Oracle Corporation et al v. SAP AG et al

Filing 828

Declaration of Tharan Gregory Lanier in Support of 827 Memorandum in Opposition, filed bySAP 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)(Related document(s) 827 ) (Froyd, Jane) (Filed on 9/9/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 828 Att. 1

EXHIBIT 1

Dockets.Justia.com

TODD ADLER HIGHLY

October 9, 2008 CONFIDENTIAL
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 TODD ADLER _________________________________ THURSDAY, OCTOBER 9, 2008

HIGHLY

CONFIDENTIAL

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-413596)

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MR. LANIER:

Q.

Good morning, Mr. Adler.

We met before the deposition; but for the record, my name is Greg Lanier, and I'm one of the lawyers representing the defendants in the case. I think I know the answer to this question from some of our predeposition dialogue, but have you ever been deposed before? A. Q. correct? A. Yes. No. I understand you are a lawyer. Is that

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Q.

Licensed to practice in the State of

California? A. Q. Yes. Have you ever participated in a deposition

as a lawyer? A. Q. A. Q. No. By whom are you currently employed? Oracle. There are, as I understand it, a variety of

different entities in the overall Oracle family. Do you know by which specific entity you are employed? A. Inc. Q. USA? A. Since the end of February 2006, I think. How long have you been employed by Oracle I believe I am an employee of Oracle USA,

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MR. LANIER:

Q.

Mr. Adler, Exhibit 114 has Review it if you need to,

been put in front of you. to answer this question.

Have you ever seen this before? A. Q. Yes. Do you understand that you're here

testifying today on behalf of Oracle International Corporation pursuant to this deposition notice? A. Q. Yes. Starting on page 3 and continuing, there

are several topics listed under scope of testimony. Do you see that section generally? A. Q. Yes. Do you have an understanding of which

topics you are designated to testify about? A. Q. A. Yes. And which topics are those? Topics 1, 2, 3, and 4.

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Q.

Are there any aspects of Topic 1 that you

are not prepared to testify about today, whatever the reason? And we can figure out what it is once you identify any. A. now. Q. Turning to Topic 2, which is at the top of No, not that I -- not that I think of right

page 4, are there any aspects of Topic 2 that you are not prepared to testify about today? A. I'm prepared to the best of my knowledge on

these topics. Q. Okay. Same question for Topic 3. Are

there any aspects of that that you're not prepared to testify about today? A. Q. No. Finally, Question 4, or Topic 4 on page 5:

Are there any aspects of Topic 4 that you're not

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prepared to testify about today? A. I can testify to the best of my knowledge

on these topics. Q. Are there any aspects of any of those

topics that you were not able to investigate sufficiently, to your satisfaction, to be ready for today's deposition? A. I believe I investigated sufficiently to be

able to address these, but some of the topics deal with companies which were acquired by Oracle and for which there is some information that, despite our best efforts, we haven't been able to find.

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MR. LANIER:

Q.

Further describing it for

the record, just so it's clear, this document starts at ORCL43783. It goes through -9148. I'm not sure

how that numbering sequence got together, but that's what's on the pages in front of me. It appears to relate, if you see a couple of pages in, to a registration that bears the number TX 6-541-047. Do you see that number, sir, on the page 9097? A. Q. Yes. If you would turn to page 51 of the amended Just flip to it, it's right in front of

complaint. you.

And four down, there is a registration listed

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in the complaint:

Initial release of J.D. Edwards

World A8.1, April 26, 2007, TX 6-541-047. Do you see that in the complaint? A. Q. Yes. Does it appear to correspond to the

materials that you have in front of you? A. Q. Yes. All right. I'm going to ask you questions

about policies and procedures relating to the information that's reflected in here. well, I'll just stop there. some questions about that. So let's -MR. HOWARD: You're not going to ask him I'm not --

I'm going to ask you

about work product that he was -- that -- work product investigation that he may have been involved in in the course of preparing this. you were about to say? MR. LANIER: going to. I -- well, I think I'm not Is that what

I don't want to try to precharacterize

whether you'll agree that my questions do that or not do that. Q. So what I am intending to ask you about are If Mr. Howard has some

policies and procedures.

issue with what I'm asking you about, I bet you

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he'll tell me. MR. HOWARD: Well, let me -- just for the

sake of efficiency, obviously, Mr. Adler is an attorney. As an attorney and in his capacity as an

attorney, he was involved in the preparation of various of these copyright applications and registrations, and of course we consider his activities in that regard work product and not the proper subject of questioning. I understand you're not saying that you're trying to go there. So I just want Mr. Adler to

have that in mind as we begin this line of questions, and we'll take it on a question-by-question basis.

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Q.

Okay.

Apart from any -- I am not in this

question asking you for the thinking that led up to picking particular registrations that were submitted in connection with this litigation. I'm not asking

you about the thought process, why this piece of software for this case. Okay?

