Oracle Corporation et al v. SAP AG et al

Filing 694

RESPONSE to re 682 Plaintiffs' Objections to Evidence Filed in Support of Defendants' Motion For Partial Summary Judgment by SAP AG, SAP America Inc, Tomorrownow Inc. (Froyd, Jane) (Filed on 4/14/2010) Modified on 4/15/2010 (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' RESPONSES TO PLAINTIFFS' OBJECTIONS TO EVIDENCE FILED IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 5, 2010, Time: 9:00 a.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton
DEFS.' RESP. TO PLFS.' OBJS. TO EVID. ISO DEFS.' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 07-CV-1658 PJH (EDL)

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Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. ("Defendants") hereby respond to Plaintiffs' Objections to Evidence Filed in Support of Defendants' Motion for Partial Summary Judgment D.I. 682 ("Pls.' Objs. to Evid.") as follows. A. Exhibit H to the Lanier Declaration.

Plaintiffs object on relevance grounds to the July 6, 2009 Fourth Amended and Restated Cost Sharing Agreement ("Cost Sharing Agreement") attached as Exhibit H to the Declaration of Tharan Gregory Lanier in Support of Defendants' Motion for Partial Summary Judgment ("Lanier Declaration"). Plaintiffs argue that Exhibit H is irrelevant because the question of whether Plaintiffs may recover damages for nonparties is a purely legal question. Pls.' Objs. to Evid. at 2. They further argue that Exhibit H is irrelevant because it does not "resolve the factual issue of whether Plaintiffs seek lost profits of related nonparties." Id. at 2-3. However, Plaintiffs misunderstand the purpose of Exhibit H. Exhibit H goes to the foundational issue of the relationships among the entities at issue in Plaintiffs' "Oracle organization as a whole" damages theory. It is relevant to show, as a foundational matter, that they are separate entities as well as nonparties. Plaintiffs also object to related portions of Defendants' motion on the ground that they purportedly consist of speculation and improper opinion. However, Plaintiffs' only specific complaint is that Exhibit H purportedly does not establish any basis for the contention that "Oracle's corporate structure allows it to conduct its operations through various cost-sharing agreements." Pls.' Objs. to Evid. at 3. This clearly is incorrect. Exhibit H, on its face, is a costsharing agreement among various Oracle corporate entities. The Court should deny Plaintiffs' objections to Exhibit H, and the portions of Defendants' motion to which it relates, because they lack merit. In addition, since Plaintiffs now concede, as a matter of fact and law, that they may not seek damages for the nonparties at issue, the Court should deny Plaintiffs' objections as moot. B. Exhibit I to the Lanier Declaration.

Plaintiffs object to the Brief for Respondent Appellant filed in Sarhank Group v. Oracle Corp., 404 F.3d 657 (2nd Cir. 2005) (No. 92-9383), attached as Exhibit I to the Lanier
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Declaration, on the same grounds discussed above with regard to Exhibit H. Plaintiffs' objections to Exhibit I should be denied for the same reasons. Exhibit I goes to the same foundational fact as Exhibit H, and, in addition, Plaintiffs' objections to Exhibit I should be denied as moot now that Plaintiffs have conceded that they may not attempt to seek damages for nonparties. C. Exhibit N to the Lanier Declaration.

Defendants inadvertently included in their motion a cite to unpublished decision Guy v. IASCO, No. B168339, 2004 WL 1354300 (Cal. Ct. App. June 17, 2004). Defendants withdraw that citation. However, Plaintiffs' request that portions of Defendants' motion be stricken based on citation to the Guy case should be denied. Defendants cited Guy as one example of a legal principle that is amply supported by the other authority in Defendants' brief (i.e., that even if some of the complained-of conduct occurred in California, there must be more than a superficial connection to the state). See D.I. 640 (Defs.' Mot.) at 3-4. For example, Speyer v. Avis Rent a Car Sys., Inc., which Defendants cite on the same page, stands for the same proposition. See 415 F. Supp. 2d 1090, 1099 (S.D. Cal. 2005). Moreover, Plaintiffs do not dispute that this is an accurate statement of the law. D.I. 677 (Pls.' Opp.) at 6 ("California law still applies where there are adequate California connections, a proposition affirmed by each case SAP cites.") (emphasis added). Thus, Defendants' citation to Guy was harmless, and Plaintiffs' request to strike any portion of Defendants' motion on that ground should be denied. D. Exhibit 1 to the Wallace Declaration (Rule 1006 Summary).

