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. 18

EXHIBIT 18

Dockets.Justia.com

JASON KEES October 15, 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 JASON KEES (Rule 30(b)(6) designee of Oracle USA, Inc.) _________________________________ THURSDAY, OCTOBER 15, 2009

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-423462)

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MR. COWAN:

Q.

Okay.

I'm going to show

you what we're marking as Exhibit 732. (Deposition Exhibit 732 was marked for identification.) MR. COWAN: Q. I'll represent to you that

Exhibit 732 is the deposition notice that was sent, has an earlier date. The parties have renegotiated

the date, but sent -- it's what our understanding is the notice under which you are testifying here today. Is that also your understanding? A. Q. A. Q. Yes, it is. Okay. You've seen this document before?

Yes, I have. Or maybe not that exact document, that

exact copy of the document, but you've seen a duplicate of that document? A. Q. Correct, yes. Okay. And let's go to lines 12 through 18 If you will just read

on page 2 of Exhibit 732. that quickly to yourself. A. Q.

(Examining document.)

Okay.

And is that your -- the understanding of

the topics you are presented here today for

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deposition? A. Q. Yes, to the best that I understand them. Okay. And do you also understand that

these topics, you are testifying on behalf of all the plaintiffs in this case relative to these topics? A. question. Q. Okay. If you'll turn -I'm sorry, I don't understand that

(Deposition Exhibit 733 was marked for identification.) MR. COWAN: Q. I'm going to show you

what's been marked as Exhibit 733, which is a copy of the current lawsuit. this lawsuit. You don't need to look past the first page. I'm going to refer elsewhere in this deposition to this document. But on the first page of this The current complaint in

lawsuit, down between lines 20 and 23, here on Exhibit -- Exhibit 733, it lists the plaintiffs in this case, which are Oracle USA, Incorporated; Oracle International Corporation; Oracle EMEA, Limited; and Siebel Systems Incorporated. Do you see that? A. I do.

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Q.

Those are the four corporate entities that

are the plaintiffs in this lawsuit. And my question to you is, now, if you'll look at Exhibit 732, which is the deposition notice, are you here today to provide testimony on behalf of all of those entities relative to that topic that's listed in Exhibit 732? MR. ALINDER: conclusion. THE WITNESS: I would only have knowledge Objection. Calls for a legal

specific to systems that are related to Siebel Systems Incorporated. MR. COWAN: And Zac, is it Plaintiffs'

position that he's only providing corporate testimony from that particular plaintiff, or is it on behalf of all plaintiffs? MR. ALINDER: He's providing the testimony

on behalf of all plaintiffs, but we've restricted him to the Siebel Systems, which is the notice topic. MR. COWAN: Correct. And I'm not trying to

broaden the topic past anything other than the Siebel product line. deposition. That's the focus of this

I just want to make sure that all the

testimony you're providing here today is on behalf

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of all plaintiffs. And I think based, Zac, on what you just said, that the answer to that is yes. you now instead of the witness. MR. ALINDER: MR. COWAN: Yes, that's correct. Okay. I'm asking

TEXT REMOVED - NOT RELEVANT TO MOTION

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14 15 16 17 18 19 20 21 22 23 24 25

Q.

Based on the investigation and analysis

you've done and the information you obtained in preparation for your deposition here today, what access, if any, have you determined -- have you determined that defendants made to any of Plaintiffs' computer systems related in any way to the Siebel product line? MR. ALINDER: ambiguous. MR. COWAN: question? Q. Do you understand my Objection. Sorry, vague and

I'll be happy to reword it. THE WITNESS: It's based on my knowledge of

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going through the logs and based on my knowledge of the emails that I've seen, I know that they definitively accessed the support web system. it in the logs myself that they downloaded, you know, files. MR. COWAN: Q. Okay. What in the logs I saw

yourself indicated to you that Defendants accessed the system? A. I saw a record in the log stated from the

IP address that was identified earlier by Uwe at some point that had a get command and was getting, you know -- again, the PDF files was the one I specifically searched for, and was grabbing all of these PDF files in a sequential order. Q. A. In what time frame did that occur? I cannot apply specifics on the time frames

I ran against the entire logs. Q. So you have no idea of what you just

testified of when that occurred? MR. ALINDER: testimony. THE WITNESS: screen. I'm sure it scrolled up the I did all the Objection. Misstates the

I didn't pay attention.

logs, so ... MR. COWAN: Q. You don't recall any date

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as you the sit here today? MR. ALINDER: ambiguous. THE WITNESS: I know specifically that Objection. Vague and

September of 2006 was in there. MR. COWAN: Q. Now, do you know

specifically September of 2006 there's a log entry related to Defendants' web address? A. I can't say with a hundred percent I can,

certainty that -- actually, you know what? because I did run two commands.

