Oracle Corporation et al v. SAP AG et al

Filing 824

Joint Statement re 807 Order Regarding The Timeliness Of The Parties' Respective Sanctions Motion by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Howard, Geoffrey) (Filed on 9/1/2010) Modified on 9/2/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 824

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BINGHAM MCCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 215695) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: 415.393.2286 [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: [phone] [e-mail] STEVEN C. HOLTZMAN (SBN 144177) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: 650.506.7114 [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., et al.

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., v. Plaintiffs, No. 07-CV-01658 PJH (EDL) JOINT STATEMENT REGARDING THE TIMELINESS OF THE PARTIES' RESPECTIVE SANCTIONS MOTIONS

SAP AG, et al, Defendants.

Case No. 07-CV-01658 PJH (EDL)

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JOINT STATEMENT REGARDING THE TIMELINESS OF THE PARTIES' RESPECTIVE SANCTIONS MOTIONS
Dockets.Justia.com

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The Parties submit this Joint Statement as required by the Court's 8/24/10 Order. 1. Oracle's Sanctions Motion

Oracle's Position: Oracle seeks sanctions related to a series of discovery violations that culminated in the production of several hundred thousand software files (Software and Support Materials, or "SSMs") and 26,000 Instant Message ("IM") chats well after discovery closed. A sanctions motion must be filed "as soon as practicable after the filing party learns of the circumstances that it alleges make the motion appropriate," but only after the parties have "conferred for the purpose of attempting to resolve all disputed issues." Local Rule ("LR") 78(c), 37-1(a). Oracle's motion complies with both rules. Since uncovering the discovery violations at issue, Oracle has worked diligently with its experts to understand the complex facts involved (including technical analysis of the content and impact of over 600,000 late-produced SSMs and translation into English of some 800 IMs) and assess the prejudice to its case, and has negotiated at length with Defendants on a remedy to mitigate that prejudice and avoid motion practice. The parties' meet-and-confers included dozens of letters and emails, hours of phone calls and meetings, and multiple exchanges of draft stipulated remedies. Defendants' Discovery Violations. Oracle requested "All" SSMs Defendants downloaded - the best, most direct evidence of their illegal conduct. Defendants agreed to produce them. 9/21/07 Resp. to RFP No. 53. Oracle also asked Defendants to "Identify" all such SSMs. They responded: "Any additional files and folders sought by this interrogatory can be derived or ascertained by a review of the servers already made available ... and from files and folders that have been or are being produced as part of TomorrowNow's ongoing document production." 4/15/09 Supp. Resp. to Rog. 11. Defendants similarly promised Judge Legge that "there's no dispute that we're producing the files that are located on the server, where those files were kept"; and "where these files were intended to live ultimately, or where they currently live, is on this BU01 server." 2/13/08 Hrg. at 40:8-19, 48:24-49:18. Thus, for some two years, Oracle understood Defendants had produced all relevant SSMs from their "server," where they "were kept." However, in December 2009, a former SAP TN employee testified he had downloaded over one million SSMs to his own computer. Oracle 1 Case No. 07-CV-01658 PJH (EDL)
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realized many such files were missing from Defendants' custodial production. On January 19, 2010, in response to Oracle's query, Defendants first revealed they had unilaterally excluded several file types, and therefore many SSMs, from their production. They produced over 600,000 new files on March 15, months after discovery closed.1 During review of that huge new production, in early June, Oracle found over 26,000 IMs buried among the SSMs. The IMs, also responsive to Oracle's discovery requests, contain SAP TN employees' unfiltered, real time admissions of the nature and scope of Defendants' misconduct: "What are they saying [in the complaint]?" "That we illegally downloaded their stuff [¶] used false information and