Oracle Corporation et al v. SAP AG et al

Filing 702

OBJECTIONS to Evidence Filed in Support of Cross Motion and Opposition to MOTION for Partial Summary Judgment by Oracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Alinder, Zachary) (Filed on 4/14/2010) Modified on 4/15/2010 (vlk, COURT STAFF).

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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 BINGHAM McCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: (415) 393-2000 Facsimile: (415) 393-2286 donn.pickett@bingham.com geoff.howard@bingham.com holly.house@bingham.com zachary.alinder@bingham.com bree.hann@bingham.com DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: (650) 506-4846 Facsimile: (650) 506-7114 dorian.daley@oracle.com jennifer.gloss@oracle.com Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. Plaintiffs, CASE NO. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO EVIDENCE FILED IN SUPPORT OF DEFENDANTS' CROSS-MOTION AND OPPOSITION TO ORACLE'S MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 5, 2010 Time: 9:00 a.m. Place: Courtroom 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton SAP AG, et al., Defendants. Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION 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 Plaintiffs Oracle USA, Inc. (now known as "Oracle America, Inc."), Oracle International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. (together, "Oracle") hereby object to the admission of certain evidence submitted with Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc.'s (together, "Defendants") Cross Motion and Opposition to Oracle's Motion for Partial Summary Judgment ("Cross Motion and Opposition" or "Opp.") in the Declaration of Tharan Gregory Lanier filed in support of the Cross Motion and Opposition ("Lanier Declaration"). These objections are made without prejudice to Oracle's right to make further written and oral objections at the hearing on the instant motions and/or to the evidence at trial. Specifically, Oracle hereby requests a ruling that Exhibits 4, 5, 8, 9, 10, 14, 15, 17, 18, 21, 22, 23, 24, 25, and 26 to the Lanier Declaration are irrelevant to the issues before the Court for the purposes of the Cross Motion and Opposition and therefore inadmissible; Exhibit 4 is also inadmissible for lack of authentication when offered by Defendants; Exhibit 8 is also inadmissible hearsay when offered by Defendants and an improper compilation that does not satisfy Rule 1006; and Exhibit 10 is also inadmissible hearsay when offered by Defendants. I. ORACLE'S OBJECTIONS TO EVIDENCE A. Certain Evidence in Support of Section III.C. of Defendants' Cross Motion and Opposition is Irrelevant and Inadmissible Oracle objects to Exhibits 4, 5, 8, 10, 15, 17, 21, 22, 23, 24, 25, and 26 to the Lanier Declaration as irrelevant. Defendants submitted these exhibits in support of Section III.C. of Defendants' Cross Motion and Opposition, titled "A Ruling Regarding the Copyright Registrations Asserted in Plaintiffs' Motion Should Not Serve as a Template for Litigating the Rest of this Case." Opp. at 11-14. Oracle's Motion for Partial Summary Judgment ("Motion") notes that the Court's ruling on the issues presented will serve as a useful template to make trial more focused and efficient. Motion at 2. However, the role of the Court's decision on streamlining the trial is not a legal issue before the Court at this time. Neither party's "Relief Requested" section seeks an order on the role of this Motion in streamlining the trial. See Opp. at 1; Motion at 1. That subject is properly the province of the pretrial process, during which Oracle will show why the 1 Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION 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 facts established in Oracle's Motion, Defendants' concessions, and the Court's ultimate rulings will assist the Court in rendering decisions on similar claims based on similar facts. That time will come. Defendants should not now be permitted to offer evidence to support an issue not currently before the Court. See, e.g., Stanton v. Couturier, No. 2:05-cv-02046, 2007 U.S. Dist. LEXIS 95515 at *6, fn.1 (E.D. Cal. Dec. 26, 2007) (declining to address party's argument on an issue not currently before the Court). Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401 (emphasis supplied). These Exhibits are irrelevant because they are not of any consequence to the determination of Oracle's Motion or Defendants' Cross Motion and Opposition. Irrelevant evidence cannot be considered in summary judgment proceedings. See Fed. R. Evid. 402 ("Evidence which is not relevant is not admissible"); Protect Lake Pleasant, LLC v. McDonald, 609 F. Supp. 2d 895, 923, fn.15 (D. Ariz. 2009) (holding evidence not pertaining to issue before the Court on summary judgment was irrelevant under Fed. R. Evid. 402 and inadmissible); Romero v. Hennessey, No. C 08-4675, 2010 U.S. Dist. LEXIS 1398 at *4 (N.D. Cal. Jan. 5, 2010) ("factual disputes that are irrelevant or unnecessary will not be counted [as disputed issues]."). The Court should sustain Oracle's objection and exclude Exhibits 4, 5, 8, 10, 15, 17, 21, 22, 23, 24, 25, and 26 offered in support of Section IIIC of Defendants' Cross Motion and Opposition. In addition, Oracle objects to a subset of these documents (Exhibits 4, 8, and 10) on additional grounds as follows: 1. Exhibit 4 to the Lanier Declaration Should be Excluded for Lack of Authentication Oracle objects to Exhibit 4 to the Lanier Declaration. Defendants do not properly authenticate this document. According to the Lanier Declaration, Exhibit 4 is a document produced by Defendants - not Oracle - during discovery in this matter. Lanier Decl., 4. This is insufficient to establish the authenticity of the document. See, e.g., Fed. R. Evid. 901 (suggesting means of properly authenticating document). Unauthenticated documents and 2 Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION 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 documents for which an inadequate foundation has been laid cannot be considered to oppose a motion for summary judgment. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) (affirming summary judgment where plaintiffs' opposing evidence was unauthenticated and therefore inadmissible). Courts have accepted the authenticity of documents produced by the opposing party in litigation as statements of party opponents, but that is not the case here. Cf. Maljack Prods. v. Goodtimes Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996). Here, Defendants have offered their own self-serving document produced during discovery without properly authenticating it. Oracle accordingly objects to Exhibit 4 on this basis. 2. Exhibit 8 Should Also be Excluded as Inadmissible Hearsay and an Impermissible Rule 1006 Summary Oracle objects to Exhibit 8 to the Lanier Declaration as inadmissible hearsay and as an improper compilation under Federal Rule of Evidence 1006. Exhibit 8 is a table allegedly reflecting Defendants' customer names and support dates and details. Defendants attempt to offer foundational testimony for this document through deposition testimony of Michael Garafola, who described the document as "a note sheet specifying customers, prospects, and server names." Lanier Decl. 17, Ex. 17 at 16:1-2. Mr. Garafola testified that he "believe[d]" Deposition Exhibit 1623 was created by "counsel." Id. at 16:9. He explained, "I did not draft this, but the information that was -- is represented in this note sheet was discussed during the [deposition] preparation." Id. at 16:4-6. Mr. Garafola testified that "the information [underling the document] was discussed and remembered during our [deposition] preparation sessions." Id. at 16:12:15. Thus, Exhibit 8 is an out of court statement, created by counsel for Defendants, ostensibly recording "remembered" statements made out of court during deposition preparation, and introduced with Defendants' Cross Motion and Opposition to prove the "truth of the matter asserted," namely, that Siebel customers were typically supported remotely. Opp. at 13. This is impermissible. Fed. R. Evid. 801, Fed. R. Evid 802. Exhibit 8 to the Lanier Declaration should be excluded as inadmissible hearsay. Nor is Exhibit 8 an admissible summary or compilation of voluminous writings under Federal Rule of Evidence 1006. A summary of other materials is admissible only if the 3 Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION 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 proponent makes a showing that the underlying documents are also admissible. Fed. R. Evid. 1006; see e.g., Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984); Amarel v. Connell, 102 F.3d 1494, 1516 (9th Cir. 1996) ("[a] proponent of a summary exhibit must establish a foundation that . . . the underlying materials on which the summary exhibit is based are admissible in evidence). Defendants do not even show that the summary is based on voluminous documents, much less identify the underlying documents, still less show the documents are admissible. This failure alone renders the summary inadmissible under Federal Rule of Evidence 1006. See Paddack, 745 F.2d at 1259. 