs, which represent less than 7% of the total 1,315 separately numbered RFAs Plaintiffs served on Defendants in this case. The dispute regarding these remaining 90 RFAs is the logical result of their overly complex wording and substance. To adequately assess Plaintiffs' additional requests for relief, the Court must consider the 90 RFAs at issue in context with Defendants' amended responses to all of the 316 RFAs addressed in the Motion. As the Court has acknowledged, the rulings made from the bench during the January 26, 2010 hearing and in the Court's February 11, 2010 Opinion and Order (collectively, the "Orders") were based solely on the five (5) allegedly exemplar RFAs Plaintiffs presented in the Motion, not on a review of any of the intricacies associated with any other of the 311 separately-numbered RFAs addressed by the Motion. 01-2610 Tr. (Dkt. 629) at 57:13 - 58:25. The Supplemental Motion does not use any of the five exemplar RFAs (i.e., RFAs 501, 542 and 597 of set 2, RFA 13 of set 3, and RFA 130 of set 5) on which this Court previously ruled. Moreover, the Supplemental Motion does not even complain about Defendants' amended responses to four of the five exemplars that were both referenced in the Motion and reviewed by the Court in issuing the Orders (i.e., RFA 13 of set 3 and RFAs 501, 542 and 597 of set 2). Instead, the Supplemental Motion uses eight new exemplar RFAs to raise five different issues (i.e., RFA 577 of set 2, RFAs 16 and 18 of set 3, RFAs 4, 6, 11, 34 and 36 of set 5). Defendants' amended responses fully comply with Rule 36 and the Court's Orders. Specifically, Defendants withdrew the objections to the terms "copy," "fix," "update" and "generic environment" and interpreted those terms in a manner consistent with the Court's Orders. Defendants also accepted the Court's recommended phrase "vast majority" in quantifying a large -1DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL)

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number of their amended responses. In only eleven instances where the qualifier "vast majority" could not in good faith be used in response to a given RFA, Defendants used a different qualifier (i.e., either "majority," "minority," or "approximately half"), but then Defendants also used the exact inverse qualifier to admit the eleven applicable mirror RFAs in a way that acknowledges Defendants' lack of sufficient readily available information to determine the answer for the remaining quantity not accounted for in the first instance. And although Defendants' used the permission in Rule 36 and the Court's Orders to qualify their responses, they did so sparingly and only when it was essential. Most of Defendants' amended responses to the 316 RFAs addressed by the Court's Orders are one-word admissions or denials. In those limited instances in which Defendants' amended responses required, in good faith, qualifying language (i.e., something other than a simple "Admitted" or "Denied") Defendants complied with the Court's Orders by, among other things, answering those RFAs using the terms in the RFAs themselves. II. THERE IS NO BASIS FOR THE ADDITIONAL RELIEF PLAINTIFFS SEEK A. Plaintiffs created the list of referenced Bundles for the 14 RFAs in Issue A.1

The exemplar for this issue is RFA 18 of set 3. See Cowan Decl., Ex. A at 3. The contested language in this exemplar, and the other 13 RFAs in Issue A that it is intended to typify, is: "ADMITTED for the vast majority of fix objects that are contained in retrofit bundles listed in the first two columns of Exhibit A attached hereto."2 Id. Basic principles of fairness and due process require that the 14 RFAs in Issue A3 be analyzed in context with the other 52 RFAs to which they relate. See Cowan Decl., Ex. A. For ease of reference, Defendants refer to each of Plaintiffs' separately lettered issues as Issue "A" through "E," respectively. For further ease of reference, each of Exhibits "A" through "E" to the attached declaration of Scott W. Cowan ("Cowan Decl.") correlate to the identically lettered issues in Plaintiffs' Supplemental Motion. Also, when reviewing Exs. A, B, D and E to the Cowan Declaration, the Court should note that those exhibits contain the RFAs addressed by the Supplemental Motion (the 8 exemplar requests are highlighted in pink and the remaining 82 RFAs at issue are highlighted in yellow) as well as the related RFAs and amended responses that are not contested in the Supplemental Motion, but which are included (with no highlighting) to permit the Court to analyze the contested responses in context with the non-contested ones. 2 Where terms are shown in a bolded colored font in this brief, they are, for ease of reference, shown in the identical way in the referenced Exhibit to the Cowan Declaration. 3 The other 13 RFAs in Issue A are highlighted in yellow in Cowan Decl., Ex. A at 3, 4, 10, 11, 15 and 16 (i.e., RFAs 17, 19, 20, 32, 34, 44 and 47 in set 3 and 134-37, 149, 151 in set 5). -2DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL) 1

