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 Att. 29

EXHIBIT CC
Dockets.Justia.com

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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: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS RELATED TO DAMAGES MODEL AND INTERROGATORY RESPONSES RELATED TO USE OF PLAINTIFFS' INTELLECTUAL PROPERTY DISCOVERY MATTER
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL PRODUCTION Case No. 07-CV-1658 PJH (EDL)

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Defendants' Opposition to Plaintiffs' Motion to Compel Production of Documents Related to Damages Model ("Fuchs Decl."), ¶ 2. Defendants have incurred enormous expense and related burdens associated with responding to Oracle's discovery requests. See id. at ¶¶ 3-7. Specifically, and not even counting the substantial expense Defendants incurred responding to Oracle's written discovery and preparing for and defending over 300 hours of depositions in this case, Defendants are on track to spend in excess of $14 million producing custodians' data, TN's databases and dozens of TN servers via the Data Warehouse facility.6 Oracle could have propounded focused, targeted discovery, considerate of the responsive burdens created by such requests. Instead, Oracle adopted a shot-gun/trot-line discovery strategy, which strategy logically results in the production of enormous volumes of documents and data. Defendants have produced the enormous volume of discovery requested by Oracle, and it is now time that Oracle accept the burden that comes with the discovery approach it has taken in this case. A. TN Properly Responded to Interrogatory 13.

Oracle mischaracterizes the information requested in Interrogatory 13. A careful reading of the interrogatory and Defendants' response demonstrates that Defendants completely answered it. 1. Oracle's Actual Request.

Oracle's Interrogatory 13 to TN reads as follows: Describe in as much detail as possible all Software and Support Materials that `have been downloaded beyond those that, according to TN's records, related to applications licensed to the particular customer on whose behalf the downloads were made,' as alleged in ¶ 15 of Your Answer, including but not limited to Identifying the `records' You referenced in making Your determination. Howard Decl., Ex. A (emphasis added).7 Oracle now asserts that Interrogatory 13 seeks more than just a description of the downloads to which Defendants referred in Defendants' Answer to Plaintiffs' First Amended Complaint, at ¶ 15 ("Answer to FAC").8 For example, the Motion
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See Fuchs Decl., ¶ 7.

It is worth noting that Oracle did not raise Defendants' response to Interrogatory 13 as one of the nineteen responses that were allegedly objectionable in its first Motion to Compel hearing before Judge Legge on February 13, 2008. 8 The plaintiffs named in the First Amended Complaint included now former plaintiff Oracle Corporation and current plaintiffs Oracle International Corporation and Oracle USA, Inc. -6DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL PRODUCTION Case No. 07-CV-1658 PJH (EDL)

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states that Interrogatory 13 also calls for information on "how [TN] got its downloads . . . and how it used them to support specific customers," the identity of those materials that "were downloaded using credentials of a customer not entitled to those materials"9 and "which materials [TN] improperly downloaded from Customer Connection." Motion at 13, 16. That information was not requested in Interrogatory 13. Instead, variations of those requests are contained in other interrogatories that Oracle has propounded on Defendants and that Defendants have answered in detail.10 2. Defendants Gave a Specific, Narrative Response to Interrogatory 13.

Defendants appropriately responded to Interrogatory 13 by identifying the information used and citing the specific records relied upon to make the statement in paragraph 15 of the Answer to FAC. Specifically, Defendants responded in part: [TN]'s downloads on behalf of customers using JDE's OneWorld products were made based on instructions set forth on a Download Request Form. The Download Request Forms for Merck, OCE, SPX, Metro Machine and Yakazi instructed the download team to download all ESUs for all system codes on a particular release level. [TN]'s records did not show that those customers had represented that they were licensed to all system codes on a particular release level. TN's Response to Oracle Corporation's First Set of Interrogatories to TN, No. 13 (Howard Decl., Ex. C). 3. Defendants Properly Relied on Rule 33(d).

In addition to providing a specific, narrative response to Interrogatory 13, Defendants further responded by referencing, under Rule 33(d), the customer contracts, onboarding documentation and downloaded materials that they relied upon in drafting paragraph 15 of the Plaintiffs attempt to frame the issue as relating to which customers' Customer Connection password was used to download specific materials; however, Interrogatory 13 does not ask for this information. Compare Interrogatory 13, Howard Decl., Ex. C, with Interrogatory 10, Fuchs Decl., ¶ 17, Ex. E (Interrogatory 10 of Oracle Corp.'s First Set of Interrogatories to TN). Moreover, Plaintiffs are well aware that TN's typical procedure was to download materials for a customer using that customer's Customer Connection ID and password and to store those downloads in a customer-specific folder. See, e.g., id. (Defendant TN's Fourth Amended and Supplemental Supplemental Response to Plaintiff Oracle Corp.'s First Set of Interrogatories to TN, No. 3, 12). Corp. s have had access to all of the download folders on TN systems, and Defendants have TN's Plaintiffs have had access to all of the download folders on TN's systems, and Defendants have always acknowledged that there is no known technical way to specifically tie a downloaded item acknowledged that there is no known technical on on TN's systems to a Customer Connection ID and password. r 10 See part III.A.4. below for a description of the information provided to Oracle in response to these other interrogatories. -7DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL PRODUCTION Case No. 07-CV-1658 PJH (EDL) 9