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. 34

EXHIBIT HH
Dockets.Justia.com

MARK WHITE March 6, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION --------------------------------) ORACLE CORPORATION, a Delaware )Case No. corporation, ORACLE USA, INC., a)07-CV-01658 PJH (EDL) 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. ) --------------------------------) Friday, March 6, 2009 8:02 a.m. HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Videotaped Deposition of MARK WHITE, held at the offices of Bingham McCutchen, LLP, 399 Park Avenue, New York, New York 10022, pursuant to Notice, before Otis Davis, a Notary Public of the State of New York.

Merrill Legal Solutions [phone]

MARK WHITE March 6, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 50
08:53:56 08:53:58 08:54:02 08:54:04 08:54:08 08:54:09 08:54:13 08:54:19 08:54:28 08:54:28 08:54:30 08:54:34 08:54:37 08:54:40 08:54:42 08:54:47 08:54:53 08:54:54 08:54:55 08:54:59 08:55:06 08:55:11 08:55:16 08:55:20 08:55:24

Page 52
08:56:48 08:56:48 08:56:49 08:56:51 08:56:53 08:56:56 08:56:59 08:57:01 08:57:02 08:57:06 08:57:09 08:57:09 08:57:10 08:57:13 08:57:17 08:57:21 08:57:22 08:57:25 08:57:30 08:57:32 08:57:33 08:57:37 08:57:40 08:57:45 08:57:46 2 3 4 5 6 7 8 9

?

Q. Do you recall if there was a point in time that Mr. Nelson was removed as a director, a member of the board of directors? A. Mr. Nelson was removed as a director in November of 2007 upon his resignation. Q. And prior to that, he remained as a member of the board of directors? A. As far as I know, yes.

Page 51
08:55:26 08:55:28 08:55:30 08:55:35 08:55:38 08:55:42 08:55:43 08:55:44 08:55:47 08:55:50 08:55:53 08:55:57 08:56:02 08:56:06 08:56:11 08:56:12 08:56:15 08:56:18 08:56:22 08:56:25 08:56:26 08:56:27 08:56:31 08:56:34 08:56:44

Page 53
08:57:47 08:57:49 08:57:49 08:57:51 08:57:52 08:57:56 08:57:59 08:58:01 08:58:04 08:58:05 08:58:06 08:58:07 08:58:10 08:58:10 08:58:12 08:58:15 08:58:18 08:58:18 08:58:20 08:58:24 08:58:26 08:58:31 08:58:38 08:58:40 08:58:40

.

o

14 (Pages 50 to 53) Merrill Legal Solutions [phone]

MARK WHITE March 6, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 130
10:47:20 10:47:22 10:47:22 10:47:26 10:47:30 10:47:36 10:47:36 10:47:41 10:47:43 10:47:43 10:47:45 10:47:45 10:47:51 10:47:51 10:47:52 10:47:53 10:47:55 10:47:58 10:47:59 10:48:07 10:48:10 10:48:13 10:48:19 10:48:23 10:48:27

Page 132
10:49:41 10:49:41 10:49:46 10:49:50 10:49:51 10:49:54 10:49:57 10:50:01 10:50:08 10:50:11 10:50:13 10:50:19 10:50:21 10:50:33 10:50:40 10:50:48 10:50:48 10:50:49 10:50:51 10:50:59 10:51:03 10:51:08 10:51:11 10:51:13 10:51:16 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. Arakib? A. The person who copied the DST solution. Q. Hadi? I thought you said Patty. A. No, Hadi. Q. Last name is Arakib? A. Yes. And he was terminated from the company. Q. Do you recall when that was? A. It was -- I don't recall the specific date. I'm pretty sure it was before the end of August of '07, it could have even been in July. Q. Anyone else that you recall? A. There was -- you may have to help me with the name. There is a person in Denver who was terminated, Keith Surrette, thank you, Keith Surrette. I don't know why I'm thanking you, but I looked at you and I remembered. Keith Surrette, who was terminated for deleting files after the lawsuit was -- after litigation commenced. Later on, Greg Nelson was put on a leave of absence while I evaluated whether or not he warranted further disciplinary action, and during the time period he was on leave of absence, he was not eligible for bonus. Shelley Nelson received a warning letter,

Page 131
10:48:33 10:48:34 10:48:37 10:48:41 10:48:43 10:48:49 10:48:51 10:48:53 10:48:57 10:48:59 10:49:01 10:49:01 10:49:01 10:49:04 10:49:08 10:49:12 10:49:14 10:49:15 10:49:15 10:49:16 10:49:23 10:49:26 10:49:30 10:49:31 10:49:31
10:51:20 10:51:24 10:51:31 10:51:35 10:51:37 10:51:52 10:51:55 10:51:59 10:52:02 10:52:07 10:52:09 10:52:11 10:52:14 10:52:21 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 133
reprimanding her for improper oversight for her employee copying the DST solution, as did John Baugh. Q. Anyone else that you recall? A. It depends on your point of view. Andrew Nelson and Bob Geib, Nigel Pullan were asked to resign or they were told they would be terminated if they did not resign. Q. Why was Andrew Nelson asked to resign? A. Failure as a manager, as an executive for all the problems that happened on his watch. Q. What problems happened on his watch? A. The DST solution, the extensive downloading, the charges that were in the Oracle Complaint. It was sloppy. Q. Was he fired for improper use of Oracle intellectual property? MR. COWAN: Objection, form. A. He was terminated also because he had not implemented the directive. It was not up to me to decide, because I'm not a lawyer. While I understand some things about intellectual property protection and laws, I don't understand all of them, so it's not up to me to decide. I just know he did not implement the company directive for two and a half years. So the combination of everything that had

15 16 17 18 19 20 21 22 23 24 25

Q. Did your duties as executive chairman include disciplinary actions against TomorrowNow personnel? A. Yes. Q. Against whom? A. There were several actions, and I won't get the names right, because I don't recall the names. So if someone wants to correct me, I'm open to that. Q. Okay. A. Hadi I think was the first name.

10:52:29 10:52:32 10:52:33 10:52:36 10:52:41 10:52:45 10:52:55 10:52:59 10:53:02 10:53:06 10:53:08

34 (Pages 130 to 133) Merrill Legal Solutions [phone]

MARK WHITE March 6, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 134
10:53:10 10:53:15 10:53:16 10:53:25 10:53:27 10:53:32 10:53:34 10:53:36 10:53:44 10:53:48 10:53:51 10:53:56 10:53:57 10:53:58 10:54:01 10:54:05 10:54:22 11:04:57 11:04:57 11:05:06 11:05:08 11:05:20 11:05:22 11:05:24 11:05:29 1 2 3 4 5 6 7 8 9 10 11 12

Page 136
11:07:14 11:07:20 11:07:23 11:07:26 11:07:29 11:07:32 11:07:33 11:07:36 11:07:36 11:07:38 11:07:43 11:07:44 11:07:45 11:07:49 11:07:51 11:07:53 11:07:55 11:07:55 11:07:59 11:08:02 11:08:02 11:08:17 11:08:19 11:08:24 11:08:24

occurred under his watch was enough to terminate him. There is one other person who was terminated, and that was Nick Rawls in the U.K. Laura Sweetman was going to be terminated. She was on maternity leave for most of the time. I don't know if she was already on leave by the time I got there in July, I think she was, because I never spoke with her, and she was going to be also terminated, but she decided to resign. Q. Were all these terminations or warnings -- disciplinary actions your decision? A. Yes.

Page 135
11:05:29 11:05:31 11:05:34 11:05:35 11:05:37 11:05:43 11:05:45 11:05:45 11:05:50 11:06:09 11:06:17 11:06:22 11:06:25 11:06:28 11:06:29 11:06:35 11:06:37 11:06:40 11:06:44 11:06:53 11:06:56 11:06:59 11:07:02 11:07:10 11:07:13
11:08:27 11:08:34 11:08:35 11:08:38

Page 137

.