customer id/pw to get it" "[W]ell, that's true." Defendants had previously produced no IMs and no documents with such stark confessions of guilt. Defendants' late production, itself warranting sanctions, was the latest in a series of discovery violations. During discovery, Oracle learned Defendants anticipated litigation with it by at least January 2005, yet deleted many relevant documents, including: (a) log files and one million illegal downloads from a program (Titan) SAP TN used to scrape Oracle's system;2 (b) "master libraries" of improperly commingled downloaded files; (c) other downloads SAP TN employees took from Oracle's websites; (d) documents from SAP TN's most senior employees; and (e) entire environments (copies of Oracle's applications installed on SAP TN's systems). Two events crystallized that the destruction caused sufficient prejudice that a sanctions motion was "appropriate." LR 7-8(c). The first was the late production.3 Among the lateproduced IMs are SAP TN employees' admissions to destroying evidence to keep it from being produced to Oracle: "I have taken all my personal manuals out of my office and do not plan on saying anything about them." The second was the exchange of expert reports on March 26. Defendants did not inform Oracle in 2007 that they would filter out these file types, as they say. On September 11, 2007, Defendants "proposed" a list of file extensions the parties "may agree to" use as the only files included in review. Oracle rejected the offer and asked what files types Defendants proposed to exclude. Defendants never responded, so the issue died. Oracle was unaware of (and certainly never agreed to) Defendants' exclusion of such highly relevant files that Defendants agreed to produce and that respond to the parties' agreed search terms. 2 The Titan deletions, disclosed in a December 2009 deposition, are particularly critical. 3 Oracle has not yet even finished a full review of the late production due to its size and complexity, including the translation issues that delayed IM review until late July. 2
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Defendants' technical expert Gray exploited the absence of evidence Defendants destroyed as a defense, by (wrongly) criticizing Oracle's expert Mandia's focus on the overwhelming evidence of unlawful conduct relating to PeopleSoft, rather than other products. Gray also denied Titan made unauthorized downloads or crashed Oracle's systems, but Defendants had deleted the evidence to refute those arguments, including Titan's "extensive log capabilit[ies]" that would have established the nature and scope of its downloading from Oracle's system. The deleted evidence would also have rebutted defense expert Garmus' opinion that SAP TN did not copy certain Oracle software modules, and damage expert Clarke's reliance on Garmus. Oracle thus decided Defendants' failures to produce critical evidence, or to do so timely, were sufficiently unjustified and prejudicial to require relief. Negotiations began immediately. The Meet and Confer Process. The negotiations were lengthy, detailed but, ultimately, fruitless. On April 7, Oracle proposed six factual stipulations to level the evidentiary playing field. Defendants rejected the offer on April 29, and proposed instead that Oracle take seven depositions regarding the late produced SSMs, or to negotiate a stipulation regarding what such testimony would establish and allow two Oracle experts to supplement their reports. Throughout May, Defendants disputed the size of the late production (a technical issue relating to file compression that required expert analysis) and the extent of prejudice to Oracle. After Oracle's discovery of the 26,000 IMs, on June 21, Defendants offered twelve late depositions.4 On July 12, Oracle rejected that offer as untimely and insufficient and proposed instead, as Defendants had suggested, a comprehensive stipulation to the facts the late produced documents would have been used to establish, and jury instructions to mitigate the prejudice from Defendants' spoliation and late production. Throughout the meet-and-confer, Defendants threatened to "balance the scales" with their own sanctions motions, further prolonging the attempted resolution. They also argued all issues should be presented to the Court at one time. Defendants declared the spoliation issue "joined for motion practice" on July 20, but proposed continued meet-and-confer on late production.
4

