Oracle Corporation et al v. SAP AG et al

Filing 792

Declaration of Tharan Gregory Lanier in Support of 791 Defendants' Oppositions to Plaintiffs' Motions in Limine 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, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32)(Related document(s) 791 ) (Froyd, Jane) (Filed on 8/19/2010) Modified on 8/20/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 792 Att. 28

EXHIBIT 28

Dockets.Justia.com

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Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. SAP AG, et al., Defendants. Plaintiffs, Case No. 07-CV-1658 PJH (EDL) DEFENDANT TOMORROWNOW, INC.'S EIGHTH AMENDED AND SUPPLEMENTAL RESPONSE TO PLAINTIFF ORACLE CORPORATION'S FIRST SET OF INTERROGATORIES (SET ONE)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 3: Describe in as much detail as possible how You access, store, maintain, retrieve and provide any support materials to Your Customers, including Software and Support Materials, including but not limited to Identifying on what computers, servers or other devices the Software and Support Materials are stored, the names of Person(s) who have access to the Software and Support Materials, how those Software and Support Materials are accessed by Your Employees and Customers, and describing any policies, procedures, protocols or safeguards involved in the provision of Software and Support Materials to Customers, including ensuring they have a valid license for the material. RESPONSE TO INTERROGATORY NO. 3: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION.
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TomorrowNow objects that this interrogatory seeks information not reasonably calculated to lead to the discovery of admissible evidence to the extent that it seeks information about unspecified "support materials" other than the Software and Support Materials at issue in this case. TomorrowNow further objects that this interrogatory is compound, is actually several interrogatories, is wholly or partially duplicative of several other interrogatories served by Oracle (including Nos. 6, 7, 8, 10 and 12 of this set and 1, 2 and 4 of the set served by Oracle USA Inc.), and is unduly burdensome and oppressive to the extent it seeks a narrative answer as to a laundry list of disparate subjects. Subject to and without waiving the foregoing objections and the General Objections and Responses, TomorrowNow responds by incorporating by reference and relies on its responses to Interrogatories Nos. 6, 7, 8, 10 and 12 of this set and Interrogatories 1, 2 and 4 of the set served by Oracle USA Inc., including those documents cited in those responses. TomorrowNow further responds as follows: TomorrowNow has accessed, downloaded and/or stored Software and Support Materials on behalf of its new customers. TomorrowNow has done so after receiving from the customer certain representations and warranties that the customer is entitled to permit TomorrowNow such access on its behalf. TomorrowNow's policy was only to conduct downloads for a customer using the specific password and user id. provided by that customer and only before the relevant Maintenance End Date for that customer. Until recently, TomorrowNow conducted the downloads and stored the relevant materials on its computers. The downloads were conducted by TomorrowNow's employees using certain laptop and desktop computers as well as dedicated download servers located at TomorrowNow's data center in Bryan, Texas. TomorrowNow then transferred and stored downloaded materials on certain file servers, the relevant files and file folders from which will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). TomorrowNow set forth the policies and procedures governing the downloading and storage of relevant materials in procedure documentation, including emails, which will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). Beginning in July 2007, TomorrowNow revised its procedures to have its customers conduct all appropriate downloads
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they wish to be conducted from the customers' own computers, and to store any such downloaded materials on the customers' computers. Beginning in July 2007, TomorrowNow may on occasion assist or advise its customers in conducting downloads, but it is TomorrowNow's policy that each customer makes the ultimate decision regarding which materials that customer downloads. TomorrowNow has taken other steps to update its business processes, in part to address the uncertainty caused by Oracle's allegations and Oracle's refusal to provide information underlying its claims. Documents describing these process changes will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its policies and procedures documents include but are not limited to TN-OR00001278 ­ TN-OR00004196. Downloaded material (in native format) includes but is not limited to TN-OR00004203, TN-OR00005106 and TN-OR00005147. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. This compound interrogatory would require TomorrowNow to chronicle information that involved numerous employees, took place over several years, and is too complex and detailed to describe in an interrogatory response. Pursuant to Rule 33(d), TomorrowNow points Plaintiffs to the SAS database, which is a tool TomorrowNow used to chronicle its business efforts to service clients. See TN-OR 03775478, TN(Hard drive).67, TN-OR 04446717, TN(Disc).173, TN-OR 04446719, TN(Hard drive).75. Further, in addition to the policies and procedures cited above, policies and procedures documents related to the provision of Software and Support Materials to Customers include, but are not limited to, SAP-OR00251437, TN-OR00411402, TNHUI-121363v1

