Oracle Corporation et al v. SAP AG et al

Filing 817

Declaration of Tharan Gregory Lanier in Support of 816 Defendants' Cross Motion for Partial Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment (FILED PURSUANT TO D.I. 810) filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53)(Related document(s) 810 ) (Froyd, Jane) (Filed on 8/27/2010) Modified on 8/30/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 817 Att. 14

EXHIBIT 14

Dockets.Justia.com

RICHARD ALLISON November 12, 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. ______________________________

) ) ) ) ) ) ) ) ) ) No. 07-CV-1658 (PJH) ) ) ) ) ) ) ) ) )

VIDEOTAPED DEPOSITION OF RICHARD ALLISON _________________________________ THURSDAY, NOVEMBER 12, 2009

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-424330)

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Q.

Now, you say that you looked at various

terms-of-use documents, but that you also looked at agreements for PeopleSoft, JD Edwards, Siebel, and Oracle. Is that right?

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A. Q.

Yes. Are you talking about end-user customer

license and support agreements? A. Yes. I was given examples -- obviously not

all of the agreements between all of us and our customers, but I was given examples of customer agreements -Q. A. Q. A. Q. today? A. Q. A. I have. Are they in that binder? They are. MR. McDONELL: Counsel? MR. HIXSON: THE WITNESS: Sure. That's fine. Okay. May I see it, Yes. -- to review for license agreements. Who gave you those examples? Legal. Okay. Have you brought them with you here

(Handing document.)

I believe these are documents that have been previously provided to you as well. MR. HIXSON: MR. McDONELL: documents were selected? Yes, we did. Q. Do you know how these

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A. Q. A.

I do not. Do you know who selected them? I just received them as a bundle from

legal, so I do not know who selected them. Q. Did you draw any conclusions about the

significance of the documents that were selected for you? MR. HIXSON: THE WITNESS: Objection. Vague.

They were just examples.

Every agreement between the customer and Oracle or the acquired companies could be unique, so you couldn't possibly read every one. So these are just

examples to get an idea of what kind of terms are included. MR. McDONELL: Q. Why would every

agreement be unique between Oracle and its customers? MR. HIXSON: ahead. THE WITNESS: They're often negotiated. So Objection. Vague. But go

there are lawyers on the other side that negotiate specific terms or changes to the agreements. So you

could have a standard agreement, but obviously, you could have a unique agreement for each customer depending on what changes were made to their

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particular order. MR. McDONELL: Q. So at any given point in

time, without going to look at all the agreements and study them, one couldn't generalize about exactly what the terms are in any particular agreement? MR. HIXSON: THE WITNESS: Objection. Vague, overbroad.

I think you can generalize

what the material terms of an agreement are and what is normally included in an agreement. I think

you -- I couldn't quantify for you the exact exception that might occur for each individual customer.
TEXT REMOVED - NOT RELEVANT TO MOTION

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MR. McDONELL:

Q.

Okay.

I want to now

turn to the subject of agreements between Oracle or its various affiliates -- so right now I'm talking

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about Oracle Corporation, Oracle USA, Siebel Systems, Inc., et cetera; the Oracle family of companies -- and their end-user customers, customers that enter into software license and support agreement. Do you have that in mind? A. Q. Yes. Do you have an idea of approximately how

many such customers there are today? A. Q. Several hundred thousand. You said Oracle has several hundred

thousand software customers as of today? A. Q. Yes. Now, you indicated previously that it's not

uncommon for customers to negotiate the terms of their software and support agreements with Oracle. Is that true? A. Q. True. How frequently do customers in your

experience actually negotiate terms? MR. HIXSON: MR. McDONELL: Vague, calls for speculation. Q. As opposed to just

accept whatever Oracle proposes. MR. HIXSON: THE WITNESS: Same objections. In my position, I tend to see

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the exceptions.

And I don't focus on -- as much on So it's difficult for me to

the nonexceptions.

characterize the percentage of actual transactions overall that have changes versus don't have changes, because, again, I'm only seeing those that do. So as a percentage, I couldn't guess for you. MR. McDONELL: Q. What is the threshold

that makes something an exception so that it would come to your attention? A. A discount exceeding a certain percentage,

or changes to the license agreement or ordering document that are outside the options that we make available for the field and legal to use. Q. A. What are those options? About 3 inches thick in a binder, so I

couldn't ... Q. A. So there are many, many options? Yeah. Examples of, you know, customer

includes majority-owned subsidiaries, that's one option, to add majority-owned subsidiaries, things like that. So there can be changes to customer

definition, price hold options, things like that, that are standard that are available. Q. So it's fair to say you've not seen all of

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the existing Oracle software and support agreements. True? A. Q. True. I don't think anybody has.

