Oracle Corporation et al v. SAP AG et al

Filing 729

Declaration of Jason McDonell in Support of 728 MOTION in Limine Defendants' Motions in Limine Declaration of Jason McDonell in Support of Defendants' Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC)(Related document(s) 728 ) (Froyd, Jane) (Filed on 8/5/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 ramittelstaedt@jonesday.com jmcdonell@jonesday.com ewallace@jonesday.com Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 tglanier@jonesday.com jfroyd@jonesday.com Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 swcowan@jonesday.com jlfuchs@jonesday.com 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) DECLARATION OF JASON MCDONELL IN SUPPORT OF DEFENDANTS' MOTIONS IN LIMINE Date: Time: Place: Judge: September 30, 2010 9:00 am 3rd Floor, Courtroom 3 Hon. Phyllis J. Hamilton SVI-83512v1 DECLARATION OF JASON MCDONELL ISO DEFENDANTS' MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL) Dockets.Justia.com 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 I, JASON MCDONELL, declare as follows: I am a partner in the law firm of Jones Day, 555 California Street, 26th Floor, San Francisco, CA 94104 and counsel of record for Defendants SAP AG, SAP America, Inc. and TomorrowNow, Inc. (collectively, "Defendants") in the above-captioned matter. I am a member in good standing of the State Bar of California and admitted to practice before this Court. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. Defendants' expert Brian S. Sommer served an expert report rebutting portions of the report of Plaintiffs' expert Paul K. Meyer. During the course of discussions between the Parties and, as Exhibit G recounts, the parties agreed that experts would be prepared to provide sur-rebuttal testimony at their depositions. Plaintiffs designated no other individual other than Meyer to rebut Sommer's Report. 2. During his deposition, Meyer produced a document, Defendants' Exhibit 2017 that purports to identify the causes of action in the Complaint and the damages that he has calculated and how the two relate. However, Exhibit 2017 does not quantify the alleged harm to Plaintiffs' goodwill. 3. Attached as Exhibit A is a true and correct copy of the following excerpts from the February 23, 2010 Supplemental Expert Report of Paul K. Meyer: Cover page and 20 (Table 1), 121, 121 n.302, 129, 355, 433 (Table 16). 4. Attached as Exhibit B is a true and correct copy of the following excerpts from the May 13, 2010 Paul K. Meyer Deposition: 332, 440:1-441:7. 5. Attached as Exhibit C is a true and correct copy of the following excerpts from the May 12, 2010 Paul K. Meyer Deposition: 1, 37:19-41:17, 56:23-57:15, 255:9-260:25. 6. Attached as Exhibit D is a true and correct copy of the following excerpts from the August 18, 2009 Transcript of Proceedings (D.I. 426): 1, 38:18-25, 41:18-24, 43:11-22. 7. Attached as Exhibit E is a true and correct copy of the following excerpts from Plaintiffs' Proposed Jury Instructions: Cover page and Instructions Nos. 35-36, 46-49, 52, 60. SVI-83512v1 -1- DECLARATION OF JASON MCDONELL ISO DEFENDANTS' MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL) 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 8. Attached as Exhibit F is a true and correct copy of the following excerpts from the May 5, 2010 Transcript of the Hearings on the Parties' Motions for Partial Summary Judgment: 1, 49-50. 9. Attached as Exhibit G is a true and correct copy of the January 25, 2010 email exchange between Holly House and me. 10. Attached as Exhibit H is a true and correct copy of the following excerpts from the May 14, 2010 Paul K. Meyer Deposition: 648, 828:11-22, 829:12-831:8, 856:25-857:18, 934:13-19. 11. Attached as Exhibit I is a true and correct copy of the following excerpts from Plaintiffs' October 2, 2009 Initial Expert Disclosures: 1-4. 