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OR00209243, TN-OR00209244, TN-OR03775488, SAP-OR00631478. For information regarding how TomorrowNow stores and maintains Software and Support Materials, including the identification of the computers, servers or other devices the Software and Support Materials are stored, TomorrowNow relies on all of its current responses to Interrogatory No. 11 of this set, which is incorporated by reference. The most complete record of the TomorrowNow employees who had access to the Software and Support Materials prior to the wind down of TomorrowNow can be derived from the SAS database. See TN-OR 03775478, TN(Hard drive).67, TN-OR 04446717, TN(Disc).173, TN-OR 04446719, TN(Hard drive).75. The SAS database also contains the most complete record of how TomorrowNow employees accessed those Software and Support Materials. Id. The most complete record regarding the fixes TomorrowNow provided its customers can be derived from TN-OR 00009557, TN(Disc).9, TN-OR04497673, TN(Disc).186 (client fixes from Web 01, DCWEB01); TN-OR04497668, TN(Hard drive).78 (client fixes from Mail 03). In addition, some of the overly broad and unduly burdensome information that this request seeks can be derived from the hours of overlapping 30(b)(6) testimony. See October 29, 2007 Deposition of Bill Thomas Pursuant to Rule 30(b)(6); October 29-30, 2007 Deposition of Mark Kreutz Pursuant to Rule 30(b)(6); October 30, 2007 Deposition of Shelley Nelson Pursuant to Rule 30(b)(6); December 6, 2007 Deposition of Shelley Nelson Pursuant to Rule 30(b)(6); February 67, 2008 Deposition of John Baugh Pursuant to Rule 30(b)(6); February 19, 2008 Deposition of Mark Kreutz Pursuant to Rule 30(b)(6); June 25, 2008 Deposition of Rod Russell Pursuant to Rule 30(b)(6); April 1, 2008 Deposition of Kathy Williams Pursuant to Rule 30(b)(6); April 1, 2008 Deposition of Catherine Hyde Pursuant to Rule 30(b)(6). SIEBEL SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SIEBEL SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. This compound interrogatory would require TomorrowNow to chronicle information that involved numerous employees, took place over several years, and is too complex and detailed to describe in an interrogatory response. Pursuant to Rule 33(d), TomorrowNow points Plaintiffs to
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the SAS database, which is a tool TomorrowNow used to chronicle its business efforts to service clients, certain files and folders in the Data Warehouse, and the production of certain policy and procedure documents. The most complete record of the TomorrowNow employees who had access to any software and support materials for the Seibel service line prior to the wind down of TomorrowNow can be derived from the SAS database. See TN-OR03727374, TN (Disc). 157 (Siebel.nsf) and TN-OR04446719, TN(Hard Drive).75 (same Siebel.nsf file). The SAS database also contains the most complete record of how TomorrowNow employees accessed those software and support materials. Id. Further, SAS is the most complete record regarding the services and materials, if any, provided to a TomorrowNow customer with respect to a specific customer case. Id. Additionally, information related to the services and information provided to certain customers in response to specific cases is also located on one of the Data Warehouse servers. See TN-OR 04232660, TN(Hard Drive).68 (NCSERV1\Development\Fixes by TN). For information regarding how TomorrowNow stored and maintained software and support materials, including the identification of the computers, servers or other devices the software and support materials are stored on, TomorrowNow relies on all of its current responses to Interrogatory No. 11 of this set, including the Siebel supplemental response, which is incorporated by reference. TomorrowNow further responds that its policies and procedures documents related to providing third party support for Siebel product lines include, but are not limited to, TNOR07097693 to TN-OR07099072 on TN-OR06756453, TN (Disc).249. Moreover, as referenced above, applicable policies and procedures documents related to the provision of software and support materials to customers also include, but are not limited to, TN-OR07099596, TNOR00411402, TN-OR03775488, SAP-OR00631478. In addition, some of the overly broad and unduly burdensome information that this interrogatory seeks is the subject of requested Rule 30(b)(6) deposition testimony provided by TomorrowNow on September 17, 2009 and has already been the subject of prior individual testimony. See October 23, 2007 Amended Notice of Deposition of TomorrowNow, Inc.
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Pursuant to Fed. R. Civ. P. 30(b)(6), Topic 13 ("The manner in which Software and Support Materials, or any support product developed by You, derived by You, or otherwise obtained by You, is maintained, archived, indexed and transmitted to any Customer, including descriptions of hardware and software Used and where this hardware or software is physically located") and Topic 14 ("The use, distribution, transmission or other communication of Software and Support Materials including without limitation (a) the use, distribution, transmission or other communication of Software and Support Materials within SAP TN or between SAP TN, SAP America, and/or SAP AG; (b) the use, distribution, transmission or other communication of Software and Support Materials into, within, or out of any database or storage device, method, or application; (c) the use, distribution, transmission or other communication of Software and Support Materials between You and Your Customers; (d) the hardware and software Used for any such use, distribution, transmission or other communication identified in this paragraph; and (e) any `separate systems,' `firewalls,' or other methods or devices that prevent the distribution, transmission or other communication of Oracle's Software and Support Materials from You to SAP AG and SAP America.") (See Plaintiffs' June 23, 2009 E-mail Correspondence requesting Rule 30(b)(6) deposition testimony regarding TomorrowNow's support of Siebel products on these topics); March 13, 2009 Deposition of John Tanner. Finally, TomorrowNow incorporates by reference and relies on its current responses, including to the extent applicable the Siebel supplemental response, to Interrogatories Nos. 6, 7, 8 and 12 of this set and Interrogatory No. 1 of the first set served by Oracle USA Inc, including all of the documents cited in those responses. FOURTH SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS FOURTH SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow has provided further deposition testimony that is responsive to the overly broad and unduly burdensome information that this request seeks. See, e.g., December 5, 2008 Deposition of Matthew Bowden; February 12, 2008 and May 12, 2009 Depositions of Catherine Hyde; March 12, 2008 Deposition of John Tanner; April 10, 2009 Deposition of Patti VonFeldt;
