Oracle Corporation et al v. SAP AG et al

Filing 708

RESPONSE to re 693 Objection, to Evidence Filed in Support of Oracle's Opposition to Defendants' Motion for Partial Summary Judgment by Oracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (House, Holly) (Filed on 4/28/2010)

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BINGHAM MCCUTCHEN LLP Donn P. Pickett (SBN 72257) [e-mail] 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: [phone] Facsimile: 415.393.2286 [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] 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 RESPONSES TO DEFENDANTS' OBJECTIONS TO EVIDENCE FILED IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Date: Time: Place: Judge: May 5, 2010 9:00 a.m. Courtroom 3, 3rd Floor Hon. Phyllis J. Hamilton
CASE NO. 07-CV-01658 PJH (EDL)

SAP AG, et al.,, Defendants.

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TABLE OF CONTENTS Page A. The House Declaration Does Not Violate Civil Local Rules 7-4(b) & 75(b), Nor Does it Violate Rule 56(e)(1) of the Federal Rules of Civil Procedure ............................................................................................................... 1 1. The House Declaration Does Not Violate Civil Local Rule 7-5(b) ........... 2 2. The House Declaration Does Not Violate Civil Local Rule 7-4(b) ........... 5 3. The House Declaration Does Not Violate Federal Rule of Civil Procedure 56(e)(1) ..................................................................................... 6 4. Defendants' Request to Exclude the House Declaration Should Be Denied Because it is Overbroad................................................................. 8 The Documents Oracle Submitted as Proof That OEMEA's Claims Are Properly Before This Court and Relevant............................................................ 10 Exhibit 5 to the House Declaration Should Not Be Excluded And Defendants' Objection to Exhibit 5 Constitutes Improper Legal Argument ....... 14 The Cited News Articles (Exhibits 44-46) Are Not Hearsay and/or Are Redundant of Undisputed Facts ........................................................................... 16

B. C. D.

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TABLE OF AUTHORITIES Page FEDERAL CASES Allegro Corp. v. Only New Age Music, Inc., No. 01-790-HU, 2002 U.S. Dist. LEXIS 27449 (D. Or. Oct. 4, 2002)..................................... 9 Andrews v. Whitman, No. 06-2447-LAB (NLS), 2009 WL 857604 (S.D. Cal. Mar. 27, 2009).................................................................................................. 10, 14 Brae Asset Funding, L.P., v. Applied Fin., LLC, No. 05-02490 WHA, 2006 WL 2355474 (N.D. Cal. Aug. 14, 2006)....................................... 4 Brew v. City of Emeryville, 138 F. Supp. 2d 1217 (N.D. Cal. 2001) ................................................................................ 4, 5 Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122 (E.D. Cal. 2008)................................................................................... 16 Heiberg v. United States, No. CS-94-0167-FVS, 1994 U.S. Dist. LEXIS 17090 (E.D. Wash. Nov. 15, 1994), aff'd by 87 F.3d 1319 (9th Cir. 1996) ....................................................................................... 9 Hertz Corp. v. Friend, No. 08-1107, 130 S. Ct. 1181 (2010)...................................................................................... 12 Highland Dev., Inc. v. Duchesne County, 505 F. Supp. 2d 1129 (D. Utah 2007) ....................................................................................... 9 In re Cygnus Telecomms. Tech., LLC Patent Litig., No C-04-04247 RMW, 2007 WL 2261543 (N.D. Cal. Aug. 6, 2007) ................................... 15 Page v. Children's Council, No. C 06-3268 SBA, 2006 WL 2595946 (N.D. Cal. Sept. 11, 2006)....................................... 4 Roesgen v. Am. Home Prods. Corp., 719 F.2d 319 (9th Cir. 1983)................................................................................................... 11 Tijerino v. Regents of the Univ. of Cal., No. C-95-0598 MMC, 1996 U.S. Dist. LEXIS 18938 (N.D. Cal. Dec. 16, 1996) ................... 9 Zottola v. City of Oakland, 32 Fed. Appx. 307 (9th Cir. 2002) .......................................................................................... 15

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TABLE OF AUTHORITIES (continued) STATE CASES

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Diamond Multimedia Sys., Inc. v. Superior Court, 19 Cal. 4th 1036 (1999) .......................................................................................................... 10 RULES Fed. R. Civ. P. 56 ................................................................................................................... passim Fed. R. Evid. 201 .......................................................................................................................... 16 Fed. R. Evid. 401 .......................................................................................................................... 11 Fed. R. Evid. 402 .......................................................................................................................... 11 Fed. R. Evid. 801 .......................................................................................................................... 16 Fed. R. Evid. 1006 .......................................................................................................................... 5 N.D. Cal. Civ. L. R. 7-4 ......................................................................................................... passim N.D. Cal. Civ. L.R. 7-5 .......................................................................................................... passim Ninth Circuit Rule 36-3................................................................................................................. 15