I ran one that was

specific against -- I said EX0609 asterisk, trying to indicate, you know, 2006, September, and I ran that through, so that I know there were hits in September at least. Q. Okay. I can't say a specific date.

And your -- all of this is based on

an assumption that the web address you were given is tied in some way to Defendants. A. Right?

It's based on the web address that was

given to me by Uwe, and I guess I should clarify on that. I vaguely recall him saying it was related to

SAP when he originally gave it to me, but not specific to TomorrowNow, which is I guess what I know at this point. Q. So you don't know whether -- you have no

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idea for sure what entity the web address you were given relates to as you sit here today? MR. ALINDER: testimony. THE WITNESS: address. MR. COWAN: Q. Did you record the IP I only know that it was an IP Objection. Misstates

address in any -- any place? A. Q. I did not. So you typed it in into your query, and

after you ran your query, you don't have any record of the IP address you typed in? A. I had it in there. I believe I had it in

my copy/paste buffer for a few minutes while I did the work, but I did not put it into any electronic document, and I didn't write it down. Q. And you don't -- as sit here today, don't

know whether -- what if any of the defendants in this case that IP address allegedly relates to, do you? MR. ALINDER: testimony. THE WITNESS: sure, no. MR. COWAN: Q. Can you say for sure that I can't specifically say for Objection. Misstates the

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the web address that you typed in and did your analysis on is one that is registered or otherwise owned by SAP AG? A. Q. You mean the IP address? Is that --

Yeah, let me rephrase the question. Can you say for sure that the IP address

that you typed in to your search that you did your analysis on is one that is registered or otherwise owned by SAP AG? MR. ALINDER: Objection. Vague and

ambiguous, calls for speculation, lacks foundation, outside the scope. THE WITNESS: To the best of my knowledge,

it was -- I have a recollection of -- I think I have a recollection of Uwe saying it was SAP-related. But I have no -- I can't guarantee -- or -- you know, I can't guarantee 100 percent that it was tied back to them. I did not do that analysis. Q. Can you say for sure that

MR. COWAN:

the IP address you typed in to do your search and your analysis is one that is registered to or otherwise owned by SAP America, Inc.? MR. ALINDER: THE WITNESS: Same objections. I cannot. The limit of my That's

knowledge on it is that it ended in dot 98.

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what I can remember. MR. COWAN: Q. Can you say for sure as you

sit here today that the IP address you typed in to perform your search and your analysis is one that is registered to or otherwise owned by TomorrowNow Incorporated? MR. ALINDER: answered. THE WITNESS: I don't -MR. COWAN: Q. You don't know which of Again, I cannot -- I cannot. Same objections. Asked and

those three entities I just asked you about, if any, it relates to. Correct? I have -Objection. Misstates

THE WITNESS: MR. ALINDER: testimony. THE WITNESS:

I have no idea what entity

that IP address is owned or registered to. MR. COWAN: Q. And nor did Mr. Koehler

tell you that, did he? MR. ALINDER: testimony. SAP-related. THE WITNESS: it was SAP-related. I vaguely recall him saying I mean, the case was known Objection. Misstates the

He's already told you that it was

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then.

That's the extent of my recollection. MR. COWAN: Q. I'm talking about the --

this is when you are -- the search you did in mid to late '08. A. Q. Right? Correct. But you also did a search related to an IP

address this week. A. Q. That is correct. How do you know that the search -- IP

address you searched for in mid to late '08 is the same IP address you searched for this week? A. I -- I can't guarantee that with any

certainty. Q. week? A. The one that ends in dot 98, and that's the Okay. What IP address did you use this

extent of my memory on it. Q. Did the one you used in mid to late '08 end

in dot 98? A. Q. I have no recollection of that. Okay. Who gave you the IP address that you

used this week? MR. ALINDER: Objection. I'm going to

caution you, to the extent that would require you to reveal attorney-client privileged information,