Are the terms of Oracle's software and

support agreements publicly available? A. We do publish our standard agreement. You

can get it via the Oracle store. Q. A. What's the Oracle store? It's an e-commerce site to buy Oracle

software, license Oracle software. Q. there? A. The OLSA, which is the Oracle License and A form of it, I think And what agreement is publicly available

Services Agreement.

substantially similar to the one that's used off line. Q. A. 10 years. Q. So the Oracle standard form license and How long has that been publicly available? Well, the store has been available for over

support agreement has been publicly available for 10 years? A. Q. For over. How about the -- did PeopleSoft have a

standard form license and support agreement?

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A. Q. A.

They did. Was that publicly available? I do not know if that was publicly

available. Q. Did Siebel Systems have a standard form

license and support agreement? A. Q. A. Q. They did. Was that publicly available? I do not know. Did JD Edwards have a standard form license

and support agreement? A. Q. A. Q. They did. Was that publicly available? Not that I know -- I do not know. As a general proposition, once Oracle and a

customer enter into a software license and support agreement, is it Oracle's general practice to require a provision in that agreement that requires the customer to keep the terms confidential? A. Yeah. MR. HIXSON: THE WITNESS: Objection. Yes. Overbroad.

Most of our ordering

documents and license agreements have a confidentiality term, both for the customer -customer and us.

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MR. McDONELL:

Q.

Do those customer -- I'm

sorry, do those confidentiality agreements that are included in your software license agreements typically require both Oracle and the customers to keep the terms confidential? MR. HIXSON: THE WITNESS: Vague, overbroad. I know the ordering document As far as the

for the order of licenses does.

confidentiality in the master agreement, there is a confidentiality, and I'm not sure if it covers specifically the agreement. MR. McDONELL: Q. But we'll take a look at

some throughout the course of the day. A. Q. That's fine. For long-term customers of Oracle, do the

terms of agreements with customers change over time? MR. HIXSON: THE WITNESS: Objection. Vague, overbroad.

There are -- so we sign term

agreements typically with our customers, you know, for a 2-, 3-, 4-year term. And at the end of that

term, they'll typically sign another agreement. That's our current practice. MR. McDONELL: Q. By term agreement, are

you talking about software licenses? A. No. I'm talking about the -- the licensing

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agreement itself.

Not the software licenses, which

you gain under the -- you know, an ordering document, which refers back to the license agreement, but the license agreement itself is a term agreement. Now, it's term for purposes of continuing orders, but it's not term in that it doesn't -- it does continue to apply in perpetuity for the licenses already acquired under it, obviously. So

it just ends for your right to use going forward. Q. I'm not sure I understand that. When

Oracle sells a software license, the license of that software is typically perpetual. A. Q. Typically. And then Oracle also typically sells a Right?

support services agreement that goes with the software. A. Q. Correct? Correct. And it's the normal practice that Oracle

sells software together with the first year of support at the same time? A. Q. Yes. And thereafter, Oracle sells renewal

support agreements on a year-by-year basis. A. Correct.

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Q.

What is the part of the agreement that you

said is typically 3 or 4 years? A. So it's -- your ability to acquire

additional -- so it's a term for your right to acquire a license against that agreement. term for that purpose. So it's a

And what it -- you know,

because industry -- there's changes to how people use and buy software, so it makes sense to kind of take a look at it again in 4 years and see if things have changed. So they can acquire licenses during the term of that agreement. sign another agreement. After that, they typically But that doesn't change the

fact that the agreement that was originally used applies to any licenses required under that. don't changes terms on existing licenses. Q. I see. But the typical contract provides We

that in addition to the software the customer is buying on day one, they've got the rights to purchase other software on various terms and conditions during the course of that agreement? A. Yeah. Usually it's created so that you can

place multiple orders against it rather than have to sign an ordering document -- a license agreement each time.

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Q. A.

I see. It's a master ordering vehicle, is a way to And that's true of us and the acquired

describe it. companies. Q.

Are there -- so the answer to my question

is that for long-term Oracle customers, contracts do change over time. Right? Vague, overbroad. Generally that's the case. Q. And generally they get

MR. HIXSON: THE WITNESS: MR. McDONELL:

negotiated each time they come up for renegotiation. Right? MR. HIXSON: overbroad. THE WITNESS: Again, some customers do sign But typically, your Calls for speculation,

agreements without negotiation.

largest customers you will have a renegotiation at renewal time. MR. McDONELL: Q. Is it fairly common for

Oracle to have customers who have more than one license agreement at any given time with Oracle or an Oracle entity? MR. HIXSON: THE WITNESS: Vague as to "fairly common." Well, typically, a customer

has one Oracle agreement, but they may have other

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agreements that were from acquired companies.

So

they could have a PeopleSoft license agreement and also have an Oracle license agreement that they purchased database for the programs under, so they could have multiple agreements. But it would not be

multiple agreements applying to the same license. MR. McDONELL: A. Q. Okay. So at any given point in time, like a large Q. I understand.

Oracle customer might have a license agreement with Oracle for some Oracle software product, but they might simultaneously have an existing license agreement for a PeopleSoft product, and another license agreement for a JD Edwards product, and they could even have yet another license agreement for a Siebel product. A. Correct. Is that possible? You could add 30 more companies

to that example. Q. Do the Oracle -- and by Oracle here, I'm

talking about Oracle, PeopleSoft, JD Edwards, Siebel, all of those companies -- do the agreements for those companies with various customers vary from customer to customer with respect to the rules governing third-party access to software? MR. HIXSON: Objection. Overbroad.

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THE WITNESS: MR. McDONELL:

They do vary. Q. Do the rules in those

contracts for those type of customers vary from customer to customer with respect to the issue of the customer's right to make modifications to software? MR. HIXSON: THE WITNESS: where they differ. Overbroad. Again, there will be cases

I can't tell you the percentage. Q. I understand. It's a

MR. McDONELL:

hundred thousand customers. know them all.

You're not going to

But my point is, they do vary.

It's not

one size fits all for all hundred thousand customers? A. Well, no, because you have three different If you said generally for Oracle did we

companies.

have standard terms that apply for the majority of the cases, yes. Did PeopleSoft generally have terms But there's multiple iterations

that applied, yes.

of agreements over a period, so if you're talking about now or 30 years ago, you know, there's -- so there's a lot of variables here. Q. I understand. And even within a company,

there are variables in the contracts because of

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individual negotiations. A. Q. Correct.

Correct?

Did these contracts vary over time with

respect to the definition of what's considered confidential information under the agreements? MR. HIXSON: THE WITNESS: Objection. Overbroad.

I do not know specifically

what changes took place from one agreement to the next regarding confidentiality terms. MR. McDONELL: Q. But is it your

assumption based on what you know that there are likely changes -- I'm sorry, variations in the terms defining confidential information as between, say, a PeopleSoft agreement and an Oracle agreement and a Siebel agreement? A. The variation is -- normally in

confidentiality is regarding what information of the customer's is confidential. I see very little

variability in people discussing confidentiality of the agreement as an issue. an exception. That doesn't come up as

It's normally, they want their

personally identifiable information to be held to high confidentiality, or specific business plans. It's more about customer confidentiality; not about confidentiality of the agreement.

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Q.

And the agreement itself is typically

confidential? A. Yeah. And people don't negotiate that

fact, generally. Q. Because of this variability we're talking

about, when you have to make a determination in your work about whether a certain practice is or isn't permitted, do you have to actually go look at the applicable contract? MR. HIXSON: THE WITNESS: Overbroad. Typically, somebody sends a

request to us with the standard language and the exception to the language, with legal analysis on that change. MR. McDONELL: Q. So you're talking about Right?

exceptions that come to your attention. A. Q. Correct. Okay.

Let me -- talking about a slightly

different concept here. Generally speaking, if an issue comes to your attention like whether a customer -- you know, whether Rimini Street was within the customer's rights in downloading Oracle software in a particular way, in order to analyze that issue, one thing you have to do is go look at the customer's

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agreements.

Isn't that right? Objection. Overbroad, vague,

MR. HIXSON: as to "you." THE WITNESS: the agreement. MR. McDONELL: A. of use.

I would personally look at

Q.

Why would you do that?

Because those are the terms of the rights

Now, in this case, Rimini -- we're not looking at an agreement between us and Rimini. We're looking at an agreement between us and the customer. Q. And why would you look at an agreement

between Oracle and the customer? A. Well, I think you asked me would I look at

the agreement between us and Rimini, was what I thought your first question was. Q. Well, is there any agreement between Oracle

and Rimini Street? MR. HIXSON: THE WITNESS: Objection. No. But if you're looking at

a situation with a customer, you asked me would I like at the agreement. I would look at the

agreement between us and the customer. MR. McDONELL: Q. That's what I was

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asking. A.

And why would you look at that agreement? Because those are the terms between the two

companies. Q. Okay. And again, because they vary over

time and from customer to customer, you've got to know in order to do that analysis what the actual terms were between Oracle and that customer. that right? MR. HIXSON: THE WITNESS: Objection. Yes. Vague, overbroad. Isn't

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