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)

Oracle Corporation et al v. SAP AG et al

Doc. 793 Att. 26

EXHIBIT Z
Dockets.Justia.com

KEITH SHANKLE June 16, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1
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. ) ) SAP AG, a German corporation, ) SAP AMERICA, INC., a Delaware ) corporation, TOMORROWNOW, INC., a) Texas corporation, and DOES 1-50,) inclusive, ) Defendants. )

CASE NO. 07-CV-01658 (MJJ)

"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" ORAL VIDEOTAPED DEPOSITION KEITH SHANKLE JUNE 16, 2009 ORAL VIDEOTAPED DEPOSITION OF KEITH SHANKLE, produced as a witness at the instance of the Plaintiffs and duly sworn, was taken in the above-styled and numbered cause on the 16th day of June, 2009, from 9:09 a.m. to 2:29 p.m., before Dana Richardson, Certified Shorthand Reporter in and for the State of Texas, reported by computerized stenotype machine at the offices of Jones Day, 717 Texas Avenue, Suite 3300, Houston, Texas 77002, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto. Job No. 1601-91410

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KEITH SHANKLE June 16, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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A. Studying computers. Q. Where was that? A. University of Houston, Dallas Community College -Dallas County Community College, Brazosport Community College. Q. Were you employed by JD Edwards at one time, Mr. Shankle? A. Yes, I was. Q. For about how long? A. 13 years. Q. Just before you left JD Edwards, what were your job responsibilities? A. I was an instructor/manager. Q. By "instructor," are you speaking of training? A. Yes. Q. Was that training of JD Edwards employees? A. They were included. It also included our clients. Q. Any third parties or outside folks get trained by you? A. I'm not sure I understand. Q. Consultants, anybody other than customers and employees? A. The business partners were also in that. Q. Whom did you report to at JD Edwards at the time that you left? A. Kathy Reddin.

you met? A. No, I don't. Q. Did you meet Arlen Shankman? A. I don't recall. Q. Did you meet James Mackey? A. I don't recall. Q. Did you meet any attorneys from SAP? A. Not that I'm aware of. Q. Did you meet any of the board members of SAP AG? A. Not that I'm aware of. Q. And all these questions are about January, 2005. Does that change your answer in any way? A. No. Q. And what did you tell the people whom you met from SAP? A. It was a cursory greeting. Q. At the time, who else was on the JD Edwards team at -- at TomorrowNow? A. Pete Surette may have been. I don't remember his exact starting date. Q. Anyone else that you can recall? A. No. Q. What about Nigel Pullan? A. I don't know if Nigel was an employee of TomorrowNow at that time and had actually started.

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Q. And you left to come to TomorrowNow -- or to go to TomorrowNow? A. Actually, PeopleSoft merged with JD Edwards. Q. So -- and then you were at PeopleSoft for a time? A. That's correct. Q. And then you left before the merger with Oracle; is that correct? A. During the merger with Oracle. Q. So, approximately when did you leave? A. December, 2004. Q. And you started at what time, approximately, at TomorrowNow? A. January, 2005. Q. Did you start before TomorrowNow was formally acquired by SAP? A. Yes. Q. So, first week of January, 2005? A. Yes. Q. Were you involved at all at the -- in the acquisition of TomorrowNow by SAP? A. Yes. Q. How -- what was your involvement? A. I met the SAP representatives that were considering the acquisition. Q. Do you remember the names of the representatives whom

Q. What was your job title when you began at TomorrowNow? A. Something to the effect of senior software support engineer. Q. Did you have an understanding of what your responsibilities were to be when you began at TomorrowNow? A. Yes, I do. Q. What were those responsibilities? A. To look at the existing PeopleSoft model and see how that can be fit to bring JD Edwards into the practice. Q. What do you mean when you say the "existing" JD -the "existing PeopleSoft model"? A. TomorrowNow had already been supporting the PeopleSoft software, and we were looking at how could that work for the JD Edwards practice. Q. Who was the "we" that you're referring to? A. I was working with Andrew Nelson and Shelley Nelson. Q. Anyone else? A. When Pete came on board, he -- we started doing the same thing. Q. Are you familiar with the concept of environments at TomorrowNow? MR. WILKES: Objection, form. A. What is your definition of an environment? Q. (By Mr. Polito) Are you familiar with the idea that

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these were for? A. I don't recall. Q. Do you believe that this was inappropriate to send these credentials absent any indication of what customer it was for? MR. WILKES: Objection, form. A. I have no way of knowing what customer this was, based on this document. Q. (By Mr. Polito) It looks like Mr. Wong ran a search with these credentials to get a white paper. Was it appropriate for Mr. Wong to tell you that you could recreate his steps with these credentials without telling you which customer it was? MR. WILKES: Objection, form. A. I don't have enough information in this document to know whether I knew at the time what the customer was or was not. Q. (By Mr. Polito) Let's go back to Exhibit 1443. It's the long legal document. A. Okay. Q. So, on page 37 of the document, lines 10 through 12 say: "Keith Shankle was the TomorrowNow employee generally responsible for completing the Download Request Forms for JD Edwards World." Do you see that, Mr. Shankle?

downloads on behalf of customers using JD Edwards OneWorld products were made based on instructions set forth on a Download Request Form." And there's a list of customers on the next line, including Merck. Is this the same download request form referred to here that's in Exhibit 1445 -MR. WILKES: Objection, form. Q. (By Mr. Polito) -- to the best of your knowledge? MR. WILKES: Objection, form. A. No, I do not believe it is. Q. (By Mr. Polito) How are they different? A. Because this document, 1443, says "on behalf of the customers using JDE's OneWorld products," and that's a World download form. Q. Excellent point. When you filled out download request forms, how did you know what system codes to put in the -- in the box? So, looking -- making it specific, looking at 1445, there's a list of JDE products on the first page of 1445 with a set of system codes starting with 00. A. Correct. Q. Are those system codes, Mr. Shankle? A. Yes, they are. Q. How did you know what to put in there? A. At some point in time during the -- the sales cycle,