They later admitted they "could not confirm that any given witness would be available." 3
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Thus, the parties traded competing stipulations through early August. On August 10, in a final effort to break the logjam, Oracle sent Defendants a draft of its sanctions motion. On August 13, Defendants confirmed they had no more IMs to produce. Oracle sought to file its motion "as soon as practicable." It should not be punished for trying to resolve all issues Defendants' conduct and arguments raised, as they insisted. Defendants' Position: Oracle conflates three distinct allegations that must be evaluated separately in order to determine timeliness under Local Rule 7-8(c): (1) alleged pre-suit spoliation of evidence; (2) late production of SSMs; and (3) late production of IM chat files. Pre-Suit Spoliation -- Oracle knew the facts underlying its pre-suit spoliation allegations two and a half years ago. Oracle knew in March 2008 that TN did not maintain pre-suit Titan logs, as evidenced by its statement to Judge Legge that "TomorrowNow didn't keep logs showing what they were downloading with various credentials....intentionally." 3/4/08 Tr. at 107:25-109:6. Oracle has also been aware of TN's alleged pre-suit destruction of "entire environments" since the initial production of the BakTrak database in February 2008 and TN's 30(b)(6) testimony that same month regarding TN's deletion of backup copies. 2/6/08 and 2/7/08 Baugh Tr. at 111:22-112:5; 297:14-298:9. Oracle has known about pre-suit deletion of "master libraries" and downloads from local machines for almost three years. In October 2007, TN provided 30(b)(6) deposition testimony detailing the process relating to the deletion of the master download folder. 10/29/07 Kreutz Tr. at 38:19-39:17. In December 2007, TN's Shelley Nelson testified that prior to this litigation TN's employees were told to delete downloads from their local machines once the files were placed on TN's servers. 12/6/07 S. Nelson Tr. at 150:2151:11. Oracle has mischaracterized Defendants' expert reports. Regardless, those reports cannot make Oracle's motion timely because the reports were served over five months ago and, as shown above, Oracle was aware of the underlying alleged spoliation years ago. April 7, 2010 is the first date that Oracle raised the spoliation allegations at issue. Defendants promptly informed Oracle that its allegations were untimely and noted that because Oracle had engaged in similar pre-suit spoliation, equity requires that Defendants be permitted to seek parallel relief. However, as a gating issue, equity and LR 7-8(c) provide a basis for this 4 Case No. 07-CV-01658 PJH (EDL)
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Court to prohibit Oracle from seeking relief related to spoliation it has known about for years. SSMs -- Oracle's request for relief is untimely and overstates the importance of the SSMs at issue. Defendants' late production resulted from a file-type filter Defendants disclosed to Oracle in the Fall of 2007 and then used for its custodian-based document review and production process. Defendants, based on e-discovery best practices at the time and their understanding of TN's business model and IT infrastructure, believed the file-type filters they disclosed and used were reasonable, especially in light of TN's massive Data Warehouse production that involved the wholesale production (i.e., without using file-type filters or search terms) of data that included millions of SSMs. Notwithstanding deposition testimony starting in October 2007 indicating that TN employees had limited SSMs on their individual computers, Oracle first complained of the lack of SSMs in TNs' custodian productions in January 2010, just after fact discovery closed. See, e.g., 10/29/07 Kreutz Tr. at 84:3-14; 98:24-99:24; 122:15-123:1. Defendants, maintaining that their initial discovery efforts and procedures were reasonable, then produced a wholesale production on March 15, 2010 of additional file types from TN's custodian-based ESI that Defendants previously disclosed they were not producing. This production, not surprisingly, contained hundreds of thousands of irrelevant computer system files (which is why these file types were disclosed and excluded in the first place) and resulted in just over 70,000 SSMs being produced for all of the 90 TomorrowNow custodians Oracle selected. This case involves literally millions of SSMs on TN's network. Oracle's own technical expert testified that excluding approximately 500,000 SSMs from his analysis did "not materially impact [his] conclusions." See 5/20/10 Mandia Tr. at 25:9-27:9. Oracle has had months to analyze and incorporate into its case the immaterial amount of SSMs Defendants produced five and half months ago. Defendants have also continually, since April 29, 2010, extended Oracle the opportunity to depose or re-depose a reasonable number of TN's custodians on the SSMs at issue.5 Local Rule 7-8(c) does not permit Oracle to refuse for months to attempt to mitigate its Defendants have always been willing to work with Oracle to make a reasonable number of TN's former employees available for deposition, but it is obvious that unless and until Oracle accepts that offer, the logistics (date, time, place, etc.) for such depositions cannot be confirmed. 5
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alleged harm and then unreasonably delay seeking relief relating to that alleged harm. IMs -- No party knew of the existence of the IMs at issue until Oracle located them among the hundreds of thousands of computer system files that Defendants produced on March 15, 2010. Of the approximately 26,000 IMs at issue, many are personal in nature and completely irrelevant. The rest are cumulative of the facts already in the case. Defendants' inadvertent failure to produce the IMs during fact discovery was simply the by-product of: (a) the file-type filter that Defendants disclosed to Oracle and began using in the Fall of 2007; and (b) the fact that TN did not have a sanctioned IM communication platform. The IMs were the result of certain (not all) TN custodians personally installing IM communicators on their TN computers. Moreover, most of the IMs are one-page chats and, based on Defendants' review, they can all be analyzed in less than two weeks. And, Defendants cooperated with Oracle to split the cost of complete translations for the 800 foreign IMs. Oracle's claim that it has been unable to review the IMs is belied by its pervasive use of them in almost every public filing since Oracle brought them to Defendants' attention in June 2010. Oracle has had plenty of time before now to analyze the IMs at issue, take depositions related to them that Defendants have offered, and if the depositions could not cure any of its alleged harm, bring any motion for further relief. Oracle cannot use Defendants' cooperation during the meet and confer process as an excuse for failing to bring its motion "as soon as practicable" after it learned of the circumstances it alleges make its motion appropriate. If Oracle truly believed the numerous remedial measures Defendants offered were insufficient to remedy the alleged harm, LR 7-8(c) required it to involve the Court months ago. Instead, Oracle waited until just before trial, possibly hoping to bolster Oracle's alleged claim of harm and reduce the remedies available. 2. Defendants' Requested Relief Relating to Spoliation

