Oracle Corporation et al v. SAP AG et al

Filing 738

Declaration of Thomas S. Hixson in Support of 737 MOTION in Limine Plaintiffs' Motions In Limine filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N, # 15 Exhibit Exhibit O, # 16 Exhibit Exhibit P, # 17 Exhibit Exhibit Q, # 18 Exhibit Exhibit R, # 19 Exhibit Exhibit S, # 20 Exhibit Exhibit T, # 21 Exhibit Exhibit U, # 22 Exhibit Exhibit V, # 23 Exhibit Exhibit W, # 24 Exhibit Exhibit X, # 25 Exhibit Exhibit Y, # 26 Exhibit Exhibit Z, # 27 Exhibit Exhibit AA, # 28 Exhibit Exhibit BB, # 29 Exhibit Exhibit CC, # 30 Exhibit Exhibit DD, # 31 Exhibit Exhibit EE, # 32 Exhibit Exhibit FF, # 33 Exhibit Exhibit GG, # 34 Exhibit Exhibit HH, # 35 Exhibit Exhibit II, # 36 Exhibit Exhibit JJ, # 37 Exhibit Exhibit KK)(Related document(s) 737 ) (Howard, Geoffrey) (Filed on 8/5/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 738

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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 No. 07-CV-01658 PJH (EDL) DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE Date: Time: Place: Judge: September 30, 2010 2:30 pm Courtroom 3, 3rd Floor Hon. Phyllis J. Hamilton

ORACLE USA, INC., et al., v. Plaintiffs,

SAP AG, et al., Defendants.

DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

Dockets.Justia.com

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I, Thomas S. Hixson, declare as follows: 1. I am an attorney licensed to practice in the State of California and before this

Court, and am a partner at Bingham McCutchen LLP, counsel of record for Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. (together, "Oracle") in this action. I have personal knowledge of the facts stated below by virtue of my representation of Oracle in this action. If called as a witness, I would competently testify to the facts stated herein. 2. Any highlighting, circling or red boxes in the attached exhibits have been

supplied to assist in identifying the information relevant to Oracle's Motions in Limine. 3. 4. References to "SAP TN" refer to Defendant TomorrowNow, Inc. The following paragraphs describe the attached evidence in order of

appearance in Oracle's Motions in Limine. Where a witnesses' deposition testimony is cited more than once, the witness' transcript is listed below in order of first appearance. For the Court's convenience, the following is a roadmap to the witnesses whose testimony is excerpted below: a. Christopher Faye -- senior SAP AG in-house intellectual property attorney b. Arlen Shenkman -- former SAP AG Director of Corporate Compliance c. Werner Brandt -- SAP AG Chief Financial Officer d. Henning Kagermann -- former SAP AG Chief Executive Officer e. Shai Agassi -- former member of SAP AG Executive Board f. Tim Crean -- SAP AG's Chief Intellectual Property Officer g. Thomas Ziemen -- SAP AG Vice President of Service Solution Management h. Spencer Phillips -- former SAP TN Senior Account Executive i. Andrew Nelson -- former SAP TN founder and Chief Executive Officer j. Richard Cummins -- Oracle Senior Director of Support Services for North America
DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

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k. Elizabeth Shippy -- Oracle Special Programs Manager in Support Sales Operations l. Seth Ravin -- former SAP TN President and SAP America Vice President, current founder and CEO of Rimini Street m. Shelley Nelson -- former SAP TN Vice President of Support Services Attached as Exhibit A is a true and correct copy of a document titled January

7, 2005 Business Case, produced by Defendants in this case as SAP-OR00186993-7001. Oracle marked this document as Plaintiffs' Deposition Exhibit 513 in its originally-produced scanned "TIFF" Form. Defendants later produced the native PowerPoint version of this document. Therefore, attached Exhibit A includes the first page of the copy marked as Plaintiffs' Deposition Exhibit 513, and the more legible version of the same document printed from the native file comprise the rest of the exhibit. 6. Attached as Exhibit B is a true and correct copy of pages 2 and 9 from