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instruct you not to answer. THE WITNESS: MR. COWAN: Q. I'm not going to answer. Did you do the analysis

related to the search you used this IP address to prepare for your deposition here today? A. Q. I'll say yes. Okay. I'll ask you again: Who gave you

the IP address that you used to type in to do the search that's related to your preparation here today? MR. ALINDER: the same instruction. MR. COWAN: answer who? MR. ALINDER: I think that reveals You're not going to let him I give you the same caution,

attorney-client privileged information, Scott. MR. COWAN: MR. ALINDER: if -- yeah. Yeah. Just the name? Well, you know the content --

It would be the content of the

information connected with an attorney, and that's what you're asking for. MR. COWAN: Q. Is there any way, sir, as

you sit here today to know whether the IP address you typed in relates -- that you typed in this week relates in any way to the defendants in this case?

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A. Q.

Only -And if the answer is -- let me just ask

again and make sure it's clear, and he can instruct you however he wants. Is there any way, sir, as you sit here today, to know whether the IP address that you typed in to do your search and analysis to determine whether defendants accessed any computer, computer system or computer network related in any way to the Siebel product line is linked in any way to any of the defendants in this case? A. that. Q. So when you provide testimony here today I have no way to definitively tell you

about what you believe defendants did or didn't do with respect to access, you have no factual basis whatsoever to base that testimony on, do you? MR. ALINDER: Objection. Misstates the

testimony, argumentative. THE WITNESS: I was given the IP address

with the knowledge that it was the correct one, and that's the extent of what I have. MR. COWAN: A. Q. Q. The correct one for what?

For TomorrowNow systems that accessed this. So it's based on that assumption that the

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IP address was tied to TomorrowNow, is what your testimony is based on here today? I'm trying to separate fact from your assumption, what you know to be true based on your own investigation or what facts you were provided. A. I had to assume that the IP address given

to me was the correct one. Q. A. Q. Related to TomorrowNow? Correct. And you've already testified that based on

that analysis, the only computers that you believe you were able to determine there was any access through that IP address was SCE01 and SRE01. Correct? A. Those are the only ones I have a

recollection of. Q. servers? A. Q. Yes. Were you able to tell how that access was And did you get hits back on both of those

obtained on either of those servers? MR. ALINDER: calls for speculation. THE WITNESS: analysis to that level. I did not. I did not do an Objection. Lacks foundation,

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MR. COWAN:

Q.

So as you sit here today,

you have no idea whether there was a password or ID used to log into the Support Web site using that IP address. A. Is that correct? I did not -MR. ALINDER: Objection. Lacks foundation,

calls for speculation, outside the scope. THE WITNESS: that level. MR. COWAN: Q. So you have no way of I didn't do an analysis to

knowing as you sit here today to know whether the access using that IP address was authorized or not, do you? MR. ALINDER: scope. THE WITNESS: MR. COWAN: Q. I have no knowledge of that. You don't know whether it's Same objections. Outside the

authorized access or an unauthorized access, do you? MR. ALINDER: THE WITNESS: Same objections. I don't know if it was an

authorized or unauthorized access, no. MR. COWAN: Q. And you don't know whether

there was a password or user ID used or not, do you? MR. ALINDER: THE WITNESS: Same objections. To the best of my knowledge,

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that system required a user ID and password. MR. COWAN: Q. So your assumption would be

based that if there was access, it would have had to have had a password and user ID to get on it? A. Q. up? A. Q. Yes. Did you do any analysis to determine what To the best of my recollection. Based on physically how the website's set

if any customer, Siebel customer, was related to the IP address? MR. ALINDER: THE WITNESS: MR. COWAN: Q. Same objections. I did not. What if any information did

you do to determine whether the access on SCE01 and SCR -A. Q. SRE? Yeah, let me start over. What if any information did you find regarding the actual computer that was using the IP address to communicate with the servers SCE01 and SRE01? MR. ALINDER: THE WITNESS: question. Same objections. I don't understand the

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MR. COWAN:

Q.

Okay.

