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)

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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 [phone]

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