Oracle Corporation et al v. SAP AG et al

Filing 768

Declaration of Zachary J. Alinder in Support of 767 MOTION No. 3: to Exclude Testimony of Defendants' Expert David Garmus filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, 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)(Related document(s) 767 ) (Alinder, Zachary) (Filed on 8/19/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 768 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 26 27 28 BINGHAM MCCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 215695) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: 415.393.2000 Facsimile: 415.393.2286 donn.pickett@bingham.com geoff.howard@bingham.com holly.house@bingham.com zachary.alinder@bingham.com bree.hann@bingham.com BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: 914.749.8200 dboies@bsfllp.com STEVEN C. HOLTZMAN (SBN 144177) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: 510.874.1000 sholtzman@bsfllp.com DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: 650.506.4846 Facsimile: 650.506.7114 dorian.daley@oracle.com jennifer.gloss@oracle.com 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) DECLARATION OF ZACHARY J. Plaintiffs, ALINDER IN SUPPORT OF v. PLAINTIFFS' MOTION NO. 3: TO EXCLUDE TESTIMONY OF SAP AG, et al., DEFENDANTS' EXPERT DAVID Defendants. GARMUS Date: Time: Place: Judge: September 30, 2010 9 a.m. Courtroom 3 Hon. Phyllis J. Hamilton Case No. 07-CV-01658 PJH (EDL) DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF PLAINTIFFS' MOT. NO. 3: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT DAVID GARMUS Dockets.Justia.com 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 26 27 28 I, Zachary J. Alinder, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am a partner at Bingham McCutchen LLP, counsel of record for plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Ltd., and Siebel Systems, Inc. (collectively, "Oracle"). Except where stated below on information and belief, I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. 2. Attached as Exhibit A is a true and correct copy of relevant excerpts from the Expert Rebuttal Report of David P. Garmus, served by Defendants on March 26, 2010. Nonrelevant portions of the Report have been either excluded or redacted. Defendants produced Donald Reifer's 91-page rebuttal report to Mr. Pinto on the same day. 3. Attached as Exhibit B is a true and correct copy of relevant excerpts from the transcript of the June 4, 2010 Deposition of David P. Garmus. Non-relevant portions of the deposition transcript have been either excluded or redacted. 4. Attached as Exhibit C is a true and correct copy of relevant excerpts from the Expert Report of Paul C. Pinto, served by Oracle on November 16, 2009. Non-relevant portions of the Report have been either excluded or redacted. 5. Attached as Exhibit D is a true and correct copy of relevant excerpts from the transcript of the May 19, 2010 Deposition of Paul C. Pinto. Non-relevant portions of the deposition transcript have been either excluded or redacted. 6. Attached as Exhibit E is a true and correct copy of Paul Pinto's May 19, 2010 Notes re Response to Rebuttal Report of David P. Garmus, which was produced prior to Mr. Pinto's May 19, 2010 Deposition and which was included as part of Exhibit 3044 to the Deposition of David Garmus. For ease of use and clarity, Oracle has included the cover page with the Exhibit stamp, but has replaced the remaining pages with a clean copy of those Notes. Non-relevant portions of the deposition transcript have been either excluded or redacted. 7. Attached as Exhibit F is a true and correct copy of relevant excerpts from the Expert Report of Kevin Mandia, as supplemented on February 12, 2010, and marked as Exhibit 3017 to the June 1, 2010 Deposition of Michael Gary Funck. For ease of use and clarity, 1 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF PLAINTIFFS' MOT. NO. 3: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT DAVID GARMUS 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 26 27 28 Oracle has included the cover page with the Exhibit stamp, but has replaced the remaining pages with a clean copy of the Report. Non-relevant portions of the Report have been either excluded or redacted. 8. In the months leading up to Garmus' deposition, Defendants turned over thousands of instant messages ("IMs") that relate to TN's use of Oracle software, including EnterpriseOne 8.12 software. Due to the late production of these IMs by Defendants, Oracle was unable to finish reviewing them until after Mr. Garmus' deposition, and was also unable to question TomorrowNow and its employees about these additional Oracle software copies on their computers, since they were produced after the close of fact discovery. Oracle has since reviewed many of these messages. Attached as Exhibit G is a true and correct copy of relevant excerpts from an October 24, 2006 IM message between TN employees, Pete Surette and Ashis Ghosh. 9. Attached as Exhibit H is a true and correct copy of relevant excerpts from the Expert Report of Stephen Clarke, as supplemented on May 7, 2010. Non-relevant portions of the Report have been either excluded or redacted. 10. Attached as Exhibit I is a true and correct copy of relevant excerpts from the transcript of the June 8, 2010 Deposition of Stephen Clarke. Non-relevant portions of the deposition transcript have been either excluded or redacted. I declare under penalty of perjury under the laws of the United States that the foregoing facts are true and correct, and that this Declaration was executed on August 19, 2010, in San Francisco, CA. /s/ Zachary J. Alinder Zachary J. Alinder 2 Case No. 07-CV-01658 PJH (EDL) DECLARATION OF ZACHARY J. ALINDER IN SUPPORT OF PLAINTIFFS' MOT. NO. 3: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT DAVID GARMUS

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