Oracle Corporation et al v. SAP AG et al

Filing 782

Declaration of Scott W. Cowan in Support of 780 MOTION Defendants' Notice of Motion and Motion to Partially Exclude Testimony of Kevin Mandia and Daniel Levy filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Related document(s) 780 ) (Froyd, Jane) (Filed on 8/19/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 782 Att. 2

EXHIBIT B

Dockets.Justia.com

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) No. 07-CV-1658 (PJH) ) 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 KEVIN MANDIA _________________________________ VOLUME 1; PAGES 1 - 290 THURSDAY, MAY 20, 2010

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-427382)

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Q.

Okay.

Were copyright violations at issue

in the Dayton case? A. Q. Not that I recall. Were copyright violations at issue in the

McDanel case? A. Q. No, they were not. Were copyright issues -- violations at

issue in the Grant case? A. Copyright issues were not at issue in the

Grant case. Q. Were copyright issues at issue -- or let

me rephrase that. Were copyright violations at issue in the work and testimony you provided before the World Bank tribunal? A. I do not believe copyright issues were

part of the matter I testified in. Q. A. Okay. In front of the World Bank.

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25

Q.

Okay.

And it's fair to say, based on what

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you've described, that your declaration covered in the Lockheed versus Boeing matter, that that sworn testimony you provided in Lockheed versus Boeing did not address any copyright violations. A. Yes. Correct?

It did not address any copyright

violations.

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Q.

Did any of the matters which you worked on

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when you were in the Air Force Office of Special Investigations involve any allegations of copyright violations? A. I don't recall any matters that I've

worked on when I was in the Air Force office of special investigations that involved copyright matters.

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Q. A. Q.

Okay.

You're not a lawyer.

Right?

I am not a lawyer. You do not have any specialized legal

training in copyright law, do you? A. I do not have specialized training in

copyright law. Q. You do not hold yourself out to be a

copyright expert, do you? A. expert. Q. Before this matter, have you ever I do not hold myself out to be a copyright

undertaken any source code comparison to determine if an alleged copyright violation took place? A. Pausing, because I felt like there was two

questions there. Q. A. Q. Well, it's intended to be combined. Okay. You've already testified you've done

source code comparison. A. Q. Right. My question is, have you ever done source

code comparison to determine if an alleged copyright violation took place? A. Not to the best of my knowledge.

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Q.

Have you ever analyzed source code to

determine if it includes protected expression for the purpose of a copyright analysis? A. I have not analyzed source code to

determine if it contains protected expression in regards to copyright analysis. Q. Have you ever analyzed source code to

determine whether any alleged copied portion of that source code was only de minimus for the purpose of copyright analysis? A. I have not -- you said the word That's another legal term.

"de minimus" to me.

I have not done what you just asked.

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Q.

Are you familiar with an analysis or test

known as the abstract filtration comparison test? A. Q. I am not familiar with that test. To your knowledge, are -- any of the

individuals at Mandiant who assisted you in preparation of your report have any expertise in doing the source code comparison to determine if an alleged copyright violation took place? A. I am unaware -- first, we weren't tasked

to do what you're insinuating here, that we were tasked to do a protected expression analysis in this case. do so. But in answer to your question, since we weren't tasked, I'm unaware if any of my employees have done something like this in their past or not. Q. Are you aware of whether any Mandiant We're in fact not tasked at Mandiant to

employee has ever analyzed source code to determine if it includes protected expression for the

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purposes of a copyright analysis? MR. LEWIS: answered. THE WITNESS: I am not aware. Had we been Objection. Asked and

tasked to do something like that, I would have become aware. But in this case, I am not aware of

Mandiant employees and whether they do or do not have the expertise in this area. Specifically in

de minimus protected expression, I believe is what we're describing. MR. COWAN: Q. That question was related

only to protected expression. A. Q. aware? A. Q. I am not aware. The next question is, are you aware of Okay. And your answer is the same. You're not

whether any Mandiant employee has ever analyzed source code to determine whether any of the alleged copied portion of that source code was only de minimus for the purposes of copyright analysis? A. that. Again, based on -- we weren't tasked to do I didn't poll the expertise in that area

amongst Mandiant, so I am not aware if someone is or is not, has experience in regards to de minimus

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analyses. Q. Are you aware of whether any Mandiant

employee has ever done any analysis to determine if computer source code is a derivative work for the purposes of copyright analysis? A. Again, because I made an assumption on

derivative work and did not need to poll my employees as to their expertise in that area, I don't know what level of expertise we have in that area.

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Have you ever offered any expert opinions regarding software licenses? A. I have not offered any expert opinions.

And I regard expert -- I think you're using the legal term, in a court, or testimony -- I have not offered any testimony that I am aware of in that regard. Q. Okay. And you don't hold yourself out to

be an expert in software licenses and the interpretation of software licenses, do you? A. I do not hold myself out as an expert in

the interpretation of software licenses.
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Q.

Okay.

Have you ever written any code for

the Siebel programs? A. Q. I have not written any code for Siebel. You have never written any PeopleSoft code

either, have you? A. I have not written any code for

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PeopleSoft. Q. Have you ever written any code for

JD Edwards? A. I have not written any code for

JD Edwards.

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Q.