Defendants' Position: If Oracle's spoliation allegations are timely, then equity and Oracle's "unclean hands" dictate that Defendants' spoliation allegations are timely. Defendants' awareness of Oracle's pre-suit spoliation matches Oracle's awareness of the pre-suit spoliation about which it complains. Defendants became aware of Oracle's pre- and post-litigation spoliation of e-mails during fact discovery. Around the same time that Oracle claims it was first 6 Case No. 07-CV-01658 PJH (EDL)
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aware of the lack of certain SSMs in TN's production, Oracle also completely dismantled Customer Connection. In the timeframe when Oracle became aware of the IM chats at issue, Defendants became aware of the destruction of data underlying one of Oracle expert's opinions. Defendants' motion seeks sanctions for Oracle's spoliation of evidence because: (1) Oracle destroyed evidence from key employees and computer logs related to Oracle's monitoring and knowledge of TN's activities beginning at least as early as September 2004, when its privilege logs show that it anticipated filing suit against TomorrowNow; (2) Oracle destroyed email files of relevant employees who left the company months after it filed suit; (3) Oracle unilaterally dismantled Customer Connection, the website from which TomorrowNow downloaded Oracle support materials, two weeks after Oracle submitted its initial expert report related to TN's downloading activities, thereby preventing Defendants' rebuttal experts from having ongoing access to that website to test the evolving opinions and methodologies of Oracle's experts throughout the expert discovery period; and (4) Oracle destroyed key data on which Oracle's expert Paul Pinto relied in forming his opinions, which prevented Defendants from analyzing and testing Mr. Pinto's estimates of the alleged cost to develop the software at issue. Oracle's Position: The Court should deny leave to file on three grounds. First, they admit here, as in meet and confer, that its sole, and improper, purpose is to "balance the scales" against Oracle's motion. Second, their motion is untimely. The parties discussed Customer Connection at length with the Court after Oracle notified Defendants the system would be moved in April 2009 (with the resulting possible loss of data), and further notified Defendants in September 2009 it would be shut down after all reasonable preservation measures had been implemented. Dkt. 493 at 10-13. Defendants sought and received live access at that time, and never again raised the issue. Third, the meet and confer regarding Pinto ended in April 2010. Defendants never sought relief until filing their Daubert motion against Pinto, seeking the same relief as this proposed motion. Each of these issues differs materially from the timing, substance and posture of Oracle's motion concerning Defendants' substantial spoliation and late production of hundreds of thousands of admittedly responsive files. Oracle does not object to Defendants raising their (meritless) unclean hands arguments in rebuttal to Oracle's motion, but there is no 7 Case No. 07-CV-01658 PJH (EDL)
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basis for those arguments as a belated affirmative motion. 3. Defendants' Requested Relief Relating to Goodwill

Defendants' Position: Defendants seek to preclude Oracle from claiming damages for alleged harm to goodwill. Defendants' motion is timely because Defendants first learned of Oracle's intent to seek such damages on July 20, 2010 from Oracle's proposed jury instructions. On July 28, 2010, Defendants objected and thereafter the parties agreed to submit competing instructions. Oracle then filed its goodwill related jury instructions.6 On August 5, 2010, Defendants filed a motion in limine with Judge Hamilton to exclude evidence on alleged harm to goodwill asserting that: (1) at the August 18, 2009 hearing on Defendants' prior motion for sanctions, this Court asked Oracle to clarify which damages it intended to seek and Oracle responded that it did not intend to quantify "anything on goodwill" or seek damages related to goodwill; (2) Oracle acknowledged in its objections to this Court's September 17, 2009 order on the sanctions motion that the Sanctions Order precludes a claim for damages to goodwill; (3) Oracle's damages expert did not quantify alleged harm to goodwill in either his report or deposition; and (4) Oracle has not provided discovery relating to alleged harm to goodwill, which would largely consist of the same discovery at issue in the Sanctions Order. D.I. 728 at 13. Besides the motion in limine pending before Judge Hamilton, Defendants believe it is prudent to file a motion with this Court because: (1) the goodwill issue relates to this Court's prior Sanctions Order; (2) Judge Hamilton has recently indicated that motions to preclude damages evidence may be more appropriately brought as Rule 37 motions;7 and (3) in their August 19, 2010 opposition to Defendants' motion in limine, Oracle argued that "Defendants have never made, much less won, a motion arguing Oracle has not produced what would be needed to try The parties met and conferred by e-mail on August 16 and 17. Oracle stated that it was not seeking "lost profits" damages relating to goodwill, but reserved rights to seek other goodwill damages. Defendants did not agree to Oracle's reservation of rights. Oracle opposition to Defendants' motion in limine expanded its goodwill claim to include "reputational harm." On August 17, 2010, Judge Hamilton issued an order on the parties' cross-motions for partial summary judgment. D.I. 762. Judge Hamilton found that an unrelated damages disclosure issue (not at issue here) was inappropriate for resolution on summary judgment and stated that "Defendants are, of course, free to move for preclusion of evidence of damages as to which plaintiffs may have failed to comply with the disclosure requirements." Id. at 23-24. 8
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whether Defendants alleged actions impacted Oracle's goodwill." D.I. 790 at 3. Defendants' motion is not moot or untimely because Oracle has refused to withdraw the jury instructions it filed on August 5, 2010 and continues to expand the scope of its improper goodwill claim. Thus, Defendants seek either a ruling that the existing Sanctions Order precludes Oracle from claiming goodwill damages, or a new order precluding such a claim. Oracle's Position: Defendants' proposed motion, another improper "tit for tat" response to Oracle's timely motion, is unnecessary, duplicative, and untimely. Unnecessary/Duplicative. Defendants want to preclude Oracle "from claiming damages for alleged harm to goodwill," purportedly based on Your Honor's Rule 37 ruling on Oracle's lost profits damages. Oracle confirmed at that hearing, and again when Defendants moved in limine on this issue, it is not quantifying or seeking lost profits damages for harm to its goodwill. It agreed to modify and/or withdraw these proposed jury instructions. 8/18/09 Tr. (Dkt 729, Ex. D) at 43:11-22; Dkt. 728. If Defendants seek what Oracle has already confirmed, the motion is moot. If they seek some broader relief as to all references to or reliance on goodwill in other damages analyses, it is untimely and, as Oracle explains in its in limine opposition, unfair. It is also unrelated to Judge Hamilton's August 17 Order, on which defendants rely. Untimely. When Defendants brought their Rule 37 motion thirteen months ago, Oracle's executives already had testified to the adverse impact on Oracle's reputation from Defendants' actions. Defendants also knew Oracle was (and still is) relying on goodwill valuations from its PeopleSoft and Siebel acquisitions (among many other factors) in connection with its fair market value ("FMV") license damages, but did not then (or ever) seek to preclude Oracle's use of that evidence. Dkt. 342 at 13. n.9 ("The motion is limited to what Oracle characterizes as its lost profits claims, and does not extend to ... its hypothetical [FMV] license theory...."). In August 2009, Defendants moved for summary judgment on Oracle's right to FMV license damages, and did not raise goodwill. Dkts. 431, 628. In November 2009, Oracle's damages report detailed its intended use of goodwill evidence. Defendants neither initiated any meet and confer related to goodwill, nor sought leave to bring a Rule 37 motion. That same month, Your Honor ordered the parties to file their final motions to compel in December 2009, limited to three issues. Dkt. 9 Case No. 07-CV-01658 PJH (EDL)
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553. Defendants' final motion did not include goodwill. Dkt 566. In March 2010, Defendants filed their second summary judgment motion, again principally attacking Oracle's damages, but not its use of goodwill evidence. Dkt 640. In May 2010, Defendants questioned Oracle's damages expert about goodwill for hours. The parties met and conferred over jury instructions for untold hours between July 20 through August 5. Defendants never raised any issues regarding Oracle's proposed instructions referencing goodwill. The first Oracle heard that Defendants wanted to limit its use of goodwill evidence was in their August 5 MIL. They did not meet and confer on this motion until after Oracle filed its MIL opposition on August 19. The motion is untimely and the request to file it should be denied. 3. Defendants' Objections to Unrelated, Late-Filed Deposition Subpoenas

