Oracle Corporation et al v. SAP AG et al

Filing 839

Declaration of Scott W. Cowan in Support of 838 Objection 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)(Related document(s) 838 ) (Froyd, Jane) (Filed on 9/9/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 839

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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., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DECLARATION OF SCOTT W. COWAN IN SUPPORT OF DEFENDANTS' OBJECTIONS TO THE DECLARATIONS OF DANIEL LEVY Date: September 30, 2010 Time: 2:30 p.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton
DECLARATION OF SCOTT W. COWAN ISO DEFS.' OBJS. TO LEVY'S DECLARATIONS Case No. 07-CV-1658 PJH (EDL)

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I, Scott W. Cowan, declare as follows: (1) I am a partner in the law firm of Jones Day, 717 Texas, Suite 3300, Houston,

Texas 77002, and counsel of record for Defendants SAP AG, SAP America, Inc. (together, "SAP"), and TomorrowNow, Inc. ("TN") (collectively, "Defendants") in the above-captioned action. I am a member in good standing of the State Bar of Texas, all federal district courts in Texas, and the United States Courts of Appeal for the Third, Fourth, Fifth, Ninth and Eleventh Circuits. I am also admitted pro hac vice in this matter. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. A. (2) Time Calculations On August 19, 2010, Plaintiffs filed declarations from Daniel Levy in support of

Plaintiffs' motions to exclude the expert testimony of Clarke and Spencer. See Declaration of Daniel S. Levy, Ph.D. In Support of Motion No. 1: To Exclude Testimony of Defendants' Expert Stephen Clarke (declaration filed under seal in support of D.I. 781) ("Levy Declaration In Support of Motion No. 1 to Exclude Clarke") and Declaration of Daniel S. Levy In Support of Oracle's Motion No. 6: To Exclude Testimony of Defendants' Expert Bruce Spencer (declaration filed as D.I. 779 in support of D.I. 773) ("Levy Declaration In Support of Motion No. 6 to Exclude Spencer"). (3) The deadline to serve expert reports was on November 16, 2009. See D.I. 325

(Stip. Rev. Case Mgt. & Pretrial Order) at 1. By counting the days between November 16, 2009 and August 19, 2010, I determined that the Levy declarations were filed 276 days after this date. (4) The deadline to serve rebuttal expert reports was on March 26, 2010. See D.I. 586

(Stip. & Order to Ext. Time for Exp. Disc.) at 1. By counting the days between March 26, 2010 and August 19, 2010, I determined that the Levy declarations were filed 146 days after rebuttal expert reports were due. (5) Levy was deposed on April 30, 2010. See Ex. A (Levy Tr.) (indicating the

deposition was conducted on April 30, 2010). By counting the days between April 30, 2010 and August 19, 2010, I determined that the Levy declarations were filed 111 days after Levy's deposition.
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(6)

Spencer was deposed on June 4, 2010. See Ex. B (Spencer Tr.) (indicating the

deposition was conducted on June 4, 2010). By counting the days between June 4, 2010 and August 19, 2010, I determined that the Levy declarations were filed 76 days after Spencer's deposition. (7) Clarke was deposed on June 8-10, 2010. See Ex. C (Clarke Tr.) (indicating the

deposition was conducted on June 8-10, 2010) and Levy Declaration In Support of Motion No. 1 to Exclude Clarke ¶ 3 (indicating Levy considered the June 10 deposition). By counting the days between June 10, 2010 and August 19, 2010, I determined that the Levy declarations were filed 70 days after Clarke's deposition. (8) The deadline for expert discovery was June 18, 2010. See D.I. 586 (Stip. & Order

to Ext. Time for Exp. Disc.) at 1. By counting the days between June 18, 2010 and August 19, 2010, I determined that the Levy declarations were filed 62 days after this deadline. (9) The Pretrial Conference is scheduled for September 30, 2010. See D.I. 325 (Stip.

Rev. Case Mgt. & Pretrial Order) at 2. By counting the days between August 19, 2010 and September 30, 2010, I determined that the Levy declarations were filed only 42 days before the Pretrial Conference. (10) The trial is scheduled to commence on November 1, 2010. See D.I. 325 (Stip.

Rev. Case Mgt. & Pretrial Order) at 2. By counting the weeks between August 19, 2010 and November 1, 2010, I determined that the Levy declarations were filed approximately 10 weeks before the trial is scheduled to commence. B. (11) (12) Timeline The suit was filed on March 22, 2007. See D.I. 1 (Complaint for Damages). The deadline to designate expert witnesses was October 2, 2009. See D.I. 325

(Stip. Rev. Case Mgt. & Pretrial Order) at 1. Plaintiffs' expert disclosures stated that: "Dr. Levy will testify about statistical analyses used to extrapolate occurrences and rates of infringement or misuse of Oracle's intellectual property, from a sample to a larger population." See Ex. D (Oracle's Initial Exp. Discl.) at 1; Ex. E (Oracle's Supp. Initial Exp. Discl. served on October 16, 2009) at 1.
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(13)

The deadline to serve expert reports was November 16, 2009. See D.I. 325 (Stip.