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June 16, 2009 Deposition of Keith Shankle; June 16, 2009 Deposition of Pete Surette; August 13, 2009 Deposition of John Baugh; September 3, 2009 Deposition of S. Nelson; September 17, 2009 Deposition of Michael Garafola and John Tanner Pursuant to Rule 30(b)(6); September 22, 2009 Deposition of Peggy Lanford; October 9, 2009 Deposition of Desmond Harris. ORACLE DATABASE AMENDED INTERROGATORY NO. 3: Describe in as much detail as possible how You access, store, maintain, retrieve and provide any support materials to Your Customers, including Software and Support Materials, including but not limited to by Identifying on what computers, servers or other devices the Software and Support Materials are stored, the names of Person(s) who have access to the Software and Support Materials, how those Software and Support Materials are accessed by Your Employees and Customers, and describing any policies, procedures, protocols or safeguards involved in the provision of Software and Support Materials to Customers, including ensuring they have a valid license for the material. ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS ORACLE DATABASE SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects to Plaintiffs' modification of this request by inserting the word "by" in the phrase "but not limited to [by] . . . " as an improper attempt to alter this admittedly overly broad, unduly burdensome, compound, vague and ambiguous request outside of the parties' discovery agreements. TomorrowNow reserves the right to assert that Oracle Database Amended Interrogatory No. 3 should be counted as an additional interrogatory against Plaintiffs' total allotted interrogatories. Subject to and without waving all of the foregoing objections, TomorrowNow provides the following supplemental response: TomorrowNow did not provide Oracle database applications, including any updates or patches to those applications, to TomorrowNow customers as part of its services. Likewise, TomorrowNow did not provide support services or corresponding support materials for Oracle's database components and/or applications, including any updates or patches to those applications, to TomorrowNow customers as part of its services.
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At least some of the environments maintained on behalf of TomorrowNow's customers on TomorrowNow's network used an Oracle database platform as a component. With regard to how these database related components were accessed, and by whom, as part of TomorrowNow's servicing of its customers, TomorrowNow incorporates by reference its current responses to this request above and its current responses to Plaintiff's Fifth Set of Interrogatories to Defendant TomorrowNow, Inc. and Fourth Set of Interrogatories to Defendants SAP AG and SAP America, Inc. Interrogatory Nos. 123 and 124. TomorrowNow incorporates by reference each document cited in those responses as part of its supplemental response to this interrogatory. As noted in response to Interrogatory No. 124, TomorrowNow reasonably believes that no systematic or centralized records were maintained regarding from whom or where these Oracle database components were obtained. To the extent any of these database components contain updates/patches or other support materials, these support materials likely would have been obtained from the website metalink.oracle.com and would be stored in the TN Software Library locations identified in response to Interrogatory No. 124. TomorrowNow is not currently aware of specific instances in which it applied patches or updates to the initial instance of any database components referenced in response to Interrogatory No. 124. Moreover, for information regarding how TomorrowNow stored and maintained any Oracle database related components, including the identification of specific servers, TomorrowNow incorporates by reference into this response all of its current responses to Interrogatory No. 11 of this set, including the Oracle Database supplemental response, and its current response to Plaintiff's Fifth Set of Interrogatories to Defendant TomorrowNow and Fourth Set of Interrogatories to Defendants SAP AG and SAP America, Inc. Interrogatory Nos. 123 and 124. Further, TomorrowNow is not aware of any policies specific to Oracle database related components other than those identified above. In addition, some of the overly broad and unduly burdensome information that this interrogatory seeks has already been the subject of requested Rule 30(b)(6)deposition testimony on which former TomorrowNow employee John Baugh testified in February 2008. See Defendant TomorrowNow, Inc.'s January 22, 2008 Response to Plaintiff Oracle's Second
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30(b)(6) Notice of Deposition of TomorrowNow, Topic 1(b) (designating John Baugh to testify to "The manner and method by which Customer Local Environments were created, stored, and Used by You"); Topic No. 1 (c) (designating John Baugh to testify to "The identity of all PSFT and JDE Customers for whom You created any type of Customer Local Environment"); Topic No. 1 (d) (designating John Baugh to testify to "The total number of Customer Local Environments created for each identified Customer"); Topic No. 1 (l) (designating John Baugh to testify to "The process by which Customer Local Environments were Used as part of the ordinary course of business for [] TN, including without limitation to on-boarding of new Customers; support of Customer cases, issues, and problems; reactive and proactive development of bug fixes, updates, patches, explanations, or regulatory changes for Customers; research into and design of those changes; troubleshooting for Customers; and testing of other operating system levels"). Moreover, the overly broad and unduly burdensome information that this interrogatory seeks is also the subject of additional requested Rule 30(b)(6) deposition testimony and has already been the subject of prior individual testimony. See September 30, 2009 Notice of Deposition of TomorrowNow, Inc. Pursuant to Fed. R. Civ. P. 30(b)(6), Topic 1 ("The identification by release, version, and/or filename of any Oracle Database Software in []TN's possession at any time or which []TN obtained, Copied, or used for any purpose"), Topic 2 ("The identification of []TN's computers, servers, or other hardware on which any Oracle Database Software ever resided"), Topic 3 ("The manner, method, and purposes for which [] TN used any Oracle Database Software which ever existed on its Systems"), Topic 4 ("The identification of any Customers for which []TN used any Oracle Database Software on its Systems to provide support services"), Topic 5 ("The manner and method by which []TN used any Oracle Database Software on its Systems to provide support services to Customers"), Topic 6 ("The original source of any Oracle Database Software which ever existed on []TN's Systems and the manner or method by which []TN acquired or accessed each such original source"), Topic 7 ("Any [] TN policies or procedures related to [] TN's Copying or Use of Oracle Database Software");April 23, 2009 Deposition of George Lester; September 3, 2009 Deposition of Shelley Nelson. Pursuant to Rule 33(d),

