Oracle Corporation et al v. SAP AG et al

Filing 819

Declaration of Tharan Gregory Lanier in Support of 818 Reply in Support of Defendants' 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)(Related document(s) 810 ) (Froyd, Jane) (Filed on 8/27/2010) Modified on 8/30/2010 (vlk, COURT STAFF).

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Oracle Corporation et al v. SAP AG et al Doc. 819 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 26 27 28 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: (415) 626-3939 Facsimile: (415) 875-5700 ramittelstaedt@jonesday.com jmcdonell@jonesday.com ewallace@jonesday.com Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 tglanier@jonesday.com jfroyd@jonesday.com Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 swcowan@jonesday.com jlfuchs@jonesday.com 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 THARAN GREGORY LANIER IN SUPPORT OF REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Date: May 5, 2010, Time: 9:00 a.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton FILED PURSUANT TO D.I. 810 SVI-79767v1 DECLARATION OF THARAN GREGORY LANIER ISO DEFENDANTS' REPLY Case No. 07-CV-1658 PJH (EDL) Dockets.Justia.com 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 26 27 28 I, THARAN GREGORY LANIER, declare as follows: I am a partner in the law firm of Jones Day, 1755 Embarcadero Road, Palo Alto, California 94303, and counsel of record for Defendants SAP AG, SAP America, Inc. (together, "SAP"), and TomorrowNow, Inc. ("TN") (collectively, "Defendants") in the above-captioned matter. I am a member in good standing of the state bar of California and admitted to practice before this Court. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. As part of discovery in this matter, Defendants produced 11,257,064 Bates numbered pages and over 17 terabytes of electronic data. 2. Attached as Exhibit 1 is a true and correct copy of an untitled document, produced by Defendants in this case at TN-OR0000000108, and marked in this case as Plaintiffs' Deposition Exhibit 4. TN-OR00000007 lists Nick Rawls as a TN Senior Account Executive for the EMEA region, located in Maidenhead, UK, and Hendrik Zwart as a TN Senior Account Executive for the EMEA region, located in Germany. TN's counsel, Tom Nolan, is, and has been at all relevant times, located in Stamford, Connecticut. TN-OR00000007 further lists Todd Dunfee as a TN Account Executive located in Ohio. Plaintiffs rely on Exhibit 69 to the House Declaration for their argument that Mr. Dunfee was located in California. Exhibit 69 is a list of TN employees created for purposes of production in this litigation. Exhibit 69 lists Mr. Dunfee's location as Pleasanton, California because he reported to Bob Geib, who was located in Pleasanton, California. Mr. Dunfee's actual location was Ohio, as listed in the TN organization chart produced at TN-OR00000007. 3. Attached as Exhibit 2 is a true and correct copy of the following relevant portions of TN's contract with Harley-Davidson, Inc., which became effective on December 7, 2006 and which was produced by Defendants in this case at TN-OR0000035067: portions of TNOR00000350. Also attached as Exhibit 3 is a true and correct copy of the following relevant portions of SAP's contract with Harley-Davidson, Inc., which was produced by Defendants in this case at SAP-OR00172658663, indicating that Harley-Davidson was a customer of SAP at least as early as December 9, 2005: portions of SAP-OR00172658. SVI-79767v1 -1- DECLARATION OF THARAN GREGORY LANIER ISO DEFENDANTS' REPLY Case No. 07-CV-1658 PJH (EDL) 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 26 27 28 4. Attached as Exhibit 4 is a true and correct copy of the following relevant portions of TN's contract with Allianz Life Insurance Company of North America, which became effective on December 22, 2006 and which was produced by Defendants in this case at TNOR0000517892: portions of TN-OR00005178 and TN-OR0000518687. 5. Attached as Exhibit 5 is a true and correct copy of the following excerpts from Plaintiffs' Expert Report of Paul K. Meyer: 20, 71-73, and 433. 6. Attached as Exhibit 6 is a true and correct copy of the following excerpts from the January 9, 2009 Bob Geib Deposition: 1, 40:13-42:9, 239:8-240:25. 7. Attached as Exhibit 7 is a true and correct copy of the following excerpts from the May 21, 2009 Seth Adam Ravin Deposition: 1, 19:2-6, 82:10-16, 273:14-19, 274:1-25. 8. Attached as Exhibit 8 is a true and correct copy of Arabian v. Sony Elec. Inc., No. 05-CV-1741 WGH (NLS), 2007 U.S. Dist. LEXIS 12715 (S.D. Cal. Feb. 22, 2007). 9. Attached as Exhibit 9 is a true and correct copy of Brae Asset Funding, L.P. v. Applied Fin., LLC, No. C 05-02490 WHA, 2006 WL 2355474 (N.D. Cal. Aug. 14, 2006). 