Oracle Corporation et al v. SAP AG et al

Filing 793

Declaration of Chad Russell in Support of 790 Memorandum in Opposition, to Defendants' Motions in Limine filed byOracle EMEA Limited, Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS, # 46 Exhibit TT)(Related document(s) 790 ) (Howard, Geoffrey) (Filed on 8/19/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 793 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 BINGHAM McCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: (415) 393-2000 Facsimile: (415) 393-2286 donn.pickett@bingham.com geoff.howard@bingham.com holly.house@bingham.com zachary.alinder@bingham.com bree.hann@bingham.com BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8200 dboies@bsfllp.com STEVEN C. HOLTZMAN (SBN 144177) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: (510) 874-1000 sholtzman@bsfllp.com DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: 650.506.4846 Facsimile: 650.506.7114 dorian.daley@oracle.com jennifer.gloss@oracle.com Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., No. 07-CV-01658 PJH (EDL) v. Plaintiffs, DECLARATION OF CHAD RUSSELL IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS IN LIMINE [EXHIBITS D, N, P, Q, R, T FILED UNDER SEAL] Date: Time: Place: Judge: September 30, 2010 2:30 pm Courtroom 3, 3rd Floor Hon. Phyllis J. Hamilton SAP AG, et al., Defendants. DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 PJH (EDL) Dockets.Justia.com 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 Table of Contents and Exhibit Index I. MIL No. 1 re Goodwill............................................................. 4 II. MIL No. 2 re Precluded Lost Profits ............................................ 5 III. MIL No. 3 re Non-Party Lost Profits ........................................... 7 IV. MIL No. 4 re Sommer Report ................................................... 7 V. MIL "No. 5" ........................................................................ 8 VI. MIL No. 6 re Attorney-Client Privilege ......................................... 10 VII. MIL No. 7 re Investigations by the DOJ and FBI ............................. 10 VIII. MIL No. 8 re Rimini Street ........................................................ 10 IX. MIL No. 9 re Hyperion, Retek, and E-Business Suite ........................ 10 X. MIL No. 10 re SAP/TN ............................................................ 11 MOTION IN LIMINE NO. 1 A B C D E F G H I J K L M N O P SAP Press Release - "SAP Acts to Focus TomorrowNow Lawsuit," dated August 5, 2010 Expert Report of Paul Meyer Paul Meyer Deposition Larry Ellison Deposition (portions FILED UNDER SEAL) Safra Catz Deposition Oracle 2005 10-K Doug Kehring Deposition Depo Ex. 595 - Oracle Corporation, Notes to Consolidated Financial Statements Hasso Plattner Deposition Expert Report of Stephen Clarke Depo. Ex. 447 - A Roadmap for PSFT Customers to SAP Depo. Ex. 225 - PeopleSoft 1-2-3 Depo. Ex. 2043 - SAP AG Phone Conference ORCL00313255 - Project Spice, PeopleSoft Operating Model (FILED UNDER SEAL) Initial Disclosures Depo. Ex. 403 - Oracle Corporation, Estimation of the Fair Value of Certain Assets and Liabilities of PeopleSoft, Inc. as of December 28, 2004 (FILED UNDER SEAL) MOTION IN LIMINE NO. 2 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 Q R S T Depo. Ex. 401 - PeopleSoft, Inc., 2004 Forecast / 2005 Planning Model (FILED UNDER SEAL) Depo. Ex. 591 - PeopleSoft, Inc., 2004 Forecast / 2005 Planning Model (FILED UNDER SEAL) Charles Phillips Deposition Paul Meyer Schedule 12.2.SU - Oracle Projected PeopleSoft/J.D. Edwards New License Revenue Losses, Projected 3,000 Lost Support Customers / 2,000 Switch to SAP - Lost New License Revenue (Cross-Sell) (FILED UNDER SEAL) Paul Meyer's Handwritten Notes (portions redacted at Defendants' request) John Baugh Deposition Catherine Hyde Deposition (4/1/2008) Catherine Hyde Deposition (5/12/2009) Discovery Conference Hearing Transcript Keith Shankle Deposition Depo. Ex. 1446 - Support Services Agreement (portions redacted at Defendants' request) Matthew Bowden Deposition Paul Pinto Deposition Chris Faye Deposition Andrew Nelson Deposition SAP Press Release - "SAP Responds to Oracle Complaint," dated July 3, 2007 Mark White Deposition (3/5/2010) Mark White Deposition (3/6/2010) Defendant's Motion to Compel No. 1 Defendants' Response to Oracle's Motion to Compel Seth Ravin and Rimini Street Depo. Ex. 473 - TomorrowNow Global Leadership Meeting Depo. Ex. 495 - Hyperion-Oracle Depo. Ex. 475 - Business Case: TomorrowNow - Hyperion, and Business Case: TomorrowNow - Oracle eBusiness Suite Gerd Oswald Deposition MOTION IN LIMINE NO. 4 U MOTION IN LIMINE NO. 5 V W X Y Z AA BB CC DD EE MOTION IN LIMINE NO. 6 MOTION IN LIMINE NO. 7 FF GG HH II JJ MOTION IN LIMINE NO. 8 MOTION IN LIMINE NO. 9 KK LL MM NN 2 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 3 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 PJH (EDL) MOTION IN LIMINE NO. 10 OO PP QQ RR SS TT SAP-OR00077786 - Questions about the Safe Passage Program Depo. Ex. 253 - How Close is "Too Close"? Depo. Ex. 492 - Guidance on Disruption Plan Request for Admission No. 70 Depo. Ex. 720 - URGENT Depo. Ex. 316 - TNow 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 I, Chad Russell, declare as follows: 1. I am an attorney at law licensed to practice in the State of California and before this Court, and am an associate with at Bingham McCutchen LLP, counsel of record for plaintiffs Oracle USA, Inc. (predecessor to Oracle America, Inc.), Oracle International Corporation, Oracle EMEA Limited and Siebel Systems, Inc. (collectively "Oracle" or "Plaintiffs") in this action. I have personal knowledge of the facts stated below by virtue of my representation of Oracle in this action and if called as a witness could competently testify as to them. 2. The evidence described below and attached to this Declaration is grouped according to the Motion in Limine Opposition to which the evidence relates, except that each source is listed only once, and not repeated if cited in subsequent Opposition. 3. To the extent possible without losing context, Oracle has attached only the relevant pages and information for all exhibits to this Declaration, including deposition transcripts. Unless otherwise noted below for a particular document, all highlighting and red circles/boxes in these exhibits has been provided by Oracle to further assist in identifying the information relevant to Oracle's Opposition to Defendants' Motions in Limine. I. MIL NO. 1 RE GOODWILL 4. Attached as Exhibit A is a true and correct copy of a document entitled "SAP Acts to Focus TomorrowNow Lawsuit," dated August 5, 2010, and printed from http://www.sap.com/usa/about/newsroom/press.epx?pressid=13722. Oracle also filed this document as Exhibit A to Oracle's Trial Brief on August 5, 2010 (Dkt. 748-1). 5. Attached as Exhibit B is a true and correct copy of portions of the Supplemental Expert Report of Paul K. Meyer, dated February 23, 2010. 6. Attached as Exhibit C is a true and correct copy of portions of the transcript of the deposition of Paul Meyer, on May 12-14, 2010. 7. Attached as Exhibit D is a true and correct copy of portions of the transcript of the deposition of Larry Ellison on May 5, 2009. 8. Attached as Exhibit E is a true and correct copy of portions of the transcript of 4 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 the deposition of Safra Catz on March 27, 2009. 9. Attached as Exhibit F is a true and correct copy of portions of a United States Securities and Exchange Commission Form 10-K for Oracle Corporation, dated June 30, 2005, and printed from http://www.oracle.com/corporate/investor_relations/10k_2005.pdf. 10. Attached as Exhibit G is a true and correct copy of portions of the transcript of the deposition of Doug Kehring on August 28, 2009. 11. Attached as Exhibit H is a true and correct copy of portions of Defendants' Deposition Exhibit 595, a document entitled "Oracle Corporation, Notes to Consolidated Financial Statements." 12. Based on a review of the transcripts of the deposition of Paul Meyer on May 12-13, 2010, I estimate that Defendants spent approximately 2 hours of record time questioning Mr. Meyer on the subject of goodwill. 13. Attached as Exhibit I is a true and correct copy of portions of the transcript of the deposition of Hasso Plattner on June 2, 2009. 14. Attached as Exhibit J is a true and correct copy of portions of the Expert Report of Stephen Clarke, dated May 7, 2010. II. MIL NO. 2 RE PRECLUDED LOST PROFITS 15. Attached as Exhibit K is a true and correct copy of portions of an email and attached PowerPoint produced on or about September 5, 2008 by Defendants and entitled "A Roadmap for PSFT Customers to SAP." The email and PowerPoint were marked by Oracle as Plaintiffs' Deposition Exhibit 447 in their originally-produced scanned "TIFF" form. Defendants have since produced the native PowerPoint, excerpts of which are included in place of the black-and-white images. In the chart at page SAP-OR00253288, the "Revenue" for "Upswitch" and "CrossSell" for 2005, 2006, and 2007 sums to approximately $557.7 million. 