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Plaintiffs Oracle USA, Inc. (now known as Oracle America, Inc.), Oracle International Corporation, Oracle EMEA Limited ("OEMEA"), and Siebel Systems, Inc. (together "Oracle") respond to Defendants SAP AG's, SAP America, Inc.'s, and TomorrowNow, Inc.'s (together "Defendants") Objections to Evidence Filed in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment ("Objections or "Objs.") (Dkt. 693) as follows. A. The House Declaration Does Not Violate Civil Local Rules 74(b) & 7-5(b), Nor Does it Violate Rule 56(e)(1) of the Federal Rules of Civil Procedure The House Declaration is consistent with this Court's Civil Local Rules and the Federal Rules of Civil Procedure. Despite Defendants' mischaracterizations to the contrary (e.g., Objs. at 1:12-19), the House Declaration does not consist of impermissible arguments or conclusions, but contains only statements of fact and explanatory parentheticals based on the evidence that is attached to the Declaration. That those voluminous cites yield a multi-page declaration does not violate the page limits of the accompanying Opposition. Nor does the fact that, due to the large volume of undisputed and admissible evidence, Oracle organized the House Declaration by subject and provided non-argumentive parenthetical explanations to assist the Court in identifying relevant evidence for each topic. Providing a roadmap for the evidence in support of a motion for the convenience of the Court and the Parties is not only permitted under the local rules and federal rules, it is consistent with the Court's expressed preference for organization and roadmaps to summary judgment evidence. See Transcript of October 28, 2009 hearing, Declaration of Joy C. Sherrod ¶ 2, Ex. A thereto, at 2:13-4:22 ("I need a road map [sic] with your papers . . . [I]t would certainly help me in terms of being able to devote my time to reading your papers and thinking about your argument."); see also N.D. Cal. Civ. L. R. 7-4(b) & 7-5(b); Fed. R. Civ. P. 56(e)(1). Finally, as shown below, nothing in the House Declaration authenticating documents was outside of the declarant's knowledge. All of Defendants' Objections to the House Declaration and to any of the cited exhibits should be overruled and Defendants' overbroad request to strike the entire House Declaration rejected. 1
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1.

The House Declaration Does Not Violate Civil Local Rule 7-5(b)

N.D. Cal. Civ. Local Rule 7-5(b) states that declarations "may contain only facts" and "must avoid conclusions and argument." The House Declaration is consistent with this rule. It contains non-argumentative factual summaries of the evidence. Defendants' assertions to the contrary fail. OEMEA Evidence Parentheticals. First, Defendants assert that the House Declaration contains "impermissible argument and conclusions" because it contains excerpts from Plaintiffs' Opposition. Objs. at 2:7-12. What Defendants fail to point out is that the House Declaration only excerpts the short umbrella assertions of fact in Plaintiffs' Opposition as a prelude to show the relevance of the then-cited and attached supporting evidence. For example, House Decl. ¶ 21 starts: "The following attached evidence supports Oracle's argument at Opp. 6:1-3: `Each of the three Defendants had meetings in California during the relevant period, and SAP TN's business model, its role in Safe Passage and its expansion into Europe were discussed at some of those.'" This is the exact same format used in each of the paragraphs 7-24 that Defendants cite. Objs. at 2:12. As is clear from this exemplar, the House Declaration makes no conclusion or argument itself ­ it simply explains what factual assertions from the Opposition the following cited evidence is cited to support. That does not violate Civil Local Rule 7-5(b). Second, Defendants imply that the included parentheticals are impermissibly argumentative. Objs. at 2:11-12. Yet Defendants fail to provide a single example of the allegedly offending parentheticals in paragraphs 7-24. The reason is that these parentheticals simply summarize the evidence, often using exact and undisputed quotes.1 On its face, the

For example, in paragraph 10, the House Declaration identifies Exhibit 707 as "December 29, 2004 email forwarding a December 28, 2004 email Zepecki sent to various individuals at SAP following his meeting with SAP TN executives detailing his preliminary assessment of SAP TN and identifying `access rights to the PeopleSoft software . . . very likely to be challenged by Oracle" as a potential weakness.'" Similarly, in paragraph 13, Exhibit 36 is identified as "January 25-26, 2005 TomorrowNow Integration Meeting PowerPoint presentation listing Seth Ravin `ex-President; Responsible for Business Development & Sales - Pleasanton, CA;' Business and Resource Planning slide includes this item: `Build/Extend Pleasenton [sic] Support (Footnote Continued on Next Page.) A/73365100.2 2 CASE NO. 07-CV-01658 PJH (EDL)
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House Declaration does not try to explain the significance or meaning of the documents, other than in stating that Oracle cites them in support of the referenced factual umbrella statement in its Opposition. See House Decl. ¶¶ 7-24.2 Paragraph 33. Defendants next contend that paragraph 33 (which authenticates a cited excerpt from the Financial Accounting Standards Board referenced in the Opposition) "contains a stand-alone argument about the meaning of the document attached." Objs. at 2:1214. Paragraph 33 contains no such "argument"; it simply quotes from the text of the cited Standards ("[f]rom the perspective of the market participant (seller), the price that would be received for the asset is determined based on the cost to a market participant (buyer) to acquire or construct a substitute asset of comparable utility, adjusted for obsolescence") and then it explains that: "[t]hese accounting standards expressly contemplate SAP's saved costs in connection with the cost approach to fair market valuation." See House Decl. ¶ 33. A minor explanatory phrase like that does not violate Rule 7-5(b). Nor does that single example begin to support Defendants' assertion that such explanations "comprise the bulk of the House Declaration." Objs. at 2:16-17. Inapposite Cases. Further, the cases Defendants cite in support of their

