Oracle Corporation et al v. SAP AG et al

Filing 737

MOTION in Limine Plaintiffs' Motions In Limine [REDACTED VERSION] filed by Oracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. Motion Hearing set for 9/30/2010 02:30 PM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Proposed Order)(Howard, Geoffrey) (Filed on 8/5/2010) Modified on 8/6/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 737 Att. 1

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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: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: [phone] [e-mail] STEVEN C. HOLTZMAN (SBN 144177) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: 650.506.7114 [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., No. 07-CV-01658 PJH (EDL) v. Plaintiffs, [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTIONS IN LIMINE Date: Time: Place: Judge: September 30, 2010 2:30 pm Courtroom 3, 3rd Floor Hon. Phyllis J. Hamilton

SAP AG, et al., Defendants.

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTIONS IN LIMINE, CASE NO. 07-CV-01658 PJH (EDL)
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On September 30, 2010, the Court held a hearing on Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Ltd., and Siebel Systems Inc.'s (collectively, "Oracle" or "Plaintiffs") motions in limine. Having reviewed the parties' papers and carefully considered their arguments, evidence and relevant legal authority, and good cause appearing, the Court hereby GRANTS Plaintiffs' motions as follows: I. PLAINTIFFS' MOTION IN LIMINE NO. 1: IMPLIED BUT UNPLED ADVICE OF COUNSEL DEFENSE 1. Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. ("SAP

TN") (collectively "Defendants") have not asserted an advice of counsel defense. They have also invoked the attorney-client privilege to prevent Oracle from taking discovery into the legal advice that Defendants received from their attorneys concerning the legality of SAP TN's business model. 2. Accordingly, Plaintiffs' Motion in Limine No. 1 is GRANTED.

Defendants are precluded from introducing or eliciting any testimony, documents or other evidence that says or implies that Defendants' attorneys analyzed SAP TN's business model or determined it was legal. See Giese v. Pierce Chem. Co., 43 F. Supp. 2d 98, 113 (D. Mass. 1999) ("Generally speaking, failure to plead an affirmative defense results in a waiver of the defense and the exclusion of all evidence relevant to it.") (citation omitted, emphasis supplied by court); Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1996 (9th Cir. 2001) (affirming exclusion of evidence related to advice of counsel defense because party invoked the attorney-client privilege during the discovery on the subject at issue). 3. Specific instances of this evidence that are precluded from being admitted

at trial include the statements quoted in Plaintiffs' motions in limine from: Plaintiffs' Deposition Ex. 430 at SAP-OR00002184-185; Plaintiffs' Deposition Ex. 1177 at TN-OR01778422; Plaintiffs' Deposition Ex. 1315 at p.2; Plaintiffs' Deposition Ex. 429 at SAP-OR00187201; Plaintiffs' Deposition Ex. 1876 at TN-OR01778633; and pages 125:14-127:3 of the 7/22/09 deposition of Spencer Phillips. Defendants are also precluded from introducing similar

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documents or testimony at trial. II. PLAINTIFFS' MOTION IN LIMINE NO. 2: SELECTIVE ATTORNEY/CLIENT COMMUNICATIONS 4. For similar reasons, Plaintiffs' Motion in Limine No. 2 is GRANTED.

Defendants are precluded from introducing or eliciting any testimony, documents or other evidence describing an alleged SAP executive board directive to remove Oracle software from SAP TN's computers as "urgent" or "mandatory" or stating or implying that SAP believed SAP TN was making progress toward complying with the alleged directive. 5. Specific instances of this evidence, which are precluded from being

admitted at trial, include: pages 28:25-29:2 from the 10/22/08 deposition of Christopher Faye; pages 42:20-43:1, 48:20-23; 49:5-11, 49:14-50:13, 51:12-14; 51:20-25, 112:23-113:9, 119:2324, 120:1-5, 120:22-121:5, 124:10-11; 124:19-125:3, 128:7-10, 128:13-25, 129:3-4, 129:9-131:9, 132:5-14, 132:15-21; 132:24-133:11 from the 3/18/09 deposition Christopher Faye; pages 114:47, 116:11-119:3 from the 2/19/09 deposition of Tim Crean; pages 343:5-344:5 from the 4/29/09 deposition of Andrew Nelson; and page 10, lines 12-26 from Defendant SAP AG and SAP America, Inc.'s Written Response in Lieu of Siebel Rule 30(b)(6) Testimony in Response to Topics 1-4 and 9 of Plaintiff's August 14, 2009 Notice of Deposition, Topic 2 of Plaintiff's April 16, 2008 Notice of Deposition, and August 21, 2009 E-mail Questions from B. Hann. Defendants are also precluded from introducing similar documents or testimony at trial. III. PLAINTIFFS' MOTION IN LIMINE NO. 3: CUSTOMER STATEMENTS IN AT RISK REPORTS 6. The customer comments contained in Oracle's At Risk reports are

inadmissible hearsay. Fed. R. Evid. 801, 802, 805; see United States v. Arteaga, 117 F.3d 388, 395 (9th Cir. 1997). There is also no relevant nonhearsay purpose for their admission. See United States v. Marguet-Pillado, 560 F.3d 1078, 1086 (9th Cir. 2009). Accordingly, Plaintiffs' Motion in Limine No. 3 is GRANTED. Defendants are precluded from introducing customer statements recorded in Oracle's At Risk reports at trial. Defendants are also precluded from introducing the customer comments contained in emails that excerpt portions of the At Risk Reports or other documents, as well customer comments in spreadsheets similar to the At Risk 2
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reports. IV. PLAINTIFFS' MOTION IN LIMINE NO. 4: EVIDENCE OF SETTLEMENT DISCUSSIONS 7. Plaintiffs' Motion in Limine No. 4 is GRANTED. Pursuant to Fed. R.