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When that analysis is done, it shows that where Defendants could in good faith admit the type of request at issue in Issue A as to the vast majority of all of the 33,186 objects for a specific request, they did so.4 And, where Defendants could in good faith admit the requests as to the vast majority of specific types (i.e., .dat, .sqc, .sqr and .cbl files) of the 33,186 objects for a specific request, they did so.5 Likewise, where Defendants could in good faith admit the requests as to the vast majority of a specific set (i.e., all objects, regardless of type, that are contained in the retrofit bundles listed in the first two columns of Exhibit A) of the 33,186 objects for a specific request, they did so.6 Further, where Defendants in good faith could not quantify the admission for specific types (i.e., .dat, .sqc, sqr and .cbl files) of the 33,186 objects for a specific request using the phrase "vast majority," but could do so using something else (i.e., majority, minority or approximately half), they did so and then also simultaneously admitted, in response to the corresponding mirror request, Defendants' lack of sufficient readily obtainable information to determine the inverse quantity.7 This type of request-by-request analysis and related amended response is what is required by both Rule 36 and the Court's Orders and is exactly what Defendants did. Any fair reading of the rules, interpretative case law and this Court's Orders indicates that an individual, object-by analysis for each of the 33,186 objects listed on the 973 page exhibit attached to the 14 RFAs in Issue A is neither required nor necessary. Plaintiffs' statement that a "jury could not read Defendants' response and understand what they have admitted or denied" is simply not credible. The phrase "retrofit bundles listed in the first two columns of Exhibit A" that is referenced in the 14 RFAs in Issue A is a reference to a document that Plaintiffs themselves created for use in their Second Set of RFAs. More

specifically, Plaintiffs' RFA 532 of set 2 states: "Admit that for each Fix or Update listed in the first two columns of Exhibit A, one step in the process of generating that Fix or Update was to Id. at 1, 6, 9, 10, 11, 14 and 16 (i.e., RFAs 13-14, 24, 29, 31, 33, 42 and 46 of set 3). Id. at 2, 3, 6-8 and 12-13 (i.e., RFAs 15, 17, 23, 25, 27, 35 and 38 of set 3). 6 Id. at 3-4, 10-11 and 15-16 (i.e., RFAs 17-20, 32, 34, 44 and 47 in set 3 and 134-37, 149 and 151 in set 5). 7 Id. at 2 and 5-8 (i.e., RFAs 15-16, 21-23 and 25-27 in set 3 and RFAs 132-133, 138-140 and 142-144 in Set 5).
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DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL)