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A. I do. Q. Is that an accurate statement? A. Yes. Q. I'm going to -- keep that one in front of you. MR. POLITO: I'm going to mark as Exhibit 1445 a document Bates numbered TN-OR00000490 through 495. (Exh.1445 marked) Q. (By Mr. Polito) Mr. Shankle, is that an example of a download request form for JD Edwards World? A. Yes, it is. Q. Is this for a customer, Merck? A. Yes. Q. Is that your handwriting where it says "401" in the box? A. I believe so. Q. Were you keeping track of the number of SARs returned for Cume 17 for A7.3? MR. WILKES: Objection, form. A. Yes. Q. (By Mr. Polito) Does that represent 401 downloads for Merck? A. I believe it did. Q. If you look at -- actually, if you go back to the other exhibit that I asked you to keep hold of and you go to page 34, it says, starting on line 2: "TomorrowNow's

product verification form was filled out by the customer and at some point an Attachment A to a contract was filled out and I got those numbers from those -- those documents. Q. Was it your general practice to look at Attachment A to the customer's TomorrowNow contract and to the download -or to the customer verification form to fill out these? MR. WILKES: Objection, form. A. Yes -- yes, it was. MR. POLITO: We'll mark as Exhibit 1446 a document Bates numbered TN-OR00000973 through 1007. (Exh.1446 marked) Q. (By Mr. Polito) Mr. Shankle, if you turn to the page ending in 980, it's labeled "Appendix A." Is this an Appendix A of the type to which you were referring? A. Yes. Q. So, can you point me where in Appendix A you would have looked to find the list of system codes? A. The list of the systems are on page 981, starting in a column labeled "Covered Product." The first one is "Human Resources Management," second "US Payroll," et cetera. Q. So, everything on -- in that table in that first column? A. Correct. Q. And how did that get mapped to a system code? MR. WILKES: Objection, form.

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A. They were standard in the software. Q. (By Mr. Polito) Did you personally do that mapping for this customer? MR. WILKES: Objection, form. A. I'm not sure I understand the question. Q. (By Mr. Polito) Sure. So, in that same document, if you go to -- keep a finger there and look at 990. A. Okay. Q. So, it says "All System Codes"? A. Correct. Q. Did you make the determination that it should be all system codes for this customer? A. I did. Q. Did you do that by looking at page 981? A. Combination of 981, 982, 983, 984 -- and that's where it looks like it stopped. Q. And, so, you had some way to look at the text in covered product and determine that it was a system code? MR. WILKES: Objection, form. A. Ask the question again. I'm sorry. Q. (By Mr. Polito) Sure. I'm trying to figure out -there's no -- nowhere here does it say "All System Code." It's just a list. A. That's correct. Q. Do you just happen to know that this is all system

Q. (By Mr. Polito) Who else did the -- filled out the JD Edwards World download forms other than you? A. Other than me, Pete Surette. Q. He did it for World? A. He did it for OneWorld. Q. Who else did it for JD Edwards World? A. I don't recall anybody else ever filling one out for World. Q. Was there ever a case that you recall where the World download form provided -- or stated that a customer could receive more system codes than were in either Appendix A or the product verification form? MR. WILKES: Objection, form. A. Not that I'm aware of. Q. (By Mr. Polito) Was it your regular practice to list only the system codes from either Appendix A or the product verification form in the JD Edwards World download sheet? MR. WILKES: Objection, form. A. Yes. The system codes and their prerequisites. Q. (By Mr. Polito) So, when you have 02, you might need 01, just making that up? A. Exactly. Q. And you -- again, that's something you just know based on your experience? A. Exactly.

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codes? MR. WILKES: Objection, form. A. By looking at a compiled list of what's in that column we discussed, I know that all the system codes were involved. Q. (By Mr. Polito) Can you say that again? I don't understand. MR. WILKES: Objection, form. A. With my experience with the software, I know, for example, that System 00 is base package; 02 is e-mail system; 03, accounts receivable; 04 is accounts payable. And for example, if you look on this form, about halfway down, you'll see "EDI," and then directly below that is "Accounts Payable." So, I know right off the top this client needs System 04. It's licensed to them. Q. (By Mr. Polito) So, is it common for a person of your level of experience to have this information at the tips of his or her fingertips? MR. WILKES: Objection, form. A. I can't speak for anybody else; but after 13 years of dealing directly with this, yeah, I kind of got it. Q. (By Mr. Polito) Was that kind of experience common at TomorrowNow? MR. WILKES: Objection, form. A. Again, I can't speak for anybody else.

Q. Am I saying that correctly, that product verification form? There's Appendix A and there's another source and I'm -- I may not be saying the name correctly. A. No, no. That's correct. Q. Product verification form. Are those the sole two sources that you used in filling out these forms? MR. WILKES: Objection, form. A. Yes. Q. (By Mr. Polito) Were you involved in research to determine whether TomorrowNow could support a local instance of OneWorld or Enterprise 1, 8.11 Service Pack 1? A. Not specifically, no, not that I was aware of. MR. POLITO: I'm going to mark as Plaintiff's Exhibit -- actually, I lied. This is already marked Exhibit 60. Q. (By Mr. Polito) Mr. Shankle, is the reference to "Keith" in the first paragraph a reference to you? A. I assume the first paragraph of Laura's communication? I haven't -Q. Mr. Kreutz's at the very top. A. Hang on. (Witness reviewing exhibit.) I don't know if this is a reference to me. Q. Does looking at that document refresh your

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