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Defendants rely on all documents and files cited and/or incorporated above to further respond to this interrogatory. SUPPLEMENTAL RESPONSE TO ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow has provided further deposition testimony that is responsive to the overly broad and unduly burdensome information that this request seeks. See, e.g., December 4, 2009 of Bill Thomas to Rule 30(b)(6); December 3, 2009 of John Baugh.

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INTERROGATORY NO. 7: Describe in as much detail as possible any policies or procedures related to Downloading Software and Support Materials, as referred to in ¶¶ 9, 72 and 73 of the Answer, including but not limited to identifying whether that policy is oral or written, the dates of creation and any modification of the policy, and identifying the names of all Persons involved in drafting, reviewing, revising, authorizing, approving, implementing, or enforcing that policy.

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RESPONSE TO INTERROGATORY NO. 7: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. Subject to and without waiving the General Responses and Objections, TomorrowNow responds as follows: TomorrowNow's policies and procedures relating to downloading of relevant Software and Support Materials were created by certain TomorrowNow employees over time and were updated on an ongoing basis. The policies and procedures are set forth in numerous procedural documents, emails and related policy documents, and the personnel responsible for management of downloading are set forth in TomorrowNow's organization charts, which documents will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its policies and procedures documents include but are not limited to TN-OR00001278 ­ TN-OR00004196. Personnel who have been or are currently responsible for management of downloading include but are not limited to: Shelley Nelson, Laura Sweetman, Mark Kreutz, Keith Shankle, Peter Surette, Greg Nelson, Mark Meyer, Desmond Harris and Peggy Lanford. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that before the litigation, TomorrowNow's policies and procedures relating to downloading of relevant Software and Support Materials included the following: (1) TomorrowNow was to download each customer's materials individually, by customer, never sharing materials between customer; (2) TomorrowNow was to use a specific customer's login ID only to download that customer's materials; (3) TomorrowNow was to only use a customer's current and valid login ID, assigned to the customer by the vendor; and (4)
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TomorrowNow was never to download materials on behalf of a customer past that customer's maintenance end date. See, e.g., TN-OR00411402. Pursuant to Rule 33(d), TomorrowNow responds that its policies and procedures documents related to downloading include but are not limited to TN-OR00001462­ TN-OR00001476, TN-OR0000213 ­TN-OR00002142, TNOR00002143­TN-OR00002148, TN-OR00002192­TN-OR00002210, TN-OR00002374­TNOR00002380, TN-OR00002402­TN-OR00002413, TN-OR00002415­TN-OR00002426, TNOR00002548­TN-OR00002602, TN-OR00002765­TN-OR00002782, TN-OR00003649­TNOR00003660, TN-OR00003828­TN-OR00003833, TN-OR00003881­TN-OR00003886, TNOR00003951­TN-OR00003961, TN-OR00004120­TN-OR00004169. TomorrowNow further incorporates by reference all of its current responses to Interrogatory No. 12. After the litigation, TomorrowNow management issued the directive to change certain business processes related to downloading. These changes were memorialized in the TomorrowNow Compliance Guidelines of Support Services, V1 and V2. See SAP-OR00631478 ­SAP-OR00631496, TN-OR03775488­TN-OR03775511. The TomorrowNow executives and/or employees involved with the changes to the download process were Mark White, Martin Breuer, Harry Schoennagel, Mel Gadd, Mark Kreutz, John Tanner, Shelley Nelson, Rod Russell, John Baugh, Tab Brown, Broderick Ellis, Larry Garcia, Paul Henville, Chris Jackson, Tom Leier, Florence Leong, Gordon Robinson, and Kathy Williams. Both versions of the Compliance Guidelines state that downloading must be performed by the client, and TomorrowNow employees are prohibited from directly engaging in downloading activities. Id. Automated downloading tools could no longer be used after the business process changes went into effect. Id. TomorrowNow employees were permitted to provide "broad guidance" to customers with respect to the types of information the customers should download, but TomorrowNow employees were prohibited from making specific recommendations regarding the software and support materials that should be downloaded. Id. See, e.g., SAP-OR00251437, TNOR02813156­TN-OR02813157, TN-OR02813158­TN-OR02813159 (other changes to the download policies and procedures). Pursuant to Rule 33(d), TomorrowNow relies upon each

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document cited in the Response and all Supplemental Responses to further respond to this interrogatory. ORACLE DATABASE AMENDED INTERROGATORY NO. 7: Describe in as much detail as possible any policies or procedures related to Downloading Software and Support Materials, including but not limited to identifying whether that policy is oral or written, the dates of creation and any modification of the policy, and identifying the names of all Persons involved in drafting, reviewing, revising, authorizing, approving, implementing, or enforcing that policy ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 7: THIS ORACLE DATABASE SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further supplements that it is not aware of any policies or procedures relating to downloading of relevant software and support materials specific to Oracle database components aside from TomorrowNow's general policies and procedures referenced above.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 10: Describe in as much detail as possible all instances in which a Customer has provided You with a password for use in Downloading Software and Support Materials, including but not limited to Identifying all related Documents, Communications, or "warrant[ies]" provided by the Customer (as used in ¶¶ 71-72 of Your Answer), and indicating in each instance which Software and Support Materials the Customer authorized You to Download with the password. RESPONSE TO INTERROGATORY NO. 10: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects that this interrogatory is compound and that it is unduly burdensome and overbroad to the extent it seeks a narrative answer with respect to all of TomorrowNow's relevant customers. Subject to and without waiving the foregoing objections and the General Objections and Responses, TomorrowNow responds as follows: Some of TomorrowNow customers have provided TomorrowNow with what the customers represented to be current, valid passwords and user ids. Customers further represented in their contracts with TomorrowNow and/or documentation relating to initiating service with TomorrowNow that they were entitled to provide TomorrowNow with such information and access to software and support materials. The specific information requested by this interrogatory can be derived or ascertained from TomorrowNow's contracts as well as onboarding documentation received from and email communications with TomorrowNow's relevant customers, all of which will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 10: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its customer contracts include but are not limited to: TN-OR00000027 ­ TN-OR00001007 and TN-OR 00004204 ­ TN-OR00004276; and that its
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onboarding documentation includes but is not limited to TN-OR00001008 ­ TN-OR00001277. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 10: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds as follows: As part of the onboarding process, TomorrowNow customers regularly provided TomorrowNow access to the customers' respective Customer Connection user IDs and passwords for use in downloading software and support materials. TomorrowNow customers provided their passwords to TomorrowNow through e-mail communications, in response to Urgent Steps letters, and/or included them in Pre-Install Questionnaires. The user IDs and passwords are stored in a variety of locations, including on Download Request forms, in DotProject, and in multiple locations within the SAS database. TomorrowNow customers represented in their contracts with TomorrowNow, including the accompanying exhibits and/or in the documentation relating to initiating service with TomorrowNow, that they were entitled to provide TomorrowNow with such information and access to software and support materials. The Product Verification forms completed by the TomorrowNow JDE World and OneWorld customers also informed TomorrowNow of the product information the customers were running in production and for which they desired TomorrowNow support. TomorrowNow customers sometimes provided TomorrowNow with their respective user IDs and passwords in response to an e-mail request. See, e.g., TN-OR00069136-TNOR00069138, TN-OR00077544-TN-OR77546, TN-OR00089430-TN-OR00089431, TNOR00177660-TN-OR00177661, TN-OR00184523-TN-OR00184525. Further, e-mail communications containing a user ID and password can be derived or ascertained from TomorrowNow's onboarding documents received from and e-mail communications with TomorrowNow's customers that are located within TomorrowNow's document production, and

