Oracle Corporation et al v. SAP AG et al

Filing 775

Declaration of Tharan Gregory Lanier in Support of 774 MOTION Defendants' Notice of Motion and Motion to Exclude Expert Testimony of Paul C. Pinto filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25)(Related document(s) 774 ) (Froyd, Jane) (Filed on 8/19/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 775 Att. 4 EXHIBIT 4 Dockets.Justia.com PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION --O0o-ORACLE CORPORATION, a Delaware Corporation; ORACLE, USA, INC., a Colorado Corporation, and ORACLE INTERNATIONAL CORPORATION, a California Corporation, Plaintiffs, Vs. No. 07-CV-01658-PJH (EDL) SAP AG, a German Corporation, SAP AMERICA, INC., a Delaware CORPORATION, TOMORROWNOW, INC., a Texas Corporation, and DOES 1-50, Inclusive, Defendants. _____________________________/ VIDEOTAPED DEPOSITION OF PAUL PINTO ___________________________ Wednesday, May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Reported By: Job 427372 WENDY E. ARLEN, CSR #4355, CRR, RMR Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 16 TEXT REMOVED - NOT RELEVANT TO MOTION 09:19 5 6 7 8 9 Q. Okay. Do you know specifically which version of the COCOMO model that reflects? A. Q. A. Q. I believe this is the COCOMO 2000 model. COCOMO II 2000? Yes. Is that the software that you had run 09:20 10 11 12 13 previously when you were preparing your initial report? A. No, it is not. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 24 TEXT REMOVED - NOT RELEVANT TO MOTION 8 9 09:29 10 11 12 13 14 09:29 15 16 17 18 19 09:29 20 21 22 23 24 09:29 25 Q. Okay. When did counsel for Oracle first engage your services to work in this case? A. Q. Define engage, please. Have you been engaged by Oracle's counsel to work in this case -A. Q. A. Q. Yes. -- as an expert? Yes. What do you mean by engage? What do you You have? understand that to mean? A. Q. I'm asking you, sir. I just asked you if you've been engaged, What do you understand that to and you answered yes. mean? A. Q. Retained as an expert? When they contracted for my services. Fair enough. Let's use that. When did they first contract for your services in this case? A. It would have been in May or June of last Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 25 1 2 3 4 09:30 5 6 7 8 9 09:30 10 11 12 13 year. Q. A. Q. A. Of 2009. Yes. What were you asked to do? I was asked to opine on the avoided development costs associated with a set of products. Q. Oracle's counsel asked you to opine on the avoided development costs for a set of products? A. perform. Q. Did Oracle's counsel use the word "avoided That was the task I was brought in to development costs" in engaging your services? A. Yes. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 35 TEXT REMOVED - NOT RELEVANT TO MOTION 16 17 18 19 09:42 20 21 22 23 24 09:42 25 Q. Did anyone out of Sylvan VI provided any assistance as reflected in your report? A. As reflected in my report, no, but I did engage a team from a former employer of mine, NIIT Technologies, to assist me in conducting the analysis. Q. A. Q. A. When did you engage this team? Very shortly after I was engaged. And what does NIIT stand for? It stands for NIIT. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 36 1 2 3 4 09:42 5 6 7 8 9 09:43 10 11 12 13 14 09:43 15 16 17 18 19 09:43 20 21 22 23 24 09:44 25 Q. It doesn't -- those letters don't stand for anything, as far as you know? A. anything. Q. And what -- what did you ask this team of As far as I know, they do not stand for people to do? A. I asked them to support me in estimating the product suites in question. Q. A. Q. A. Q. A. Q. A. How many people were on the team? At peak it was six. Who was on the team? So by name? Yes. Keith Banister. Okay. Are you ready for these next ones? Amal Jaiswal, J-a-i-s-w-a-l, Rajiv Chawla, C-h-a-w-l-a, and, I'm sorry, the remainder names are more difficult than those and I don't have those committed to memory. Q. Okay. What did you -- what specifically did these -- did this team of people do which at one point comprised as many as six people? A. So a little background if I may. This was a significant piece of work. To go through and count Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 37 1 2 3 4 09:44 5 6 7 8 9 09:44 10 11 12 13 14 09:45 15 16 17 18 the lines of code, even -- even to sort out the ISO files to get at the source code and then to go ahead and count the lines of code. So this team is currently employed by NIIT, which is my former employer, and this team's job is to form estimates. So they do this all day. They do this every day, and they've done this, the three gentlemen I mentioned who were in the employ when I was there in year 2001. long time. NIIT is a $220 million a year company, and this team provides hundreds of estimates each year using a variety of different estimating models, predominately function point and COCOMO, to develop estimates. The estimates that they build range from So I've known them quite a fresh development, what I'll call modernization, taking an existing application and rebuilding it on potentially a new platform, and maintenance. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 40 TEXT REMOVED - NOT RELEVANT TO MOTION 09:49 20 21 22 23 24 Q. Okay. So you engaged these -- you engaged NIIT or those six people? A. Q. A. I engaged NIIT. And what did you provide to them? So for the analysis work they did, I provided 09:49 25 them with the ISO files. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 41 1 2 3 4 09:49 5 6 7 8 9 09:50 10 11 12 13 14 09:50 15 16 17 18 19 09:50 20 21 22 23 24 09:50 25 Q. A. Of the four suites. Correct. That's not true. Provided them with the ISO files for two -Q. A. Q. A. Q. A. Q. A. Q. Two? -- of the four suites. Which two? JD Edwards EnterpriseOne. Okay. And PeopleSoft. And what else did you provide them? Guidance, management, daily discussions. And these people assisted you by conducting what kind of -- did they assist you in your COCOMO analysis? A. Q. analysis? A. term. Q. Okay. Did they contribute somehow to your Too broad. Function point analysis is a big No. Did they assist you in your function point function point analysis, your efforts to develop a function point sizing? A. Q. A. They contributed to the backfiring results. Okay. In what way? They extracted the source code files from the Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 42 1 2 3 4 09:51 5 6 7 8 9 09:51 10 11 12 13 14 09:51 15 16 17 18 19 09:52 20 21 22 23 24 09:52 25 ISO files, which is a laborious task. They sorted them by the various types of source code, stratified them by the types of source code, counted the logical lines of source code and produced those counts. Q. Did they provide the sorted and stratified code to you in some form? A. They did not provide the code to me. I provided the ISO files to them which contained the code. Q. Right. And, I'm sorry, then you said they stratified -- they sorted and stratified, et cetera. A. Q. Correct. They actually extracted, say, COBOL code and put that in one file, I assume, and they extracted maybe, I don't know -A. Q. A. Q. C. C code? Correct. Did they then provide that COBOL and that C to you in some form? A. names. Q. A. Q. Listing of the file names? Yes. Did they provide the files to you? They provided me a listing of those file Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 43 1 2 3 4 09:52 5 6 7 8 9 09:52 10 11 12 13 14 09:52 15 16 17 18 19 09:53 20 21 22 23 24 09:53 25 A. Q. A. No. And did you ask them to? No, and again this was voluminous. So these came to me from Bingham on hundred meg external drives. Q. Right. Okay. As far as you know, does NIIT still have that sorted software and those files for which they provided you lists of the files? A. Q. A. I know unequivocably that they do not. What happened to those files? So as soon as their task was completed, by virtue of their process standards being a CMM Level 5 and ISO certified company, they were immediately forced to disassemble the machines and destroy the hard drives that contained that software. I know that for two reasons. One, I worked for the company for five years and that was standard protocol. Two, I was -- I was looking for them to conduct further analysis, but I no longer -- they no longer have access to the source code. Q. So at one point they had the source code on the hard drives of their machines. A. Q. Yes. And to the best of your knowledge, they disassembled the machines and destroyed the hard Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 44 1 2 3 4 09:53 5 6 7 8 9 09:53 10 11 12 13 14 09:53 15 16 17 18 19 09:54 20 21 22 23 24 09:54 25 drives including those files containing the source code. A. Correct, and they returned the external hard drives to me which I subsequently returned to Bingham. Q. Okay. At some point, in your view, would it have been possible to download or copy some of or all of the files that were on these hard drives? that have been feasible? A. Q. A. Q. A. No. It would not have been possible? No, just due to the size. Yeah. And due to the fact that they worked in an Would isolated lab -Q. A. Q. Yeah. -- with no conductivity outside the lab. No, with the proper machinery of some sort and software, hardware and cables and whatever else, would it have been possible to make copies of the files that were on the hard drives? A. Q. A. Q. Physically possible? Yes. Yes. Okay. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 45 1 2 3 4 09:54 5 6 7 8 9 09:54 10 11 12 13 14 09:54 15 16 17 18 19 09:54 20 21 22 23 24 09:55 25 A. But from a process and procedural Again, NIIT is a CMM Level 5 ISO perspective, no. certified company. Q. A. Understood. They were actually one of the first 50 companies to be assessed at CMM Level 5. Q. practice. Understood. I wasn't asking about their I was asking you, in your opinion, as someone who has been in this industry for some time would it have been possible to obtain copies, physically possible, and you said, yes. A. possible. Again, you have to define what's meant by You know, and I'm sorry, it's not my It's just, again, I intent to stick on the point. worked for the company for a number of years. They're very concerned with protocols and procedures. Q. A. Q. Okay. Especially around intellectual property. I think we're maybe two ships passing in the I'm not asking about what night here, Mr. Pinto. NIIT does and doesn't to, its practice, how good or bad it it is in dealing with its procedures. In the real world, in your opinion, do you think it would have been possible with some amount of equipment, hardware, some amount of software, whatever that Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 46 1 2 3 4 09:55 5 6 7 8 9 09:55 10 11 12 13 14 09:56 15 16 17 18 19 09:56 20 21 22 23 24 09:56 25 might have been, existing software, and some number of cables or other devices or connecting devices, et cetera, to make copies of the files? A. Q. Possible perhaps. Okay. And when did NIIT have these segregated files of the source code? A. So it would have been from June of last year to November roughly. Q. A. Q. June to November of 2009? Yes. And the hard drives were sent to you in a disassembled form and you returned them to Bingham. A. The original external hard drives that I The hard provided to NIIT were returned to me. drives, the physical hard drives that existed on the machines at NIIT were disassembled and the hard drives were destroyed. MR. BUTLER: We would ask that those hard I'm puzzled as to why they drives be provided to us. weren't already, but at some point it seems as though there was some code that was produced in the course of Mr. Pinto's analysis that was not provided to us. MS. HOUSE: THE WITNESS: Well, we disagree with that. Yeah, you were provided with everything I was provided with. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 50 TEXT REMOVED - NOT RELEVANT TO MOTION 10:02 15 16 17 18 19 Q. Did you -- did you separately undertake to analyze any of their results or you adopted them without further analysis? A. Q. No, I analyzed all of their results. And you conducted again the same kind of 10:02 20 21 22 23 24 stratification and sorting and stratification process that they did? A. Q. A. No, I didn't replicate their results. You reviewed them. I managed them throughout the process, I 10:02 25 facilitated the process, provided guidance throughout Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 51 1 2 3 4 10:02 5 6 7 8 9 10:03 10 11 12 13 14 10:03 15 16 17 18 19 10:03 20 21 22 23 24 10:04 25 it, spoke with them on a daily basis. They presented results from tasks to me and then once I was convinced that the answer was -- was adequate and appropriate, I would then adopt it as my own. Q. Okay. Okay. Now, to -- back to Exhibit 2052, sir. On tab 1 of that document, you see that in front of you? A. Q. I do. It says: "Subjectivity Associated with Do you see that as Hand-Counting Function Points." the title? A. Q. I do. And on the left-hand -- leftmost column of the three columns there, it says in the middle of the three entries "Neuendorf's Hand-count." that mean? A. Yes. So that was a hand-count of the same What does documents Mr. Garmus counted as performed by Steve Neuendorf. Q. A. And who is he? Mr. Neuendorf is a certified function point counting specialist engaged by NIIT. Q. A. case. He was engaged by NIIT for work in this case? He's -- I don't know if it's for work in this NI -- he's part of NIIT. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 52 1 2 3 4 10:04 5 6 7 8 9 10:04 10 11 12 13 14 10:04 15 16 Q. Okay. You mention here in this document 2050 He conducted a tab 1 Neuendorf's hand-count. hand-count for you at your request? A. Q. A. yes. Q. Okay. So he was part of that team that Yes. Did you engage him? I did as part of my engagement with NIIT, worked with you under your guidance on this project? A. Well, that team was assembled and disassembled a while ago. Q. Okay. So he's a new addition. He's a new NIIT consultant -A. Q. A. Correct. -- working with you for rebuttal purposes. Correct. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY TEXT REMOVED - NOT RELEVANT TO MOTION Page 53 2 3 4 10:05 5 6 7 8 9 10:05 10 11 12 13 14 10:05 15 16 17 18 19 10:05 20 21 22 23 24 10:06 25 Q. Are you a certified function point specialist? A. Q. I am not. Were you at any time a certified function point specialist? A. Q. No. Including at the time you prepared your function point analysis in the report, right? A. Q. That's correct. Why did you engage Mr. Neuendorf to hand-count the materials that were considered by Mr. Garmus? A. Mr. Garmus had proposed an alternate method for determining the number of function points, alternate to the method I used, and he contested that it would be quicker and more accurate. So in test of that, I engaged another certified function point specialist to perform the same activity that Mr. Garmus performed and gave him the exact same inputs with no guidance, no bias from me, and asked him to simply go ahead and perform the exact same task with the exact same inputs so I could gain an understanding if, as Mr. Garmus has asserted, that they would corroborate. And actually as you can see Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 54 1 2 from the results, there was -- there was quite a variance. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 57 TEXT REMOVED - NOT RELEVANT TO MOTION 14 10:10 15 16 17 18 19 10:11 20 Q. Sure. Did you ask -- did you show Mr. Neuendorf the ten-step process that you used to develop a function point count? A. Q. I did not. Do you have any -- did you show it to anyone who is a certified function point specialist? A. No. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY TEXT REMOVED - NOT RELEVANT TO MOTION Page 61 Can you name 2 3 4 10:14 5 6 7 8 9 Q. Okay. All right. Fair enough. one certified function point specialist who has used the ten steps that you have put in your report? A. Q. A. Q. A. I can't. You cannot name any such person? No. You're not aware of any such person. I am not aware of any such person. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 66 TEXT REMOVED - NOT RELEVANT TO MOTION 17 18 19 10:21 20 21 22 23 24 10:21 25 Q. MR. BUTLER: Mr. Pinto, do you know offhand based on your experience with function points what the IFPUG rules are for distinguishing between an output and an inquiry? MS. HOUSE: narrative. Objection, overbroad, calls for a You can answer if you can memorize. No, I'm going to pass. Okay. That was my question, do THE WITNESS: Q. MR. BUTLER: you know offhand without referring to a document. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 67 1 2 3 You would refer to a document if someone would ask you that question. A. I would. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 69 TEXT REMOVED - NOT RELEVANT TO MOTION 11 12 13 14 10:23 15 16 17 18 19 10:24 20 21 22 23 24 Q. Understood. Have you reviewed Mr. Neuendorf's function point count? A. Q. A. Q. Yes. Do you believe it to be accurate? I believe it to be his function point count. Right. Do you believe it to be an accurate function point count? A. I believe it to be accurate from his perspective. Q. You have no independent view on whether it's accurate or not? A. I -- I do not have an independent view on whether it's accurate or not and that wasn't the point of me having him do the analysis. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 75 TEXT REMOVED - NOT RELEVANT TO MOTION 10:44 10 11 12 13 14 Q. And you received a degree from Central Connecticut State University in computer science with a minor in business administration? A. Q. A. Q. I did. Did you go to graduate school after college? I did not. Do you hold any degrees other than a Bachelor 10:44 15 16 17 18 19 of Science in computer science with a minor in business administration? A. Q. I do not. During or after college, did you take any 10:44 20 21 22 23 24 classes that discussed size estimation or valuation of computer software? A. Q. A. I did. Where were those courses? At NIIT. 10:44 25 Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 76 1 2 3 4 10:45 5 6 7 8 9 10:45 10 11 12 13 14 10:45 15 16 17 18 19 10:45 20 21 22 23 24 10:45 25 Q. A. Q. A. Okay. While you were employed by NIIT? While I was employed by NIIT. How many such courses did you take? Goodness. Over the course of my five years with NIIT, you know, we were always required to take at least two weeks of continuing education. weeks of classes over each of five years. Q. A. Q. A. Q. A. Q. Were any -So. Sorry. So ten weeks of training in that time span. Got you. Five years. Were any of those classes specifically on the So two COCOMO estimation model? A. Q. COCOMO? A. Q. A. Q. courses. A. duration. I'm sorry. The courses weren't two weeks in They dealt with estimating techniques -Okay. -- of which COCOMO was one. Okay. And that was one of the two-week Yes. There were courses that dealt solely with As an employee I was required to take two Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 77 1 2 3 4 10:45 5 6 7 8 9 10:46 10 11 12 13 14 10:46 15 16 17 18 19 10:46 20 21 22 weeks of continuing education -Q. A. Oh, okay. -- throughout the course of each other. So they would come in a day at a time. Q. Okay. So how long did the software estimation class last where COCOMO was one of the topics? A. You know, this is going back a little ways. They It was either a one-day or a two-day class. were never longer than that. Q. class? A. Was function point also included in that Function point was discussed in that class, but there was a separate class on function point counting. Q. A. Q. And that also was a one- or two-day class? Yes. And other than the -- these classes at NIIT, have you taken any other classes or training in COCOMO or function point? A. Outside of those classes that I attended as part of being an employee of NIIT, no. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 86 TEXT REMOVED - NOT RELEVANT TO MOTION 13 14 10:56 15 16 17 18 19 10:56 20 21 22 23 24 10:56 25 Q. Other than this case, not this case, in any other case have you ever analyzed and put a value on avoided development costs? MS. HOUSE: THE WITNESS: Asked and answered. I have not been asked to assess avoided development costs associated with any other lawsuits associated with copyright infringement. Q. MR. BUTLER: How about associated with any Have you other kind of case other than copyright? ever developed a value or analyzed avoided development costs other than in this case? A. In any other legal matter, I have not been asked to analyze avoided development costs. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 87 1 2 3 4 10:57 5 Q. Okay. And this was the first time you've been asked to do so was your engagement in this case? A. The first time I've been asked to analyze avoided development costs associated with copyright infringement. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 103 TEXT REMOVED - NOT RELEVANT TO MOTION . 6 7 8 9 11:15 10 11 12 13 14 11:15 15 16 17 18 19 11:15 20 21 Q. is? A. Q. A. Q. A. Q. A. Q. MR. BUTLER: Okay. Do you know what IFPUG The International Function Point User Group. Are you a member? I am a member. When did you become a member? Recently. April 22nd? That sounds correct. You were not a member at the time you wrote your report. A. Q. A. Correct. Okay. Why did you join recently? One, in exercising In -- well, two reasons. an abundance of caution, I joined IFPUG, but more so so I could research some of the claims by Mr. Garmus. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 111 1 2 3 Q. 1997. A. Okay. In your report you used COCOMO II That's correct. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 114 TEXT REMOVED - NOT RELEVANT TO MOTION 9 11:27 10 11 12 13 14 Are you aware of any publication from anyone in the industry who -- that supports the notion that the 1997 COCOMO model is more appropriately used in backfiring -- with respect to backfiring than the 2000 model? A. I am not aware of any publication. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 176 TEXT REMOVED - NOT RELEVANT TO MOTION 7 8 9 12:48 10 11 12 13 14 Q. Are you aware of whether those ten steps in that order have been approved by any standard setting group such as the International Software Benchmarking Standards Group? A. Q. A. But, Mr. Butler -- -Yeah. -- these ten steps were specifically written and tailored for this case. TEXT REMOVED - NOT RELEVANT TO MOTION 24 12:48 25 Q. And there's ten steps going all the way from Step One to Step Ten. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 177 1 2 3 4 12:48 5 6 7 8 9 12:48 10 11 12 13 14 12:49 15 16 17 18 19 12:49 20 21 22 23 24 12:49 25 A. Q. I see that. Okay. Have those ten steps in that order as you have them on that paper -- page I see you looking at right in front of you, page i of your report, have those ten steps been approved by any standard setting group such as the International Software Benchmarking Standards Group? MS. HOUSE: And I'm going to object to the word approved as vague. THE WITNESS: Yeah, I can't say as to whether they've -- they've been approved -Q. A. Q. MR. BUTLER: Okay. -- by those organizations. Okay. Are you -- thank you. Are you aware of any IFPUG publication that uses this ten-step process? MS. HOUSE: THE WITNESS: Q. MR. BUTLER: Asked and answered. I am not aware. Has this ten-step process listed here been peer reviewed, as far as you know? A. Q. Yes, it has been peer reviewed. Okay. And you believe it would be publishable in a peer reviewed professional journal? A. Q. Yes, I do. Have you seen it published in such a journal? Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 178 1 A. I have not. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY TEXT REMOVED - NOT RELEVANT TO MOTION Page 188 3 4 13:02 5 6 7 8 Q. right? A. Q. Okay. And you did not count JDE World, Correct. And you did not count source lines of code for Seibel either. A. Also correct. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 202 TEXT REMOVED - NOT RELEVANT TO MOTION 17 18 19 14:10 20 21 22 23 24 14:11 25 THE WITNESS: Before we start again, just a point of clarification if I may. Q. A. Q. A. MR. BUTLER: Okay. On what topic? With regard to the ten-step process. Okay. I wanted to make sure that I clearly communicated to you that the ten-step process as described here, I did write down, I authored based on my knowledge of a number of compendiums that existed Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 203 1 at my former employers. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 212 TEXT REMOVED - NOT RELEVANT TO MOTION 12 13 14 14:22 15 16 17 18 19 14:23 20 21 Q. Are you aware of any certified function point specialists who backfire source lines of code to function point? A. So in response to the first part, I know of no certified function point hand-counters who perform backfiring. Q. Is there anyone who -- is there a way to be Excuse, certified in the ten steps that you've used? that you have used? A. No, there isn't. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 213 TEXT REMOVED - NOT RELEVANT TO MOTION 24 14:24 25 MR. BUTLER: Okay. I ask the court reporter to mark as Exhibit 2055 a document dated December 208 Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 214 1 2 3 4 14:25 5 6 7 8 9 14:25 10 11 12 13 14 14:25 15 16 17 18 19 14:25 20 21 22 23 24 14:26 25 entitled PeopleSoft 8.8 eBenefits PeopleBook. (Deposition Exhibit 2055 marked for identification.) Q. MR. BUTLER: Oh, I'm sorry. I didn't realize you had it in front of you, Mr. Pinto. A. Q. I do. Can you tell me, please, whether you have seen user documentation of this sort in this case with respect to PeopleSoft? A. I have not seen this specific user documentation. Q. Okay. In your involvement in this case, you mean you have not? A. In any occurrences I have not seen this specific documentation set. Q. Okay. Does it -- do you recognize it to be a user manual for some particular module or application, in this case PeopleSoft 8.8 eBenefits? A. Q. It -- it appears to be. Have you seen documents of this sort at any time in your career? MS. HOUSE: THE WITNESS: Q. MR. BUTLER: Objection, vague. I have. Could you please turn to page 56 of document 2055? Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 215 1 2 3 4 14:26 5 6 7 8 9 14:26 10 11 12 13 14 14:27 15 16 17 18 19 14:27 20 21 22 23 24 14:27 25 A. Q. I'm there. Okay. And you see on the top it says Reviewing Dependent and Beneficiary Information? A. Q. Yes. And then there is a table with four columns and three rows plus a heading? A. Q. Yes. On the right-hand -- rightmost column with the heading Usage, do you see that on the right? A. Q. I do. And below that there's three entries. "Display summary The first one says: dependent/beneficiary benefit information." A. Q. Yes. Is that a date function or a -- a data function or a transactional function? MS. HOUSE: THE WITNESS: Objection, vague. The terms you're asking me are specific to hand-counting of function points which -which is not what I performed, nor do I hold myself out as a hand-counting specialist. Q. MR. BUTLER: Okay. So you don't know the answer to my question, right? A. question. No. No, I've declined to answer your Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 216 1 2 3 4 14:27 5 6 7 8 9 14:28 10 11 12 13 14 14:28 15 16 17 18 19 14:28 20 21 22 23 24 14:28 25 Q. Okay. You decline to answer it. Okay. Is that text I just read representative of an EI or an EO or an EQ? A. response. Again, I would provide you with the same The questions you're asking me are specific to hand-counting, which is not the process I conducted. Q. A. Q. It's not your area of expertise. No, I said it's not the process I conducted. But is it something you know about. MS. HOUSE: THE WITNESS: Asked and answered. Again, it's -- it's not germane to the analysis I conducted. Q. MR. BUTLER: I'm not asking you that, sir. Do you -- do you know anything about identifying data functions and transaction functions? MS. HOUSE: THE WITNESS: Asked and answered. Once again, I am not a certified function point specialist. Q. MR. BUTLER: Okay. Right below that it says: "Display a summary of dependent/beneficiary personal information." A. Q. I do. Is that an EI, an EO, or an EQ? MS. HOUSE: Same objections. Do you see that? Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 217 1 2 3 4 14:28 5 6 7 THE WITNESS: response to you. Q. A. MR. BUTLER: Again, I provide the same Which is? That I am not a certified function point specialist and the questions you are asking are specific to hand-counting of function points, which is not what I endeavored to do. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 219 TEXT REMOVED - NOT RELEVANT TO MOTION 6 7 8 9 14:30 10 11 12 13 14 14:31 15 16 17 18 19 14:31 20 21 22 23 24 14:31 25 Q. Okay. And you're not qualified to do what you've called hand-counting, which is the IFPUG method, right? A. Actually, what I have said was I am not a certified function point specialist. Q. Now, answer my question. Are you qualified as an expert in what you called hand-counting, which is the IFPUG method? A. Again, I am not a certified function point specialist. Q. Do you consider yourself to be an expert in that field, irrespective of whether you're certified as a specialist or not? A. I do not consider myself to be an expert in the field of hand-counting function points. Q. says: On the bottom row of that rightmost column it "Review and update dependent/beneficiary Do you see that? information." A. Q. I do. Is that an EI, EO, or EQ? Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 220 1 2 3 4 14:31 5 6 7 8 9 14:31 10 11 12 13 14 14:31 15 16 17 18 19 14:32 20 21 22 23 24 14:32 25 MS. HOUSE: THE WITNESS: question. Q. box. MR. BUTLER: Same objections. Again, Counsel, it's the same No, it isn't. It's a different The Maybe you're looking at the wrong box. lower rightmost box. A. Thank you for the clarification. Again, the question you're asking is germane were I to have counted a hand-count of function points, which is not what I did. Q. Can you answer my question? MS. HOUSE: THE WITNESS: again? Q. MR. BUTLER: Sure. Is that text in the lower Asked and answered. Could you ask your question rightmost box lower right corner that I've just read an EI, an EO -- does it reflect an EI, EO or EQ? A. Again, I'm comfortable with the response I've given you. Q. A. Okay. You don't know if that's an EI? No, what I've said is I'm comfortable with the prior response I gave you. Q. A. at hand. Good. I'm asking is that an EO. Sir, again, it's not relevant to the matter Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 221 1 2 3 4 14:32 5 6 7 8 9 Q. I'm just asking you -- I'm entitled to explore the depths of what you purport to consider to be your expertise. A. Q. Yes. So I'm asking you do you think that text reflects an EO. A. Sir, once again, I am not a certified function point specialist and therefore prefer not to comment. TEXT REMOVED - NOT RELEVANT TO MOTION 17 18 19 14:33 20 21 22 23 Q. Do you know one way or another whether IFPUG approves of backfiring? MS. HOUSE: THE WITNESS: Objection, vague as to approve. It's my understanding as reported that IFPUG does not sanction backfiring, which is entirely understandable given that IFPUG is focused on servicing the hand-counting community. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 231 TEXT REMOVED - NOT RELEVANT TO MOTION 11 12 13 14 14:45 15 16 17 18 19 14:46 20 21 22 23 24 14:46 25 Q. Okay. What -- if you've identified an elementary process as being an EO or an EQ, if the processing logic of the elementary process creates derived data, would you count the elementary process as a unique EO or unique EQ or both? MS. HOUSE: THE WITNESS: it. Objection, compound, vague. That's all right. I'll answer Mr. Butler, again, you're asking me questions that are specific to hand-counting, which is not germane to the analysis I conducted. Q. MR. BUTLER: Are the complexity and contribution rules for transactional functions different from those used for data functions? MS. HOUSE: THE WITNESS: Objection, vague, compound. Same response, Mr. Butler. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 232 1 2 3 4 14:46 5 6 7 8 9 14:46 10 11 12 13 14 14:46 15 16 17 18 19 14:46 20 21 22 23 24 14:47 25 Q. MR. BUTLER: Do you know offhand whether the complexity and contribution rules are the same for transactional functions as they are for data functions? MS. HOUSE: THE WITNESS: Same objections. I'm comfortable with the response I provided you. Q. A. MR. BUTLER: You don't know. I'm comfortable with the response I provided -Q. A. Q. question. A. Again, you're asking questions that are not I'm asking if you know. Again. Do you know, yes or no? It's a very simple germane to the analysis I conducted. Q. It has nothing to do with your analysis. We're all in I agree you didn't do an IFPUG method. agreement on that. I'm asking you if you understand my question and can answer it. A. Q. Again, it is not germane. It might be germane to function points. I think function point specialists would know this. Wouldn't they know the answer to that? A. A hand-counting function point specialist Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 233 1 2 3 4 14:47 5 6 7 8 9 14:47 10 11 12 13 14 14:47 15 16 17 18 19 14:47 20 21 22 23 24 14:47 25 would answer your question. Q. question. A. Okay. I am not -- You don't know the answer to the No, I am saying I'm not a certified function point specialist. Q. question? A. Again, not germane to the analysis I Okay. Do you know the answer to the conducted. Q. I didn't ask you about your analysis. Very simple I know it, I Do you know the answer to the question? question I'm asking. Do you know? don't know it, yes, no, very simple. A. Q. Mr. Butler, again, it's not germane. I didn't ask you if it's germane. That would be a separate question. A. Q. I understand. This question is, Mr. Pinto, do you know whether the complexity rules and contribution rules for transactional functions are different