Oracle Corporation et al v. SAP AG et al

Filing 834

Declaration of Joshua L. Fuchs in Support of 833 Memorandum in Opposition, filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Related document(s) 833 ) (Froyd, Jane) (Filed on 9/9/2010)

D

ockets.Justia.com

STEPHEN GRAY June 9, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY

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, vs. Plaintiffs, No. 07-CV-01658-PJH (EDL)

SAP AG, a German Corporation, SAP AMERICA, INC., a Delaware Corporation, TOMORROWNOW, INC., a Texas Corporation, and DOES 1-50, Inclusive, Defendants. ______________________________/

*** HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY *** DEPOSITION OF STEPHEN GRAY VOLUME II (Pages 316 - 601) June 9, 2010

Reported by: Natalie Y. Botelho CSR No. 9897

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13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

I don't think there's a table of contents

for your appendices, but are you able to tell me, for instance, in Appendix 4 it was their content that was not written by you in Appendix 4? A. I don't know if I've -- didn't quite

follow the question. Q. 4. Sure. So same question, but for Appendix

Is there -- and I'm not asking again for things

that you dictated and were written down verbatim. I'm asking where text was contributed by someone else. A. Right. And Appendix 4 is -- we're

referring to the spreadsheet?

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Q. A.

Yeah, that -That's the Appendix 4, right, that we're

referring to? Q. A. Yes. The spreadsheet was -- let's see. That was jointly How

would I characterize that.

developed, and I ended up, you know, asking for certain columns and certain analysis to be performed, and so that contributed to the columns that are in the spreadsheet. I suppose that some of the text in the headings of the columns, for example, would -- that was probably text that I would suggest was contributed. And I think the list of the names of

the customers is not something that I typed in, for example, on Appendix 4. I think there was a preliminary version of -- and I don't know if I'm entitled to talk -shouldn't talk about that. Okay. There was -- it's

probably -- that's probably it in Appendix 4. Q. Anything else in Appendix 4 other than

some of the text in the headings of the columns and the list of customer names being typed by someone else? A. And I'm not entirely sure they were typed.

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Q. A. Q. A.

Or copied and pasted, sure. However they got there. Anything other than those two? Not that I'm -- not that I'm aware of now,

sitting here right now. Q. In your answer you said that you asked for

certain columns and certain analysis to be performed. A. Whom did you ask? I guess the -- I guess the people that I

had -- I think that I asked -- I asked Mr. Fuchs here, who had -- I think he was the one who I first talked to this about. I would imagine that's the I think that is.

first place that it started. That's my best recollection. Q.

To be clear, you asked Mr. Fuchs to create

certain columns and to perform certain analyses for your Appendix 4? A. Well, that's where it started, and then

there was a collaborative effort that went back and forth to actually, you know, identify exactly what was going to be in each column and so on. that's where it started, yeah.
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But

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Q.

Did you direct someone to determine which

customers were the consulting-only customers? A. Yes, I was -- well, did I direct -- yes, I

mean, I wanted to identify those customers that were consulting-only customers.
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Q.

Moving on to the next column that says Did you

"PeopleSoft Customer" in the second row.

ask for certain -- or did you ask for this column to be created or for a certain analysis to be performed in support of this column? A. Yes. I wanted to know which customers

were supported or were -- TomorrowNow was supporting with which product lines. So those are columns

that -- you know, the "PeopleSoft Customer" column is certainly one that I wanted to have populated. Q. And is it your recollection that you

directed Mr. Fuchs to do that? A. Well, no, no. I don't know that I

direct -- I don't think I directed Mr. Fuchs to do -- to perform that, but I said I think that would -- we're talking about how the initial spreadsheet was formed, and so the identification of the columns. I thought -- I think in the

conversation, I thought that would be a good column. Q. Okay. When you said in an earlier

response that you asked for certain columns and certain analysis to be performed, do you recall that testimony? A. Q. I do. And I think that you had further said that

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you had directed Mr. Fuchs to perform certain analyses. column? A. Oh, I don't -- I'm sorry. Maybe I'm -Is there -- is that not correct for this

maybe I got confused.