(Footnote Continued from Previous Page.) and Development Center (eventually move to Palo Alto => 20+).'" The many other parentheticals in the House Declaration are comparably short and accurate descriptions of the cited relevant evidence highlighted in the attached Exhibits. See House Decl. ¶¶ 7-24. Moreover, in making this argument Defendants ignore their own comparable and indeed far more argumentative (and non-knowledge-based) practice, including in the very Reply Declaration submitted simultaneously with their Objections. See, e.g., Lanier Declaration in Support of Reply to Opp. to MSJ (Dkt. No. 692) at ¶¶ 2-4 (describing the contents of each attached exhibit and some exhibits to the House Declaration and arguing what each means, including, for example, that Ex. 1 purportedly "lists Nick Rawls as a TN Senior Account Executive for the EMEA region, located in Maidenhead, UK, and Hendrik Zwart as a TN Senior Account Executive for the EMEA region, located in Germany. TN's counsel, Tom Nolan, is, and has been at all relevant times, located in Stamford, Connecticut"; that Ex. 69 to the House Declaration "lists Mr. Dunfee's location as Pleasanton, California because he reported to Bob Geib, who was located in Pleasanton, California. Mr. Dunfee's actual location was Ohio, as listed in the TN organization chart produced at TN-OR00000007"; the dates Mr. Lanier believes that the contracts attached as Exs. 2 and 4"became effective"; and that Ex. 3 "indicat[es] that Harley-Davidson was a customer of SAP at least as early as December 9, 2005").
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objections are inapposite. Id. at 1-2. In Brae Asset Funding, the Court struck two declarations, which were both unsigned and late. Brae Asset Funding, L.P., v. Applied Fin., LLC, No. 0502490 WHA, 2006 WL 2355474 (N.D. Cal. Aug. 14, 2006). The Court provided further reasoning for striking the Christensen Declaration ­ it was "full of legal argument and conclusions by the hearsay declarant" in violation of Rule 7-5(b) and referred "throughout to exhibits that were never filed." Id. at *5. In addition to being filed timely and properly e-signed, the House Declaration does not contain improper legal argument, conclusions or hearsay, nor does it refer to exhibits that were not filed. Instead, the House Declaration contains factual descriptions of exhibits that were specifically attached to the Declaration to aid the Court in discerning the relevant facts from the underlying documents. The Brae Asset Funding case does not apply here. Nor does the House Declaration resemble the declaration in Page v. Children's Council. In Page, the Court struck paragraphs 2-10 of a declaration because it "simply repeats portions of the Plaintiff's memo in support of her Motion to Remand." Page v. Children's Council, No. C 06-3268 SBA, 2006 WL 2595946, at *5 (N.D. Cal. Sept. 11, 2006) (emphasis supplied). Unlike in Page, where the memorandum was "simply" repeated and was therefore "unnecessary and duplicative," the House Declaration refers to portions of Oracle's Opposition only to provide a roadmap linking the attached evidence to the Opposition Brief, not to make any legal argument. Id. Similarly, the Page Court struck paragraph 17 of the declaration, because it contained clear argument "that [defendant] was not entitled to participate in the litigation . . . so the Court lacks subject matter jurisdiction and should remand to the state court." Id. Defendants cite no similar legal argument in the House Declaration, as there is none. Finally, the Brew case is also inapposite. See Objs. at 2; see also Brew v. City of Emeryville, 138 F. Supp. 2d 1217, 1227 (N.D. Cal. 2001). In Brew, the plaintiff submitted a declaration from a declarant who admitted that "he was out of the country" on the date of the incident, which was "the sole basis for plaintiff's claims." 138 F. Supp 2d at 1227. The Court struck the declaration pursuant to Fed. R. Civ. P. 56(e), concluding that the declarant's "previous or later observations have no relevance," and that the declaration contained "hearsay, lack[ed] A/73365100.2 4 CASE NO. 07-CV-01658 PJH (EDL)
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foundation, and form[ed] conclusions as opposed to stat[ing] facts." Id. In contrast to Brew, the House Declaration does not contain hearsay, legal conclusions or statements without foundation. Parenthetical factual summaries submitted to be helpful and explain the relevance of the evidence to Oracle's Opposition do not run afoul of Rule 7-5(b) or Fed. R. Civ. P. 56(e). The Court should deny Defendants' Objection that the House Declaration violates Local Rule 7-5(b). 2. The House Declaration Does Not Violate Civil Local Rule 7-4(b)