Defendants' August 13, 2008 Opposition to Plaintiffs' Motion to Compel Production of Clawed Back Documents, Dkt. No. 151, containing relevant portions cited in Plaintiffs' Motion. 7. Attached as Exhibit C is a true and correct copy of relevant portions of the

Parties' August 28, 2008 Discovery Conference transcript. 8. Attached as Exhibit D is a true and correct copy of Plaintiffs' Deposition

Exhibit 430, a document dated February 2, 2005 and entitled "Investment Lifecycle RA TomorrowNow," produced by Defendants in this case as SAP-OR00002183-91. 9. Attached as Exhibit E is a true and correct copy of relevant portions of Werner

Brandt's November 13, 2008 deposition transcript. 10. Attached as Exhibit F is a true and correct copy of relevant portions of Arlen

Shenkman's June 4, 2008 deposition transcript. 11. Attached as Exhibit G is a true and correct copy of relevant portions of

Henning Kagermann's September 26, 2008 deposition transcript. 12. Attached as Exhibit H is a true and correct copy of relevant portions of Shai 2

Agassi's January 5, 2009 deposition transcript.

DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

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13.

Attached as Exhibit I is a true and correct copy of relevant portions of Tim

Crean's February 19, 2009 deposition transcript. 14. Attached as Exhibit J is a true and correct copy of relevant portions of

Christopher Faye's October 22, 2008 deposition transcript. 15. Attached as Exhibit K is a true and correct copy of relevant portions of

Thomas Ziemen's September 30, 2008 deposition transcript. 16. Attached as Exhibit L is a true and correct copy of Plaintiffs' Deposition

Exhibit 1177, an October 17, 2005 e-mail from Spencer Phillips, produced by Defendants in this case as TN-OR01778421-22. 17. Attached as Exhibit M is a true and correct copy of relevant portions of James

Spencer Phillips' July 22, 2009 deposition transcript. 18. Attached as Exhibit N is a true and correct copy of Plaintiffs' Deposition

Exhibit 1876, a January 23, 2006 e-mail from Eric Osterloh, produced by Defendants in this case as TN-OR01778633. 19. Attached as Exhibit O is a true and correct copy of Plaintiffs' Deposition

Exhibit 1315, a January 26, 2005 article from www.eweek.com entitled "Analysts: Ellison playing Hard Ball with Intellectual Property." 20. Attached as Exhibit P is a true and correct copy of Plaintiffs' Deposition

Exhibit 429, a January 17, 2005 e-mail from James Mackey, produced by Defendants in this case as SAP-OR00187201. 21. Attached as Exhibit Q is a true and correct copy of Amended Response to

Interrogatory No. 4 from Defendant SAP TN's October 7, 2008 First Amended Responses to Plaintiff Oracle Corp.'s Third Set of Interrogatories and SAP America, Inc.'s, and SAP AG's First Amended Responses to Plaintiff Oracle Corp.'s Second Set of Interrogatories. 22. Attached as Exhibit R is a true and correct copy of relevant portions of

Christopher Faye's 30(b)(6) March 18, 2009 deposition transcript. 23. Attached as Exhibit S is a true and correct copy of relevant portions of

Andrew Nelson's April 29, 2009 deposition transcript. 3
DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

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24.

Attached as Exhibit T is a true and correct copy of relevant portions of

Defendant SAP AG and SAP America, Inc.'s September 18, 2009 Written Response in Lieu of Siebel Rule 30(b)(6) Testimony in Response to Topics 1-4 and 9 of Plaintiffs' 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. 25. Attached as Exhibit U is a true and correct copy of relevant portions of

Richard Cummins' 30(b)(6) September 16, 2008 and September 23, 2008 deposition transcripts. 26. Attached as Exhibit V is a true and correct copy of relevant portions of

