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)

Oracle Corporation et al v. SAP AG et al

Doc. 729 Att. 6

EXHIBIT F

Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE ORACLE CORPORATION, ET AL. ) ) PLAINTIFFS, ) ) VS. ) ) SAP AG, ET AL., ) ) DEFENDANTS. ) ____________________________)

NO. C 07-01658 PJH (EDL)

PAGES 1 - 56 OAKLAND, CALIFORNIA WEDNESDAY, MAY 5, 2010

TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BY: BINGHAM MUCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4607 ZACHARY J. ALINDER, AMY K. DONNELLY, HOLLY A. HOUSE, GEOFFREY M. HOWARD, DONN P. PICKETT, JOHN POLITO, CHAD RUSSELL, ATTORNEYS AT LAW JONES DAY SILICON VALLEY OFFICE 1755 EMBARCADERO ROAD PALO ALTO, CALIFORNIA 94303 JANE L. FROYD, THARAN GREGORY LANIER, ELAIN WALLACE, ATTORNEYS AT LAW

FOR DEFENDANTS:

BY:

REPORTED BY:

RAYNEE H. MERCADO, CSR NO. 8258

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

49 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 PART? MS. HOUSE: RIGHT, THERE -- THERE WAS, BUT THE ONLY BECAUSE WE'RE RULED THAT WE'RE ALLOWED TO HAVE THAT AS A CLAIM, AND THAT IT, IN FACT, IT ACTS AS SORT OF A SAFETY NET AGAINST THE OTHER CALIFORNIA CLAIMS, AND WE ONLY GET TO ITS APPLICATION, DEPENDING ON WHAT WE PREVAIL ON ON THOSE OTHER CALIFORNIA CLAIMS. THE

ONLY THINGS THAT WE HAVE TO DECIDE NOW IS THAT POTENTIALLY DOWN THE ROAD, WHEN YOU'RE -- WHEN WE'RE AT TRIAL, AND WE'RE -- WE'VE PUT THE EVIDENCE ON, WHETHER OR NOT UNJUST ENRICHMENT CAN INCLUDE THE CONCEPT OF SAVED DEVELOPMENT COSTS. CASE LAW THAT WE PROVIDED YOU, IT CLEARLY CAN. THE SECOND POINT WAS WE JUST WANT TO MAKE SURE IF YOUR HONOR DOES ISSUE AN ORDER RELATED TO THE UNNAMED PLAINTIFFS BEING UNABLE TO GET LOST PROFITS DAMAGES, THERE'S BEEN SOME INEXACTITUDE IN THE WAY THAT THE DEFENDANTS HAVE SAID THEY WANTED THAT TO BE PHRASED. WE WANT TO MAKE SURE THAT IT'S A AND UNDER THE

NARROW PHRASING SO THAT THERE'S NO DANGER -THE COURT: MS. HOUSE: I'M SORRY. WE'RE TALKING ABOUT THE --

THE FIRST THING --

(SIMULTANEOUS COLLOQUY.) THE COURT: -- EXCUSE ME -- THEIR ARGUMENT THAT

UNPLED DEFENDANTS WHO HAVE NOT BEEN NAMED IN THE COMPLAINT -MS. HOUSE: THE COURT: CAN SEEK -AND WASN'T THERE A CONCESSION ON YOUR

ISSUE WE HAVE IS THE PHRASEOLOGY OF THE ORDER.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

50 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 TRIAL. AFRAID THAT THE WAY THE DEFENDANTS HAVE PHRASED IT IS IT'S GOING TO BE POTENTIALLY INTERPRETED IN A OVERBROAD WAY THAT THEN WE'LL HAVE -- YOU KNOW, THAT'S ATTEMPTED TO USE AGAINST US. WE WANT TO MAKE SURE AGAIN THEY'VE BROUGHT IT SPECIFICALLY AS TO LOST PROFITS. YOU KNOW, THEY SAY THAT IN WE WANT TO MAKE SURE

THEIR LITTLE CHEAT SHEET TO YOU TODAY.

THAT INSOFAR AS THERE IS AN ORDER ISSUED -- AND WE DON'T THINK THERE NEEDS TO BE BECAUSE WE'VE CONCEDED THAT WE'RE NOT EVEN SEEKING THIS, BUT IF THERE IS AN ORDER, WE THINK IT SHOULD SAY THAT NO ORACLE PLAINTIFF CAN SEEK LOST PROFITS TO WHICH IT'S NOT ENTITLED UNDER THE LAW. AND -- AND THAT CLARIFICATION IS BECAUSE THERE'S A -A CASE THAT WAS CITED AND THEY DON'T DISPUTE, WHICH IS THE MARS CASE, WHICH ALLOWS FOR NAMED PLAINTIFFS TO GET LOST PROFITS THAT, QUOTE, INEXORABLY FLOW UP FROM OTHER ENTITIES INEXORABLY FLOW UP FROM OTHER ENTITIES. AND WE

DON'T WANT THERE TO BE ANY AMBIGUITY THAT SOMEHOW OR OTHER THOSE TYPES OF LOST PROFITS, WHICH ARE AVAILABLE UNDER THE LAW TO NAMED PLAINTIFFS, ARE SOMEHOW PRECLUDED. AND SO OUR BIG CONCERN THERE IS -THE COURT: I HAVE NO IDEA WHAT YOU'RE TALKING ABOUT.

WHO ARE THE NON-PARTY ENTITIES IN THIS CASE? MS. HOUSE: YOU KNOW, ORACLE IS AN ENORMOUS COMPANY

WITH MULTIPLE, MULTIPLE SUBSIDIARIES, MULTIPLE, MULTIPLE -THE COURT: I MEAN, THIS CASE IS ALMOST READY FOR

DON'T WE ALL KNOW -- DON'T YOU ALL KNOW -- I DON'T KNOW

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

56 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 RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone] ___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR MONDAY, MAY 10, 2010 CERTIFICATE OF REPORTER I, RAYNEE H. MERCADO, OFFICIAL REPORTER FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C07-01658PJH(EDL), ORACLE CORPORATION, ET AL. V. SAP AG, ET AL., WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY ME AT THE TIME OF FILING. THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE.