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 Att. 28 EXHIBIT BB Dockets.Justia.com 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. ) CASE NO. 07-CV-01658 (MJJ) ) SAP AG, A GERMAN CORPORATION, ) SAP AMERICA, INC., A DELAWARE ) CORPORATION, TOMORROWNOW, ) INC., A TEXAS CORPORATION, AND) DOES 1-50, INCLUSIVE, ) Defendants. ) *************************************************** "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" ORAL VIDEOTAPED DEPOSITION OF MATTHEW BOWDEN December 5, 2008 *************************************************** ORAL VIDEOTAPED DEPOSITION OF MATTHEW BOWDEN, produced as a witness at the instance of the Plaintiffs and duly sworn, was taken in the above-styled and numbered cause on Friday, December 5, 2008, from 9:04 a.m. to 5:51 p.m., before JAMES M. PLAIR, Certified Shorthand Reporter in and for the State of Texas, reported by computerized stenotype machine at the offices of JONES DAY, 717 Texas, Suite 3300, Houston, Texas 77002-2712, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto. Job No. 1603-89469 Electronically signed by James Plair (101-389-075-5897) 1d64ffdd-22f7-4a2c-8d2f-0a065837331c Page 102 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:53 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 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 Page 104 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:55 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 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 A. You know, that -- that the knowledge that's involved, whether or not it can be done, just -- but in vague terms. Not necessarily with any kind of business planning kind of sense, but just the possibility. Q. How long was the lunch? A. Well, an hour or so. Q. After that lunch, did you have the impression that TomorrowNow had the resources already to perform critical support as opposed to extended support? A. I -- I didn't have a clear impression one way or the other. Q. Did you have an impression in your mind as to what it would take to do critical support? A. I probably had my own ill-formed opinion of it. Q. Do you remember anything about that ill-formed opinion? A. Well, it's -- you know, it is -- it is open source and it can be -- you can modify it. Q. What is open source? A. Open source means that the -- the customer has -- has the source and has the rights to modify the source. Q. So when you say "it" is open source, do you mean -A. PeopleSoft. what question I understood. So I don't know anything else to say. You know, I said -- I said that it's common practice. Q. (BY MR. POLITO) When you say it's common practice, what are talking about, Mr. Bowden? A. Modifying COBOL programs, modifying SQR programs -Q. So when you say -A. -- creating new COBOL programs, creating new SQR programs. It's common practice. Q. So when you say it's common practice to modify COBOL programs, what do you mean specifically, talking about your impression at that lunch or after? A. A -- well, it's not necessarily relevant. It wasn't at that lunch. It's just my -- my formed opinion that was true at that time and probably still is true, is that the customers have many programs that have been provided to them by PeopleSoft. They don't all work as they need to work. They don't necessarily work as designed, so they may have to modify them to correct bugs. They also may want to extend the functionality and prove the functionality to be more suitable to their business needs. So they may modify the programs for that reason. They may actually add additional programs to it for that reason. So, to me, Page 103 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:54 10:55 10:55 10:55 10:55 10:55 10:55 10:55 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 Page 105 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 10:56 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 Q. PeopleSoft is open source. So we're talking about your impression. A. The PeopleSoft COBOL programs are open source. Q. So what's the basis for your understanding that PeopleSoft customers -- that PeopleSoft was open source? A. Common practice. Q. Tell me more about that. MR. ARMSTRONG: Objection. A. You mentioned earlier the -MR. ARMSTRONG: Counsel -A. -- number of customers that customize their programs. MR. ARMSTRONG: Objection. Vague and ambiguous. Please ask a question. Q. Could you go on, Mr. Bowden? MR. ARMSTRONG: Please, vague and ambiguous. What's the question? Q. You can answer, if you can. MR. FUCHS: Counsel, restate the question. MR. POLITO: Is that an objection? A. I think I gave you -MR. FUCHS: The objection is there's been a request for you to restate the question. A. If you read back the record, I think I answered this is common practice open source behavior in -- in the IT world. Q. When we were just talking about COBOL, the same comments. Are those true for SQR modifications by -A. Yes. Q. -- customers as well? What about creation of new COBOL programs by customers? A. Yes. MR. ARMSTRONG: Objection. Vague and ambiguous. Q. (BY MR. POLITO) What about modification -- I'm sorry -- creation of new SQRs by customer? A. Yes, and PeopleCode, too. Q. When you say "and PeopleCode, too," what did you mean? A. PeopleCode is a language that's provided to the customers for their use in modifying and managing their programs. They're -- they're encouraged to write their own PeopleCode programs. It's common, done all the time. There is -- many GSC cases are resolved by telling the customer, "Well, you can write a PeopleCode program to do that." Q. "GOC" means? A. Global Support Center. GSC. I'm sorry. Q. Is it your understanding that people who had 10:56 10:57 10:57 10:57 10:57 10:57 10:57 10:57 10:57 27 (Pages 102 to 105) Electronically signed by James Plair (101-389-075-5897) 1d64ffdd-22f7-4a2c-8d2f-0a065837331c Page 106 10:57 10:57 10:57 10:57 10:57 10:57 10:57 10:57 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 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 Page 108 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 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 never purchased PeopleSoft could change these files? A. No. I would not expect someone who had never purchased PeopleSoft to do that, no. I mean, as an they would. As a consultant, it's been done, you know, many times, but the -- ultimately, there is someone that purchased PeopleSoft that says, "I need this done," and make those changes. Q. Is that still your opinion now, Mr. Bowden? A. It's still being done all over the world right now. Q. Is it still your opinion now, that PeopleSoft is -A. Is open source? Q. Is open source? A. Yes. Q. Is it still your opinion now that customization of PeopleSoft code is common practice? And by "code", I mean at this point COBOL, SQR and PeopleCode. A. Yes. Q. When you were retrofitting -A. Uh-huh. Q. -- between -- when you were at PeopleSoft retrofitting and you're going back to -- from 7 to 6, Q. You would have to use a version of PeopleTools that is compatible with the version of the PeopleSoft product that you're working with? A. The one that I'm modifying. Q. Is that true for anybody who's modifying PeopleCode? A. As far as I know. Q. Did you ever see a contract, a customer contract while you were at PeopleSoft? A. No. Q. When you were consulting, did you ever see a consulting contract with a customer when you were at PeopleSoft in the consulting group? A. Yes. Yes, I did. Q. What do you remember about those? A. I don't -- don't really remember that much about it, but I -- I'm sure I did. Q. Did you take any notes of your meeting with Mr. Ravin at that lunch meeting that you had? A. No. Q. Did you -A. I'm sorry. I'm not a notetaker. Q. Did you call anyone and tell anyone about that? A. I probably talked to people about it, just -but in the vague sense. "Hey, I went on a job interview employee of a company that had purchased them, that, yes, 10:59 someone acting as an employee/consultant would -- would 10:59 Page 107 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:58 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 10:59 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 Page 109 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:00 11:01 11:01 11:01 11:01 11:01 11:01 11:01 11:01 11:01 11:01 11:01 11:01 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 let's say, you did retrofit from 7 to 6? A. Yes. Q. You retrofitted tax updates? A. Yeah. Q. What version of PeopleTools were you using? Let me ask you a different question. Were you using the same version of PeopleTools to retrofit when you were working with 7 and when you were working with 6? A. They use different versions of PeopleTools also. Q. So it was a higher version for 7 and a lower version for 6? A. Yeah. Q. Is that the same when you were retrofitting back to 5? A. Yes. Q. And when you were retrofitting back to 4? A. Yes. Q. Without the PeopleTools versions, would you be able to change the PeopleCode, you personally? Without PeopleTools that could interact with the proper -A. Yeah. I have to use PeopleCode to change -PeopleTools to change PeopleCode. Q. You need to use PeopleTools to change PeopleCode? A. Yes. today." Q. Do you remember who you talked to? A. No. Linda Patterson would be likely, but -Q. Who's Linda Patterson? A. She's an employee, a common -- she was one of my peers at -- in the GSC. Q. Anybody else? A. I -- I don't recall. Q. Do you remember the next interaction you had with anybody at TomorrowNow? A. Well, Andrew and I talked again at some point on the phone. I don't know whether it was next by e-mail or next by phone, but we talked some more. Q. Whether it was by e-mail or phone, what was the substance of your communication with Mr. Nelson? A. The main substance was about the possibility, general interest, but the end result of these conversations -- whether it was one conversation or multiple, I'm not sure -- but the general result was to put our mutual interests on hold for a while because at that time Oracle had announced the interest in acquiring PeopleSoft. Q. What's the time frame that we're talking about where you believe -A. I believe that was in July. 28 (Pages 106 to 109) Electronically signed by James Plair (101-389-075-5897) 1d64ffdd-22f7-4a2c-8d2f-0a065837331c

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