I'm asking you about policies and procedures. What were -- what were Oracle's, generally, policies and procedures, since the time you've been

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there, for determining whether to seek registration on a particular piece of software? A. Our general policy and procedure at Oracle

is to seek registration, copyright registration, as needed. Q. A. Q. A. Q. So as requested of our department. Have you finished your answer? (Witness nods head.) Is that a yes? Yes, sorry. Okay. Again, as a matter of policy or

procedure -- and I'm not asking about any particular request for the moment -- what are the policies or procedures that apply to the types of requests that you get? A. So in general, there could be requests to

register a copyright in anticipation of litigation. There could be requests to register a copyright in a particular product that's important or has some sort of strategic value. There could be other reasons as well, but those are the two that I'm familiar with. Q. In the second category, you mentioned a

product that's important or could have some strategic value. As a matter of policy or procedure, who

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determines that importance or strategic value? A. There isn't someone specifically It would be -- that would be decided on So there

designated.

by the legal department and the requester. would just be an assessment done. Q.

Is there any policy or procedure that

guides that determination? Again, policies or procedures. I'm not

asking you about a specific conversation between legal and whoever might be requesting it. A. It's done -- since I've been there, it's

been done on an ad hoc basis.

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Q.

What were the policies and procedures that

assisted in determining what information to put in that line, the name of the author?

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A.

Our general policy is to investigate what

entity would qualify as the author for that software. Q. And what are the policies or procedures for

doing that, in the case of an acquired company? A. We base that on an investigation of who the

employees were employed by during the period when the software was developed. And any other factors

that might affect the authorship of that software. Q. As a matter of policy or procedure, what

are other factors that might affect authorship? A. If -MR. HOWARD: Let me just -- let me just

object to the extent that that question may call for and I think does call for a legal opinion, and for revelation of legal thought process in the course of investigating or preparing copyright application. So if you want to rephrase it, that's fine. Or -- well, I'm going to instruct him not to answer that question. MR. LANIER: Q. All right. So that I have

it in mind, I'm going to ask the court reporter, can you read back that last question so I can just have it in mind? Thank you.

(Record read as follows:

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Question:

As a matter of policy or

procedure, what are other factors that might affect authorship?) MR. LANIER: All right. I don't agree with

that instruction as to that question, but we'll try it a different way and see if we can get to it or not. Q. As a matter of Oracle's policies or

procedures with respect to registrations that relate to materials developed at an acquired company, as a matter of policy or procedure, does Oracle consider anything other than the company employing the person or persons involved in the development? A. We could consider whether nonemployees

assisted or had any part in the development of the material which we were seeking to copyright or to have a copyright registration for. Q. Is there a policy or procedure with respect

to making that determination that you just described? A. Our policy is to investigate agreements,

standard agreements for contractors who might have in some circumstances possibly have participated in development. Q. Is there any other aspects of the policy or

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procedure with respect to considering that issue? A. Q. I -- that's all I can recall right now. As a matter of policy or procedure, would

Oracle consider the types of agreements that are set forth on Exhibit 113 with respect to determining authorship of copyright material -- copyrightable materials obtained through acquisition of another company? A. We could investigate agreements like that

as part of the process. Q. Is that contemplated by the policies or

procedures? A. Part of the procedure would be to

investigate relevant agreements like assignments or certificates of merger. Q. So as I understand the policy, the

policy -- what the policies or procedures contemplate investigating, based on what you've said so far, it's the employment status of the individuals involved -A. I have to correct that. We would not

necessarily do an investigation of the individual developers. Rather, of the standard agreements and

policies for employees or developers. Q. Would you -- as a matter of policy or

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procedure, would you attempt to determine the individually named people -- you know, Developer A, Developer B -- who were involved in a particular software development? A. That would not be part of our policies or

procedures. Q. As a matter of policy or procedure, what

would be done to determine that a particular acquired entity employed or contracted with developers who came up with a piece of software? A. Q. Sorry, can you read that question back? Let me try it again. I'll break it down a

little bit. There's a piece of software. A, I will And for

call it for lack of a more clever title.

whatever reason -- again, I'm not asking about these litigation determinations -- the determination is made to seek a registration on A. Okay? A. Q. Yes. Oracle's policies or procedures, as I With me so far?

understand them, contemplate performing some level of consideration and investigation regarding authorship of A. A. Correct. Right?

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Q.

What is done to determine -- what if

anything is done as a matter of policy or procedure to determine the individual persons, whoever employs them, that may have contributed to the authorship of software A? A. That wouldn't be part of our standard I'm not saying -- well, as

policies and procedures.

far as our policies and procedures go, that would not be part of it. Q. Okay. Under 2 -- as part of 2a on the same

registration that we're on, but under the line where it says the name of the author, you see it asks the question: Was this contribution to the work a "work

made for hire"? Do you see that? A. Q. Yes. Here it happens to be checked "Yes." Do

you see that? A. Q. Yes. What are Oracle's policies or procedures

with respect to determining how to answer that question where the underlying material were acquired through acquisition of another company? A. Our procedure is to investigate the

standard employee agreements and contractor

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agreements to determine the status of the work that we're seeking copyright registration for in relation to that space on the form that talks about works made for hire. Q. Is there any step in the policies or

procedures that is designed to specifically verify that the individual human beings who may have contributed to authorship are subject to those standards agreements -- standard agreements you just mentioned? A. That is not part of our general policies

and procedures, because we have looked at the standard employee and contractor agreements.