Elizabeth Shippy's March 5, 2009 deposition transcript. 27. Attached as Exhibit W is a true and correct copy of a February 8-12, 2007 e-

mail chain involving Elizabeth Shippy, produced by Plaintiffs' in this case as ORCL0013244345. 28. Plaintiffs' At Risk reports, discussed in Plaintiffs' motion, have been

produced in this case as Excel spreadsheets. Due to the large number of columns in some of the tabs in the spreadsheets, converting an entire At Risk report into .pdf format to e-file with the Court would make it difficult to read. Accordingly, Plaintiffs have taken screen shots of certain tabs in Defendants' Deposition Exhibit 55, the example of the At-Risk Report cited in Plaintiffs' motion and produced by Plaintiffs as ORCL00032751. a. Attached as Exhibit X at page 1 is a true and correct screen shot of a portion of the "Worldwide" tab in ORCL00032751. b. Attached as Exhibit X at page 2 is a true and correct screen shot of a portion of the "JAPAC" tab in ORCL00032751. c. Attached as Exhibit X at page 3 is a true and correct screen shot of a portion of the "AMER_Won" tab in ORCL00032751. d. Attached as Exhibit X at page 4 is a screen shot from the "DATA" tab in ORCL00032751 with the cell in the "Notes" column for Hitachi Global Storage Technologies selected. This screen shot is a true and correct copy of this portion of the "DATA" tab, with the exception that Oracle has added a red box and a red arrow to highlight the note cited in 4
DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

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Plaintiffs' motion. e. Attached as Exhibit X at page 5 is a screen shot from the "DATA" tab in ORCL00032751 with the cell in the "Notes" column for CompuCom selected. This screen shot is a true and correct copy of this portion of the "DATA" tab with the exception that Oracle has added a red box and a red arrow to highlight the note cited in Plaintiffs' motion. 29. Attached as Exhibit Y is a true and correct copy of relevant portions of

Richard Cummins' April 21, 2009 deposition transcript. 30. Attached as Exhibit Z is a true and correct copy of an April 21, 2006 e-mail

from Robert Lachs, produced by Plaintiffs in this case as ORCL00127354. Non-relevant portions of the e-mail have been redacted to protect customer information. 31. Oracle has produced several versions of the At Risk reports, as well as e-mails

and other documents, including spreadsheets, that contain portions of the At Risk reports or other customer comments. One example of this is an Excel spreadsheet entitled "Losses_with_back_maintenace_-_Master.xls," produced by Plaintiffs in this case as ORCL00485843. 32. Attached as Exhibit AA is a true and correct copy of Responses to

Interrogatory No. 4 from Defendant TomorrowNow, Inc.'s April 15, 2009 Third Amended and Supplemental Response to Plaintiff Oracle USA, Inc.'s First Set of Interrogatories. 33. In the pretrial meet and confer process, and in July 22, 2010 e-mail

correspondence, Oracle asked Defendants to identify what license agreements they rely on for their affirmative defenses, and Oracle identified the specific copies of its software and support materials for which it sought that information. In a July 22, 2010 e-mail, Defendants' responded "Plaintiffs have publicly acknowledged that third party support can be conducted consistent with Plaintiffs' and predecessors' customer licenses. Defendants have consistently stated that they will rely on those licenses (see, eg, Defendants' opposition to Plaintiffs' motion for summary judgment)." 34. Attached as Exhibit BB is a true and correct copy of relevant portions of

Shelley Nelson's April 18, 2008 and September 3, 2009 deposition transcripts. 5
DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

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35.

Attached as Exhibit CC is a true and correct copy of relevant portions of

Defendants' July 14, 2009 Opposition to Plaintiffs' Motion to Compel Production of Documents Related to Damages Model and Interrogatory Responses Related to Use of Plaintiffs' Intellectual Property, Dkt. No. 334, containing relevant portions cited in Plaintiffs' Motion. 36. Attached as Exhibit DD is a true and correct copy of an April 22, 2004 e-mail

from Seth Ravin, produced by Defendants in this case as TN-OR00614959-61. 37. Attached as Exhibit EE is a true and correct copy of relevant portions of Seth

