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

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) No. 07-CV-1658 (PJH) ) SAP AG, a German ) corporation, SAP AMERICA, ) INC., a Delaware ) corporation, TOMORROWNOW, ) INC., a Texas corporation, ) and DOES 1-50, inclusive, ) ) Defendants. ) ________________________________)

VIDEOTAPED DEPOSITION OF KEVIN MANDIA _________________________________ VOLUME 1; PAGES 1 - 290 THURSDAY, MAY 20, 2010

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-427382)

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
TEXT REMOVED - NOT RELEVANT TO MOTION
14:36:44 14:36:46 14:36:47 14:36:50 14:36:51 14:36:54 14:36:55 14:36:57 14:36:59 14:37:01 2 3 4 5 6 7 8 9 10 11

Page 168
Right?

Q. A. Q.

Okay.

You're not a lawyer.

I am not a lawyer. You do not have any specialized legal

training in copyright law, do you? A. I do not have specialized training in

copyright law. Q. You do not hold yourself out to be a

copyright expert, do you? A. expert. I do not hold myself out to be a copyright

TEXT REMOVED - NOT RELEVANT TO MOTION

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 169
14:37:40 14:37:41 14:37:44 14:37:47 14:37:50 14:37:53 14:37:55 14:37:57 14:38:01 14:38:03 14:38:07 14:38:10 14:38:14 1 2 3 4 5 6 7 8 9 10 11 12 13

Q.

Have you ever analyzed source code to

determine if it includes protected expression for the purpose of a copyright analysis? A. I have not analyzed source code to

determine if it contains protected expression in regards to copyright analysis. Q. Have you ever analyzed source code to

determine whether any alleged copied portion of that source code was only de minimus for the purpose of copyright analysis? A. I have not -- you said the word That's another legal term.

"de minimus" to me.

I have not done what you just asked.

TEXT REMOVED - NOT RELEVANT TO MOTION

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 170

TEXT REMOVED - NOT RELEVANT TO MOTION

14:39:13 14:39:16 14:39:21 14:39:26 14:39:27 14:39:32 14:39:40 14:39:43 14:39:45 14:39:48 14:39:52 14:39:55 14:39:59 14:39:59 14:40:01 14:40:05 14:40:19 14:40:21 14:40:24

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q.

Are you familiar with an analysis or test

known as the abstract filtration comparison test? A. Q. I am not familiar with that test. To your knowledge, are -- any of the

individuals at Mandiant who assisted you in preparation of your report have any expertise in doing the source code comparison to determine if an alleged copyright violation took place? A. I am unaware -- first, we weren't tasked

to do what you're insinuating here, that we were tasked to do a protected expression analysis in this case. do so. But in answer to your question, since we weren't tasked, I'm unaware if any of my employees have done something like this in their past or not. Q. Are you aware of whether any Mandiant We're in fact not tasked at Mandiant to

employee has ever analyzed source code to determine if it includes protected expression for the

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 171
14:40:27 14:40:31 14:40:32 14:40:35 14:40:38 14:40:40 14:40:43 14:40:45 14:40:49 14:40:52 14:40:54 14:40:55 14:40:57 14:40:57 14:40:59 14:41:00 14:41:01 14:41:02 14:41:05 14:41:06 14:41:09 14:41:13 14:41:15 14:41:20 14:41:23 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

purposes of a copyright analysis? MR. LEWIS: answered. THE WITNESS: I am not aware. Had we been Objection. Asked and

tasked to do something like that, I would have become aware. But in this case, I am not aware of

Mandiant employees and whether they do or do not have the expertise in this area. Specifically in

de minimus protected expression, I believe is what we're describing. MR. COWAN: Q. That question was related

only to protected expression. A. Q. aware? A. Q. I am not aware. The next question is, are you aware of Okay. And your answer is the same. You're not

whether any Mandiant employee has ever analyzed source code to determine whether any of the alleged copied portion of that source code was only de minimus for the purposes of copyright analysis? A. that. Again, based on -- we weren't tasked to do I didn't poll the expertise in that area

amongst Mandiant, so I am not aware if someone is or is not, has experience in regards to de minimus

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 172
14:41:29 14:41:30 14:41:32 14:41:35 14:41:39 14:41:41 14:41:44 14:41:46 14:41:48 14:41:51 1 2 3 4 5 6 7 8 9 10

analyses. Q. Are you aware of whether any Mandiant

employee has ever done any analysis to determine if computer source code is a derivative work for the purposes of copyright analysis? A. Again, because I made an assumption on

derivative work and did not need to poll my employees as to their expertise in that area, I don't know what level of expertise we have in that area.

TEXT REMOVED - NOT RELEVANT TO MOTION

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
TEXT REMOVED - NOT RELEVANT TO MOTION
15:41:00 15:41:18 15:41:20 15:41:25 15:41:29 15:41:31 15:41:32 15:41:32 15:41:37 15:41:40 15:41:45 15:41:47 15:41:53 15:41:55 15:41:58 15:41:59 15:42:01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Page 196

Q.

Okay.

Did you review any software license

for any purpose in formulating the opinions and conclusions that are contained in your report? A. I did not. I think when you state

license, you mean the actual software license document? Q. A. Correct. Okay. I did not review any specific

documents that I would call software license documents. I want to be clear. I did receive

information that was called licensing information. Q. Right. But you didn't review, to your

knowledge, any of the actual software licenses themselves. A. Correct?

It was not part of my task to look at

licensing information.

TEXT REMOVED - NOT RELEVANT TO MOTION

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 198

TEXT REMOVED - NOT RELEVANT TO MOTION

15:44:53 15:44:55 15:44:57 15:45:00 15:45:04 15:45:07 15:45:09 15:45:14

18 19 20 21 22 23 24 25

Q.

But you didn't read the actual terms of Right?

use of Oracle's websites. A. clear. No.

That's what I was stating, to be

I did also read the terms of use, in

regards to just reading them to understand them. Q. But you have no conclusions or opinions

regarding the applicability of the terms of use of any Oracle website, as far as your conclusions and

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3

KEVIN MANDIA May 20, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
Page 199
15:45:19 15:45:20 15:45:27 15:45:29 15:45:33 15:45:35 15:45:36 15:45:38 15:45:41 15:45:42 15:45:49 15:45:52 15:45:54 15:45:57 15:45:58 15:46:00 15:46:06 15:46:08 15:46:10 15:46:14 15:46:15 15:46:21 15:46:25 15:46:28 15:46:30 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

opinions are concerned. MR. LEWIS: THE WITNESS:

Right? Vague.

Objection.

I used a "terms of use"

assumption in order to have a legal interpretation of the terms of use. MR. COWAN: Q. But you were given that Right?

assumption; you didn't make that yourself. A. I was given that assumption.

I did not

make that assumption myself. Q. And you have no independent opinion from

an expert standpoint regarding the validity of the assumption. You simply have accepted the

assumption for the purposes of your conclusions and analysis. A. Q. Correct? I accepted and applied the assumption. Correct? But you have -- other than

accepting and applying the assumption that was given to you, you have no independent opinion from an expert standpoint regarding the validity of that assumption. Right? Objection. Vague.

MR. LEWIS: THE WITNESS:

That is correct.

You did say the word "expert" in there. Correct? MR. COWAN: Q. I did.

Merrill Legal Solutions [phone]

d2026e4c-08ac-4116-8768-b67ae839c4d3