Defendants next baldly claim that including in a declaration "argumentative parentheticals" identifying the attached evidence that are not otherwise in the briefing "undermines [the] page limits" of N.D. Cal. Civ. L. R. 7-4(b). Objs. at 2:25-26. But the rule on its face does not apply to declarations in support of opposition briefs, and Defendants cite no case holding that it does. Moreover, their argument would preclude the Court's consideration of any non-argumentative factual descriptors contained in declarations, which is not the law and runs counter to the Court's above-cited request for roadmaps to assist in complicated filings. There is no recognized penalty for including parenthetical evidence summaries in declarations attaching the underlying evidence ­ let alone the penalty of preclusion of the underlying evidence that Defendants' request. Rather, Defendants' cases concern exclusion of improper arguments in declarations. But, as explained above, Defendants fail to identify a single parenthetical that is argumentative. Nor do or can they explain how including plain summaries of evidence in parentheticals does anything but assist the Court. Moreover, Defendants' argument that factual summaries undermine the pleading page limits would preclude any evidence in a declaration that was not fully contained and described in the body of the brief itself. This is not the law nor is it the parties' practice. This is shown by the Lanier Declaration in support of Defendants' MSJ cited in footnote 2 above, as well as by, e.g., the Rule 1006 summary of evidence in support of Defendants' MSJ included within the Wallace Declaration. While the Wallace Declaration's Rule 1006 summary is
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the page limit requirement for briefs under Rule 7-4(b) is not and should not be one of them. Yet, by SAP's own argument, both these Declarations (and others they have made in the case) would undermine the page limits, and be excluded. In short, the inclusion of parenthetical summaries of factual evidence in the House Declaration for the convenience of the Court and the Parties does not violate Local Rule 7-4(b) and the Court should deny Defendants' objection on that basis. 3. The House Declaration Does Not Violate Federal Rule of Civil Procedure 56(e)(1)

Defendants' next objection that the House Declaration violates Rule 56(e)(1) is similarly without merit. Rule 56(e)(1) requires that declarations in support of summary judgment motions "be made on personal knowledge" and "show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1). The House Declaration satisfies the standard. All three arguments that Defendants make in support of their claim that the House Declaration violates Rule 56 fail. First, Defendants claim that the House Declaration "contains many statements for which Ms. House cannot possibly demonstrate the requisite personal knowledge," but the small excerpts Defendants cite do not support their claim and are taken out of context. Objs. at 2:7-16. For example, Defendants argue that the House Declaration "purports to state what one SAP employee allegedly `asked' another employee to do in 2004." Id. at 3:15-16. The House Declaration "purports" to do no such thing. The House Declaration summarizes the facts from a long string of testimony attached to the Declaration, using actual quotes from the documents: "Agassi asked Zepecki to join the SAP TN acquisition team `asap' and tasked him with assessing SAP TN's business model and `identify[ing] any risks.' Zepecki then met with SAP TN executives, `quizzed' them on `more tactical things,' and provided his findings to Agassi and the SAP board." House Decl. ¶ 9. Moreover, the declarant does not, as Defendants claim, need to demonstrate personal knowledge of "the interactions between two SAP employees," only personal knowledge of the source and accuracy of the cited, quoted and attached testimony to the
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that. See, e.g., House Decl. ¶ 3. Second, Defendants claim that "Ms. House purports to detail what various individuals did, what those individuals `were involved in,' where they lived and/or worked, who they `communicated with,' and even what an organization's `key goal has always been.'" Objs. at 3:21-24. They ignore that the complained-of detail arises directly from the properly authenticated and admissible evidence and quotes from Defendants' own employee testimony and discovery responses, which Defendants then take out of context. For example, for the description of Exhibit 41 (SAP AG's Fourth Amended and Supplemental Responses to Oracle Corp.'s 1st Set of Interrogatories, Response to Interrogatory No. 3), the House Declaration states: "Zepecki and Agassi were involved in investigation and due diligence associated with the acquisition of SAP TN." House Decl. ¶ 9. The interrogatory response ­ an admission by Defendants ­ confirms this simple factual recitation, and Defendants do not dispute it. The House Declaration confirms that a true and correct copy of the document itself containing those facts is attached. Id. ¶ 3. Personal knowledge of the source of the factual statements quoted is all that is required, and that is exactly what the House Declaration sets forth. Third, Defendants mischaracterize the House Declaration in claiming that it "purport[s]" to know where various individuals lived and/or worked. Objs. at 3:22-23. In reality, the House Declaration again just describes the factual statements in various (mostly Defendant-produced) documents showing where certain SAP/TN employees were located. For example, the House Declaration provides the following factual Exhibit summaries: Exhibit 19 ("Agassi has been a resident of California since 1995"); Exhibit 33 ("confirming Trainor's office was located in Palo Alto"); and Exhibit 55 ("March 16, 2005 meeting request from Faye to Andrew Nelson to discuss post-acquisition action items . . . Faye's signature block confirms his office was located in Palo Alto, CA"). House Decl. ¶¶ 9, 11. Those plain descriptions of relevant and undisputed facts contained in the attached documents are based on the attached Exhibit itself. Nor (in contrast to the Lanier Declaration described in footnote 2 above) does the House Declaration "purport" to establish direct knowledge of what Defendants' employees were
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"involved in" or "communicated." Objs. at 3:22-23. For example, the description of Exhibit 38 7 CASE NO. 07-CV-01658 PJH (EDL)
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("Crean and Faye were involved in the drafting, review and promulgation of the Rules of Engagement") is a nearly verbatim recitation of TomorrowNow's 8th Amended and Supplemental Response to Interrogatory No. 6, just as the description of Exhibit 41 ("Faye communicated with TN employees about policies, procedures, practices or abilities related to downloading materials from Customer Connection") is a recitation of SAP AG's Fourth Amended and Supplemental Response to Interrogatory No. 4. House Decl. ¶ 11 and Exs. 38 and 41 thereto. In short, all of the complained-of content in the House Declaration is nonargumentative, non-conclusory, undisputed factual recitations from Defendants' own documents, testimony and discovery responses. Defendants' unsupported request that the Court not consider such descriptions ­ let alone not consider the underlying admissible and relevant evidence ­ should be denied. 4. Defendants' Request to Exclude the House Declaration Should Be Denied Because it is Overbroad