Plaintiffs purport to object to Defendants' Rule 1006 Summary on accuracy grounds (Pls.' Objs. to Evid. at 6) but fail to identify any inaccuracy with respect to the 39 customers included in the summary. Instead, Plaintiffs complain that the summary omits one customer, Durr, which Plaintiffs contend is an OEMEA customer. Id. However, Plaintiffs are mistaken that Durr should be included on the list of OEMEA customers. Plaintiffs rely on Schedule 31.SU to the Meyer Report for their contention, in which "Mr. Meyer assigns certain Durr AG support contracts to Oracle GB (also known as Oracle Corporation UK Limited) in Oracle's EMEA region." D.I. 679 (House Decl.) ¶ 42. However, the contracts that Meyer assigns to Oracle GB (contracts P-JDM07051-1-000-3 and P-04-05153-000-70) are not the relevant contracts. The contract for
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products supported by TN (contract P-JD-M00434-000-97) was assigned to Oracle USA, Inc., not Oracle GB or OEMEA. Thus, for purposes of this case and Defendants' motion, Durr is not an OEMEA customer, and Plaintiffs' objection is not well-founded. Plaintiffs point to no other purported inaccuracy. Indeed, Plaintiffs do not dispute any of the facts contained within the Rule 1006 Summary. Plaintiffs' objection on that ground should be denied. Plaintiffs' objection that the Rule 1006 Summary is based on inadmissible evidence should also be denied. The source documents are not hearsay, as Plaintiffs contend. Pls.' Objs. to Evid. at 7. As set forth in the Declaration of Elaine Wallace in Support of Defendants' Fed. R. Evid. 1006 Summary of Evidence ("Wallace Decl."), the information in the summary is derived from three sources: (1) the OKI3 database, in which Plaintiffs record information relating to their customer contracts; (2) commissionaire, undisclosed agency, and other agreements among the relevant Oracle entities; and (3) a spreadsheet in which Plaintiffs listed multiple entities that shared Oracle revenue under certain revenue sharing agreements. Id. at 1. Each of these documents was produced by Plaintiffs. Id. In addition, Plaintiffs' expert, Meyer, has relied on them for his damages analysis. None of these documents are hearsay because they constitute admissions of a party-opponent under Rule 801(d)(2) of the Federal Rules of Evidence. They are also business records under Rule 803(6) of the Federal Rules of Evidence and thus would be excepted from the rule against hearsay in any event. In addition, Meyer's reliance on the same documents precludes Plaintiffs from denying that the documents have sufficient indicia of reliability to be admissible under Rule 807 of the Federal Rules of Evidence. Thus, there is no basis for Plaintiffs' hearsay objection, and it should be denied. Plaintiffs' sole remaining objection (Pls.' Objs. to Evid. at 7) is to a statement in the Rule 1006 Summary that for four customers, the "territories are assumed" to be in EMEA because, while the customer contracts at issue were assigned by Plaintiffs to OEMEA, Plaintiffs failed to produce the relevant agreements so that Defendants could ascertain the precise territories of the commissionaires at issue. This objection should also be denied. First, by failing to produce the relevant agreements, Plaintiffs have waived any right to object to the fact that Defendants did not
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include them in the Rule 1006 Summary. Second, Plaintiffs do not dispute that Defendants' assumption is correct, i.e., that the territories of the commissionaires for these four customers are, in fact, in EMEA. Not surprisingly, for example, Plaintiffs do not dispute that the territory for Oracle Belgium includes Belgium, the territory for Oracle Spain includes Spain, and the territory for Oracle Denmark includes Denmark. See, e.g., Rule 1006 Summary at 3 (entry for Allianz Life Insurance of North America). In short, none of Plaintiffs' objections to the Rule 1006 Summary have any merit. The objections, and Plaintiffs' request that the Court strike the Rule 1006 Summary and the portions of Defendants' motion that cite to it, should be rejected. Dated: April 14, 2010 JONES DAY By: /s/ Tharan Gregory Lanier Tharan Gregory Lanier Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

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