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)

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Oracle Corporation et al v. SAP AG et al Doc. 850 Att. 4 EXHIBIT 4 From: To: Cc: Jason McDonell/JonesDay "House, Holly" <> "Donnelly, Amy" <>, "Hann, Bree" <>, "Russell, Chad" <>, "Pickett, Donn" <>, "Elaine Wallace" <>, "Howard, Geoff" <>, "Jane L Froyd" <>, "Jacqueline K. S. Lee" <>, "Joshua L Fuchs" <>, "Jeffrey M Butler" <>, "Polito, John A." <>, "Lee, Lisa" <>, "Jindal, Nitin" <>, "Patrick Delahunty" <>, "'Scott Cowan'" <>, "Greg Lanier" <>, "Alinder, Zachary J." <> Date: 01/25/2010 06:35 PM Subject: RE: Supplemental Discovery and Expert Deposition Scheduling --------------------------------------------------------------------------------------------------------------------Holly, Defendants agree to defer the depositions of Plaintiffs' experts until after Defendants have submitted their expert reports. However, the depositions of Plaintiffs' experts must begin no later than mid-April such that: (a) those depositions to be completed before Defendants experts are deposed; and (b) Defendants' experts can be deposed afterwards, but before the close of expert p p , discovery on June 18. Now that the depositions will cover Plaintiffs' experts' opinions in y p p p response to Defendants' experts reports, it is essential that Defendants be permitted three days response p p, p (seven hours record time each day) for the depositions of Mr. Meyer and Mr. Mandia. We are (seven available to meet and confer this week on that issue specifically as well as scheduling expert depositions generally and we plan to ask Judge Laporte at the hearing tomorrow regarding what procedure she prefers the parties to follow if we are unable to reach agreement on either the scheduling or the length of expert depositions. In response to your comments regarding Defendants' productions, we do not understand your statements suggesting that Mr. Mandia is waiting on any production or discovery from Defendants. The Data Warehouse production that Plaintiffs requested for the first time on December 4 (the last day of discovery) was produced on January 8th (which in light of the holidays, is a more than reasonable production time). Plaintiffs were informed in April 2009 that two of the server partitions relevant to that production were ready for review and, in August 2009, that the other servers at issue were ready for review. Plaintiffs waited months to request that the servers be posted for review in the Data Warehouse, and waited until December 4th, after Mr. Mandia's report had been submitted, to request production from the servers. This delay was of Plaintiffs' own making and does not provide a basis for supplementation of Mr. Mandia's report. The only other item arguably addressed by your email below is the database 30(b)(6) written supplement, which Defendants provided in December but, at Plaintiffs' request, will provide again in a question and answer form. Defendants will provide the reformatted response this week, but since there will be no change in the substance of the response it will not provide a basis for any additional supplementation by Mr. Mandia. With regard to Mr. Meyer, we expect to produce the six license agreements this week, as I indicated in my email to Amy Donnelly on Friday. We would not expect the six agreements to require much additional analysis by Mr. Meyer, and we are not aware of any additional material Plaintiffs are waiting to receive. Nor do we see any reason why Mr. Meyer's supplemental report should be delayed on account of Mr. Mandia, for the reasons set forth above. Regards, Jason McDonell, Esq. Jones Day 555 California Street, 26th Floor San Francisco, CA 94104-1500 SF Office Main Tel.: (415) 626-3939 Direct Dial: (415) 875-5820 Fax: (415) 875-5700 Email: --------------------------------------------------------------------------------------------------------------------From: "House, Holly" <> To: "'Jason McDonell'" <> Cc: "Donnelly, Amy" <>, "Hann, Bree" <>, "Russell, Chad" <>, "Pickett, Donn" <>, "Elaine Wallace" <>, "Howard, Geoff" <>, "Jane L Froyd" <>, "Joshua L Fuchs" <>, "Polito, John A." <>, "Lee, Lisa" <>, "Jindal, Nitin" <>, "'Scott Cowan'" <>, "Alinder, Zachary J." <>, "Patrick Delahunty" <>, "Greg Lanier" <>, "Jacqueline K. S. Lee" <>, "Jeffrey M Butler" <> Date: 01/19/2010 12:47 PM Subject: RE: Supplemental Discovery and Expert Deposition Scheduling --------------------------------------------------------------------------------------------------------------------Jason: In response to your proposed deposition schedule for Oracle's experts, Oracle raises the following issues and conditions. First, in addition to the below concerns, the dates you provide for Mr. Meyer and Mr. Mandia are unworkable given that their supplemental reports are not even submitted (again, per our prior -2- emails, because of Defendants' delays in providing necessary inputs). We currently plan to serve an additional errata for Mr. Mandia within a week, and a supplemental report in February. Mr. Meyer's supplemental report awaits Defendants' benchmark material and will be provided in a reasonable time after its receipt and after Mr. Mandia's supplemental analysis of Defendants' late-provided database discovery. Second, the proposed schedule appears to deviate from standard practice. We note that you do not confirm that the proposed dates would be the only depositions of Oracle's experts, a ) g g condition on which we have insisted ( (and is normal) from the beginning of our discussions. Given p g yp g Given that Oracle's experts will be considering and likely responding at trial to Defendant's experts, depositions of them taken before they have had a chance to review Defendants' experts' y p experts, p reports will not p preclude Oracle's experts from providing responsive opinions to Defendants' p p g responsive p reports experts' opinions at trial. If you want to know what those will be, y need to take Oracle's f you , you experts' p experts' depositions after they have had adequate time to digest your experts' reports. Of course, experts' time if there are Oracle experts whose reports you do not intend to respond to with expert opinions, those experts could be deposed