Oracle Corporation et al v. SAP AG et al

Filing 794

Declaration of Scott W. Cowan in Support of 791 Defendants' Oppositions to Plaintiffs' Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (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. 794

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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., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DECLARATION OF SCOTT W. COWAN IN SUPPORT OF DEFENDANTS' OPPOSITIONS TO PLAINTIFFS' MOTIONS IN LIMINE Date: September 30, 2010 Time: 2:30 p.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton

DECLARATION OF SCOTT W. COWAN ISO DEFS.' OPP. TO ORACLE'S MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL)

Dockets.Justia.com

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I, Scott W. Cowan, declare as follows: 1. I am a partner in the law firm of Jones Day, 717 Texas, Suite 3300, Houston,

Texas 77002, and counsel of record for Defendants SAP AG, SAP America, Inc. (together, "SAP"), and TomorrowNow, Inc. ("TN") (collectively, "Defendants") in the above-captioned action. I am a member in good standing of the State Bar of Texas, all federal district courts in Texas, and the United States Courts of Appeal for the Third, Fourth, Fifth, Ninth and Eleventh Circuits. I am also admitted pro hac vice in this matter. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 2. In a April 29, 2010 2:09 p.m.1 email, Plaintiffs' counsel, Geoff Howard, proposed

to Defendants' counsel, Greg Lanier, that "there are some pre-trial logistical matters we think the parties should discuss, such as . . . the process for exchanging depo designations and counterdesignations (we suggest exchanging designations by July 15 and counter-designations by July 29)." Then, in a May 11, 2010 1:25 p.m. e-mail, Defendants' counsel Greg Lanier, responded to that proposal by providing the following counter-proposal: "With regard to deposition designations, we propose exchanging designations on July 16 and counter-designations on August 2." Then, in a June 7, 2010 10:58 a.m. e-mail, Plaintiffs' counsel Geoff Howard accepted Defendants' counter-proposal by stating: "we accept your . . . depo designation and counterdesignation dates of July 16, and August 2, respectively." 3. On July 16, 2010 at 7:25 p.m., Defendants provided initial deposition designations

to Plaintiffs. On July 16, 2010 at 9:10 p.m., Plaintiffs provided initial deposition designations to Defendants. Neither Plaintiffs nor Defendants designated any testimony from the deposition of Pat Phelan on that date. 4. Plaintiffs provided a series of additional sets of initial designations. On July 22,

2010 at 6:34 p.m., Plaintiffs provided additional initial designations. Then, on July 23, 2010 at 2:16 p.m., Plaintiffs provided further additional initial designations along with an errata for certain of their previous designations and indicated that they had "noticed typos and cites that ha[d] been inadvertently deleted during the formatting process." Next, on July 29, 2010 at 2:46
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All times noted in this declaration are Pacific time. -1DECLARATION OF SCOTT W. COWAN ISO DEFS.' OPP. TO ORACLE'S MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL)

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p.m., Plaintiffs again provided "a revised spreadsheet of designations" containing further initial designations. Then, on August 2, 2010 at 12:36 p.m., Plaintiffs provided Defendants further additional initial designations stating "Attached is a revised spreadsheet of designations. For your convenience, we have identified the errata on the first tab titled Plaintiffs' 8.2 Errata and the last two tabs list the revised designations from 7/16/10 and 7/22/10 in their entirety." The August 2, 2010 designations included over 66 new, initial designations. Plaintiff did not designate any testimony from Pat Phelan with these additional designations. 5. On August 2, 2010 at 7:36 p.m., Plaintiffs provided Defendants counter deposition

designations, including testimony from Pat Phelan. Defendants had not previously made any initial designations from the testimony of Pat Phelan. 6. On August 4, 2010 at 1:00 p.m., Defendants informed Plaintiffs that Defendants

inadvertently designated testimony from a third party witness, Robert Wasson, and informed Plaintiffs that Defendants were withdrawing those designations and asked Plaintiffs to "confirm that in light of Defendants' withdrawal, Plaintiffs withdraw their counters." On August 4, 2010 at 2:11 p.m., Plaintiffs responded by stating "Plaintiffs have decided not to withdraw their designations for Robert Wasson's deposition (McLennan County). Given that Defendants have withdrawn their initial designations, we will now include these designations as Plaintiffs' affirmative designations." 7. On August 5, 2010 at 4:38 a.m., Defendants provided Plaintiffs additional

deposition designations "relating to both Plaintiffs' 8/2/2010 errata and Plaintiffs' 8/2/2010 counter/completeness designations," as well as Plaintiffs' August 4, 2010 initial designations of Robert Wasson. 8. On August 5, 2010 at 4:00 p.m., Plaintiffs e-mailed Defendants' counsel to

provide 137 initial deposition transcript designations for two witnesses and noted "Plaintiffs intend to include these designations in the version it will be filing today with the court." Then, on August 5, 2010 at 7:38 p.m., Defendants responded to Plaintiffs' additional 137 initial designations by emailing Defendants' responsive counter designations for those witnesses. I declare under penalty of perjury under the laws of the United States and the State of -2DECLARATION OF SCOTT W. COWAN ISO DEFS.' OPP. TO ORACLE'S MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL)

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California that the foregoing is true and correct. Executed this 19th day of August, 2010 in Houston, Texas. /s/ Scott W. Cowan Scott W. Cowan

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DECLARATION OF SCOTT W. COWAN ISO DEFS.' OPP. TO ORACLE'S MOTIONS IN LIMINE Case No. 07-CV-1658 PJH (EDL)