Oracle Corporation et al v. SAP AG et al

Filing 74

Declaration of Jason McDonell in Support of 73 Objection to Special Master's Report and Recommendations Re Discovery Hearing No. 2 filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A - B, # 2 Exhibit C - G)(Related document(s) 73 ) (McDonell, Jason) (Filed on 4/8/2008)

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Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY San Francisco Office 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 Silicon Valley Office 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 CORPORATION, et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH DECLARATION OF JASON McDONELL IN SUPPORT OF DEFENDANT TOMORROWNOW'S OBJECTIONS TO SPECIAL MASTER'S REPORT AND RECOMMENDATIONS RE: DISCOVERY HEARING NO. 2
McDONELL DECL. ISO DEF'S OBJECTIONS TO SPECIAL MASTER'S REPORT AND RECOMMENDATIONS Case No. 07-CV-1658 PJH

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I, JASON McDONELL, declare: I am a partner in the law firm of Jones Day, 555 California Street, San Francisco, California 94104, a member in good standing of the bar of this state, and counsel of record for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC in the abovecaptioned action. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. Attached hereto as Exhibit A is a true and correct copy of portions of Plaintiffs'

Responses and Objections to Defendant TomorrowNow, Inc.'s First Set of Document Requests, dated September 14, 2007. 2. Attached hereto as Exhibit B is a true and correct copy of the Special Master's

Report and Recommendations Re: Discovery Hearing No. 2, dated March 19, 2008 (the "Second R and R"). 3. Attached hereto as Exhibit C is a true and correct copy of portions of the

transcript of the March 4, 2008 hearing in front of the Special Master on the parties' second set of motions to compel. 4. Attached hereto as Exhibit D is a true and correct copy of the portion of the

Special Master's April 4, 2008 Report and Recommendations Re: Discovery Hearing No. 3 that amends the Second R and R. 5. Attached hereto as Exhibit E is a true and correct copy of portions of

TomorrowNow's February 19, 2008 letter brief to Judge Legge regarding its second motion to compel. 6. Attached hereto as Exhibit F is a true and correct copy of a July 10, 2002 letter

from David Chavez of PeopleSoft to Seth Ravin of TomorrowNow. 7. Attached hereto as Exhibit G is a true and correct copy of a March 21, 2008 letter

from SAP's counsel, Jason McDonell, to the Special Master. 8. As of the March 4, 2008 hearing on the parties' second set of motions to compel,

Oracle's counsel had identified eighteen priority document custodians of the defendants. Ten were identified in an email, dated October 23, 2007, from Oracle's counsel to three of my 2
McDONELL DECL. ISO DEF'S OBJECTIONS TO SPECIAL MASTER'S REPORT AND RECOMMENDATIONS Case No. 07-CV-1658 PJH

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colleagues at Jones Day, which I have reviewed. Eight more were identified in a December 11, 2007 email from Oracle's counsel to me. Of these eighteen custodians, sixteen were TN custodians and two were SAP custodians. 9. On or about March 20, 2008, as part of the discovery negotiations in this case,

counsel for defendants proposed that the total universe of custodians from which defendants would collect documents would include fifty-three TomorowNow custodians and thirty SAP custodians. These lists containing eighty-three proposed custodians have not been disclosed to the Special Master and were not discussed with the Special Master in connection with the motions to compel. 10. Earlier today, I participated in a conference call with counsel for plaintiffs about

discovery issues, during which counsel for plaintiffs took the position that the Second R & R requires the SAP defendants to produce documents by April 15 from all thirty custodians who were identified in the March 20, 2008 proposal that was intended to be the entire universe of SAP custodians that would be searched for documents, not the priority custodians. We advised counsel for Plaintiffs that we disagreed with their interpretation of the Second R and R and would file this objection as a protective measure. 12. I am informed and believe that, to date, Defendants have produced almost 1.7

million pages of TN documents and over 6 terabytes of electronic data from TN. 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 8th day of April 2008 in San Francisco, California.

/S/ Jason McDonell JASON McDONELL

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DEFENDANT'S OBJECTIONS TO SPECIAL MASTER'S REPORT AND RECOMMENDATIONS RE DISCOVERY HEARING 2 Case No. 07-CV-1658 MJJ