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the burden of deriving or ascertaining the answer to this interrogatory is substantially the same for both parties. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. TomorrowNow also received user IDs and passwords from TomorrowNow customers in response to Urgent Steps Letters and on the Pre-Install Questionnaires TomorrowNow provided to its customers. The standard TomorrowNow PeopleSoft Urgent Steps letter sent to TomorrowNow customers reminded customers to "Complete and return the Pre-Install Questionnaire" and "Please make sure to fill in the section for the Customer Connection Username and Password. . . . We will download all Updates & Fixes for your product release, red papers, and platform information." See, e.g., TN-OR00184963-TN-OR00184964. Some customers would provide their respective user IDs and passwords in response to the Urgent Steps Letter. See, e.g., TN-OR00056147, TN-OR00064944-TN-OR00064946, TN-OR00065864-TNOR00065868, TN-OR00081437-TN-OR00081438, TN-OR00173285-TN-OR00173287, TNOR00183955-TN-OR00183957, TN-OR00092059-TN-OR00092060, TN-OR00308821-TNOR00308822. The Urgent Steps Letters can be located by running a search for "Urgent Steps Letters" in TomorrowNow's document production. Further, user IDs and passwords received by TomorrowNow in response to Urgent Steps Letters can be derived or ascertained from TomorrowNow's onboarding documents received from and e-mail communications with TomorrowNow's customers that are located within TomorrowNow's document production, and the burden of deriving or ascertaining the answer to this interrogatory is substantially the same for both parties. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. Other customers included their respective user IDs and passwords on the Pre-Install Questionnaire that the customers sent to TomorrowNow after receiving an Urgent Steps letter. See, e.g., TN-OR00215378-TN-OR00215380, TN-OR00215381-TN-OR00215382, TNOR00475082-TN-OR00475084, TN-OR00475085-TN-OR00475086, TN-OR00173349, TNOR00173350-TN-OR00173351, TN-OR00173352-TN-OR00173353. Examples of Pre-Install Questionnaires containing Customer Connection user IDs and passwords can be found at: TNOR00185602-TN-OR00185603, TN-OR00184985-TN-OR00184986, TN-OR00185006-TNOR00185007, TN-OR00185014-TN-OR00185015, TN-OR00199550-TN-OR00199551, TNHUI-121363v1

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OR00185022-TN-OR00185023, TN-OR00185041-TN-OR00185042, TN-OR00199935-TNOR00199936, TN-OR00208806-TN-OR00208807, TN-OR00211801-TN-OR00211802, TNOR00208864-TN-OR00208865, TN-OR00215665-TN-OR00215666, TN-OR00214943-TNOR00214944, TN-OR00251397-TN-OR00251398, TN-OR00311267-TN-OR00311268, TNOR00311405-TN-OR00311406, TN-OR00313360-TN-OR00313361, TN-OR00314141-TNOR00314142, TN-OR00173525-TN-OR00173526, TN-OR00171689-TN-OR00171691, TNOR00173946-TN-OR00173947, TN-OR00173339-TN-OR00173340, TN-OR00173352-TNOR00173353, TN-OR00176222-TN-OR00176224, TN-OR00176621-TN-OR00176623, TNOR00176662-TN-OR00176664, TN-OR00176100-TN-OR00176101, TN-OR00180152-TNOR00180153, TN-OR00184007-TN-OR00184008. Additional Pre-Install Questionnaires can be located by running a search over TomorrowNow's production for "Pre-Install Questionnaire" in the full text with document type "Word." Further, Pre-Install Questionnaires containing user ID and password information can be derived or ascertained from TomorrowNow's onboarding documents received from and e-mail communications with TomorrowNow's customers that are located within TomorrowNow's document production, and the burden of deriving or ascertaining the answer to this interrogatory is substantially the same for both parties. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. TomorrowNow often stored customer user IDs and passwords on Download Request forms, which were used by certain TomorrowNow JDE World and OneWorld individuals. See, e.g., TN-OR00056036- TN-OR00056037, TN-OR00001002-TN-OR00001007, TNOR00000479-TN-OR0000484, TN-OR0000094-TN-OR0000096, TN-OR00000588-TNOR00000590, TN-OR00000253-TN-OR00000258, TN-OR00000625-TN-OR0000627, TNOR00000313-TN-OR00000318, TN-OR00000715-TN-OR00000721, TN-OR00000319-TNOR00000324, TN-OR00000749-TN-OR00000754, TN-OR00000811-TN-OR00000816, TNOR00000817-TN-OR00000822, TN-OR00000839-TN-OR00000845, TN-OR00000846-TNOR00000852, TN-OR00000428-TN-OR00000430, TN-OR00000889-TN-OR00000892, TNOR00005995-TN-OR00006000, TN-OR00008908-TN-OR00008911, TN-OR00006915-TNOR00006920, TN-OR00008953-TN-OR00008959, TN-OR00005256-TN-OR00005258, TNHUI-121363v1

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OR00008989-TN-OR00008994, TN-OR00007969-TN-OR00007974, TN-OR00005387-TNOR00005392, TN-OR00007243-TN-OR00007248, TN-OR00007324-TN-OR00007329, TNOR00006477-TN-OR00006482, TN-OR00005789-TN-OR00005794, TN-OR00005834-TNOR00005836, TN-OR00007424-TN-OR00007427, TN-OR00000990-TN-OR00000995, TNOR00000490-TN-OR00000495, TN-OR00000057-TN-OR00000061, TN-OR00000062-TNOR00000067, TN-OR00000509-TN-OR00000514, TN-OR00000515-TN-OR00000520, TNOR00000088-TN-OR00000093, TN-OR00000521-TN-OR00000526, TN-OR00000527-TNOR00000532, TN-OR00000128-TN-OR00000133, TN-OR00000161-TN-OR00000166, TNOR00000591-TN-OR00000596, TN-OR00000601-TN-OR00000606, TN-OR00000235-TNOR00000239, TN-OR00000607-TN-OR00000612, TN-OR00000613-TN-OR00000618, TNOR00000285-TN-OR00000289, TN-OR00000307-TN-OR00000312, TN-OR00000695-TNOR00000700, TN-OR00000325-TN-OR00000330, TN-OR00000344-TN-OR00000349, TNOR00000383-TN-OR00000388, TN-OR00000823- TN-OR00000838, TN-OR00000399- TNOR00000404, TN-OR00000405- TN-OR00000410, TN-OR00000863- TN-OR00000868, TNOR00000869- TN-OR00000874, TN-OR00000432- TN-OR00000436, TN-OR00000453- TNOR00000458, TN-OR00000459- TN-OR00000463, TN-OR00006607- TN-OR00006610, TNOR00008607- TN-OR00008611, TN-OR00008640- TN-OR00008644, TN-OR00006634- TNOR00006637, TN-OR00006638- TN-OR00006641, TN-OR00007525- TN-OR00007540, TNOR00006032- TN-OR00006035, TN-OR00006123- TN-OR00006128, TN-OR00007670- TNOR00007673, TN-OR00006147- TN-OR00006151, TN-OR00006869- TN-OR00006873, TNOR00008948- TN-OR00008952, TN-OR00006164- TN-OR00006167, TN-OR00005326- TNOR00005330, TN-OR00007070- TN-OR00007073, TN-OR00006319- TN-OR00006322, TNOR00007117- TN-OR00007120, TN-OR00008995- TN-OR00008998, TN-OR00007207- TNOR00007210, TN-OR00005481- TN-OR00005484, TN-OR00007221- TN-OR00007225, TNOR00006421- TN-OR00006424, TN-OR00009325- TN-OR00009328, TN-OR00005689- TNOR00005692, TN-OR00006533- TN-OR00006538, TN-OR00006553- TN-OR00006557. Further, Download Request Forms containing user ID and password information can be derived or ascertained from TomorrowNow's onboarding documents received from and e-mail
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communications with TomorrowNow's customers that are located within TomorrowNow's document production, and the burden of deriving or ascertaining the answer to this interrogatory is substantially the same for both parties. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. Many of the JDE World and OneWorld Download Request forms can also be located in a folder titled "JDE Clients ­ TNOW" on DCITBU01. Also located in the "JDE Clients ­ TNOW" folder is a spreadsheet called "Download Priorities.xls." See DCITBU01_G/JDE_1-3/JDE Clients - TNOW/Download Request/Download_Priorities.xls. This spreadsheet contains many of the Customer Connection user IDs and passwords for TomorrowNow JDE customers. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. TomorrowNow also stored PeopleSoft customer user IDs and passwords within its onboarding database DotProject. See TN-OR 01361344, TN (Disc) 62. In order to locate the user id and password information in DotProject, select any customer in the entry screen of DotProject. From the customer's "Projects" page, select the blue "Files" tab, and open the PreInstall Questionnaire. Again, this questionnaire contains the customers' respective user IDs and passwords. For example, within El Paso Corporation, select the Files tab, and a link to the FDM Pre-Install Questionnaire is available. The screen shot below shows where to locate the PreInstall Questionnaire for El Paso Corporation. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory.