Okay.

Did you review any software license

for any purpose in formulating the opinions and conclusions that are contained in your report? A. I did not. I think when you state

license, you mean the actual software license document? Q. A. Correct. Okay. I did not review any specific

documents that I would call software license documents. I want to be clear. I did receive

information that was called licensing information. Q. Right. But you didn't review, to your

knowledge, any of the actual software licenses themselves. A. Correct?

It was not part of my task to look at

licensing information.

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Q.

But you didn't read the actual terms of Right?

use of Oracle's websites. A. clear. No.

That's what I was stating, to be

I did also read the terms of use, in

regards to just reading them to understand them. Q. But you have no conclusions or opinions

regarding the applicability of the terms of use of any Oracle website, as far as your conclusions and

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opinions are concerned. MR. LEWIS: THE WITNESS:

Right? Vague.

Objection.

I used a "terms of use"

assumption in order to have a legal interpretation of the terms of use. MR. COWAN: Q. But you were given that Right?

assumption; you didn't make that yourself. A. I was given that assumption.

I did not

make that assumption myself. Q. And you have no independent opinion from

an expert standpoint regarding the validity of the assumption. You simply have accepted the

assumption for the purposes of your conclusions and analysis. A. Q. Correct? I accepted and applied the assumption. Correct? But you have -- other than

accepting and applying the assumption that was given to you, you have no independent opinion from an expert standpoint regarding the validity of that assumption. Right? Objection. Vague.

MR. LEWIS: THE WITNESS:

That is correct.

You did say the word "expert" in there. Correct? MR. COWAN: Q. I did.

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MR. COWAN:

Q.

Where did you get the

assumptions that are contained in paragraph 35 through 47 of your report? A. I was asked to make these assumptions by

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counsel. Q. And you did no independent analysis to Correct? Vague and

test any of these assumptions. MR. LEWIS: compound. THE WITNESS: independent analysis? MR. COWAN: Q. Objection.

What do you mean by

You took the assumptions

as stated without doing any independent analysis to determine whether the assumptions are in fact true. MR. LEWIS: THE WITNESS: as stated. Same objections. I did take the assumptions

And just to be clear, I understood how So I

to apply them by doing some additional work.

fully understand the assumptions, and I did do some analysis to the extent so I knew exactly how to apply them. MR. COWAN: Q. But you didn't do any They were

analysis to formulate the assumptions. given to you. A. Right?

That is correct.

I am not the one who

formulated these assumptions.
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MR. COWAN: A.

Q.

Okay.

What about 55?

55 is a definition I devised with the

collaboration of other individuals, meaning I didn't make it in a vacuum. every word. That I may have typed

This might be every exact word I

chose, but over the course of a year or more, we all decided cross-use means this. Q. Okay. And when you say we all and other

individuals, you're referring to folks at Mandiant, yourself, and Oracle's counsel. A. Q. A. That is correct. Okay. What about 56? Correct?

This may be authored by me with knowledge

I learned from others, and it may be a definition that I collaborated with somebody else on. Q. A. Including counsel? Including Mandiant employees and counsel.

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MR. COWAN:

Q.

Particularly where it

involved some legal interpretation as to whether some activity was proper or not, you had to have counsel's input. Correct? Objection. Vague.

MR. LEWIS: THE WITNESS: mind? MR. COWAN: through 56. MR. LEWIS: MR. COWAN:

Do you have any specifics in

Q.

Yeah.

Paragraphs 54

Objection. Q.

Compound.

And you've already

testified that counsel input into all of those. Right? A. I believe so.
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Q.

How do you define the word

"contamination"? A. For us, it meets that improper activity

assumption. Q. And that's my whole point. When you're trying to discern whether something's improper in this case, you have to rely on counsel's input to tell you that. MR. LEWIS: vague, and compound. THE WITNESS: For the most part in this Objection. Right?

Argumentative,

case, when I use the word "improper," it is me applying the improper activity -- yes, the improper activity assumption.

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MR. COWAN: counsel. MR. LEWIS: record. THE WITNESS:

Q.

Which you were provided by

Objection.

Misstates the

Yes, I was.

I should say, I

was asked to make the assumption. MR. COWAN: by counsel? A. That is correct. Q. That was provided to you

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THE WITNESS:

In regards to the results

that I used in my report, I relied on Mr. Levy's

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expertise. MR. COWAN: Q. And thus didn't -- you

didn't do anything to verify the information he provided back to you. MR. LEWIS: THE WITNESS: Correct? Objection. Vague.

There could be -- there

could have been communications between Mandiant folks and Levy's folks on numerous occasions to understand which measures were skewing or not skewing things. But to the best of my

recollection, I relied on Mr. Levy's ranges for improper use of environments, and I relied on his expertise to generate those percentages. MR. COWAN: Q. Without doing any further

analysis yourself with respect to his findings? MR. LEWIS: the testimony. THE WITNESS: question, please? MR. COWAN: Q. You didn't do any further Can you repeat that Objection. Mischaracterizes

analysis yourself with respect to his findings. Right? MR. LEWIS: THE WITNESS: Same objection. I'm unsure. I know in

regards to the final numbers I got from Mr. Levy, I

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relied on his expertise when reporting those numbers.

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