Defendants' Position: Late yesterday, August 31, 2010, Oracle served two deposition subpoenas (a 30(b)(6) for SAP AG and one for Werner Brandt, SAP's CFO), which do not relate to any of the issues discussed above.8 These late-filed subpoenas violate, at a minimum, Fed R. Civ. P 26, 30 and 45, Local Rule 30-1, the Court's scheduling and case management orders, and the Court's order setting a settlement conference for September 7 (the depositions are noticed for the same day as the settlement conference, and Plaintiffs are aware that Mr. Brandt is attending as the SAP executive with settlement authority). Defendants do not intend to produce a witness in response to either subpoena and seek the Court's guidance as to how to address this new issue. Oracle's Position: On August 5, 2010, Defendants issued a public statement admitting all liability for SAP TN (in portions not quoted by Defendants), which provides good cause for limited discovery of it. Since the Court has not authorized the inclusion of this issue in this Statement, and since Defendants have yet to accept Oracle's invitation to meet and confer, Oracle proposes to respond in detail to this issue if the Court authorizes and requests such a response.
8

Oracle seeks testimony on an 8/5/10 SAP press statement that indicates in relevant part: "In pre-trial filings made today to the Court, SAP proposed that it would not contest the liability of TomorrowNow for copyright infringement and downloading conduct alleged in Oracle's complaint. SAP further stated that it will accept financial responsibility for any judgment awarded against TomorrowNow, despite the fact that SAP was not involved in TomorrowNow's service operations and did not engage in any of the copying or downloading alleged in Oracle's complaint." (Emphasis added). Oracle mistakes the proposal SAP made in its public filings as SAP "admitting all liability." That is not what SAP said or did on August 5. See D.I. 727 at 1-2. 10
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A/73488803.9/2021039-0000324170 Case No. 07-CV-01658 PJH (EDL)

DATED: September 1, 2010

BINGHAM McCUTCHEN LLP

By:

/s/ Geoffrey M. Howard Geoffrey M. Howard

Attorneys for Plaintiffs ORACLE USA, INC., ORACLE INTERNATIONAL CORPORATION, and SIEBEL SYSTEMS, INC.

In accordance with General Order No. 45, Rule X, the above signatory attests that concurrence in the filing of this document has been obtained from the signatory below.

DATED: September 1, 2010

JONES DAY

By:

/s/ Scott Cowan Scott Cowan

Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

JOINT STATEMENT REGARDING THE TIMELINESS OF THE PARTIES' RESPECTIVE SANCTIONS MOTIONS