Oracle Corporation et al v. SAP AG et al

Filing 850

Declaration of Jason McDonell in Support of 848 Memorandum in Opposition, Declaration of Jason McDonell in Support of Defendants' Opposition to Plaintiffs' Motion No. 2 to Exclude Expert Testimony of Brian S. Sommer 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)(Related document(s) 848 ) (McDonell, Jason) (Filed on 9/9/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 850

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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 JASON MCDONELL IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION NO. 2 TO EXCLUDE EXPERT TESTIMONY OF BRIAN S. SOMMER Date: September 30, 2010 Time: 2:30 p.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton
DECL. OF JASON MCDONELL ISO DEFS.' OPP. TO PLS.' MOT. NO. 2 TO EXCLUDE EXPERT TEST. OF BRIAN SOMMER Case No. 07-CV-1658 PJH (EDL)

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I, JASON MCDONELL, declare as follows: I am a partner in the law firm of Jones Day, 555 California St., 26th Floor, San Francisco, California 94104, and counsel of record for Defendants SAP AG, SAP America, Inc. (together, "SAP"), and TomorrowNow, Inc. ("TN") (collectively, "Defendants") in the above-captioned matter. I am a member in good standing of the State Bar of California and admitted to practice before this Court. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. Attached as Exhibit 1 is a true and correct copy of the cover page and the

following excerpts from the Supplemental Expert Report of Paul K. Meyer dated February 23, 2010 ("Meyer Report"). The relevant paragraphs are: 65, 232, 233, 361, 368, 369, 370, 440. 2. Attached as Exhibit 2 is a true and correct copy of the Expert Report of Brian S.

Sommer dated March 26, 2010. 3. Attached as Exhibit 3 is a true and correct copy of the cover page and the

following excerpts from the Expert Report of Stephen K. Clarke dated May 7, 2010. The relevant pages are: 209-210, 217-218. 4. Attached as Exhibit 4 is a true and correct copy of an email exchange between

Holly House and myself dated January 25, 2010. 5. Attached as Exhibit 5 is a true and correct copy of the cover page, signature page,

and the following excerpts from the Deposition of Paul K. Meyer dated May 12, 2010. The relevant pages are: 37:19-41:18 and 56:23-57:15. 6. Attached as Exhibit 6 is a true and correct copy of the cover page, signature page,

and the following excerpts from the Deposition of Paul K. Meyer dated May 14, 2010 relevant pages are: 828:11-22, 829:12- 831:8, 856:25-857:18, 934:13-19. 7. Attached as Exhibit 7 is a true and correct copy of the cover page, signature page,

and the following excerpts from the Deposition of Brian S. Sommer dated June 25, 2010. The relevant pages are: 89:9-17, 121:13-18, 130:14-159:24; 183:6-189:25. 8. Attached as Exhibit 8 is a true and correct copy of ORCLX-NAV-000020
DECL. OF JASON MCDONELL ISO DEFS.' OPP. TO PLS.' MOT. NO. 2 TO EXCLUDE EXPERT TEST. OF BRIAN SOMMER Case No. 07-CV-1658 PJH (EDL)

produced by Paul K. Meyer. The article is titled "The Man Behind `Half Off' Third-Party
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Maintenance" authored by Thomas Wailgum from CIO and dated April 11, 2008. The document is cited at paragraph 368 and footnote 695 of the Meyer Report. 9. Attached as Exhibit 9 is a true and correct copy of ORCLX-NAV-000054

produced by Paul K. Meyer and marked as Plaintiffs' deposition exhibit 3219 and reflecting highlights previously added by Plaintiffs. The article is titled "TomorrowNow Expanding ThirdParty Maintenance Business" authored by Alex Woodie from ITJungle and dated November 7, 2006. The document is cited at paragraph 369 and footnote 700 of the Meyer Report. 10. Attached as Exhibit 10 is a true and correct copy of SAP-BSS-000883 - 84

produced by Brian Sommer. The article is titled "Five Simple Steps to Reduce Software Maintenance Costs" authored by Ray Wang and dated March 25, 2009. 11. Attached as Exhibit 11 is a true and correct copy of SAP-BSS-000078 - 87

produced by Brian Sommer. The article is titled "Should You Rehabilitate Your Current ERP System Rather Than Buy A New One?" It is authored by Jim Shepherd from AMR Research and dated September 2009. 12. Attached as Exhibit 12 is a true and correct copy of JMJ Enters. v. Via Veneto

Italian Ice, 1998 WL 175888 (E.D. Pa. Apr. 15, 1998). 13. Attached as Exhibit 13 is a true and correct copy of MMI Realty Servs., Inc. v.

Westchester Surplus Lines Ins. Co., No. 07-00466 BMK, 2009 WL 649894 (D. Haw. Mar. 10, 2009). 14. Attached as Exhibit 14 is a true and correct copy of United States v. Walker, 217

Fed. Appx. 714 (9th Cir. 2007). 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 San Francisco, California. /s/ Jason McDonell Jason McDonell

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DECL. OF JASON MCDONELL ISO DEFS.' OPP. TO PLS.' MOT. NO. 2 TO EXCLUDE EXPERT TEST. OF BRIAN SOMMER Case No. 07-CV-1658 PJH (EDL)