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make a Copy of an existing Generic Environment, and label the Copy as a "TST" Environment." (emphasis added). The Exhibit "A" referenced in RFA 532 of set 2 (and which is also referenced in each of the 76 separately numbered RFAs 496-571 in set 2) is the exact same Exhibit A attached to Defendants' amended responses to the 14 RFAs at issue here. If the jury does not understand what Defendants' are referring to, they will also be confused by all 75 of Plaintiffs own RFAs in set 2 that refer to the exact same two columns of the exact same exhibit. Plaintiffs may reply by asserting that the reference to the bundles listed in the first two columns of Exhibit A provides no information as to which specific objects in the list of 33,186 objects are referenced in the 14 RFAs at issue, but that is also not credible. Defendants produced the retrofit bundles listed in the first two columns of Exhibit A. Moreover, the names of those retrofit bundles are contained in the 973 page Exhibit D that is attached to the 14 RFAs in Issue A. Plaintiffs and their experts can easily review the first two columns of Exhibit A along with their own 973 page list of objects to determine which objects are contained within the retrofit bundles. But that is not what Plaintiffs want. Plaintiffs admit that "the purpose of these RFAs is to establish that SAP TN had development and testing processes that were common for many thousands of objects, so that at trial proof of infringement can be presented in an aggregated way, rather than individually for each object." Supp. Mot. at 2:9-11. Although Defendants do not concede that the responses to the 14 RFAs at issue are "proof of infringement," there is no better way to aggregate a specific portion of the 33,186 objects at issue than to provide an admission that specifically relates to the "vast majority" of specific collections of those objects (i.e., the retrofit bundles that are identified in the first two columns of Exhibit A). Thus, the "level of granularity" with which Defendants have responded to the 14 RFAs in Issue A actually helps Plaintiffs by providing the very aggregation they claim this set of RFAs ultimately seeks. B. The wording of the 17 RFAs in Issue B requires a qualified response.

Plaintiffs seriously misquote (twice) Defendants' response to RFA 577, which actually states: "ADMITTED for at least one component in the majority of the listed fixes or updates."8 Plaintiffs misquote the response as: "ADMITTED for at least one component in the majority of the listed fixes or components." Supp. Mot. at 3:22-23 and 4:9. -4DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL) 8

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Thus, contrary to Plaintiffs' assertion, Defendants' qualified amended response tracks the language of the RFA. The entire set of 185 separately numbered RFAs in which the 17 RFAs in Issue B are contained is RFAs 496-680 of set 2.9 When the companion requests (and related amended responses) to these 17 RFAs are considered, certain clear patterns emerge. This set of RFAs is in response to the Court's suggestion that Plaintiffs should consider seeking admissions from Defendants based on a "bucketing"10 approach (i.e., requests that seek admissions regarding a described activity for "each," "the majority," "some" or "at least one" of the fixes or updates identified in the lists attached to the requests at issue). And, as Exhibit B to the Cowan Declaration shows, Defendants admitted without any qualification whatsoever 98 of these 185 requests and admitted on a "vast majority basis" 26 additional requests. Defendants denied, without any qualification whatsoever, 32 of these 185 requests, and denied only 11 of the requests on the basis that Defendants have insufficient information to admit or deny the request.11 The primary reason that Defendants were able to simplify their amended responses to this group of RFAs is that during the meet and confer that followed the January 26, 2010 hearing, Plaintiffs indicated that they believed the plain meaning of the phrases "in part," "as part of," "part of TN's process," "one step in the process" and "at least one" should be sufficient to address Defendants' concerns that a response relating to the referenced updates or fixes (which each contain numerous objects) was not necessarily an answer as to every single object contained in the fixes or updates. In other words, at least for the requests that contain these phrases, even if one object in the referenced fixes or updates satisfies the condition of the request, it is Plaintiffs' position that an admission of that request is required. In some instances, even where these The 17 RFAs in Issue B are highlighted in Cowan Decl., Ex. B at 26, 31, 32, 33, 34, 35, 36 and 50 (i.e., RFAs 577-79, 600-02, 604-606, 608-10, 612-14 and 667-668 in Set 2).. 10 For certain requests that relate to frequency instead of quantity, Plaintiffs used the terms "always," "usually," "more often than not" and "sometimes." These bucketing terms, as in this brief, are also shown in bolded blue font in Ex. B to the Cowan Declaration. 11 To assist the Court in fully understanding and appreciating how seriously Defendants have taken their obligations under both Rule 36 and the Court's Orders related to Plaintiffs' Motion, directly adjacent to Defendants' current responses Defendants have included in the far right column of Exhibit B to the Cowan Declaration the substantive portions of Defendants' prior responses to each of these 185 RFAs as they existed before Defendants' received the Court's guidance at the January 26, 2010 hearing. -5DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL) 9