Though the Court should deny Defendants' request to exclude the House Declaration pursuant to Local Rules 7-4 and 7-5 and Federal Rule of Civil Procedure 56(e) on the merits, their request should also be denied because it is overbroad. Defendants raise specific objections to only certain portions of the House Declaration, yet they request the Court exclude the entire declaration, or in the alternative, ¶¶ 7-24 and 33 of the Declaration. Objs. at 4:1-7. The Court should deny Defendants' overbroad requests. Even if Defendants could support their argument that any specific parentheticals in the House Declaration could or should not be considered (which they do not) or that any statement in the House Declaration was beyond the declarant's knowledge (which they also do not), as set forth below, the law is clear that only those specifically objectionable statements in the Declaration should be stricken. Yet Defendants would have the Court strike the entire House Declaration ­ including the attached underlying evidence about which they do not and cannot object. This would deny the Court the ability to determine the merits of Defendants' MSJ on the
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Moreover, Defendants' suggested remedy ­ the exclusion of the entire House Declaration ­ is overbroad on its face. Defendants make no specific objection to paragraphs 1-6, 25-32 and 34-43 of the House Declaration, yet ask the Court to strike the entire House Declaration purportedly because "the bulk . . . contains objectionable material." Objs. at 4:1. That is not how evidentiary objections work. See, e.g., Tijerino v. Regents of the Univ. of Cal., No. C-95-0598 MMC, 1996 U.S. Dist. LEXIS 18938, at *7-8 (N.D. Cal. Dec. 16, 1996) (denying a motion to strike an entire declaration despite argument "that the allegedly inadmissible evidence contained therein `so predominate[s] [the] Declaration'" even though the declaration contained "a substantial quantity of inadmissible evidence"); Heiberg v. United States, No. CS94-0167-FVS, 1994 U.S. Dist. LEXIS 17090, at *2-3 (E.D. Wash. Nov. 15, 1994), aff'd by 87 F.3d 1319 (9th Cir. 1996) (declining to strike declarations in their entirety and instead striking only those portions specifically objected to); Highland Dev., Inc. v. Duchesne County, 505 F. Supp. 2d 1129, 1135 n.11, 1148 n.30 & n.32 (D. Utah 2007) (declining to strike declaration in its entirety and instead striking specific paragraphs on the basis that those portions lacked foundation, were argumentative and/or were speculative); see also Allegro Corp. v. Only New Age Music, Inc., No. 01-790-HU, 2002 U.S. Dist. LEXIS 27449, at *4-5 (D. Or. Oct. 4, 2002) (declining to strike declaration in its entirety and instead striking those portions that "contain legal arguments and conclusions, and those portions which refer to facts not part of the summary judgment record").3 Finally, even if Defendants had some legitimate argument against some statement in or exhibit to the House Declaration (which they do not), they do not provide the Court or Oracle the means to apply the appropriate excising approach. They completely fail to identify