What I thought we were

talking about is did I want certain columns to be in the report, in which case -- that's what I thought we were talking about. wanted to have. So that's the column that I

That is a column I wanted to have

in the report or this exhibit. Q. A. Did you -The question of populating it is then a

secondary -- the second question, but I mean -- or unless you want me to combine those two things. Q. A. No, we can keep them separate. I thought you were -- I thought you had So sorry. Maybe I misunderstood

separated them. you. Q. A.

Did you populate this column? I -- in -- yeah, I mean, I went through

the data to make a determination as to these -whether these customers were PeopleSoft -- any of these customers were PeopleSoft customers. perform that. Q. I did

Others contributed to that as well.

Which others contributed to that?

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A.

I think -- well, I don't know

specifically, but I would -- my best recollection is that it would have been Briana, Sean. best recollection. Q. Myself. That's my

Both of whom are Jones Day attorneys that

you identified earlier? A. Q. That's correct. And what data did you personally review in

the course of populating the "PeopleSoft Customer" column? A. There is a -- well, SAS is the -- where I believe also there is a

the data originates.

spreadsheet that identifies it, but I think it's SAS. Q. Did you personally review each of the

customer records in SAS to make this determination? A. Oh, well, yes, I have personally reviewed

each of the -- well, each of the customer records in SAS for these customers, yes, to determine whether or not they were -- they had PeopleSoft, or whether they were PeopleSoft customers, mm-hmm, yes, I have.

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25

MR. POLITO:

Q.

Understanding that SAS is

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the basis for this column or data within SAS, did Sean or Briana contribute data to Defendant's Exhibit 2089 with respect to the "PeopleSoft Customer" column? MR. FUCHS: THE WITNESS: Objection; form. They -- they -- yeah, I

mean, they populated some of the dots in the column, as did I. mean? MR. POLITO: Q. Yeah. Do you recall I'm not quite sure. Is that what you

which dots they populated, as opposed to which dots you populated? Could you answer the question if I

asked you who populated a particular dot in the "PeopleSoft" column? A. No, but the -- it's kind of -- the reason

I'm being a little hesitant there, I can't identify it, but it's not -- there is an endpoint here. I

looked at each of the -- at the end -- at the end of the day, to use that term, these are all my dots, right. So these are -- any dots that were -- any

dots that were dotted by either Sean or Briana were interim dots. The final dots are all my dots.

Sounds silly, but I think you follow what I'm saying. Q. I do. Would your answers be any different

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if I asked you about the "JD Edwards World Customer" column with regard to who generated -- or who took the information from SAS, analyzed it, and put it in Defendant's Exhibit 2089? MR. FUCHS: THE WITNESS: Objection; form. There are some, kind of, I just want to I don't believe

exceptions throughout this report. make sure I'm answering accurately.

that I would have a different answer for any column. In the columns that we're talking about here, which are the products serviced by TN, at all I don't think I would have any difference in the way that I would answer the question. The columns were -- you know, it was my decision to try to make a determination -- I suspect -- let me be fair -- let me be clear about that. The column that is labeled -- each -- well,

the columns labeled "PeopleSoft Customer," "JDE World Customer," "JDE OneWorld Customer," and "Siebel Customer," those are the columns we're referring to at the moment, and those I would have the same answer, I think, if we -- if we were to look at those, where there was contributions made and then I verified each of those contributions. MR. POLITO: Q. Is that because all JDE

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customers is just an "and" function on the World and OneWorld? A. yeah. Well, that and, I mean -- at least that, I mean, it's just a -- correct, that's an

"and" function. Q. In an earlier answer, you had said that

you had asked for certain columns and certain analyses to be performed. Are there any columns on

Exhibit 2089 that you did not ask for? A. Are we talking about all of 2089 or are we

just talking about the section that's products Serviced by TN? Q. A. All of the columns on 2089. Oh. Need to get my glasses fixed. I'm

finding that all day yesterday and today, I've had to take my glasses off to read things. Let me look at it. (Pause.) THE WITNESS: Yeah, I don't know of any of The only one So sorry.

the columns that I didn't ask for.

that -- the only one that is a possible candidate there is the one that's labeled "All JDE Customers." It turned out that that column was convenient for some of the analysis, just to have all the JDE customers in one column.

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So I'm not so sure that I asked for that. I think that might have -- someone else might have said, "Oh, by the way, let's put that in there." But I think everything else, I mean, I would have been -- there was debate and discussion about -MR. FUCHS: discussion. THE WITNESS: the content of it. No, I won't. I won't reveal Don't reveal the debate and

I mean, but there was discussion

about the columns and so on, but -MR. FUCHS: Unless you relied on the If you did, you can

debate and the discussion. reveal it.