16. Attached as Exhibit L is a true and correct copy of portions of an email and attached document produced on or about April 14, 2008 by Defendants and entitled "PeopleSoft 1-2-3," originally marked in their entirety as Plaintiffs' Deposition Exhibit 225. 17. Attached as Exhibit M is a true and correct copy of portions of a document 5 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 produced by Defendants on or about October 1, 2008 and entitled "SAP AG Phone Conference," originally marked in its entirety as Defendants' Deposition Exhibit 2043. 18. Attached as Exhibit N is a true and correct copy of a portion of a document entitled "Project Spice, PeopleSoft Operating Model," and produced by Oracle in this action as ORCL00313255. 19. Attached as Exhibit O is a true and correct copy of portions of Oracle's Supplemental and Amended Initial Disclosures, served on May 22, 2009. 20. Plaintiffs' Deposition Exhibit 447 (attached as Ex. K and described at 15) was the subject of testimony by the following SAP witnesses: Witness Thomas Ziemen Werner Brandt Gerd Oswald Shai Agassi 21. Date September 30, 2008 November 12, 2008 December 10, 2008 January 5, 2009 Plaintiffs' Deposition Exhibit 225 (attached as Ex. L and described at 16) was the subject of testimony by the following SAP witnesses: Witness Arlen Shenkman John Zepecki Jeffrey Word Shai Agassi 22. Date June 4, 2008 September 9, 2008 December 11, 2008 January 5, 2009 Attached as Exhibit P is a true and correct copy of portions of a document produced by Oracle on or about February 6, 2009 entitled "Oracle Corporation, Estimation of the Fair Value of Certain Assets and Liabilities of PeopleSoft, Inc. as of December 28, 2004," originally marked in its entirety as Defendants' Deposition Exhibit 403. 23. Attached as Exhibit Q is a true and correct copy of portions of a document produced by Oracle and entitled "PeopleSoft, Inc., 2004 Forecast / 2005 Planning Model," originally marked in its entirety as Defendants' Deposition Exhibit 401. 24. Attached as Exhibit R is a true and correct copy of portions of a document 6 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 produced by Oracle and entitled "PeopleSoft, Inc., 2004 Forecast / 2005 Planning Model," originally marked in its entirety as Defendants' Deposition Exhibit 591. 25. Attached as Exhibit S is a true and correct copy of portions of the transcript of the deposition of Charles Phillips on April 17, 2009. 26. Attached as Exhibit T is a true and correct copy of a document entitled "Oracle Projected PeopleSoft/J.D. Edwards New License Revenue Losses, Projected 3,000 Lost Support Customers / 2,000 Switch to SAP - Lost New License Revenue (Cross-Sell)," produced by Oracle on February 23, 2010 as part of Paul Meyer's Supplement Expert Report (at Schedule 12.SU, 12.1.SU, 12.2.SU, 12.3.SU.xlsx); and an appended third page with the text of the "notes" in the document enlarged. Documents cited in these notes are referenced in Oracle's Opposition and attached to this Declaration as follows: Note 2 4 4 7 Bates ORCL00313160253 at 189 ORCL00312843868 at 849 ORCL00312843868 at 849 ORCL00313255 Defs' Depo. Exhibit 403 401 591 n/a Attached Exhibit P Q R N Paragraph 22 23 24 18 III. MIL NO. 3 RE NON-PARTY LOST PROFITS 27. There is no evidence cited in this portion of Oracle's opposition. IV. MIL NO. 4 RE SOMMER REPORT 28. The Expert Report of Stephen Clarke, provided by Defendants on March 26, 2010 (when expert rebuttal reports were due per the Parties' agreed upon and ordered Case Management schedule), is single-spaced, and 294 pages long, not counting hundreds of accompanying electronic files of various types (databases, excel spreadsheets, pdfs, etc.). The Clarke Report cites to multiple other reports provided by Defendants' experts. The Expert Report of Brian Sommer, also provided by Defendants, is single-spaced and 61 pages long, not 7 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 counting Appendices. 29. Oracle's damages expert, Paul Meyer, made detailed notes on multiple pages of Mr. Clarke's May 7, 2010 Supplemental Report and provided them to Defendants' counsel the first morning of his May 10, 2010 deposition. Attached as Exhibit U is a true and correct copy of a subset of those handwritten notes on the pages of Mr. Clarke's report referencing or related to Mr. Sommer. 30. To my knowledge, after Mr. Meyer's deposition, Defendants never sought further testimony from him related to the Expert Report of Brian Sommer, either through meet and confer or motion practice. V. MIL "NO. 5" 31. Attached as Exhibit V is a true and correct copy of portions of the transcript of the deposition of John Baugh on February 7, 2008. 