TEXT REMOVED - NOT RELEVANT TO MOTION

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Finally, TomorrowNow stored customer user IDs and passwords within the SAS database. For example, within the SAS Enterprise database, user id and password information can be found in the view 1. Support/ 1. All / By Customer. See TN-OR03775478, TN (Hard drive) 67. For customer Advance Auto Parts, double-click on the Engagement NAmerica tab under FDM. This will bring up a separate window containing the Engagement Master Form. Under Service Information, scroll to the right until Connectivity Info appears. Within Connectivity Info, the "PS Customer Connection ­ Login and Password Set Up by Client for TN" is available. See TNOR00184527. Kathy Williams reminded the TomorrowNow PeopleSoft team to "update the SAS `connection' tab" with the customer user ID and password information. Id. The screen shot below shows where the Customer Connection user ID and password can be found for Advance Auto Parts. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory.

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TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TomorrowNow stored customer user ids and passwords within the SAS Clients Database as well. See TN-OR03727374, TN (Disc) 157. For example, in the view 1. Support / 1. All By Customer / Koontz-Wagner / Customer, e-mail correspondence is posted under Comments / Email / Time. The Koontz-Wagner Customer Connection user ID and password can be found in Incoming Email ­ Shelley Nelson 01/21/2005 9:50:40 AM Onboarding update. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. Each TomorrowNow customer's Support Services Agreement and the exhibits accompanying the Agreement authorized TomorrowNow to download software and support materials on the customer's behalf. The "Covered Products" portion of the Exhibit to the Agreement identifies product-specific information that TomorrowNow was to service for the customer. See Exhibit A to Second Supplemental Interrogatory Responses for a spreadsheet listing the Bates numbers for Support Services Agreements and relevant exhibits for each TomorrowNow customer. The TomorrowNow JDE World and OneWorld teams also requested that its customers complete a Product Verification Form, which included a listing of products for which the customers were licensed and for which they desired TomorrowNow support. See, e.g., TN-OR00051406-TN-OR00051408, TN-OR00051858-TN-OR00051860, TN-OR00052001-TNOR00052004, TN-OR00052707-TN-OR00052710, TN-OR00052711-TN-OR00052714, TNHUI-121363v1

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OR00053241-TN-OR00053244, TN-OR00053245-TN-OR00053248, TN-OR00052805-TNOR0052808, TN-OR00053154-TN-OR00053156, TN-OR00053438-TN-OR00053441, TNOR00053684-TN-OR00053586, TN-OR0053473-TN-OR00053475, TN-OR00053615-TNOR00053617, TN-OR00053430-TN-OR00053433, TN-OR00053434-TN-OR00053437, TNOR00054127-TN-OR00054129, TN-OR00053746-TN-OR00053749, TN-OR00054507-TNOR00054509, TN-OR00054347-TN-OR00054349, TN-OR000555724-TN-OR00055726. Additional examples of Product Verification Forms can be located by running the search "Product Verification Form" in the full text with "Word" as the document type. Further, Product Verification Forms containing user ID and password information can be derived or ascertained from TomorrowNow's Support Services Agreements as well as onboarding documents received from and e-mail communications with TomorrowNow's customers that are located within TomorrowNow's document production, and the burden of deriving or ascertaining the answer to this interrogatory is substantially the same for both parties. Thus, TomorrowNow relies on Rule 33(d) to further respond to this interrogatory. ORACLE DATABASE AMENDED INTERROGATORY NO. 10: Describe in as much detail as possible all instances in which a Customer has provided you with a password for use in Downloading Software and Support Materials, including but not limited to Identifying all related Documents, Communications, or warranties provided by the Customer, and indicating in each instance which Software and Support Materials the Customer authorized You to Download with the password. ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 10: THIS ORACLE DATABASE SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow is not currently aware of an instance where a customer provided a password to TomorrowNow for TomorrowNow's use in obtaining Oracle database related components and/or applications, including any updates or patches for those applications.
TEXT REMOVED - NOT RELEVANT TO MOTION

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 12: Describe in as much detail as possible any policies, practices or procedures, including clean room procedures, that You have to ensure that Software and Support Materials are not mixed between and among Customers or sent to SAP AG or SAP America. RESPONSE TO INTERROGATORY NO. 12: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. Subject to and without waiving the General Responses and Objections, TomorrowNow responds by incorporating by reference its response to Interrogatory No. 6. TomorrowNow further responds that its policy was to store a customer's downloaded material in a separate folder structure for that particular customer and only to use such materials for that customer.
HUI-121363v1