But under the stipulation from

February 11th, don't reveal the debate and discussion unless you relied on it, or that forms the basis of your opinions. THE WITNESS: I understand. As to which

No, I didn't rely on it.

columns -- you know, what the columns were going to be, but no, there was -- all of these columns were columns that I asked to have put in there. again, the only one that might have been volunteered, the "All JDE Customers."
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Q.

Do you recall testifying yesterday that

the citations in the body of the report identified the materials that you relied upon? A. Q. Among other things. Is it your testimony today that, in fact,

we can't tell what you relied upon simply by reviewing the citations in your report? MR. FUCHS: Objection; form,

argumentative, mischaracterizes prior testimony. THE WITNESS: you're asking. I'm not quite sure what

Why don't you be a little bit more I'm not --

clear about what you're asking. MR. POLITO: Q.

Is it your testimony that

just because you cited something in your report doesn't mean that you relied upon it? MR. FUCHS: THE WITNESS: Objection; form. Just because I -- just

because I cited something in my report doesn't mean that I relied upon it. You mean because there's a

citation in my report that it -- that I relied upon it for the formation of my opinion? I certainly

would rely upon it to confirm -- I mean, I relied upon it to confirm my opinion. I mean, so I -- it certainly is ident --

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and I'm not sure where we're going or why we're going there, but that's your problem, not mine. mean, only thing I'm trying to do is to say that there is -- that the information that is in my report is information that I -- or the citations that are in the body of my report are things that I relied upon. I may have relied upon them to -- as I may have I

facts upon which I formed an opinion.

relied upon them as evidence that supports an opinion I already had, but I rely upon them to that extent.

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MR. POLITO:

Q.

No, I'm asking you, does

your report assume that so long as material was available on Customer Connection prior to a customer's maintenance end date, that that customer was entitled to that software and support material? MR. FUCHS: THE WITNESS: Objection; form. I don't have an opinion I have not -- I

about that one way or the other.

don't know what it says or what the agreements say or so on. So I don't have an opinion that it does

one way or the other. MR. POLITO: Q. Do you have an opinion

one way or another as to whether a customer can permissibly be given software and support material downloaded using another customer's credentials under any circumstance? MR. FUCHS: legal conclusion. THE WITNESS: you're saying. question? Would it be permissible, Objection; form, calls for a

It's not -- this isn't a legal

I mean -- what do you mean when you're Would it -- help me

asking me, "Is it permissible?" with what you meant by that. MR. POLITO: Q.

Do you have any opinion

about what activity that TomorrowNow performed was

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proper or improper with respect to supporting its own customers? MR. FUCHS: THE WITNESS: Objection; form. My report and my analysis is

really related to the Mandiant report and the analysis and so on performed therein, you know, in his report and his appendices and so on, the material that he provided. I'm -- you know, I don't

have an opinion -- I'm not intending in my report to try and talk about the general case of how TomorrowNow dealt with their customers or the propriety or impropriety of their behaviors. What I am focused on in my report really has to do with response to the Mandiant report and the work that the Mandiant report performed and whether or not sufficient work was performed and so on. So I have a lot of comments about that, but I

don't really have opinions one way or the other regarding the broader question of TomorrowNow's treatment of their -- of their customers.

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As you sit here today, do you have an opinion about whether TomorrowNow is liable for copyright infringement in this matter? MR. FUCHS: Objection; form, calls for a

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legal conclusion. THE WITNESS: I don't have -- I don't

think I have the -- I don't think I have the background to make an assessment regarding -- to make that kind of a statement with respect to liability. I think that gets into a more legal

domain, which I don't intend and is not the purpose of my report or not the intent of my report. MR. POLITO: Q. Do you presently have an

opinion that any conduct by TomorrowNow was proper or improper? MR. FUCHS: Objection; form, could call

for a legal conclusion. THE WITNESS: It's -- I don't mean to be

glib, but I imagine they must have stumbled into something that was proper, I mean, if that's what you mean. I don't have an opinion -- you're asking

me the opinion -- the way you asked that question is very difficult to answer. I don't have an opinion -- I don't have an opinion regarding the proprietor -- propriety or impropriety or permissibility in a general sense of how TomorrowNow conducted their affairs with their customers or conducted their business with their customers. I don't have an opinion about the

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general -- the broader question. My opinions are confined to the Mandiant report and appendices and work that he did and comments and critiques of his report, is really what my opinions in my report pertain to. mean. That's what I

So I don't think I do have an opinion outside

that, again, given the proviso that there's new stuff that I got to absorb. MR. POLITO: Q. Do you presently have an

opinion about whether TomorrowNow's downloading from Customer Connection was permissible under any applicable licenses or terms of use? MR. FUCHS: THE WITNESS: Objection; form. So I think, like Mr. Mandia

and in the Mandiant report, I haven't looked at terms of use agreements, and so I don't -- I don't have an opinion regarding the permissibility or impermissibility of downloading materials. MR. POLITO: Q. Do you presently have an

opinion as to whether the local environments on TomorrowNow's machines were permitted under the applicable customer licenses? MR. FUCHS: THE WITNESS: Objection; form. Well, like -- again, like

Mr. Mandia and the Mandiant report, I haven't

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reviewed customer licenses or been provided with any guidance with respect to the customer licenses. consequently, I don't think I have -- I'm in a position to have an opinion regarding whether or not the environments that are -- that are identified as having been present on TomorrowNow's systems were permitted or not permitted. about that at this point. I don't have an opinion Because I -- again, like And

Mr. Mandia and the Mandiant report, I haven't read the license agreements and so on.

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Q.

Mr. Gray, are you competent to determine

whether the act of downloading on behalf of Customer A, using Customer B's credentials from an Oracle Web site, would violate Customer B's customer license? MR. FUCHS: THE WITNESS: Objection; form. I think that kind of puts me

into the terms of use or license arena, which I have suggested so -- to -- you know, suggested on a couple of occasions over the last two days that I am not an expert in that matter or am not competent really to analyze those things, which is a slightly different answer than what you're asking. If I were to be given some guidance with respect to terms of use or license arrangements that would provide me some ability to analyze a

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certain -- certain set of data, for example, that was related or identified in the terms of use or license agreement -- and I know you're referring to licenses in this particular case -- then I think I would be competent to do such a thing. MR. POLITO: Q. First, I think you

answered the question, but if I change from a customer license to customer license or terms of use, B's customer license or terms of use, does that change your prior answer? MR. FUCHS: THE WITNESS: MR. POLITO: Object to form. No, it -- no, it does not. Q. Did you request any

guidance such that you could determine whether downloading on behalf of Customer A from an Oracle Web site using Customer B's credentials would violate Customer B's license or the terms of use? MR. FUCHS: THE WITNESS: is the question. Objection; form. Did I ask for any guidance,

No, I don't remember asking for

any guidance along those lines. MR. POLITO: ask? MR. FUCHS: THE WITNESS: Objection; form. Well, again, my -- the Q. Why not? Why didn't you

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analysis that I performed was analysis of the Mandiant report and appendices and data associated with the Mandiant report, and the critique and commentary I offer is based upon that report. And

in the process of producing that, that commentary, that was not part of my assignment.

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Do you have an opinion that TomorrowNow did not use Oracle's software and support materials to support any portion of its support enterprise? MR. FUCHS: THE WITNESS: Objection; form. I don't have an opinion

really one way or the other regarding TomorrowNow's use of Oracle's software and support materials in the operation of their -- of TomorrowNow's support enterprise. other. MR. POLITO: Q. Do you have an opinion as I don't have an opinion one way or the

to how TomorrowNow used Oracle's software and support materials in any way?

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MR. FUCHS: THE WITNESS: an opinion.

Objection; form. I think I have an opinion --

I think I have seen some evidence that

discusses the manner in which Oracle's software and support materials might have been used on occasion by TomorrowNow. I think I have an opinion or some

knowledge about that. MR. POLITO: Q. So above the level of

knowledge, do you have an opinion, an expert opinion, regarding any use that TomorrowNow made of Oracle's software and support materials? MR. FUCHS: THE WITNESS: Objection; form. I mean, other than what's in

my report, with respect to potential use of or -- of the software and support materials, I don't have any opinions -- I don't hold any opinions one way or the other regarding TomorrowNow's use of Oracle's software and support materials in pursuit of their business. MR. POLITO: Q. What are you referring to

in your report when you say "in my report"? A. Well, just some -- the commentary that is So

related to the Mandiant report in the critique. there may be some things there that have implications with respect to the manner in which

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TomorrowNow used some materials.