Rev. Case Mgt. & Pretrial Order) at 1. In the report, Levy expressly states: I have been retained by counsel for the Plaintiffs . . . to design a statistically valid sample of [] TN's PeopleSoft HRMS payroll tax and regulatory Updates that can be used to scientifically estimate the number of Fixes delivered to customers by [] TN that infringe Oracle copyrights or otherwise resulted from impermissible cross-use of Oracle's software. See Ex. F (Levy Report) at 7. (14) The deadline to designate rebuttal expert witnesses was January 22, 2010.

See D.I. 325 (Stip. Rev. Case Mgt. & Pretrial Order) at 1. Levy was not disclosed as a rebuttal expert witness. (15) Oracle submitted two supplemental expert reports and data modifying

Levy's original report on February 5, 2010 and February 12, 2010. See Exs. G-H (Levy Reports & Cover Letters). These supplemental reports contained the same statement as the November 16, 2009 report cited above. See id. (16) Spencer. (17) On April 28, 2010, Levy produced sur-rebuttal materials in response to On March 26, 2010, Defendants served the expert reports of Clarke and

Spencer's rebuttal opinions. See Ex. I (Sherrod Letter). (18) On April 30, 2010, Levy was deposed. See Ex. A (Levy Tr.). Levy stated

that he was "attempting to design a statistically valid sample of TomorrowNow's PeopleSoft HRMS payroll tax and regulatory updates or fixes." See Ex. A (Levy Tr.) at 40:24-41:7. Further, he stated that his "opinions only relate to PeopleSoft HRMS payroll product line and module." See Ex. A (Levy Tr.) at 42:25-43:6. He also expressly stated: "Q: And you're not offering any opinions about economic damages here. Correct? A: That's correct. I'm not." See Ex. A (Levy Tr.) at 25:18-20 (emphasis added). (19)
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On May 7, 2010, Clarke served a supplemental expert report, which Levy -3DECLARATION OF SCOTT W. COWAN ISO DEFS.' OBJS. TO LEVY'S DECLARATIONS Case No. 07-CV-1658 PJH (EDL)

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states that he reviewed for his declaration. See Levy Declaration In Support of Motion No. 1 to Exclude Clarke ¶ 3. (20) On June 4, 2010 Spencer was deposed. See Ex. B (Spencer Tr.)

(indicating the deposition date). (21) In a June 7, 2010 e-mail, Plaintiffs' counsel Geoff Howard accepted

Defendants' "proposed filing date of August 19 [2010] for Daubert motions. . . ." (22) On June 8-10, 2010, Clarke was deposed. See Ex. I (Clarke Tr.)

(indicating the deposition date). Levy states that he reviewed the June 10 transcript for his declaration. Levy Declaration In Support of Motion No. 1 to Exclude Clarke ¶ 3. (23) On June 18, 2010, expert discovery closed after more than 8 months from

the time the first expert designations were made on October 2, 2009. See D.I. 586 (Stip. & Order to Ext. Time for Exp. Disc.) at 1. (24) On August 19, 2010, the date the parties agreed to file Daubert motions,

Plaintiffs filed the two declarations at issue here. See Levy Declaration In Support of Motion No. 1 to Exclude Clarke and Levy Declaration In Support of Motion No. 6 to Exclude Spencer. In Plaintiffs' Motion to Exclude Spencer (D.I. 773) on page 8, Plaintiffs expressly state: "Levy's analysis, as noted above, was about liability, not damages." (emphasis added). C. (25) Attached Exhibits Attached as Exhibit A are true and correct copies of the following excerpts from

the April 30, 2010 Daniel Levy Deposition: 25:18-20, 40:24-43:6. (26) Attached as Exhibit B are true and correct copies of the cover and signature pages

of the June 4, 2010 Bruce Spencer Deposition. (27) Attached as Exhibit C are true and correct copies of the cover and signature pages

of the June 8-10, 2010 Stephen Clarke Deposition. (28) Attached as Exhibit D is a true and correct copy of Oracle's Initial Expert

Disclosures produced to Defendants on October 2, 2009. (29)
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Attached as Exhibit E is a true and correct copy of Oracle's Supplemental Initial -4DECLARATION OF SCOTT W. COWAN ISO DEFS.' OBJS. TO LEVY'S DECLARATIONS Case No. 07-CV-1658 PJH (EDL)

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Expert Disclosures produced to Defendants on October 16, 2009. (30) Attached as Exhibit F is a true and correct copy of the November 16, 2009 Expert

Report of Daniel Levy, which was served by Plaintiffs in this case. (31) Attached as Exhibit G is a true and correct copy of the February 5, 2010 Expert

Report of Daniel Levy and corresponding cover letter, which was served by Plaintiffs in this case. (32) Attached as Exhibit H is a true and correct copy of the February 12, 2010 Expert

Report of Daniel Levy and corresponding cover letter, which was served by Plaintiffs in this case. (33) Attached as Exhibit I is a true and correct copy of a letter sent from Plaintiff's

counsel, Joy Sherrod, on April 28, 2010. (34) Attached as Exhibit J is a true and correct copy of Luke v. Family Care and Urgent

Med. Clinics, 323 Fed. Appx. 496 (9th Cir. 2009). I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 9th day of September, 2010 in Houston, Texas. /s/ Scott W. Cowan Scott W. Cowan

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DECLARATION OF SCOTT W. COWAN ISO DEFS.' OBJS. TO LEVY'S DECLARATIONS Case No. 07-CV-1658 PJH (EDL)