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Q.

That's the topic we're going to talk about

a little bit, just so you can anticipate it eagerly. Let me ask the court reporter to mark as Exhibit -- whatever's next -- 124, a document

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produced by Oracle, 213703 through -4, that's titled "J.D. Edwards Employee Proprietary Information, Inventions and Non-Solicitation Agreement." (Deposition Exhibit 124 was marked for identification.) MR. LANIER: Q. Sir, you are younger than

I am, so the size of this type may not bother you as much as it's starting to bother me. But with that proviso, do you recognize this? A. Q. A. Yes. What do you recognize it to be? It's an Employee Proprietary Information,

Inventions and Non-Solicitation Agreement. Q. And is this one of the agreements to which

you were referring when we talked generally about employment agreements -- standard employment agreements at JDE? A. This is the -- when I believe we were

talking about types of agreements -Q. A. Yes. -- that we would investigate, this is the

type of agreement. Q. Do you know whether this specifically is an

example of the agreement actually in force at some

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period of time? A. Yes, to the best of my knowledge, this was

the standard agreement for JDE for some point in time. Q. Down at the bottom, it has a copyright

notice, Copyright 2000, in really tiny type down at the bottom left-hand side. Do you see that? A. Q. Yes. Okay. Does that -- seeing that notice in

any way refresh your recollection or help you recall what the period of time that was covered by this agreement was? A. I don't have specific knowledge from

outside this agreement as to when this agreement was in force. So looking at what you just pointed out,

and at the small print on the other side, I think it's a fair assumption to say this is from 2000. Q. And by the small print on the other side

you mean the Rev. 6/00? A. Q. Yes. Do you know whether J.D. Edwards maintained

records of which of its employees had or had not signed this agreement? A. I don't know that.

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Q.

Okay.

All right, I'm done with 124.

I'm

going to show you something that looks a lot like it. I'll ask the court reporter to mark as the next exhibit a document produced by Oracle. with me one second. Bear

I'll ask her to mark this one.

As Exhibit 125, a document bearing the Bates numbers ORCL160518 through -9. It looks very similar to what you just saw. (Deposition Exhibit 125 was marked for identification.) MR. LANIER: front of you. A. Q. A. Yes. And what do you recognize it to be? An Employee Proprietary Information, Q. Sir, Exhibit 125 is in

Do you recognize it?

Inventions and Non-Solicitation Agreement for J.D. Edwards. Q. Now, this has slightly different data down

in the bottom left and bottom right. Does seeing that, does our previous discussion, help you know in any way what the time period was for this agreement's enforceability -- or applicability? A. As with the other agreement, I don't have

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independent knowledge of the time.

And so I see

here, though, that it does say copyright 2000 through -03, and in the lower right it says Rev. 4/03. Q. But that -- independent of making

inferences from those things, you don't independently know when this particular agreement was in force? A. Q. That's correct. And without reviewing and comparing them,

because I'm not asking you to do that, do you know anything about differences between the two versions we just saw, 124 and 125? A. any, are. Q. And do you know whether in the time period No. I don't know what the differences, if

of applicability of this particular agreement, 125, whether JDE kept records of who signed it and who didn't? A. I don't know if they did.

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Q.

Turning -- I'm done with this one. Turning briefly back to the J.D. Edwards

agreements, you can look at them if you need to, but does Oracle today have copies of J.D. Edwards agreements signed prior to the acquisition? A. I'm not sure about that.

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Q.

Understood.

Slightly different question,

so I'll try to be more precise. Notwithstanding any policies in these agreements of which you've seen form examples, in your investigation were you able to determine or did you learn whether in fact all JDE, PeopleSoft and/or Oracle employees actually signed these agreements? A. No, I did not. I relied on the stated

policies that all employees had to sign them.

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I declare under penalty of perjury that the foregoing is true and correct. Subscribed at

________________, California, this ____ day of ___________ 2008.

__________________________ TODD ADLER

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CERTIFICATE OF REPORTER I, HOLLY THUMAN, a Certified Shorthand Reporter, hereby certify that the witness in the foregoing deposition was by me duly sworn to tell the truth, the whole truth, and nothing but the truth in the within-entitled cause; That said deposition was taken down in shorthand by me, a disinterested person, at the time and place therein state, and that the testimony of said witness was thereafter reduced to typewriting, by computer, under my direction and supervision; That before completion of the deposition review of the transcript [X] was [] was not requested. requested, any changes made by the deponent (and provided to the reporter) during the period allowed are appended hereto. I further certify that I am not of counsel or attorney for either or any of the parties to the said deposition, nor in any way interested in the event of this cause, and that I am not related to any of the parties thereto. If

DATED:______________________ ____________________________ HOLLY THUMAN, CSR

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