I'm just not

precluding what's in -- I don't want to say -- I'm not disavowing anything that's in my report, is what I'm trying not to do.

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MR. POLITO:

Q.

Who determined what was

an appropriate response as the phrase "appropriate response" is used in that sentence? A. Q. A. Who determined what was appropriate? (Nods head.) Well, it -- I mean, at the end of the day,

this is my report, and I was the one who ultimately made the decision as to what was appropriate and what was not appropriate.
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MR. POLITO:

Q.

Was there a response to

Mr. Mandia's report that you deemed an appropriate response that the Jones Day lawyers did not deem an appropriate response? MR. FUCHS: THE WITNESS: Same instruction. I -- there was nothing --

there was nothing that I -- well, so it didn't form the basis -- I can't -- so it didn't form the basis of my opinion, so therefore -- okay. all right. No, I didn't. I think I'm

There was nothing that I

deemed an appropriate response that they deemed inappropriate.

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Q.

Mr. Gray, are you competent to determine

whether the creation of a local environment on TomorrowNow's systems would violate any customer licenses? MR. FUCHS: THE WITNESS: legal matter. Objection; form. Seems to me that that's a

I don't know that I would be -- I

mean, I think that it would require some guidance, and maybe even to the point of saying -- of just making a determination based upon a license. don't think I'm competent to do that. So I

Seems to me

like that's a legal issue, not a technical issue. MR. POLITO: Q. If you had sought

guidance from counsel to assist you, would you have been able to determine whether the creation of an

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Oracle enterprise application software local environment for a particular customer on TomorrowNow's systems would have violated that customer's license? MR. FUCHS: THE WITNESS: Objection; form. I think that I am

probably -- I mean, I don't think it's a technical matter. It seems to me that's a legal matter, and I

don't know that I would be competent or qualified to render an opinion with or without counsel as to whether or not a particular action violated somebody's license agreement.

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MR. POLITO:

Q.

And does your report

reflect any data that you compiled regarding the use of environments to generate tests or develop fixes? MR. FUCHS: THE WITNESS: Objection; form. My -- well, let me just --

so at least the non-accused conduct spreadsheet

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reflects the -- reflects information that is found in the Mandiant report which accuses TomorrowNow of such conduct. MR. POLITO: Q. You're referring to your

Appendix 4, which was Defendant's Exhibit -- hang on -- 2089? A. Q. Yes. And that is a reflection of Mr. Mandia's

analysis and not your own independent analysis; is that correct? A. I really wasn't quite finished with the

first answer, but I'll answer this question, then I'll come back to the previous answer, if that's okay. Well, it's my work, and in trying to apply

the findings in the Mandiant report to the data at hand and trying to do some comparisons with that data. So it's my data in that sense, but it

originates from a reading and understanding of the Mandiant report. Q. So to clarify, what's in Appendix 4 to

your report, which is Defendant's Exhibit 2089, is the result of your application of rules laid out in the Mandia report to the data produced by TomorrowNow in this case? A. Accusation -- to the basis for the

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accusations that Mandia makes in his report.

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Q.

Yes.

And now that we've established the

scope, my question is, did you spend more than five hours reviewing the combined depositions of the seven employees to whom we're referring, with the caveat that one of those employees had a two-day deposition? off. A. Eight. So I -- yeah, I think it would be -- once Make that eight. Sorry. My math is

again, I don't -- I don't record that kind of data.

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When I do my -- when I do my time recording, I generally don't break it down in that final level unless -- I just don't. And so I don't -- I'm kind What I'm going to do

of speculating about that.

instead is tell you that given the eight depositions, and it's probably closer to nine or ten days of -- nine days of deposition, I probably wouldn't have spent -- I probably -- just again, just how much it generally takes me to get through the parts of a deposition that I think are important -- and again, that varies substantially in time. Sometimes it's a lot more. Sometimes more I don't mean

interesting stuff to read, for me.

it's -- I don't mean depositions are ever interesting or uninteresting. I just mean sometimes So I would say

the data that's interesting to me.

that it would probably have been -- probably more than ten, less than 20, something in that range would have been -- that just generally about how long it would take me to get through depositions like this. Q. A. Q. More than ten hours, less than 20 hours? That's correct. Thank you.
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Q.