32. Attached as Exhibit W is a true and correct copy of portions of the transcript of the deposition of Catherine Hyde on April 1, 2008. This deposition was pursuant to a Federal Rule of Civil Procedure 30(b)(6) notice by Oracle. 33. Attached as Exhibit X is a true and correct copy of portions of the transcript of the deposition of Catherine Hyde on May 12, 2009. 34. In its Initial Disclosures, served to Defendants on or about August 16, 2007, Oracle identified employees Paul Brook, Uwe Koehler, Buffy Ransom, Edward Screven and Marlene Veum as knowledgeable about "technical analysis." In its Supplemental and Amended Initial Disclosures, served to Defendants on or about May 22, 2009, Oracle further identified employees Sid Chilakapati, Jason Rice and Greg Story as knowledgeable about "technical analysis." In its Second Supplemental and Amended Initial Disclosures, served to Defendants on or about October 9, 2009, Oracle further identified employees Edward Abbo, Norm Ackermann, Jesper Andersen, Dawn Baker, John Burke, Treasure Diehl, Larry Ellison, Alan Fletcher, Linda Fowler, Marina Furey, Kim Green, Gary Greishaber, Charles Homs, George Jacob, Jason Kees, Charles Rozwat, Keith Ryland, David Storn and Daniel Vardell as knowledgeable about "technical analysis" and/or "software development," in addition to further identifying several of 8 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 the previously disclosed employees as knowledgeable about "software development." In its Third Supplemental and Amended Disclosures, served to Defendants on or about November 2, 2009, Oracle further identified Tanya Ishiguro as knowledgeable about "technical analysis." Defendants' first deposition of any of any of the individuals identified above after their date of disclosure was Elizabeth Shippy on September 25, 2008. 35. The fact discovery deadline in this case was set by the Court as December 4, 2009. On or about October 19, 2009, Defendants served four Federal Rule of Civil Procedure 30(b)(6) deposition notices to Oracle. Defendants stated by email On October 23, 2009 that they "may seek to depose" twenty individuals identified in Oracle's Initial Disclosures. On November 5, 2009, Defendants added one more individual to the list "contained in [their] October 23 email." 36. Attached as Exhibit Y is a true and correct copy of portions of the transcript of the November 17, 2009 Discovery Conference Hearing before Judge Laporte. 37. witnesses. 38. Pursuant the Court's November 18, 2009 Order (Dkt. 553), Oracle confirmed Up until October 23, 2009, Defendants had deposed approximately 39 Oracle which of Oracle's experts were relying on the witnesses Defendants identified. Defendants deposed Daniel Vardell, Edward Screven, Greg Story, Linda Fowler, Jason Rice and Norm Ackermann between November 25, 2009 and December 4, 2009. 39. Attached as Exhibit Z is a true and correct copy of portions of the transcript of the deposition of Keith Shankle on June 16, 2009. 40. Attached as Exhibit AA is a true and correct copy of portions of a document produced by Defendants entitled "Support Services Agreement," marked by Oracle as Plaintiffs' Deposition Exhibit 1446. 41. Attached as Exhibit BB is a true and correct copy of portions of the transcript of the deposition of Matthew Bowden on December 5, 2008. 42. Attached as Exhibit CC is a true and correct copy of portions of the transcript of the deposition of Paul Pinto on May 19, 2010. 9 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 43. To my knowledge, and excluding Defendant employees and former employees, Defendants have never offered to provide reports or depositions for any individuals who provided information to or otherwise assisted Defendants' experts. VI. MIL NO. 6 RE ATTORNEY-CLIENT PRIVILEGE 44. Attached as Exhibit DD is a true and correct copy of portions of the transcript of the deposition of Christopher Faye on October 22, 2008. Oracle designated this testimony in its Deposition Designations for Trial, filed on August 5, 2010 (Dkt. 744). 45. Attached as Exhibit EE is a true and correct copy of portions of the transcript of the deposition of Andrew Nelson on April 29, 2009. Oracle designated this testimony in its Deposition Designations for Trial, filed on August 5, 2010 (Dkt. 744). VII. MIL NO. 7 RE INVESTIGATIONS BY THE DOJ AND FBI 46. Attached as Exhibit FF is a true and correct copy of a document entitled "SAP Responds to Oracle Complaint," dated July 3, 2007, and printed from http://www12.sap.com/global/templates/press.epx?pressid=7971&query=tomorrownow. 