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phrases were not included in the requests, Defendants were still able to provide an amended response to the request without the need for any qualification. However, in 17 instances where those phrases were not included, Defendants needed to provide a good faith qualification. The Court recognized Defendants' concern regarding this potential "over inclusiveness" issue for these RFAs during the January 26 hearing and stated that "I don't know whether Oracle could change this to something like `Admit that for some fixes or updates or the components thereof,' or something like that." Jan. 26, 2010 Transcript at 47:8-11 (emphasis added). Defendants responded by asking "so, Your Honor, are you suggesting that we work together to try to address some of the concerns -- we have and revise their request?" Id. at 47:19-23 (emphasis added). And, the Court then responded "Yes. But I am telling you I mostly agree with Oracle. I very little agree with you. I think there's a few grains of correctness that it's not exactly as precise as it should be, but I think mostly what's happening is those are being used to leverage giving evasive and unhelpful answers. That's my view of this." Id. at 47:23-48:3. (emphasis added). Plaintiffs then responded, "We'll take that and work with it, Your Honor." Id. at 48:4-5 (emphasis added) (Plaintiffs' Supplemental Motion deleted the bolded portions of the hearing transcript quoted above, see Supp. Mot. at 4:24-28, n. 1). Defendants met and conferred with Plaintiffs after the January 26 hearing in an attempt to reach an agreement where Plaintiffs would slightly revise their requests for the 17 RFAs in Issue B in a way that would permit an unqualified amended response. Plaintiffs refused to do so. Thus, Defendants then used the permissions provided in Rule 36 and the Court's Order and qualified their amended responses to the 17 RFAs in Issue B. 02-11-10 Order (Dkt. 633) at 11:26-27. Defendants qualified their amended responses using the exact same qualifying language the Court suggested (i.e., "components") during the hearing. Although the Court seemed to think the term "components" might be appropriate, and although Plaintiffs own expert, Kevin Mandia, has used the term "components" in the exact same context that Defendants used it in their amended responses, 12 Plaintiffs argue that the "jury will not understand the undefined word Plaintiffs' technical expert, Kevin Mandia, defines "Associated Files" meaning "any file that is a component of a specific fix." See Cowan Decl. Ex. F (emphasis added). -6DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL) 12

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`component,' nor how it relates to the fixes and updates Oracle asked about." That argument is not credible. Defendants amended responses to the 17 RFAs at issue, especially when taken in context with all of Defendants' amended responses to the set of 185 RFAs in which these 17 RFAs are contained, comply with Rule 36 and the Court's Orders. C. Plaintiffs understand the cited testimony for the sole RFA in Issue C.

Issue C involves only one RFA (i.e., RFA 11 in set 5). Defendants' response to RFA 11 is essentially "DENIED for the vast majority," except as to the subset of certain downloaded materials that Ms. VonFeldt admitted under Plaintiffs' cross examination that she placed on the "AS/400 World Partition" (i.e., the piece of hardware that is the subject of RFA 11). Plaintiffs state that "there is no way a jury could read Defendants' response to RFA 11 and understand what [Defendants] have admitted or denied." Supp. Mot. at 5:13-14 (emphasis added). To the extent that is true, then it is also true that there is no way a jury could read the request in RFA 11, without reference to any extrinsic evidence or knowledge, and understand the request that Plaintiffs are making of Defendants. The reality is that Plaintiffs' RFAs are technical, very complicated requests that will inevitably require extrinsic (most likely expert) evidence before the requests and the related responses will have any significant meaning to a lay jury. Regardless, Plaintiffs and their experts understand exactly what Defendants have admitted in RFA 11 because Plaintiffs cross-examined Ms. VonFeldt on this very issue for almost a half hour and obtained as much information from Ms. VonFeldt as she could remember regarding the specific locations on the AS/400 World Partition where the downloads at issue might be located. See Cowan Decl., Ex. C (Apr. 4, 2009 VonFeldt Depo. at 10:14-29:13 and Deposition Ex. 1146 cited therein).13 During Ms. VonFeldt's deposition, Plaintiffs even used a document she created Only portions of pages 10, 11 and 14 of Ms. VonFeldt's testimony are cited in Defendants' amended response because Defendants reasonably believed that Plaintiffs would readily recognize from these short-hand cites exactly what Defendants' admission is referring to. However, if Plaintiffs really do not understand what the cited testimony in Defendants' amended response refers to, then Defendants submit that all that is needed to provide Plaintiffs with the relief they request in Issue C is for Defendants to further amend their response to RFA 11 to reference all of Ms. VonFeldt's 27 minutes of testimony on this issue, as follows: "DENIED as to the vast majority, with only one exception, which is that this request is ADMITTED for the materials that TomorrowNow downloaded and subsequently moved to the AS/400 World Partition as described by Patti VonFeldt at pages at 10:14-29:13 (and Depo. Ex. 1146 cited therein) of her April 10, 2009 deposition." -7DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL) 13