10. Attached as Exhibit 10 is a true and correct copy of Comm. for Immigrant Rights of Sonoma County v. County of Sonoma, No. C 08-4220 PJH, 2009 WL 1833988 (N.D. Cal. June 23, 2009). 11. Attached as Exhibit 11 is a true and correct copy of Craigslist, Inc. v. Naturemarket, Inc., No. C 08-05065 PJH (MEJ), 2010 U.S. Dist. LEXIS 19992 (N.D. Cal. Jan. 28, 2010). 12. Attached as Exhibit 12 is a true and correct copy of In re Cygnus Telecomms. Tech., LLC, Patent Litig., No. C-04-04247 RMW, 2007 WL 2261543 (N.D. Cal. Aug. 6, 2007). 13. Attached as Exhibit 13 is a true and correct copy of JM Comp. Servs., Inc. v. Schlumberger Techs., Inc., No. C 95-20349 JW, 1996 WL 241607 (N.D. Cal. May 3, 1996). 14. Attached as Exhibit 14 is a true and correct copy of Key Equip. Fin., Inc. v. Ressor, No. 2:08-cv-2003-DV, 2008 WL 819966 (W.D. Tenn. Mar. 25, 2008). 15. Attached as Exhibit 15 is a true and correct copy of Lucarino v. Con-Dive, LLC, No. H-09-2548, 2010 U.S. Dist. LEXIS 20075 (S.D. Tex. Mar. 5, 2010). SVI-79767v1 -2- DECLARATION OF THARAN GREGORY LANIER ISO DEFENDANTS' REPLY Case No. 07-CV-1658 PJH (EDL) 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 26 27 28 16. Attached as Exhibit 16 is a true and correct copy of Niva v. United States, No. C 03-00908 RS, 2009 WL 3617767 (N.D. Cal. Oct. 29, 2009). 17. Attached as Exhibit 17 is a true and correct copy of Page v. Children's Council, No. C 06-3268 SBA, 2006 WL 2595946 (N.D. Cal. Sept. 11, 2006). 18. Attached as Exhibit 18 is a true and correct copy of Pet Food Express, Ltd. v. Royal Canin USA Inc., No. C 09-1483 MHP, 2010 WL 583973, (N.D. Cal. Feb. 16, 2010). 19. Attached as Exhibit 19 is a true and correct copy of Romero v. Hennessey, No. C 08-4675 RMW (PR), 2010 WL 135185 (N.D. Cal. Jan. 5, 2010). 20. Attached as Exhibit 20 is a true and correct copy of Silong v. U.S., No. CV F 06- 0474 LJO DLB, 2007 U.S. Dist. LEXIS 68724 (E.D. Cal. Sept. 5, 2007). 21. Attached as Exhibit 21 is a true and correct copy of Thomas Kinkade Co. v. Hazlewood, No. C 06 7034 MHP, 2007 WL 2462149 (N.D. Cal. Aug. 29, 2007). 22. Attached as Exhibit 22 is a true and correct copy of Tidenberg v. Bidz.com, No. CV 08-5553 PSG (FMOx), 2009 U.S. Dist. LEXIS 21916 (C.D. Cal. Mar. 4, 2009). 23. Attached as Exhibit 23 is a true and correct copy of Veritas Operating Corp. v. Microsoft Corp., No. 2:06-cv-00703-JCC, 2008 U.S. Dist. LEXIS 35627 (W.D. Wash. Jan. 17, 2008). 24. Attached as Exhibit 24 is a true and correct copy of Wyatt Tech. Corp. v. Smithson, No. CV 05-1309, 2006 WL 5668246 (C.D. Cal. Aug. 14, 2006). 25. Attached as Exhibit 25 is a true and correct copy of Zottola v. City of Oakland, 32 Fed. App'x 307 (9th Cir. 2002). 26. Attached as Exhibit 26 is a true and correct copy of Answer and Counterclaim of Royal Canin USA Inc. in Pet Food Express, Ltd. v. Royal Canin USA Inc., No. C09-01483 MHP (N.D. Cal.). 27. Attached as Exhibit 27 is a true and correct copy of Declaration of Mark S. Davidson, attaching Complaint in Prime Start Ltd. v. Maher Forest Prods., Ltd., No. C05-1195 JCC (W.D. Wa.), originally filed in King County Superior Court, No. 05-2-19742-1 SEA. 28. SVI-79767v1 Attached as Exhibit 28 is a true and correct copy of Answer and Counterclaim of -3DECLARATION OF THARAN GREGORY LANIER ISO DEFENDANTS' REPLY Case No. 07-CV-1658 PJH (EDL) 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 26 27 28 Defendant Maher Forest Products, Ltd., and Jury Demand in Prime Start Ltd. v. Maher Forest Prods., Ltd., No. C05-1195 JCC (W.D. Wa.). 29. Attached as Exhibit 29 is a true and correct copy of Answer of Defendant Pacific Lumber Inspection Bureau and Jury Demand in Prime Start Ltd. v. Maher Forest Prods., Ltd., No. C05-1195 JCC (W.D. Wa.). 30. Attached as Exhibit 30 is a true and correct copy of Ass. Bill No. 2727, Reg. Sess. (Cal. 1999-2000), S. Comm. on Judiciary, Background Information Request from the bill file of the committee on AB 2727. 31. 15.02[3][c]. 32. Attached as Exhibit 32 is a true and correct copy of 4 Nimmer on Copyright Attached as Exhibit 31 is a true and correct copy of Milgrim on Trade Secrets (Matthew Bender, rev. ed.) 14.02. 33. Attached as Exhibit 33 is a true and correct copy of 6 Patry on Copyright 22:129, 22:130. 34. Attached as Exhibit 34 is a true and correct copy of pages 747 and 750-51 of Gordon V. Smith and Russell L. Parr, Intellectual Property Valuation, Exploitation, and Infringement Damages (2005). I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 14th day of April, 2010 in Palo Alto, California. /s/ Tharan Gregory Lanier Tharan Gregory Lanier SVI-79767v1 -4- DECLARATION OF THARAN GREGORY LANIER ISO DEFENDANTS' REPLY Case No. 07-CV-1658 PJH (EDL)

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