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TomorrowNow's policies and procedures were promulgated in a variety o f documents, which will be included in TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33( d). S U P P L E M E N T A L R E S P O N S E T O I N T E R R O G A T O R Y N O . 12: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds by incorporating by reference its supplemental response to Interrogatory N o . 6 . TomorrowNow's policies and procedures documents include but are not limited to TN-OROOOOI278 - TN-OR00004196. TomorrowNow reserves the right to further supplement this response as necessary during the course o f document production. S E C O N D S U P P L E M E N T A L R E S P O N S E T O I N T E R R O G A T O R Y N O . 12: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that before the litigation, TomorrowNow's relevant policies and procedures included the following: (1) TomorrowNow was to download each customer's materials individually, by customer, never sharing materials between customer; (2) TomorrowNow was to use a specific customer's login ID only to download that customer's materials; (3) TomorrowNow was to only use a customer's current and valid login ID, assigned to the customer by the vendor; and (4) TomorrowNow was never to download materials on b e h a l f o f a customer past that customer's maintenance end date. See, e.g., TN-OR00411402. For other relevant TomorrowNow policies and procedures, s e e SAP-OR0063 1478 - SAPOR00631496, TN-OR03775488 - TN-OR03775511, SAP-OR00251437, TN-OR02813 156 - TNOR02813157, TN-OR02813158 - TN-OR02813159, SAP-OR00129611-SAP-OR00129614, TNOR00489529-TN-OR00489532. TomorrowNow further responds by incorporating by reference all o f its current responses to Interrogatory N o . 7 . Pursuant to Rule 33(d), TomorrowNow relies upon each document cited in the Response and all Supplemental Responses to further respond to this interrogatory.

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SIEBEL SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 12: THIS SIEBEL SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow is not aware of any policies, practices, or procedures solely related to TomorrowNow's support services for its Siebel customers separate and apart from those discussed above. Therefore, TomorrowNow incorporates by reference its current responses above and TomorrowNow relies upon each document cited in the response and all supplemental responses to respond to this interrogatory. TomorrowNow further incorporates by reference and relies on its current responses to Interrogatories Nos. 6 and 7 of this set. INTERROGATORY NO. 13: Describe in as much detail as possible all Software and Support Materials that "have been downloaded beyond those that, according to TN's records, related to applications licensed to the particular customer on whose behalf the downloads were made," as alleged in ¶ 15 of Your Answer, including but not limited to Identifying the "records" You referenced in making Your determination. RESPONSE TO INTERROGATORY NO. 13: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. Subject to and without waiving the General Responses and Objections, TomorrowNow responds as follows: TomorrowNow's downloads on behalf of customers using JDE's OneWorld products were made based on instructions set forth on a Download Request Form. The Download Request Forms for Merck, OCE, SPX, Metro Machine and Yakazi instructed the download team to download all ESUs for all system codes on a particular release level. TomorrowNow's records did not show that those customers had represented that they were licensed to all system codes on a particular release level. Additionally, TomorrowNow has learned that the password and user id. for Honeywell were used to access the Customer Connection site to download materials apparently related to JDE products. Additional information responsive to this interrogatory can be derived or ascertained from the relevant customer contracts, onboarding documentation, Download Request Forms and the relevant customer files, which will be included in
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TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its customer contracts include but are not limited to: TN-OR00000027 ­ TN-OR00001007 and TN-OR 00004204 ­ TN-OR00004276; and that its onboarding documentation includes but is not limited to TN-OR00001008 ­ TN-OR00001277. Download material (in native format) includes but is not limited to: TN-OR00004202, TN-OR00005146 and TN-OR00005147. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that because TomorrowNow did not have access to its customers' respective license agreements with the software vendor, TomorrowNow relied on the representations of its customers in each customer's Support Services Agreement and the "Covered Products" portion of the Agreement's accompanying exhibits, as well as the product information provided by the customer in the Product Verification Forms. As stated in the response above, TomorrowNow believes that there were some downloads made for products beyond those to which the customer informed TomorrowNow that the customer was licensed. However, despite numerous discovery requests for information from Plaintiffs that will map downloads to specific products, no such information has been produced which in turn means that TomorrowNow does not have the ability to map each of the specific downloads to each of the specific products. Plaintiffs have represented to the Court that they also do not have the ability post-download to determine which downloads relate to which products. Thus, without such mapping information (provided in a manner that permits an electronic "download to product" comparison), it is not possible for TomorrowNow to evaluate the appropriateness of each
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download it made on behalf of its customers. TomorrowNow further responds by incorporating by reference all of its current responses to Interrogatory No. 14 and Interrogatory No. 16. SIEBEL SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. With regard to TomorrowNow's servicing of Siebel customers and the limited downloading of informational documents from SupportWeb for a few clients, TomorrowNow is not aware of any specific downloads from SupportWeb or elsewhere that were in excess of a customer's license agreement with Oracle. Moreover, TomorrowNow has not conducted a download by download analysis of any such downloads. Because TomorrowNow did not have access to its customers' respective license agreements with the software vendor, TomorrowNow relied on the representations of its customers in each customer's Support Services Agreement and the "Covered Products" portion of the Agreement's accompanying exhibits for information regarding the data licensed to a customer. Despite numerous discovery requests for information from Plaintiffs that will map downloads to specific products, sufficient information has not been produced which in turn means that TomorrowNow does not have the ability to map each of the specific downloads to each of the specific products. Plaintiffs have represented to the Court that they also do not have the ability post-download to determine which downloads relate to which products. Thus, without such mapping information (provided in a manner that permits an electronic "download to product" comparison), it is not possible for TomorrowNow to evaluate the appropriateness of each download it made on behalf of its Siebel customers. TomorrowNow further responds that its customer contracts for Siebel services include, but are not limited to, TN-OR02985469 ­ TN-OR02985485; TN-OR02812692 ­ TNOR02812735; TN-OR03712204 - TN-OR03712214; TN-OR00006463 - TN-OR00006476; TNOR03712233 - TN-OR03712239; TN-OR00006771 - TN-OR00006781; TN-OR00006952 - TNOR00006970; TN-OR00007078 - TN-OR00007092; TN-OR06085843 - TN-OR06085854; TNOR06085827 - TN-OR06085828; TN-OR00000540 - TN-OR00000564; TN-OR00007868 ­ TNOR00007877; TN-OR00008179 - TN-OR00008192; TN-OR00008322 - TN-OR00008332; TNHUI-121363v1

