Oracle Corporation et al v. SAP AG et al

Filing 772

Declaration of John A. Polito in Support of 771 MOTION No. 5: To Exclude Testimony of Defendants' Expert Stephen Gray 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)(Related document(s) 771 ) (Polito, John) (Filed on 8/19/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 772 Att. 2

EXHIBIT B
Dockets.Justia.com

STEPHEN GRAY June 8, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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(Pause.) THE WITNESS: I don't -- I'm trying to recollect if I made any reference to it. I don't see that I have cited to it, to my analysis of the Tit -- of any aspects of the Titan source code. I don't know that I've cited to any body of Titan source code. I can't remember. So while I remember looking at some Titan source code, I must not have relied on it. MR. POLITO: Q. So your conclusion in 9.5.3, you're relying on a single log file to arrive at that conclusion? A. I've cited to the one log file, and I believe that's what I'm relying on for the conclusion that is contained in Section 9.5.3. Q. A. And you're not relying on any source code? I don't cite to it, so I must not have

to the list. But that's the intent. Yes, that's the intent of Exhibit 3, is to provide the list of the documents that I have relied on or considered. Q. A. Did you create Appendix 3, Mr. Gray, to I believe that Appendix 3 is -- was -- I your report? believe there was some recordkeeping that was done by the people distributing documents or sending documents to me. There was some recordkeeping done by them. There was some recordkeeping done by me. I believe that the list itself was -- I can't remember who exactly printed the list. I remember QA-ing the list and adding some things, adding some stuff to it, but I don't remember who wrote the list. I don't think that I actually typed this list. Q. A. Do you believe that you looked at every I believe -- I believe so. So there's -document listed in Appendix 3? when you say "looked at every document," I think -I think what you're asking me is did I -- have I -I don't think you're asking me if I read every page of every document. It's more -Q. For starting, I'm asking did you look at every document on this list?

relied on it. I mean, it must be that the log file is all I relied on for the conclusion that I drew here. Q. A. Anything else that you relied on for this I think my general understanding of Titan conclusion? is reflected in some of the other documents that I considered that are identified in Appendix --

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mumble, whatever it is, that has the -- Appendix 3, I guess it is, that has the documents that I've considered. Q. A. But those are -So that generally informs me about Titan,

A.

I believe that I have looked at -- I mean,

I believe I've looked at every document on here. Let me say it differently. When I looked at this document, Appendix 3, to make a determination as to whether -- you know, whether or not I needed to add or whether there were documents on here that I didn't believe that I had read, I did make a pass through it and took a serious effort to try to be accurate in this document, but there -- like you say, there's -- or like I said, there are a lot of documents in there. Q. A. Q. A. And when you -- is "QA" quality analysis Correct. I'll try not to use that term. That's fine. How did you decide whether a I think it's -- the qualification is or quality assurance?

but with -- and so with respect to -- I mean, I had to learn generally about Titan. But with respect to this particular conclusion, I think it's this file. Q. A. Q. upon? A. Q. A. Yes, I think so. You think so? You're not sure? Well, there's lots of documents here, and Mr. Gray, I'm going to ask you to turn to I'm there. And is it correct that Appendix 3 is the Appendix 3 of your report.

list of materials that you considered or relied

document should be on this list or not? whether I considered it or relied on it in the development of my report, with probably a bias towards over-inclusion. By that I mean with a bias towards -- if there was a document that I may or may not have considered very carefully or that was cumulative to some other document that was on there, I think it -- the list should reflect -- have a bias towards over-inclusion, meaning that it should

I guess -- I guess what you're -- the way you're asking me the question, "Is this the list," I wouldn't be -- I would be dismayed, but not shocked, if -- to find that something didn't make it on the list. I have done the best I can to make that list as complete as I can, but I would be, you know, upset, but not shocked, if I -- there was something that maybe I read or considered that didn't make it

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STEPHEN GRAY June 9, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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Q. A. Q. A.

Yeah, that -That's the Appendix 4, right, that we're Yes. The spreadsheet was -- let's see. How

A. Q.

I have it in front of me. You're faster than I am. I want to walk

referring to?

through each column and ask you which columns are columns as to which you directed Mr. Fuchs to perform analysis. So first is a list of numbers from 1 to 357. I think we'll skip that column. A. Q. Okay. Next is the column labeled "Customer."

would I characterize that. That was jointly developed, and I ended up, you know, asking for certain columns and certain analysis to be performed, and so that contributed to the columns that are in the spreadsheet. I suppose that some of the text in the headings of the columns, for example, would -- that was probably text that I would suggest was contributed. And I think the list of the names of the customers is not something that I typed in, for example, on Appendix 4. I think there was a preliminary version of -- and I don't know if I'm entitled to talk -shouldn't talk about that. Okay. There was -- it's probably -- that's probably it in Appendix 4. Q. Anything else in Appendix 4 other than some of the text in the headings of the columns and the list of customer names being typed by someone else? A. And I'm not entirely sure they were typed.

And you, I believe, have already testified that someone else created or populated that column; is that correct? A. Q. Yes, that -- I did not type in all of And asking specifically on the last page those names. of Defendant's Exhibit 2089, after Customer 357, there is a bold item "Footnotes," and then there are six footnotes? A. Q. A. Yes. Did you direct someone to determine which Yes, I was -- well, did I direct -- yes, I

customers were the consulting-only customers? mean, I wanted to identify those customers that were consulting-only customers. Q. How did you learn which customers were consulting-only customers?

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Q. A. Q. A. Q.

Or copied and pasted, sure. However they got there. Anything other than those two? Not that I'm -- not that I'm aware of now, In your answer you said that you asked for

A.

I think by analysis -- I think found out

by looking -- my best recollection sitting here right now is that I did that looking through SAS. Q. Did you know when you started looking through SAS that there were some customers who were consulting-only customers? A. I think I did start -- I think I did start with that, with that knowledge. I mean, I think that knowledge had -- I'd become aware of the fact that some of the customer -- some of TomorrowNow's customers were consulting-only customers, or customers for which they had performed consulting. I think I was aware of that when we started -- you know, when I started down the path of creating the non-accused conduct spreadsheet. Q. Do you recall how you became aware that certain of TomorrowNow's customers were consulting-only customers within the meaning of your footnotes? A. I can't remember specifically if it was -well, I mean, I suppose that's really the answer, is that I can't remember specifically. I have a vague recollection, but I don't think that you probably are interested in that. Q. I'm interested in your vague

sitting here right now. certain columns and certain analysis to be performed. Whom did you ask? A. I guess the -- I guess the people that I had -- I think that I asked -- I asked Mr. Fuchs here, who had -- I think he was the one who I first talked to this about. I would imagine that's the first place that it started. I think that is. That's my best recollection. Q. To be clear, you asked Mr. Fuchs to create certain columns and to perform certain analyses for your Appendix 4? A. Well, that's where it started, and then there was a collaborative effort that went back and forth to actually, you know, identify exactly what was going to be in each column and so on. But that's where it started, yeah. Q. If you'd turn to Appendix 4, which is a previously marked exhibit. I think it's 2089, Defendant's Exhibit 2089.

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