You were given an IP

address that you assumed to be a TomorrowNow IP address. A. Q. Correct? Correct. Did you review any data that would reflect

any data about the computer on the TomorrowNow end, alleged TomorrowNow end, that was using the IP address you've assumed to be a TomorrowNow IP address? A. Q. I was given no information on that. Does the logging information that's

contained in Exhibit 738-A to your knowledge contain any information about the computer on the user's side of the communication? MR. ALINDER: THE WITNESS: Same objections. To the best of my It -- it might be

recollection, I -- I don't know. in there.

I did not look to that level. MR. COWAN: Q. So other than the IP

address that you've assumed is a TomorrowNow IP address, you have no other information regarding any hardware or other computer that may have been used in conjunction with that IP address. MR. ALINDER: Correct?

Same objections, and this

whole line calls for expert testimony.

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THE WITNESS:

I am not privy to any

information to that IP address. MR. COWAN: Q. Other than your analysis of

the PDF files in approximately a thousand PDF files that you believe were downloaded using the particular IP address you were given, did you do any other analysis of any content that was downloaded using that IP address? A. Q. I did not. Did you do any analysis to go see what the

PDF files were that you concluded were downloaded? A. I did not go view those PDF files. I did

not do any further examination of what they actually contained.
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Q.

Okay.

I've got a number of questions, and

this may go fairly quickly. Are you aware -- relative to the access that you determined was made through the IP address that was given to you that you assumed was a TomorrowNow IP address, are you aware of whether that access involved adding any information or data to the existing dataset that was accessible on the computers, computer systems or computer networks comprising Oracle's Siebel-related customer support

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website? MR. ALINDER: Objection. Vague and

ambiguous, calls for speculation, lacks foundation, outside the scope. THE WITNESS: I have no knowledge of any

data being added other than the log file entries. MR. COWAN: Q. Relative to the access that

you determined was made through the IP address that was given to you and that you assumed was a TomorrowNow IP address, are you aware of whether that access involved modifying or otherwise altering in any way any information or data on the existing dataset that was accessible on the computers, computer systems, or computer networks comprising Oracle's Siebel-related customer support website? MR. ALINDER: THE WITNESS: no.
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Same objections. To the best of my knowledge,

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MR. COWAN:

Q.

Okay.

Relative to the

analysis you did by searching the IP address that you assume was related to TomorrowNow, are you aware of whether the access from that IP address deleted any of the information or data in the existing dataset accessible on the computers, computer systems, computer networks, related in any way to Oracle's Siebel-related customer support website? MR. ALINDER: THE WITNESS: MR. COWAN: Q. Same objections. I have no knowledge of that. Relative to the analysis

you did by searching the IP address that you assume was related to TomorrowNow, are you aware of whether the access from that IP address destroyed any of the information or data in the existing dataset accessible on the computers, computer systems or computer networks comprising Oracle's Siebel-related

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customer support website? MR. ALINDER: THE WITNESS: removed content? MR. COWAN: A. Q. Q. Yes. Same objections. Destroyed as in permanently

I have no knowledge of that. Relative to the analysis you did by

searching the IP address that you assumed was related to TomorrowNow, are you aware of whether the access from that IP address impacted in any way the accessibility or availability of the information or data in the existing dataset accessible on the computers, computer systems, computer networks that relate and comprise -- relate to and comprise Oracle's Siebel-related customer support website? MR. ALINDER: Objection. Vague and

ambiguous, calls for speculation. THE WITNESS: This has to be specifically

related to the analysis that I did? MR. COWAN: A. Q. Q. Yes.

Then in that case, no. Did you find any evidence based on the

analysis that you did that -- whether there was any disruption in service at all to Oracle's Siebel-related customer support website related in

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any way to Defendants' alleged access to Oracle's Siebel-relate customer support website? A. I'm sorry, what -MR. ALINDER: THE WITNESS: Same objections. Was that question prefaced

again with an analysis of the logs? MR. COWAN: Q. It was based on the

analysis that you did, yes. A. Yeah. And again, on limited analysis, no.