11:08:38 11:08:41 11:08:43 11:08:43 11:08:46 11:08:47 11:08:49 11:08:50 11:09:00 11:09:06 11:09:12 11:09:12 11:09:15 11:09:17 11:09:23 11:09:24 11:09:28 11:09:29 11:09:31 11:09:33 11:09:39

35 (Pages 134 to 137) Merrill Legal Solutions [phone]

MARK WHITE March 6, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 186
12:12:08 12:12:11 12:12:15 12:12:25 12:12:27 12:12:29 12:12:37 12:12:44 12:12:51 12:12:54 12:12:57 12:12:58 12:13:01 12:13:02 12:13:09 12:13:11 12:13:13 12:13:13 12:13:14 12:13:17 12:13:19 12:13:21 12:13:23 12:13:23 12:13:26

Page 188
12:14:37 12:14:38 12:14:57 12:15:00 12:15:04 12:15:06 12:15:08 12:15:12 12:15:13 12:15:14 12:15:20 12:15:21 12:15:25 12:15:27 12:15:30 12:15:38 12:15:39 12:15:41 12:15:41 12:15:42 12:15:50 12:15:53 12:15:56 12:16:01 12:16:03 1 2 3 4 5

,

A. No. Q. When was this meeting? A. It was -- I have to go by the weather in San Francisco, because the weather was good. I got to believe it was September or October of 2007.

Page 187
12:13:29 12:13:33 12:13:36 12:13:39 12:13:41 12:13:42 12:13:51 12:13:54 12:13:56 12:14:01 12:14:03 12:14:03 12:14:05 12:14:09 12:14:14 12:14:16 12:14:16 12:14:18 12:14:19 12:14:20 12:14:22 12:14:27 12:14:28 12:14:29 12:14:32

Page 189
12:16:06 12:16:10 12:16:13 12:16:15 12:16:17 12:16:19 12:16:22 12:16:24 12:16:27 12:16:28 12:16:35 12:16:37 12:16:44 12:16:46 12:16:47 12:16:48 12:16:53 12:16:55 12:16:56 12:16:58 12:17:05 12:17:05 12:17:07 12:17:10 12:17:12

s.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. At this time, in the fall of 2007, was one of your responsibilities to assist with the DOJ investigation? MR. COWAN: It's a yes-or-no question. A. Yes. Q. Is that one of your responsibilities today? MR. COWAN: Same yes-or-no question. A. Yes, to the extent they want me to assist. Q. Have you met with anyone from the DOJ? A. Yes. Q. Who? A. I don't recall their names. Q. How many? A. It was two people. Q. Do you recall their gender? A. Male. Q. Do you recall their title?

48 (Pages 186 to 189) Merrill Legal Solutions [phone]

MARK WHITE March 6, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 218
13:39:30 13:39:30 13:39:30 13:39:44 13:39:44 13:39:48 13:40:02 13:40:06 13:40:09 13:40:11 13:40:14 13:40:15 13:40:21 13:40:22 13:40:24 13:40:25 13:40:25 13:40:27 13:40:31 13:40:34 13:40:34 13:40:39 13:40:46 13:40:47 13:40:51

Page 220
13:42:07 13:42:10 13:42:17 13:42:19 13:42:24 13:42:26 13:42:28 13:42:29 13:42:32 13:42:34 13:42:37 13:42:41 13:42:43 13:42:49 13:42:52 13:42:54 13:42:56 13:42:58 13:43:01 13:43:02 13:43:05 13:43:06 13:43:07 13:43:10 13:43:14 16 17 18 19 20 21 22 23 24 25

.

Q. And you lost -TomorrowNow lost some customers because of the change to remote support model, right? A. Correct. Q. Did some customers cancel because they did not want to sign the Level Set agreement? A. Yes. Q. What reasons did they give? A. Increased costs, change in model, wanting to get out from under a company that was the target

Page 219
13:40:51 13:40:52 13:40:54 13:40:57 13:41:06 13:41:08 13:41:10 13:41:12 13:41:14 13:41:15 13:41:19 13:41:28 13:41:30 13:41:34 13:41:34 13:41:35 13:41:37 13:41:39 13:41:41 13:41:46 13:41:49 13:41:51 13:41:52 13:41:57 13:42:04

Page 221
13:43:16 13:43:19 13:43:21 13:43:22 13:43:22 13:43:22 13:43:29 13:43:29 13:43:39 13:43:43 13:43:51 13:43:54 13:43:55 13:43:58 13:43:58 13:44:00 13:44:01 13:44:04 13:44:06 13:44:14 13:44:19 13:44:21 13:44:24 13:44:27 13:44:29 1 2 3 4

of litigation and a Department of Justice investigation. Q. Any other reasons given? A. No.

56 (Pages 218 to 221) Merrill Legal Solutions [phone]