Evid. 408, any testimony, documents or other evidence related to settlement discussions between the parties are precluded from being introduced at trial. See, e.g., Richards v. City of Topeka, 173 F.3d 1247, 1253 (10th Cir. 1999). V. MOTION NO. 5: EVIDENCE NOT IN INTERROGATORY RESPONSES 8. Despite pleading license and consent defenses related to Oracle's

copyright claim, Defendants have failed to identify specific licenses that they contend support their affirmative defenses. Defendants' interrogatory responses violate the supplementation requirement in Fed. R. Civ. Proc. 26(e)(1)(A). Fed. R. Civ. Proc. 37(c)(1) thus bars Defendants from introducing or eliciting any licenses agreements, or any testimony, documents or evidence about license agreements, whether express or implied, that supposedly authorized some or all of SAP TN's conduct. Defendants' failure to previously disclose such information was not substantially justified or harmless. See Yeti by Molly Ltd v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Plaintiffs' Motion in Limine No. 5 is therefore GRANTED. VI. PLAINTIFFS' MOTION IN LIMINE NO. 6: HEARSAY CONCERNING LOCKHEED MARTIN 9. The following statements are inadmissible hearsay, see Fed. R. Evid. 801,

and Defendants have not established that they fall within any exception to the hearsay rule Lemos v. Alderwoods Grp., Inc., No. 1:06-cv-01152, 2007 WL 2254363, at *7-8 (E.D. Cal. Aug. 3, 2007) (proponent "bears the burden of establishing a foundation from which to conclude that the statement was within a hearsay exclusion"): a. "PeopleSoft's Greg Stevenson then wrote me and asked me if they

need to provide authorization. Greg Stevenson at PeopleSoft followed up a few minutes later by phone and he said he was going to let Lockheed Martin know that there was no issue with them sending us the CD's [sic]." ­ contained in email from SAP TN Vice President Seth Ravin in TNOR00614959 . 3
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b.

The repetition of the above quotation at pages/lines 352:5-353:1 of

Shelly Nelson's 4/18/2008 deposition. c. Deposition testimony by Ravin in which he was presented with the

email identified above and repeated his claim that Mr. Stevenson told him that he would tell Lockheed Martin there was no issue with Lockheed Martin sending certain CDs to SAP TN. Ravin 5/21/09 Depo. at 239:4-7, 240:8-19 (Hixson Decl., Ex. __). d. "[A] senior PeopleSoft representative recommended Lockheed

Martin consider TomorrowNow Extended Support as a solution! Backed with internal staff recommendations - and PeopleSoft's direct referral - Lockheed Martin executives, Lockheed Martin Purchasing, and Seth moved into serious discussions." ­ contained in an email from SAP TN President and CEO Andrew Nelson at TN-OR00497647. 10. Accordingly, Plaintiffs' Motion in Limine No. 6 is GRANTED.

Defendants may not introduce the above statements at trial. VII. PLAINTIFFS' MOTION IN LIMINE NO. 7: EVIDENCE OF OTHER LITIGATION 11. Plaintiffs' Motion in Limine No. 7 is GRANTED. Defendants are

precluded from introducing or eliciting any testimony, documents or other evidence concerning the allegations made against Oracle in Oracle USA, Inc., et al. v. Rimini Street, Inc., et al., No. 2:10-cv-0106 (D. Nev.) or United States ex rel. Frascella v. Oracle Corp., et al., No. 1:07cv:529 (E.D. Va.), including testimony or documents repeating those allegations. See Defendants' Depo. Ex. 947; pages 346:25-347:15, 348:3-355:14, 355:20-357:12, 361:19-363:25 of the 7/21/10 deposition of Seth Ravin. Those allegations are not relevant to the claims or defenses in this action and would be unduly prejudicial and confusing to the jury. Fed. R. Evid. 402, 403, 404. VIII. PLAINTIFFS' MOTION IN LIMINE NO. 8: UNTIMELY DEPOSITION DESIGNATIONS 12. Plaintiffs' Motion in Limine No. 8 is GRANTED. Defendants' untimely

August 5 "counter-counter" deposition designations were submitted after the deadlines agreed to by the parties. Moreover, serving these additional designations at 4:39 a.m. on August 5 ­ the 4
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day deposition designations were due to be filed with the Court ­ unfairly prejudiced Oracle. 13. Accordingly, it is ORDERED that: [Either] a. Defendants' August 5, 2010 deposition designations are stricken

and shall not be admitted at trial. [or] b. Oracle is granted leave to submit analogous designations in

response to Defendants' August 2 counter designations.

IT IS SO ORDERED.

Dated: _______________, 2010 Honorable Phyllis J. Hamilton United States District Court Judge

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[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTIONS IN LIMINE, CASE NO. 07-CV-01658 PJH (EDL)