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OR00008389 - TN-OR00008405; TN-OR00008671 - TN-OR00008681; TN-OR03712369 - TNOR03712371; TN-OR00000755 - TN-OR00000772; and TN-OR02985918 - TN-OR02985931. FOURTH SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13: THIS FOURTH SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. Paragraphs 75 through 80 of Plaintiffs' March 22, 2007 Complaint lists several alleged TomorrowNow customers for whom Plaintiffs alleged they had "uncovered unlicensed downloads linked to" TomorrowNow. Plaintiffs' March 22, 2007 Complaint for Damages and Injunctive Relief ("Original Complaint") (Docket Entry No. 1), at ¶ 75 (24:21-22). After receiving the Complaint, TomorrowNow, with the assistance of its counsel1 in this litigation, began an investigation in an attempt to determine what downloads TomorrowNow made on behalf of those customers and which, if any, any such downloads which were beyond those for which each customer had indicated to TomorrowNow it was licensed. At the same time, TomorrowNow, with the assistance of its counsel in this litigation, systematically engaged in an effort to preserve all electronic and hard copy data that was potentially relevant to Plaintiffs' allegations and began interviewing those TomorrowNow employees with knowledge of TomorrowNow's downloading activities. For certain of the entities named in paragraphs 75-80 of the Original Complaint, TomorrowNow preliminarily concluded by May 30, 2007 that TomorrowNow had the following minimum number of downloaded files for at least the following entities:

Judge Laporte's August 31, 2009 Order (Dkt. 460), under which this Fourth Supplemental Response is made, specifically states: "Defendants' supplemental response to Interrogatory No. 13 shall not be construed as a waiver of either the attorney-client privilege or work product immunity." Id. at 1:26-28. Thus, this response is made subject to, and without waiving, the attorney-client privilege, work product immunity or any other applicable privilege. This supplemental response does not, and is not intended to, contain any legal advice or opinions.
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TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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Customer Name Honeywell Merck Metro Machine Corp Oce Technologies SPX Cooling SPX Flow SPX Flow Technology SPX Weil-McLain Abbott Labs Abitibi Consolidated Bear Stearns Borders Foods Caterpillar Fuelserv Helzberg Diamond Shop Herbert Waldmann Laird Plastic National Manufacturing Ronis Stora Enso Corp Texas Associates School Boards VSM Group Yazaki North America PeopleSoft Software Y JDEdwards Software Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Listed in Paragraphs 76-80 of Complaint Y Y Y Y Y Y Y Y Listed in Paragraph 75 of Complaint Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y

Minimum downloaded files located on TomorrowNow's server as of May 30, 2007 18,210 14,591 15,499 46,810 11,243 7,664 2,157 12,313 1,915 36,405 0 0 6,258 2,329 0 5,126 2,261 0 3,370 14,711 3,236 2,775 45,751

These files were located on TomorrowNow's server known as DCITBU01_G, which has been produced to Plaintiffs as part of TomorrowNow's Data Warehouse native file production. See DCITBU01_G (TN-OR02989997, TN-OR02989995, TN-OR02989994, TN-OR02989993). And, as of May 30, 2007, TomorrowNow had preliminarily concluded that these files appeared to have been downloaded using each respective customer's username and password credentials, which were either listed on a spreadsheet the TomorrowNow JDE team maintained that was known as "Download Priorities.xls" and/or in various places in each customers' record entries in TomorrowNow's SAS database. See TN-OR08312517. See also DCITBU01_G/JDE_1-3/JDE Clients - TNOW/Download Request/Download_Priorities.xls; Second Supplemental Response to Interrogatory 10 above, for a description of how to access the "Connectivity Info" tab in SAS. For Honeywell and Bear Stearns, TomorrowNow had preliminarily concluded as of May 30, 2007
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that: (a) Honeywell's apparent customer credentials that were used to download its files were username "hwe000999" and password "texas33," which is located in Honeywell's data contained in SAS under "Connectivity Info"; and (b) Bear Stearns' apparent customer credentials that were used to downloads its files was username "tomorrownow_bs" and password "texas3" which is located in Bear Stearns' data contained in SAS under "Connectivity Info". See, e.g., TN-OR 04446717, TN (Disc).173. As far as TomorrowNow has been able to determine, the downloaded files neither contain any physical electronic tagging in the file itself, nor any file-based metadata associated with each file that provides both the exact username and password that was used to download each file. Despite the fact that, as of May 30, 2007, TomorrowNow was able to ascertain that a certain number of files were downloaded by TomorrowNow on behalf of certain entities, TomorrowNow was unable to locate any specific product mapping information that would enable TomorrowNow to systematically tie any specific download to one or more of Plaintiffs' separately licensed products. Since that time, Defendants have repeatedly asked Plaintiffs for this product mapping information and to date, Plaintiffs have refused and/or been unable to produce any information that would permit Defendants in any systematic, reasonable way to tie each specific downloaded file to one or more of Plaintiffs' separately licensed products. Thus, as of May 30, 2007, TomorrowNow was still unable to determine specifically which of the downloaded files it was maintaining on behalf of the entities listed above were related solely to Plaintiffs' products beyond those to which each entity had informed TomorrowNow it was licensed. Plaintiffs filed their First Amended Complaint for Damages and Injunctive Relief ("FAC") (Docket Entry No. 31) on June 1, 2007. For the first time, Plaintiffs specifically identified in ¶ 85 of the FAC four distinct files that Plaintiffs alleged TomorrowNow had downloaded and that were beyond that customers' license rights. The relevant portions of Plaintiffs' allegations in ¶ 85 of the FAC state: ...On December 5, 2006, SAP TN used SPX's log-in ID to download a Payroll ESU, JJ13072, for EnterpriseOne software version 8.11 SP1. ... SAP TN used the log-in ID of another customer, Merck, to download an EnterpriseOne 8.12 Blend Management ESU, JK10093, on December 13, 2006. ... Further, SAP TN logged
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TOMORROWNOW'S EIGHTH AMENDED & SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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