47. Attached as Exhibit GG is a true and correct copy of portions of the transcript of the deposition of Mark White on March 5, 2009. 48. Attached as Exhibit HH is a true and correct copy of portions of the transcript of the deposition of Mark White on March 6, 2009. VIII. MIL NO. 8 RE RIMINI STREET 49. Attached as Exhibit II is a true and correct copy of portions of Defendants' Motion to Compel No. 1, filed on January 28, 2008 before Judge Legge. 50. Attached as Exhibit JJ is a true and correct copy of portions of Defendants' Response to Oracle's Motion to Compel Seth Ravin and Rimini Street, filed in the District Court of Nevada on September 14, 2009 (Dkt. 25). IX. MIL NO. 9 RE HYPERION, RETEK, AND E-BUSINESS SUITE 51. Attached as Exhibit KK is a true and correct copy of portions of a document produced by Defendants and entitled "TomorrowNow Global Leadership Meeting," dated January 11, 2007. The document was marked by Oracle as Plaintiffs' Deposition Exhibit 473 in 10 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 its originally-produced scanned "TIFF" form. Defendants have since produced the native PowerPoint, excerpts of which are included in place of the black-and-white images. 52. The "TomorrowNow Global Leadership Meeting" document (attached Exhibit KK, see 51 above) describes the "Safe Passage Offering" as including "Recognition of your previous investments (up to 75% license credit) in Oracle, PSFT, JDE, Siebel, or Retek" at page SAP-OR00007485. The same page also describes the offering as including "Support for PSFT, JDE or Siebel via SAP subsidiary, TomorrowNow." Defendants' production contains many documents that similarly reference TomorrowNow, Safe Passage, and Hyperion, Retek or EBusiness. For instance, running a search for "TomorrowNow and Passage and Retek" in documents produced by SAP (excluding documents attributed by Defendants to SAP TN) yields approximately 3,828 results. Running the same search, but substituting Hyperion for Retek, yields approximately 1,370 results. 53. Attached as Exhibit LL is a true and correct copy of an email chain produced by Defendants re "Hyperion-Oracle," marked by Oracle as Plaintiffs' Deposition Exhibit 495. 54. Attached as Exhibit MM is a true and correct copy of portions of an email and attached PowerPoints produced by Defendants and entitled "Business Case: TomorrowNow Hyperion" and "Business Case: TomorrowNow - Oracle eBusiness Suite." The email, its certified translation, and the PowerPoints in their originally-produced scanned "TIFF" form were all originally marked as Plaintiffs' Deposition Exhibit 475. Defendants have since produced the native PowerPoints, excerpts of which are included in place of the black-and-white images. 55. Attached as Exhibit NN is a true and correct copy of portions of the transcript of the deposition of Gerd Oswald on December 11, 2008. X. MIL NO. 10 RE SAP/TN 56. Attached as Exhibit OO is a true and correct copy of a document produced by Defendants and entitled "Questions about the Safe Passage Program," produced by Defendants as SAP-OR00077786 to SAP-OR00077788. 57. Attached as Exhibit PP is a true and correct copy of an email chain produced by Defendants re "How Close is `Too Close'?" marked by Oracle as Plaintiffs' Deposition 11 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 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 Exhibit 253. 58. Attached as Exhibit QQ is a true and correct copy of an email chain produced by Defendants re "Guidance on Disruption Plan," marked by Oracle as Plaintiffs' Deposition Exhibit 492. 59. Attached as Exhibit RR is a true and correct copy of Response No. 70 from Defendant TomorrowNow, Inc.'s Second Amended and Supplemental Response to Plaintiff Oracle Corporation's First Set of Requests for Admission, dated December 4, 2009. 60. Attached as Exhibit SS is a true and correct copy of an email chain produced by Defendants re "URGENT," marked by Oracle as Plaintiffs' Deposition Exhibit 720. 61. Attached as Exhibit TT is a true and correct copy of an email chain produced by Defendants re "TNow," marked by Oracle as Plaintiffs' Deposition Exhibit 316. DATED: August 19, 2010 Bingham McCutchen LLP By: /s/ Chad Russell Chad Russell Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, Oracle EMEA Limited, and Siebel Systems, Inc. 12 DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO MOTIONS IN LIMINE - CASE NO. 07-CV-01658 PJH (EDL)

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