from those used for data functions? A. response. Q. No, you haven't. That's why I keep asking, Mr. Butler, I've already given you a because you haven't. I'm asking, Mr. Pinto, do you Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 234 1 2 3 4 14:47 5 6 7 8 9 14:48 10 11 12 13 14 14:48 15 16 17 18 19 14:48 20 21 22 23 24 14:48 25 know. is it? A. Q. or not. You either know or you don't know. Which one Mr. Butler, it's not germane. It's not up to you to decide what's germane I'm entitled to explore your level of I'm You expertise in the world of function points. asking you a question about function points. either know it or you don't know it. A. And I have told you. I am not a certified function point specialist. You've asked me several questions that are specifically geared towards hand-counting and certified function point specialists, and I've declined to answer all of those. Q. So you think someone who uses your ten steps would not know the answer to these questions? A. I'm -- I'm saying that someone who does use my ten steps need not know the answer to those questions. conducted. Q. A. Q. Okay. What is an FTR? They are not germane to the analysis I Again, it's not germane. I didn't ask you whether anything is germane I'm asking you what is an FTR. to anything. A. Again -- Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 235 1 2 3 4 14:48 5 6 7 8 9 14:49 10 11 12 13 14 14:49 15 16 17 18 19 14:49 20 21 22 23 24 14:49 25 Q. A. Yeah. -- it's not germane to the analysis I conducted. Q. clear. Gosh. I'm sorry. My question must not be Do you know It's a very simple question. what FTR means? A. Sir, again, it's like asking me the capital It's irrelevant for this proceeding. Do you know what an FTR is? No? of Kentucky. Q. A. Q. Yeah. Again, I stand by my answer. Okay. You're for some reason refusing to answer my question and I'm entitled to an answer to the question. A. answer. Q. Okay. What does FTR stand for in the world I understand. I believe I provided you an of hand-counting, as you've called it? A. Q. Again, you've asked me the same question. What does FTR stand for in the world of hand-counting as you have called that process? A. Q. A. Q. Again, Mr. Butler -Do you know? Sir, it's not germane. Do you know what FTR stands for? MS. HOUSE: You can answer if you know. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 236 1 2 3 4 14:49 5 6 7 THE WITNESS: Q. MR. BUTLER: I'm going to pass -Mr. Pinto, it's okay to say, "I Then we'll move on. I'm don't know." That's fine. entitled to know whether you know or don't know. A. I understand. For purposes of this discussion, I'll say I don't know to move past the point. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 237 TEXT REMOVED - NOT RELEVANT TO MOTION 14:51 20 21 22 23 24 Q. When counting the same functional transaction that appears in several places throughout an application, does that constitute as one functional transaction or more than one? A. Again, you're asking me questions that are 14:51 25 specific to hand-counting. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 238 1 2 3 4 14:52 5 6 7 8 9 14:52 10 11 12 13 14 14:52 15 16 17 18 19 14:52 20 21 22 23 24 14:52 25 Q. Do you know the answer to that question? MS. HOUSE: THE WITNESS: Objection, vague, compound. Again, all of these hand-counting questions are not germane to my analysis. Q. MR. BUTLER: I didn't ask if they're germane. You want to keep answering it that way, and I'm trying so hard, Mr. Pinto, not to ask you questions that relate to whether your review is germane to anything or not. I don't know that it is. We're trying to stay with that. Set aside your review. I'm asking you -- I'm And I'm entitled to explore your level of expertise. asking you, do you -- sorry. When counting the same functional transaction that appears in several places throughout an application, does that constitute one functional transaction or more than one? A. So, I'll help you because I do want to get For purposes of our past this, I genuinely do. discussion, whenever you want to ask questions specifically around hand-counting, I will simply say that it is not germane and it is not within the realm of my study. Q. Okay. And when you say that, you will be Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 239 1 2 3 4 saying that I don't know. interpret it. A. now. Okay? That's how I'm going to I'm comfortable with that interpretation for TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 260 TEXT REMOVED - NOT RELEVANT TO MOTION 15:31 25 Q. But you do agree, though, that at least some Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 261 1 2 3 4 of the technical and user documentation is accounted for during the typical software development life cycle. A. Yes. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 284 TEXT REMOVED - NOT RELEVANT TO MOTION 16:02 5 6 7 8 9 Q. Right. And then after making the assumption with respect to JD -- as between JD Edwards EOne and JDE World, you made the assumption that you mentioned before about similar functionality based on your experience and for the reasons you've just said and then you -- you made an assumption that the same SLOC would apply to World as to EOne. A. Q. I did. Okay. And why is that? Even though they're 16:02 10 11 12 13 14 written in vastly different languages. A. Well, they are written in different That's a true statement. 16:03 15 16 languages. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 286 TEXT REMOVED - NOT RELEVANT TO MOTION 11 12 13 14 16:05 15 16 17 18 19 16:06 20 21 22 23 24 16:06 25 Q. Then with respect to Seibel you also did not conduct a function point analysis for the Seibel code and you developed an SLOC count by analogy, right? A. Q. Correct. And there you did it by assuming that the Seibel product contained 79.4 more functionality than PeopleSoft CRM. A. Q. That's correct. Okay. And how did you come to that conclusion? tables? A. That was based on your -- you counted Yeah, so a couple points. PeopleSoft CRM and Seibel competed heads up in the market. Q. A. Right. It was acknowledged that Seibel was a -- a Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 287 1 2 3 4 16:06 5 6 7 8 9 16:06 10 11 12 13 14 16:07 15 16 17 18 19 16:07 20 21 22 23 24 16:07 25 higher feature function product than PeopleSoft. I can't recall what percentage of the market it held, but Seibel was the market leader, and I've got a reference to a Forrester Wave diagram that shows Oracle Seibel versus PeopleSoft CRM. Q. A. Okay. Okay? So -- so it's fair to say that unequivocably that Seibel is bigger and more feature function rich than PeopleSoft CRM. Q. A. Based on market share? No, based on the functionality provided. It happens to have a higher market share as a result. Q. And the functionality you're reporting comes from what document? A. products. Q. document. A. 0006. Okay? So it is fair to say it is more Just tell me the number or name of the Forrester is an analyst who rates CRM feature function rich. Q. Sure. And you determined the amount of functionality by looking at the number of tables in PeopleSoft CRM versus in Seibel? A. Q. That's correct. Did you have access to PeopleSoft CRM to Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 288 1 2 3 4 16:07 5 6 7 8 9 16:08 10 11 12 13 14 16:08 15 16 17 18 19 16:08 20 assess how many tables there were? A. Q. I did not. Okay. How did you determine how many tables were in PeopleSoft CRM? A. Q. A. So that number of unique tables -Yeah. -- and that's an important point -- unique tables contained in PeopleSoft CRM was provided to me by an Oracle employee. Her name is Tanya Ishiguro, and it was provided to me via e-mail which I have provided. Q. Okay. So someone from Oracle named Ms. Ishiguro provided you the number of tables in PeopleSoft CRM? A. Q. Unique tables. Unique tables, and the number of unique tables in Seibel this person also provided to you? A. Q. A. No, another Oracle employee, Dan Vernell. Provided that number to you. Correct. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 289 TEXT REMOVED - NOT RELEVANT TO MOTION 19 16:09 20 21 22 23 Q. It's a fair thumbnail, but it's not always accurate, right? A. I would say it's a fair thumbnail. It is a more I can't comment on an accuracy rating. simplicit means of sizing, that is for sure. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 293 TEXT REMOVED - NOT RELEVANT TO MOTION 16:12 5 6 7 8 9 Q. You did not count source lines of code at any time for Seibel, right? A. Q. That's correct. And you didn't count source lines of code at any time for World. A. Q. That's also correct. Okay. But you used source lines of code as 16:13 10 11 12 13 14 your starting points for your function point count and for your COCOMO analysis. A. Q. That's also correct. If your source lines of code count were off, 16:13 15 16 17 18 19 then both your function point count and your COCOMO count -- analysis would have been off also. A. Q. That's correct. So if you were ten percent high, you would 16:13 20 21 22 23 24 have errors in both your function point and COCOMO by some factor. If they were ten percent low, you would also have an error in both your function point and COCOMO. A. That's a true statement, but it's not linear, 16:13 25 by the way. Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 294 1 2 3 4 16:13 5 6 Q. I tried not to say it in a linear way. It would be off by some amount. If your SLOC number is off, it would throw off both your function point analysis and your COCOMO analysis. A. Q. It drives the models. It drives the models. Okay. TEXT REMOVED - NOT RELEVANT TO MOTION Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 302 TEXT REMOVED - NOT RELEVANT TO MOTION 6 7 8 9 16:24 10 11 12 13 14 16:25 15 16 17 18 19 16:25 20 21 22 23 24 16:25 25 MR. BUTLER: Okay. Let me ask the court reporter please to mark as Exhibit 2057 a three-page document which I will describe in one moment. MS. HOUSE: MR. BUTLER: MS. HOUSE: MR. BUTLER: It's three pages. What did I say? Two. It's a bonus page there. 2059. (Deposition Exhibit 2059 marked for identification.) Q. MR. BUTLER: All right. Mr. Pinto, you have now before you a three-page document, the first one to list something that says Eq. 1 in the right side? A. Q. side? A. Q. A. Q. Yes. And then Eq. 14? Yes. With respect to the page that has Eq. 1 on I do see that. And the next page says Eq. 2 on the right it, are you familiar with that equation? Merrill Legal Solutions (800) 869-9132 63fbeb92-7127-4813-80a2-8e390ce17b85 PAUL PINTO May 19, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 303 1 2 3 4 16:25 5 6 7 8 9 16:25 10 11 12 13 14 16:26 15 16 17 18 19 16:26 20 21 22 23 24 16:26 25 A. Q. I am not. Do you know offhand what this equation would be used to calculation? A. Q. A. Q. A. Q. A. Q. I assume the PM stands for person-months. And the NS? I don't know. Do you know what the A stands for there? No. How about the EM? Again, no. Okay. On the next page, equation two, what is your understanding of what TDEV and then in subscript NS means? A. Q. Yeah, I don't -- I don't recognize it. The equation you don't recognize or that particular parameter? A. Q. The equation or the parameter. Okay. So do you know offhand what the C is in that equation? A. Q. A. Q. No, I do not. And the SF? Also I did not. Okay. And then on

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