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(Depo. Ex. 1146) that details, in a step-by-step fashion, the process she followed in placing the downloads at issue on the AS/400 World Partition. Id. Because Ms. VonFeldt is the individual who placed the materials at issue in RFA 11 on the AS/400 World Partition, her testimony is literally Defendants' "best evidence" as to what those materials are and, to the extent they still exist on that piece of hardware, where they can be located. Thus, even if Defendants were ordered to provide more information in response to RFA 11, they could not do so, because Ms. VonFeldt's testimony is the best information they have on this issue for the specific piece of hardware at issue in RFA 11. D. The 55 denials in Issue D are consistent with their mirror admissions.

All of Plaintiffs' RFAs that have "mirror"14 RFAs are contained in Exhibit D to the Cowan Declaration, attached hereto. The purpose of the mirror RFAs is best shown by the relief Plaintiffs sought in the Motion: "the Court should order Defendants to substantively answer RFAs Nos. 13-50 in Set Three and 4-33 in Set Five, which asked how the fix objects were created and whether certain files were downloads, or to admit without qualification RFAs 34-63 and 13062 in set Five, which asked them to admit they lack reasonable access to readily obtainable information that would allow them to answer the former RFAs." Mot. at 30:2-6 (emphasis added). The essence of Plaintiffs argument was "Defendants cannot have it both ways" (i.e., arguing that Defendants cannot deny both the initial and corresponding mirror requests) Id. at 29:22. The Court agreed with Plaintiffs and stated that Defendants "have to do one or the other" and "I can't let you have it both ways." 01-26-10 Tr. (Dkt. 629) at 69:13; 70:10 (emphasis added). Defendants complied with the Court's Orders on this issue by using the Court's guidance and providing, where possible, substantive amended responses to RFAs Nos. 13-50 in set 3 and RFAs 4-33 in set 5, and then denying the mirror requests in RFAs 34-63 and 130-62 in set 5. Now, although Defendants responded in a manner that provides the exact relief Plaintiffs sought in the Motion, Plaintiffs are themselves seeking to have it both ways. Plaintiffs' Supplemental Motion seeks this Court to compel Defendants to substantively respond to the initial requests and to admit that Defendants lack information to substantively respond to the initial requests.
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"Mirror" is Plaintiffs' term, not Defendants. See Supp. Mot. at 1:22. -8DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL)