Mr. Gray, does Appendix 4 to your report,

which is Defendant's Exhibit 2089, contradict or rebut any of Mr. Mandia's opinions or conclusions? A. So I think to -- well, how to say this.

Section X of the Mandiant report, or Section X, Roman numeral X, Page 100, in the manner in which it

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is written, could be read to -- could be read in such a way that it broadens the Mandiant findings in such a way that it -- that it -- that it -- that the evidence that there is 51, I believe it is, TomorrowNow customers who were -- who are not accused based upon the Mandiant rules might not -might be ignored. In other words, it's kind of written in such a way as though it's -- it seems as though it could be read in such a way that it is expanded and sort of smears across all of TomorrowNow's activities, when in reality, 2089 identifies, in my opinion, some customers, 51 of them, TomorrowNow customers, to which the accusations that are identified in the Mandiant report do not apply. So I guess that's the place where I kind of started and ended, right, with the -- with this -- with the report, was to say, hmm, that seems like it's -- seems like there's a lot of generalization here, doesn't really pertain, and therefore, it seemed more appropriate for me to try to go identify those customers to which the accused conduct could actually somehow be mapped. That's --

that was the genesis of the non-accused conduct. So I think with respect to Section X,

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Roman numeral X, a reading could be that it's -- oh, there you go -- reading could be such that it is -that is broader than I think is necessarily correct.
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Q.

What specifically in Section X can you

direct me to to which you believe Appendix 4 of your report serves as rebuttal or contradiction? A. Well, for example, if we take the first

sentence, "SAP TN" -- "SAP TN created thousands of Environments, Environment backups, and copies of Install Media." Well, what the Mandiant report, I

think, shows is that there were some environments, environment backups, and copies of install media that -- you know, he's shown that that has occurred, but there's also customers for which there wasn't an instance of an environment, environment backup, or a copy of the install media. It's -- the way that the

sentence is written, it seems to me to be -- to go beyond the scope of what he actually demonstrates in his report. referring to.
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That's the kind of thing that I'm

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Q.

Is it accurate to characterize Appendix 4

to your report as additional information that provides context but does not contradict or rebut any specific assertion in the Mandia report? MR. FUCHS: Objection; form.

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THE WITNESS: any? MR. POLITO: A. Well, hmm.

Use -- contradict or rebut

Q.

(Nods head.)

I don't know sitting here

right now of any specific -- specific -- I mean, there's four conclusions or so, and I don't know that any of -- the 2089 directly rebuts the entirety of the conclusion, but may rebut certain aspects of the conclusion that was drawn -- that is in the Mandiant report.

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MR. POLITO:

Q.

So would you agree that

Appendix 4 provides context, but does not contradict or rebut the conclusions in Mr. Mandia's report? MR. FUCHS: Objection; form,

mischaracterizes the witness's prior testimony. THE WITNESS: I don't think the purpose of It

intent of Exhibit 4 is to contradict or rebut.

is rather to provide some insights in -- I think I'd use that word -- provide insights into the conclusions that he has. Again, with respect to Section X of the Mandiant report, again, as I say, there are some broad asser -- some things that can be read as broad assertions here, or broad opinions, and to that extent, it might limit some of that. But there's

nothing specific other than that that I can think of. And as a matter of fact, it is intended to try

and provide insights and adopt what the Mandiant report reported.
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MR. POLITO:

Q.

Do you agree with

Mr. Mandia that TomorrowNow improperly accessed

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Oracle's Web sites? MR. FUCHS: THE WITNESS: Objection; form. The idea of propriety here,

whether it was -- whether the behavior was proper or improper, to me has to do with terms of use and potentially licenses and so on. And as I think

we've talked about on a couple of -- numerous occasions during the last couple of days, I have not looked at the terms of use agreements or the licenses -- nor has Mr. Mandia, I might add -- and so I don't have an opinion one way or the other about any alleged improper downloading of data from -- by TomorrowNow from Oracle's Web sites.

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Q.

Your Appendix 4.

Mr. Gray, was it your

practice in your report to identify the portions of Mr. Mandia's report that you were rebutting or contradicting? A. I think that my report and Exhibit 4 in

particular identify areas which are being rebutted or contradicted or limited by -- yeah, in the Mandiant report.

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