3

Even as to the paragraph 33, the one paragraph where Defendants make a specific argument, Defendants over-request. They ask that the Court strike all of paragraph 33 because of one allegedly objectionable sentence that provides context for a quoted and attached accounting standards document. Objs. at 2:12-16 & 4:3-6. But the explanatory sentence is only part of the paragraph, and if the Court were to find that sentence improper, per the above-cited cases, the appropriate remedy would be to strike that sentence, not the whole paragraph or the attached evidence. 9
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with specificity the portions of the House Declaration that are objectionable, instead referencing an undifferentiated 21 pages and the Index. Objs. at 4:1-2. It is not Oracle's or the Court's obligation to do Defendants' work on a motion and to sift through that undifferentiated mass to find what may actually be objectionable. Andrews v. Whitman, No. 06-2447-LAB (NLS), 2009 WL 857604, at *10 (S.D. Cal. Mar. 27, 2009) ("Objections must be specific, not vague and general . . . ."). Rather, Defendants were to clearly cite the specific statements in the House Declaration and the specific attached exhibits to which they objected and the bases for each such objection. See id. In sum, Defendants do not attempt to appropriately tailor their objections, but instead seek an overbroad remedy which neither the law nor the facts support. The Court should deny Defendants' overbroad request to strike the House Declaration in its entirety, including its alternative request to strike paragraphs 7-24 and 33. Rather, should the Court find any portion of the House Declaration improper or any exhibit to it inadmissible, it should strike only that limited portion of the Declaration or that limited evidence. B. The Documents Oracle Submitted as Proof That OEMEA's Claims Are Properly Before This Court and Relevant Faced with overwhelming evidence that OEMEA's claims are properly before this Court and that OEMEA's claims have an ample nexus to Defendants' California conduct, Defendants nonetheless argue in their Objections that evidence of Defendants' extensive California contacts and conduct is irrelevant. Obj. at 4:8-5:28.4 Not so. The documents and testimony Oracle submitted in support of Section III of its Opposition establish that, contrary to Defendants' assertion, OEMEA's claims are not "wholly extraterritorial" and that any conduct by Defendants giving rise to OEMEA's claims occurred in California, which is the admitted legal test. See MSJ at III.A, & B; Opp. to MSJ at III.C (citing, e.g., Diamond Multimedia Sys., The proper place for such argument was in Defendants' MSJ Reply, but Defendants instead flout the 15-page limitation of Civ. L-R 7-4(b) by making these arguments here. This approach is inconsistent with Defendants' criticism of Oracle for purportedly evading the MSJ Opposition page limits by including factual descriptors of evidence (not argument such is made here) in the House Declaration.
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Inc. v. Superior Court, 19 Cal. 4th 1036, 1059 (1999) (anyone who has suffered harm "from unlawful acts or omissions in California may recover damages [in California] from the person at fault")). As explained in Oracle's MSJ Opposition and again briefly below, the business practices and decisions by Defendants which the cited evidence links to California caused OEMEA's ultimate customer losses just as they caused the customer losses of other Oracle plaintiffs in the United States about which Defendants do not dispute jurisdiction. Given the relevance of the cited evidence to the admitted legal test, the objected-to evidence is clearly relevant. See Fed. R. Evid. 401, 402. For the reasons identified below, all of Defendants' objections to the evidence Oracle submitted in support of Section III of its Opposition should be denied. Evidence of Defendants' California Operations: Exhibits 46, 53, 57, 58, 96, 97, and 473 show that, during the relevant period, Defendants had board and other meetings in California where the very SAP TN business practices that allowed the SAP Defendants to hurt Oracle and take away customers (including OEMEA customers) were discussed; Exhibits 210 and 225 show that SAP and SAP TN had offices in California; Exhibits 1 (¶ 106), 19, 21, 22, 23, 33, 44, 395, 738 show that SAP and SAP TN not only had employees in California, but that SAP and SAP TN employees relevant to the success of SAP's plans to hurt Oracle through SAP TN were located in California. All these Exhibits demonstrate that SAP and SAP TN had a significant presence in California and that the harm that OEMEA suffered originated in substantial part from the business operations and conduct of SAP's and SAP TN's Californiabased employees. Moreover, Exhibit 738 also demonstrates that California-based SAP Board member, Shai Agassi, likened the purchase of SAP TN to a "bomb going off on the eleventh floor" [of Oracle's California headquarters]; this document and all those discussed above are also relevant because they are probative of whether SAP/TN had a reasonable expectation that California law would govern OEMEA's claims. Cf. Roesgen v. Am. Home Prods. Corp., 719 F.2d 319, 321 (9th Cir. 1983) (California Supreme "[C]ourt w[ould] decline to apply California law when the facts indicate that the parties' only reasonable expectations were that the law of a
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foreign state would apply."). The Court should deny Defendants' objections to this evidence. 11 CASE NO. 07-CV-01658 PJH (EDL)
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Evidence Regarding John Zepecki and Shai Agassi's Role in the TN Acquisition: Defendants next assert that Exhibits 19, 22, 32, 35, 36, 41, 208, 212, 219, 225, 390, 392, 395, 707 and 738 are irrelevant because SAP and SAP TN did not market or provide support to OEMEA customers until after the acquisition. Objs. at 5:5-11. In making this objection, Defendants mischaracterize the evidence and the relevant inquiry. First, much of the evidence cited above relates specifically to the critical actions of California-based SAP Board member Shai Agassi and SAP Vice President John Zepecki. This evidence shows that highly positioned SAP executives assessed the legality of TN, suspected TN was misusing Oracle's IP and advised the SAP Board before they decided to nonetheless acquire TN that this activity was "very likely to be challenged by Oracle." See e.g., House Decl. Exs. 19, 32, 35, 36, 41, 208, 212, 219, 225, 390, 392, 395, 707 and 738. These documents show that SAP's California executives knew about the improper business practices that eventually led to Oracle customer losses (including OEMEA customer losses) and that they anticipated the TN acquisition would lead to legal action by Oracle and that both SAP and OEMEA (as an Oracle subsidiary) would reasonably expect that the Oracle parent company headquartered in California would control this litigation. Cf. Hertz Corp. v. Friend, No. 08-1107, 130 S. Ct. 1181, 1185-86 (2010) (holding that jurisdictional phrase "principal place of business" means the place where the corporation's high level officers direct, control, and coordinate the corporation's activities). For these reasons, the evidence is relevant and the Court should deny Defendants' objections to it. Evidence of Seth Ravin's Role in Developing the TN Business Model and Involvement in SAP TN: Defendants objections to Exhibits 36, 40 and 455 mischaracterize those Exhibits by describing them simply as "[e]vidence regarding Seth Ravin." Objs. at 5:1216. But Exhibits 36, 40 and 455 evidence his roles in TN and then SAP TN and the resulting harm to OEMEA. These exhibits show that Seth Ravin was the architect of TN's illegal business model, was instrumental in the integration of TN into SAP and that SAP planned to expand the existing TN office (where Mr. Ravin worked) to Palo Alto. These exhibits also show that the harm to OEMEA was conceived and orchestrated by California employees and that SAP TN had a significant presence in California; thus, SAP and SAP TN cannot claim surprise at having to A/73365100.2 12 CASE NO. 07-CV-01658 PJH (EDL)