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Plaintiffs' reading of the mirror RFAs in Issue D is illogical. Using the RFA 4 and 34 pair from set 5 as an example, Defendants admitted RFA 4 for the vast majority. RFA 34 states: "For each file located in DCITBU01_G\JDE\JDE Delivered Updates & Fixes, admit that after a reasonable inquiry Defendants lack sufficient readily obtainable information to determine that the file was not originally downloaded from an Oracle website by SAP TN." (emphasis added). Defendants' admission to RFA 4 establishes that Defendants do have "sufficient readily obtainable information to determine" the answer for the "vast majority" of the files at issue in the request. Defendants cannot also logically admit that they do not have "sufficient readily obtainable information to determine" the answer for those same files. That is why Defendants denied RFA 34. If Defendants were to answer the mirror requests as Plaintiffs argue they should, then Defendants would be simultaneously admitting that they do and do not have "sufficient readily obtainable information" for the "vast majority" of the files at issue. As shown in Exhibit D to the Cowan Declaration attached hereto, Defendants' amended responses to each companion set of two RFAs, when taken together, logically provide an answer for the vast majority of the fixes and updates at issue in those two RFAs, as required by the Court's Orders. E. Defendants' responses cover the "vast majority" for the 22 RFAs in Issue E.

The Court did not order Defendants to conduct a file-by-file analysis15 so long as Defendants' amended responses to the RFAs are more succinct and understandable, and use some quantifiable general approach. See, e.g., 01-26-10 Tr. (Dkt. 629) at 65:14-19. Specifically, in response to Defendants' statement that "what I hear the Court saying is you're not ordering us to go through file by file if we are willing to do it in some quantifiable general order," the Court stated "Some more use ­ exactly. Something ­ I think that would be the preferable approach, I mean, for everybody; wouldn't it?" Id. And, Plaintiffs replied "Yes, Your Honor." Id. Likewise, the Court did not overrule Defendants' burden objections. In fact not only did the Court indicate that it was "concerned about the burden," it noted that it was "very concerned." 01-26-10 Tr. (Dkt. 629) at 68:9-10. And, while reiterating that it was "concerned about the burden," the Court noted that it has provided Defendants with "approaches to deal with the burden." Id. at 71:23-72:2. Finally, the written Order is qualified based on a recognition of Defendants' burden objections (i.e., "Accordingly, Plaintiffs' Motion to compel is granted, on the condition that the parties meet and confer about ways to lessen the burden on Defendants." 02-11-10 Order (Dkt. 633) at 14:14-15 (emphasis added)). -9DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL) 15

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Where it was possible, Defendants used the Court's suggested "vast majority" language. Where there was no good faith basis to use the "vast majority" language in responding to any one RFA, Defendants quantified their responses in a generally understandable manner such that the "vast majority" of the quantities addressed by each mirror image pair of RFAs is covered. When Plaintiffs' exemplars (i.e., RFA 16 of set 3 and its mirror RFA 133 set 5) are analyzed side by side, it shows that Defendants both admitted RFA 16 for the "majority" of fixes and updates at issue and simultaneously admitted the corresponding mirror request, RFA 133, for the remaining "minority" of those fixes and updates. Taken together, Defendants' amended responses to the eleven pairs of RFAs in Issue E, logically provide answers for the vast majority of the fixes and updates at issue in those eleven pairs of RFAs (i.e., 22 RFAs) rather than only addressing 51% of them. Defendants are not trying to have it both ways by using the terms "majority," "minority" or "approximately half" in their amended responses. To the contrary, the side by side comparison of the 22 RFAs in Issue E and shown in Exhibit E to the Cowan Declaration shows that when Defendants did not provide a substantive answer to the initial request that addressed the "vast majority," Defendants split their admission between the first request and the mirror request in a manner that admitted the mirror request for the quantity not admitted in the initial one. III. CONCLUSION Defendants respectfully request that the Court deny the relief requested in Plaintiffs' Supplemental Brief in Support of its Motion to Compel Further Responses to Requests for Admissions (Dkt. 661). If the Court considers granting Plaintiffs any additional relief, then Defendants respectfully request that the Court consider granting an oral hearing on any such issues. Dated: March 12, 2010 JONES DAY By: /s/ Scott W. Cowan Scott W. Cowan Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.
HUI-124620v1 DEFS' OPP. TO ORACLE'S SUPP. BRIEF ISO OF ORACLE'S MOT. TO COMPEL Case No. 07-CV-1658 PJH (EDL)

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