Based off the analysis. Q. Okay. Let me make sure you understand the

question, because I want to -A. Q. Okay. Based on your question. Did you find any evidence based on the analysis you actually did whether there was any disruption in service to any aspect of Oracle's Siebel-related customer support website caused by any of Defendants' alleged access to those systems? MR. ALINDER: THE WITNESS: Same objections. I can't conclusively say

they've caused any disruption of anything based off the analysis I did. MR. COWAN: Q. Did you learn of any

complaints by any of Oracle's or Siebel's customers

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relating in any way to their ability to access Oracle's Siebel-related customer support website that as a result of the analysis you did would be related in any way to Defendants' alleged access to Oracle's Siebel-related Customer Support website? A. I was not aware of any customer-related

complaints specifically around the analysis of my -of the log files that I did, no. Q. Are you aware of any customer complaints

from any customer regarding their ability to access Oracle's Siebel-related customer support website that you believe relates in any way to Defendants' alleged access to Oracle's Siebel-related customer support website? MR. ALINDER: Objection. Outside the

scope, calls for speculation, lacks foundation. THE WITNESS: It wouldn't have come to me.

And no, I'm not aware of any. MR. COWAN: Q. You didn't learn of

anything like that in your preparation for this deposition today? A. Q. To the best of my recollection, no. Based on the analysis that you performed,

are you aware of any crash of any computer, computer system or computer network related to Oracle's

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Siebel-related customer support website that relates in any way to any alleged access by any of the defendants in this case? MR. ALINDER: ambiguous. THE WITNESS: log files, no. MR. COWAN: Q. Based on the analysis that Based on my analysis of the Objection. Vague and

you have done relative to your preparation for your deposition here today, are you aware of any change, modification or other impact of any hardware component related in any way to Oracle's Siebel-related customer support website that was caused in any way by any alleged access by defendants to Oracle's Siebel-related customer support website? MR. ALINDER: ambiguous. THE WITNESS: Based on my limited analysis, Objection. Vague and

again, no, I am not aware. MR. ALINDER: Scott, are you talking about

for his entire preparation, or just the limited log analysis that he's talking about right now? MR. COWAN: Q. I'm talking about anything

you did looking at any data available to you related

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to your analysis that you did. A. Q. A. Okay. I understand.

Okay?

Does that change any of your answers? It does not. In both cases, my analysis

was very limited. Q. Okay. And with that same understanding in

mind, based on the analysis you did, did you learn at any point whether there was ever any need to restore any data or any information as a result of any alleged access by Defendants to any computer, computer system, or computer network related in any way to Oracle's Siebel-related customer support website? MR. ALINDER: THE WITNESS: Same objections. No, I'm not aware of any

manual effort to restore anything. MR. COWAN: Q. Based on the analysis that

you have done to date, are you aware of any impact at all to the functionality of Oracle's Siebel-related customer support website caused by any alleged access by Defendants to that Siebel-related customer support website? MR. ALINDER: Objection. Vague and

ambiguous, and vague specifically as to the meaning of "the analysis that you have done."

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THE WITNESS:

I can't say with any

certainty what the analysis I've done, whether it affected it or not.
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I declare under penalty of perjury that

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JASON KEES October 15, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
(
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16:17:14 16:17:14 16:17:14 16:17:14 16:17:14 16:17:14

the foregoing i s true and correct.

Subscribed at

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C E R T I F I C A T E OF REPORTER I , HOLLY THUMAN, a C e r t i f i e d S h o r t h a n d Reporter, hereby certify that the witness in the f o r e g o i n g d e p o s i t i o n w a s b y me d u l y s w o r n t o t e l l t h e truth, the whole truth, and nothing but the truth in the wi t h i n - e n t i t I e d cause; t h a t s a i d decp0'sition was taken down i n shorthand by me, a d i s i n t e r e s t e d person, a t t h e time and _place therein stated, and that the _testimeny of t h e s a i d w i t n e s s w'as t h e r e a f t e r r e d u c e d ' t o typewritin~, b y c o m p u t e r , u n d e r my d i r e c t i o n a n d s u p e r v i s i o n ; That before completion of the deposition, r e v i e w o f t h e t r a n s c r i p t [)<I w a s [ ] w a s n o t r e q u e s t e d . I f requested, any changes made by the deponent (and provided to the reporter) during the period allowed are appended hereto. I f u r t h e r c e r t i f y t h a t I am n o t o f c o u n s e l o r attorney for either or any of the parties to the said deposition, nor i n any way i n t e r e s t e d i n the event of t h i s c a u s e , a n d t h a t I am n o t r e l a t e d t o a n y o f t h e parties thereto.

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~~.~HOLLY THUMAN, CSR No .. 6 8 3 4