3. Exhibit 10 to the Lanier Declaration is also Inadmissible Hearsay Oracle also objects to Exhibit 10 to the Lanier Declaration, containing Defendants' own self-serving interrogatory responses to Plaintiff Oracle USA, Inc.'s Interrogatory No. 14, as inadmissible hearsay. Defendants offer Exhibit 10 to prove "the truth of the matter asserted." Opp. at 13; Fed. R. Evid. 801(c). This is impermissible. Fed. R. Evid. 801; Fed. R. Evid 802; Avila v. Willits Envtl. Remediation Trust, No. C 99-3941, 2008 U.S. Dist. LEXIS 19742 at *57-58 (N.D. Cal. Feb. 6, 2008) (a party's own interrogatory answers are hearsay); Grace & Co. v. City of Los Angeles, 278 F.2d 771, 776 (9th Cir. 1960), citing Haskell Plumbing & Heating Co. v. Weeks, 237 F.2d 263, 267 (9th Cir. 1956) ("Normally, a party may not introduce his self-serving answers to an opponent's interrogatories"). B. Exhibits 9 and 14 are Irrelevant and Inadmissible Oracle objects to Exhibits 9 and 14 to the Lanier Declaration as irrelevant to the issues currently before the Court. Defendants introduced Exhibit 9 to the Lanier Declaration (Oracle's Responses and Objections to Defendants' Interrogatory No. 10) and Exhibit 14 to the Lanier Declaration (excerpts of testimony from the Deposition of Richard Allison) in support of arguments in Section III.B. of Defendants' Cross Motion and Opposition, entitled "Plaintiffs Are Not Entitled to Summary Judgment Dismissing Defendants' Second and Third Affirmative Defenses Relating to Licensed Use." Opp. at 9-10. However in response to Oracle's Motion, Defendants abandoned these defenses "relating to licensed use" as to the copyright claims 4 Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION 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 addressed in Oracle's Motion. See Opp. at 10 ("Defendants elect not to assert their license-based defenses as to the limited and specific conduct associated with the particular registrations identified in Plaintiffs' Motion."). Because Defendants have thus withdrawn their license defense as to any issues now pending before the Court, the proffered evidence is irrelevant for purposes of this motion and inadmissible. See Fed. R. Evid. 402; Protect Lake Pleasant, 609 F. Supp. 2d at 923, fn.15; Romero, 2010 U.S. Dist. LEXIS 1398 at *4. C. Exhibit 18 to Lanier Declaration is Irrelevant and Inadmissible Oracle objects to Exhibit 18 to the Lanier Declaration as containing irrelevant evidence. Exhibit 18 contains deposition testimony from Jason Kees, an Oracle Rule 30(b)(6) witness on the issue of access to Oracle's Siebel computer systems. See Lanier Decl. 18, Ex. 18 at 17:10-12. Defendants attempt to misuse Mr. Kees' testimony as reflective of all of Oracle's computer systems. Opp. at 16, 19. Specifically, Mr. Kees focused on "Oracle's Siebel-related Customer Support Website." See Ex. 18 at 193:15. As the cited testimony notes, Mr. Kees "would only have knowledge specific to systems that are related to Siebel Systems Incorporated." Id. at 17:10-12. Defendants' counsel even noted "I'm not trying to broaden the topic past anything other than the Siebel product line." Id. at 17:21-23. While Mr. Kees' testimony addresses only Oracle's Siebel product line and thus the Siebel Customer Support Website (SupportWeb), Oracle's Motion addresses damage and harm to Oracle's Customer Connection support website, which is a different website for PeopleSoft and JD Edwards materials two other product lines entirely. See Motion at 17. Thus Mr. Kees' Siebel-related testimony is irrelevant to the issues currently before the Court, and should be excluded. See Fed. R. Evid. 402; Protect Lake Pleasant, 609 F. Supp. 2d at 923, fn.15; Romero, 2010 U.S. Dist. LEXIS 1398 at *4 . II. CONCLUSION Oracle respectfully requests that the Court sustain these objections to evidence introduced by Defendants in support of their Cross Motion and Opposition. 5 Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION 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 DATED: April 14, 2010 BINGHAM McCUTCHEN LLP By: /s/ Zachary J. Alinder Zachary J. Alinder Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA, Ltd., Siebel Systems, Inc. 6 Case No. 07-CV-01658 PJH (EDL) ORACLE'S OBJECTIONS TO DEFENDANTS' EVIDENCE FILED IN SUPPORT OF CROSS MOTION AND OPPOSITION

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