12. Attached as Exhibit J is a true and correct copy of the following excerpts from Plaintiffs' October 16, 2009 Supplemental Expert Disclosures: 1-4. 13. Attached as Exhibit K is a true and correct copy of the Declaration of Norm Ackermann filed on March 3, 2010 in redacted form as D.I. 650. 14. Attached as Exhibit L is a true and correct copy of the following excerpts from ORCLX-PIN-000108 marked as Defendants' Deposition Exhibit 2052: 1, 3. 15. Attached as Exhibit M is a true and correct copy of the following excerpts from the May 19, 2010 Paul C. Pinto Deposition: 1, 51:5-52:16, 52:21-53:10, 56:20-57:2. 16. Attached as Exhibit N is a true and correct copy of the following excerpts from the Expert Report of Kevin Mandia: Cover page and 112-113, 120-121, 270 n.130, 280 n.139. 17. Attached as Exhibit O is a true and correct copy of the following excerpts from the December 2, 2009 John Ritchie Deposition: 1, 169:5-170:7. 18. Attached as Exhibit P is a true and correct copy of the following excerpts from the May 21, 2010 Kevin Mandia Deposition: 291, 379:6-16, 383:16-384:22. 19. Attached as Exhibit Q is a true and correct copy of the following excerpts from the July 21, 2010 Deposition of Seth Ravin: 276, 332:3-339:13, 366:14-368:21. 20. Attached as Exhibit R is a true and correct copy of the following excerpts from the May 21, 2009 Deposition of Seth Ravin: 1, 252:22-257:14. SVI-83512v1 -2- DECLARATION OF JASON MCDONELL ISO DEFENDANTS' MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL) 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 21. Attached as Exhibit S is a true and correct copy of Docket Item 1 in the matter of Oracle USA, Inc. v SAP AG, et al., No. 2:09-cv-01591-KJD-GWF (D. Nev.). 22. Attached as Exhibit T is a true and correct copy of Docket Item 38 in the matter of Oracle USA, Inc. v SAP AG, et al., No. 2:09-cv-01591-KJD-GWF (D. Nev.). 23. Attached as Exhibit U is a true and correct copy of Texas Articles of Incorporation of a Business Corporation for TomorrowNow, Incorporated, filed in the Office of the Secretary of State of Texas. 24. Attached as Exhibit V is a true and correct copy of E.E.O.C. v. Lennar Homes of Ariz., CV-03-1827-PHX-DGC, 2006 U.S. Dist. LEXIS 42865 (D. Ariz. June 23, 2006 ). 25. Attached as Exhibit W is a true and correct copy of Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., No. 2:06-cv-2879-GEB-KJM, 2008 U.S. Dist. LEXIS 91373 (E.D. Cal. June 13, 2008). 26. Attached as Exhibit X is a true and correct copy of Informatica Corp. v. Business Objects Data Integration, Inc., No. C 02-03378 EDL, 2007 U.S. Dist. LEXIS 16247 (N.D. Cal. Feb. 23, 2007). 27. Attached as Exhibit Y is a true and correct copy of Powell v. Houston Helicopters, Inc., No. 90-3070 "I"(6), 1992 U.S. Dist. LEXIS 1052 (D. La. Jan. 23, 1992). 28. Attached as Exhibit Z is a true and correct copy of Sharer v. Tandberg, Inc., No. 1:06-cv-626, 2007 WL 983849 (E.D. Va. Mar. 27, 2007). 29. Attached as Exhibit AA is a true and correct copy of Therasense, Inc. v. Becton, Dickinson & Co., No. C 04-02123 WHA, 2008 WL 2323856 (N.D. Cal. May 22, 2008). 30. Attached as Exhibit BB is a true and correct copy of United States v. Smith, 199 Fed. App'x. 759, 761, 763-64 (11th Cir. September 15, 2006). 31. Attached as Exhibit CC is a true and correct copy of 1 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations 36 (Sept. 2009). SVI-83512v1 -3- DECLARATION OF JASON MCDONELL ISO DEFENDANTS' MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL) 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 I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 5th day of August, 2010 in San Francisco, California. /s/ Jason McDonell Jason McDonell SVI-83512v1 -4- DECLARATION OF JASON MCDONELL ISO DEFENDANTS' MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL)

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