before your expert reports are submitted without any danger of unknown additional responsive opinions at trial. Accordingly, unless you are prepared to agree that these are the only depositions you will get of Plaintiffs' experts, these depositions need to be scheduled in coordination with Defendants' experts starting in mid to late May. Third, we continue to resist three days of deposition of any expert. It is too much and unnecessary given the detail provided in the reports and given the scope of expert depositions that need to be done in what seems the logical timeframe for both sides to take depositions to secure full trial testimony. Once we know your positions on these topics, we can work on scheduling. Thanks, Holly --------------------------------------------------------------------------------------------------------------------From: Jason McDonell [] Sent: Friday, January 15, 2010 3:18 PM To: House, Holly Cc: Donnelly, Amy; Hann, Bree; Russell, Chad; Pickett, Donn; Elaine Wallace; Howard, Geoff; Jane L Froyd; Joshua L Fuchs; Polito, John A.; Lee, Lisa; Jindal, Nitin; 'Scott Cowan'; Alinder, Zachary J.; Patrick Delahunty; Greg Lanier; Jacqueline K. S. Lee; Jeffrey M Butler Subject: Supplemental Discovery and Expert Deposition Scheduling Counsel, We write to update you on our response to Judge Laporte's Order on Plaintiffs' Motion to Compel and on scheduling of depositions of Plaintiffs' experts. Response to Order on Motion to Compel -3- As previously noted, a number of factors, including the availability of knowledgeable employees over the holidays, have slowed our response despite our ongoing efforts. We believe we have now identified 6 agreements that fulfill Defendants' obligations under the order. We propose to produce 3 agreements that are among the 4 highest value licenses of IP out to customers and 3 agreements that are the highest value licenses of IP in to SAP. All 6 transactions occurred during the period 2004-2007. With respect to the customer licenses, we propose to produce 3 of the 4 highest dollar value licenses to which an SAP entity is a party to an agreement with an independent third party. One of 3 highest value of such licenses has exceptional confidentiality restrictions as it relates to a government agency, and we do not propose to produce that agreement and propose instead to substitute in the 4th highest. Indeed, before we would produce that agreement, we would likely seek guidance from Judge Laporte. We believe, however, that the 6 agreements we propose to produce should more than satisfy our obligations under the order. The 6 licenses Defendants plan produce all have confidentiality issues with the other parties to the agreements and we are still in the process of working through those issues. Our current goal is to produce the 6 agreements (or as many of them as we can consistent with the confidentiality issues) by the end of next week (i.e., by January 22, 2010). We also plan to serve a supplemental response to Interrogatory No. 69 by that date. Please let us know if you agree with our proposal to produce these 6 agreements. Expert Depositions On the subject of expert deposition scheduling, we propose the following dates: Tourniaire Lichtman Levy Meyer Mandia Pinto February 2 February 12 February 19 February 22, 23, and 24. March 3, 4, and 5. March 16. We continue to believe that three days each is reasonable for the depositions of Mr. Mandia and Mr. Meyer, given the complexity of the issues and volume of material to be covered. Oracle has taken numerous multi-day depositions of fact witnesses in this case. We are prepared to demonstrate that fact to Judge Laporte and we believe that three days is not an unreasonable request for these two expert witnesses. Please let us know if this schedule will work. Thanks. -4- Jason McDonell, Esq. Jones Day 555 California Street, 26th Floor San Francisco, CA 94104-1500 SF Office Main Tel.: (415) 626-3939 Direct Dial: (415) 875-5820 Fax: (415) 875-5700 Email: From: To: Cc: Date: Subject: "House, Holly" <> "Jason McDonell" <>, "'Scott Cowan'" <>, "Jane L Froyd" <>, "Elaine Wallace" <>, "Joshua L Fuchs" <> "Howard, Geoff" <>, "Pickett, Donn" <>, "Alinder, Zachary J." <>, "Hann, Bree" <>, "Polito, John A." <>, "Russell, Chad" <>, "Donnelly, Amy" <>, "Jindal, Nitin" <>, "Lee, Lisa" <> 01/08/2010 02:33 PM Defendants' overdue productions and answers and impact on Oracle expert reports and depositions Jason, Scott and all: We continue to await Defendants' overdue provision of material necessary to finalize supplementation of our experts' reports. This includes the benchmark license information Magistrate Laporte ordered Defendants produce on December 2, 2009, for which Oracle provided a proposal on December 3, and which Defendants promised would be produced and answered before Christmas; a response to Mr. Jindal's December 22 complaint about Defendants' deficient response to Oracle's Interrogatory No. 69 about customer valuation metrics, and production of Data Warehouse materials requested by Mr. Polito on December 4. Please be advised that Defendants' continued delays will not justify pushing depositions of Oracle's experts into the period where Oracle will be analyzing and drafting oppositions to Defendants' promised summary judgment motions. Oracle's counsel cannot and will not be pressed into defending depositions then just because Defendants have delayed in providing the necessary information to allow for finalization of Oracle's experts' reports and securing Oracle's experts' depositions when there has been ample time to do so. Specifically, Oracle offers at this time to make Mr. Mandia available for deposition on February 18-19. -5- Please advise when we can expect Defendants' overdue information, if you accept Mr.Mandia's offered dates, and when you would like to schedule Oracle's other experts' depositions so we can start that difficult scheduling process. Regards, Holly ________________________________ Confidentiality Notice: The information in this e-mail (including attachments, if any) is considered confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this e-mail is prohibited except by or on behalf of the intended recipient. 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