Ravin's May 21, 2009 and July 21, 2010 deposition transcripts. 38. Attached as Exhibit FF is a true and correct copy of a March 1, 2004 e-mail

from Andrew Nelson, produced by Defendants in this case as TN-OR00497647-48. 39. Attached as Exhibit GG is a true and correct copy of an Instant Message

conversation dated October 18, 2005, produced in native electronic form by Defendants in this case and given the bates number TN-IM-20684 by Oracle. 40. Defendants informed Oracle early on during discovery in this matter that they

had no custodial data preserved for Seth Ravin. Oracle confirmed this in writing on September 30, 2009 (Chad Russell e-mail to counsel for Defendants re "Oracle/SAP - Custodian Issues"). To my knowledge, Defendants have never produced any documents designated as coming from Seth Ravin's files. 41. Attached as Exhibit HH is a true and correct copy of Oracle USA, Inc's April

19, 2010 First Amended Complaint in the Oracle USA, Inc., et al. v. Rimini Street, Inc., et al., No. 2:10-cv-0106 (D. Nev.) litigation, Dkt. No. 36. 42. Attached as Exhibit II is a true and correct copy of Rimini Street Inc.'s May 6,

2010 Answer to Oracle's First Amended Complaint and Counterclaim in the Oracle USA, Inc., et al. v. Rimini Street, Inc., et al., No. 2:10-cv-0106 (D. Nev.) litigation, Dkt. No. 46. 43. Attached as Exhibit JJ is a true and correct copy of Defendants' Deposition

Exhibit 947, a March 29, 2010 Rimini Street press release. 44. Attached as Exhibit KK is a true and correct copy of a July 29, 2010 U.S.

Department of Justice Press Release, taken from the Justice Department's website at 6
DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE

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http://www.justice.gov/opa/prI2010/July/10-civ-873.html. 45.

I n a M a y 1 1 , 2 0 1 0 3 : 2 6 p.m. e-mail, D e f e n d a n t s ' c o u n s e l G r e g L a n i e r stated

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to O r a c l e ' s c o u n s e l , " W i t h r e g a r d t o d e p o s i t i o n d e s i g n a t i o n s , w e p r o p o s e e x c h a n g i n g d e s i g n a t i o n s o n J u l y 16 a n d c o u n t e r - d e s i g n a t i o n s o n A u g u s t 2 . " 46.

I n a J u n e 7, 2 0 1 0 10:58 a.m. e-mail, O r a c l e ' s c o u n s e l G e o f f H o w a r d s t a t e d to

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D e f e n d a n t s ' counsel, " w e accept y o u r p r o p o s e d . . . d e p o designation a n d c o u n t e r - d e s i g n a t i o n dates o f J u l y 16 a n d A u g u s t 2, r e s p e c t i v e l y . " 47. O n J u l y 16, 2 0 1 0 b o t h p a r t i e s s e r v e d t h e i r d e p o s i t i o n d e s i g n a t i o n s , a n d o n

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August 2 , 2 0 1 0 b o t h parties served their counter-designations. 48. O n A u g u s t 5, 2 0 1 0 at 4 : 3 9 a.m., D e f e n d a n t s ' c o u n s e l J o s h u a F u c h s e - m a i l e d

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O r a c l e ' s c o u n s e l stating, " A t t a c h e d are D e f e n d a n t s a d d i t i o n a l c o u n t e r a n d c o m p l e t e n e s s d e s i g n a t i o n s r e l a t i n g to . . . P l a i n t i f f s ' 81212010 c o u n t e r / c o m p l e t e n e s s d e s i g n a t i o n s . " T h e E x c e l s p r e a d s h e e t a t t a c h e d to t h e e - m a i l c o n t a i n s 229 a d d i t i o n a l d e s i g n a t i o n s for 68 d i f f e r e n t witnesses.

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I declare u n d e r p e n a l t y o f p e r j u r y u n d e r t h e laws o f the U n i t e d States that the
f o r e g o i n g is true a n d c o r r e c t a n d t h a t this d e c l a r a t i o n is e x e c u t e d o n A u g u s t 5, 2010.

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DECLARATION OF THOMAS S. HIXSON IN SUPPORT OF PLAINTIFFS' MOTIONS I N L I M I N E