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defend themselves in California. The Court should also deny Defendants' objections to these relevant exhibits. Evidence that SAP/TN's legal advice came from their California lawyers: Defendants ask the Court to exclude Exhibits 21, 22, 39, 40 and 41 claiming "legal advice regarding acquisition due diligence, given by SAP's California-based attorneys and pre-dating OEMEA's claims is irrelevant to whether a sufficient nexus exists between the alleged California conduct and OEMEA's claims." Objs. at 5:17-20. To the contrary, these documents show that SAP's California based attorneys knew about TN's bad business practices and directed the initial actions ­ and inactions ­ of all Defendants as concerns those practices. This is the very unchecked conduct that caused all the Oracle plaintiffs' ultimate harm. Defendants next ask the Court to ignore Exhibits 21, 22, 23, 28, 33, 34, 38, 86, 87, 97 and 1684, claiming these exhibits showing admitted "legal advice by [SAP] California lawyers are irrelevant because they do not evince any connection between the lawyers and EMEA, or the legal advice and OEMEA's claims." Objs. at 5:20-23. Again, Defendants are being obtuse. These exhibits show the continued, pivotal role of SAP's California lawyers in the central matters of the case, and the impact of what they did and did not do on the continued harm to Oracle through SAP TN's illegal business model. In other words, this evidence demonstrates a nexus between SAP TN's continued misdeeds, supervised by SAP's California attorneys and the resulting harm to OEMEA. This evidence is also relevant and the Court should deny Defendants' objections to it. Evidence Regarding Safe Passage: Defendants argue that Exhibits 22, 24, 36, 41, 54, 59, 436, 473, 934 and 1684 do not demonstrate "any connection between California and OEMEA's claims and/or they pre-date OEMEA's claims." Here again, Defendants mischaracterize the evidence. These exhibits demonstrate that Safe Passage ­ SAP's marketing program against Oracle with SAP TN as its "cornerstone" ­ was designed by SAP's California employees to wrongfully interfere with Oracle's (and OEMEA's) customers. They also demonstrate that SAP TN was integral to the Safe Passage program. Therefore, these Exhibits are relevant and the Court should deny Defendants' objections to them.
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"Other" Documents: In this catch-all objection, Defendants ask the Court 13 CASE NO. 07-CV-01658 PJH (EDL)
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exclude Exhibits 48, 52, 63, 71, 82, 83 and 84 on the nebulous contention that these exhibits "fail to demonstrate any nexus between California and OEMEA's claims." Objs. at 5:27-28. The Court should not entertain this objection because it is overbroad and conclusory. To the extent Defendants had a legitimate objection to any of these exhibits, they failed to make it here and, again, it is not Oracle's or the Court's job to parse the evidence and do Defendants' objections for them. Whitman, 2009 WL 857604, at *10. Moreover, on their face, these exhibits demonstrate that OEMEA's customer relationships were wrongfully interfered with by several SAP and SAP TN California employees. Exhibit 48 shows that the California-based SAP executive in charge of the Safe Passage program, Terry Hurst, approved inviting "the 5 VP's from [OEMEA Customer] Baxter to the Safe Passage Executive Breakfast." Exhibit 52 shows that OEMEA customer Harley Davidson was (California SAP employee) Brian Dudley's account. Exhibit 63 is an SAP Apollo Safe Passage Message Brief, listing OEMEA customer Holland Casino as a "Safe Passage Mentionable Customer." Exhibits 71, 82, 83 and 84 all demonstrate that California SAP TN employee Bob Geib was heavily involved in luring and keeping (OEMEA customer) Baxter. None of these relevant Exhibits should be excluded. C. Exhibit 5 to the House Declaration Should Not Be Excluded And Defendants' Objection to Exhibit 5 Constitutes Improper Legal Argument Paragraph 27 of the House Declaration identified the attached Exhibit 5 as a true and correct copy of an article authored by a colleague of Defendants' damages expert on the Mars v. Coin Acceptors case that Defendants cite in their opening brief on the topic of its use in the hypothetical license negotiation that defendants continue to attack. See MSJ (Dkt. No 640) at 6:27-28; 17:2-19:17. Oracle cites to this article for the author's analysis of cases relevant to quantification of the fair market value license amount the Court has already ruled Oracle may seek, which is the very legal issue Defendants have put into play with their repeated argument against the relevance of avoided costs as a metric for that valuation. See MJS Opp. (Dkt No. 677) at 12:9-23. In the first place, that Defendants attack the practice of relying on and attaching
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cited third party legal commentary is both unsupported and disingenuous, given that Defendants 14 CASE NO. 07-CV-01658 PJH (EDL)
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liberally rely on and attach to their declarations such analysis. Compare with Lanier Decl. in Support of MSJ (Dkt. No. 641 at Exs. V, W and X) (attaching cited excerpts of Black's Law Dictionary, Fletcher's Cyclopedia of the Law of Private Corporations and Smith & Parr's Intellectual Property Valuation treatise); Lanier Declaration in Support of Reply re MSJ (Dkt. No. 692) at Exs. 31-34 (attaching cited excerpts of Milgram on Trade Secrets, Nimmer on Copyright, Patry on Copyright and Smith & Parr's Intellectual Property Valuation treatise). Second, contrary to Defendants' assertion (Objs. at 6:10-21), Exhibit 5 is not out of court hearsay being used to prove facts in this case; indeed, the author has no connection to this litigation and offers no analysis of the facts in this case. Rather, per paragraph 2 of the House Declaration, Oracle attaches the article for the Court's convenience in making its legal analysis. As with all cited authorities, the Court can and will give whatever weight to the analysis it deems appropriate.5 Moreover, it is absurd to argue that a party cannot rely on such third party legal commentary in a brief without disclosing the authors as retained experts, as Defendants next argue Oracle failed to do. Objs. at 6:22-7:7. Not surprisingly, the only authority in support, Zottola v. City of Oakland, 32 Fed. Appx. 307, 313 (9th Cir. 2002) is inapposite, standing only for the recognized rule that expert testimony cannot come at trial from a lay witness not otherwise disclosed as an expert. Further, pursuant to Ninth Circuit Rule 36-3, this unpublished case may not be cited. Defendants' final argument that Exhibit 5 should be stricken as irrelevant (Objs. at 7:8-23) is belied by its reference to the Mars case Defendants cite and its explanation of why avoided costs are highly relevant to fair market valuation of a hypothetical license ­ which counters the very argument Defendants again make. Moreover, Oracle objects to this

Defendants' only purported legal support for their claim that Exhibit 5 is hearsay is In re Cygnus Telecomms. Tech., LLC Patent Litig., No C-04-04247 RMW, 2007 WL 2261543, at *3 n.6 (N.D. Cal. Aug. 6, 2007), an inapposite case where the Court ruled that a party's attempt to use an article's analysis of the facts of the explicit case at hand ("that AT & T's Multi-Option Calling Plan infringed the patents-in-suit") was inadmissible hearsay.
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"irrelevance" argument as an improper attempt to expand upon the 15-page limit on reply briefs. If Defendants wanted to dispute the relevance of the Tomlin commentary to the arguments in play in their MSJ, that is where that argument belonged. Defendants' substantive legal argument against Exhibit 5 is improper here and should not be considered. See Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1126 n.1 (E.D. Cal. 2008) (refusing to consider objections to evidence that were not directed at the evidence itself). D. The Cited News Articles (Exhibits 44-46) Are Not Hearsay and/or Are Redundant of Undisputed Facts Defendants final objections concern articles confirming facts about California connections that Defendants do not dispute: namely that, at the relevant time, former SAP AG board member Shai Agassi was a California resident and that the SAP AG board had board meetings in California. Specifically, Exhibit 44 is an interview with Shai Agassi while he was an SAP AG board member; the relevant portions confirming his California connection are direct quotes from Mr. Agassi and constitute party admissions. See Fed. R. Evid. 801(d)(2). Moreover, those admissions are confirmed in the numerous other pieces of evidence Oracle cited and to which Defendants do not object. See House Decl. ¶ 7. Exhibits 45 and 46 simply state what Defendants' counsel Scott Cowan has already confirmed in court: that SAP AG holds Board meetings in Palo Alto California. See Dkt. No. 176 (August 28, 2008 Discovery Hearing before Magistrate Judge Elizabeth LaPorte) at 42:13-19. Oracle cited and attached that admission and other evidence supporting this undisputed fact in paragraph 21 to the House Declaration. Defendants' objections thus have no impact and are unnecessary make-work for the Court, which can and should take judicial notice of the articles pursuant to Federal Rule of Evidence 201(b) as further confirmation of the

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undisputed fact that SAP held Board meetings in California during the relevant period. DATED: April _____, 2010 Bingham McCutchen LLP By: Donn P. Pickett Attorneys for Plaintiffs ORACLE USA, INC., ORACLE INTERNATIONAL CORPORATION, ORACLE EMEA LIMITED, AND SIEBEL SYSTEMS, INC.

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