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 Att. 7

EXHIBIT 7

Dockets.Justia.com

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND 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 BRIAN S. SOMMER _________________________________ FRIDAY, JUNE 25, 2010

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CONFIDENTIAL - ATTORNEYS' EYES ONLY HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-429044)

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MS. HOUSE: A.

Q.

Why is that?

Because the -- the only way one could

do -- my job was not to do a customer-by-customer review of the companies involved, or the TomorrowNow customers. My work product was to focus on the general market trends and buying issues, the dynamics I think was the word I used, in the marketplace, not on the specific customers.

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THE WITNESS:

Given that my report is to

look at the general trends and what's going on in the market and how customers buy, if he didn't cover it in his summary document, I didn't go into the detailed economic calculations he had in the attachments.

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MS. HOUSE:

Q.

And yet you feel

comfortable talking about Safe Passage having never considered that. Correct? Asked and answered

MR. McDONELL: repeatedly.

Define the scope of what he looked at. Again, that wasn't the main

THE WITNESS:

purpose of my expert report. MS. HOUSE: Q. And the stated goals and

marketing of Safe Passage that you referenced in Footnote 73, is that what you cover at the top of page 50, which is the description of the program, or what is it?

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A.

Well, you -MR. McDONELL: Compound. Object to the

form of the question. THE WITNESS: You can see I reference some

outside parties on what their general understanding of the Safe Passage program was. And given the fact that my report is to cover more of a general market overview, I knew that -- or I suspected that this program may have a bunch of little suttleties. All I was trying to do

was capture the essence of what this program was about. And that was by design, because I had to respond to what other companies offered, and I covered their programs in the preceding pages, and I tried to carry them at a similar level of detail. MS. HOUSE: your Footnote 73. You say your opinions are offered on a review of the stated goals. A. Q. A. Q. That's correct. And marketing. What stated goals? Q. Okay. Let's talk about

Stated as they were discussed publicly. Did you look at any of the internal goals

for Safe Passage of SAP?

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A.

I saw the stuff that was in those two

depositions we've been talking about, the Hurst and -- deposition and the other one, and I felt that the only reasonable approach I could take was to go with what was stated publicly in the marketplace and what customers would know. And again, I want to point out, my report has -- is looking at this market from the view of the customer, I believe, is the only really relevant view one should focus on, because it's how customers perceive programs like Safe Passage and competing programs. MS. HOUSE: Q. That's what really matters. I'll move to strike.

My question is, when you say the stated

goals, could you tell me the stated goals and where you got those goals? A. They're at the top of page 50, right

there, the license credit reference to Footnote 71 and the -- the maintenance support comment referenced by Footnote 72. Q. And those are the only stated goals that

you mean in your reference in 73? A. Those were two -- two important ones that

I chose that were -- that would line up -- line up's not the right word -- that were of a similar

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level of detail in understanding the programs that other companies had around that same time frame or in the effective time period. Q. And are your opinions offered in

connection with any of the internal goals that SAP articulated for the Safe Passage program? MR. McDONELL: Vague and ambiguous, object

to the form of the question. THE WITNESS: answer that question. stated goals. I'm not quite sure how to The -- I'm working off the And

That's what I'm working off of.

I did draw some conclusions that said things like, you know, it would offer little incentive for a customer to move, or that a support-only option would possibly keep somebody on SAP. And again, those are from a customer perspective. So actually, I'd say I'm working off

the stated goals. MS. HOUSE: Q. Okay. So one can state

something and it can be public, or it can be internal to the company. Are you only talking about publicly stated goals? A. of this. Again, I'm taking a customer-focused view And as far as the customer is concerned,

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the stated goals are the ones that matter. there were others, that -- other goals and objectives that were expressed, either other

And if

experts should have covered that or that wasn't part of the scope of my report. Q. So you're not intending to offer any

opinion on whether the internal goals of SAP in connection with the Safe Passage program were unreasonable or reasonable? MR. McDONELL: question. Object to the form of the

His report speaks for itself. THE WITNESS: I've rendered some opinions

about whether I thought the program would be successful or not. MS. HOUSE: And that's in my report. Q. Okay. I'm asking you

about the specific language here, and I'm asking you whether or not, when you're offering your opinions -- it seems very murky at this point to me. Are you talking about the external, publicly stated goals; or are you also reviewing and commenting on SAP's internal goals and strategy in connection with the Safe Passage program? MR. McDONELL: Argumentative, object to

the form of the question, assumes facts not in

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evidence, object to the form. THE WITNESS: For the most part, my report

is discussing the -- is dealing with the stated goals. And I'd like to suggest if we're getting close to a topic change or anything, I'd like to take a lunch break soon. MS. HOUSE: Q. But I'm open. I think we should keep

going, because we've had a lot of breaks, it's only 12:10, and we are never going to get through this by 7 o'clock if we don't continue. MR. McDONELL: break. The witness has asked for a Let's

He's been going for over an hour.

take a short one. now.

We don't have to do lunch right

THE VIDEO OPERATOR: the time now is 12:12.

Going off the record,

(Recess from 12:12 p.m. to 12:28 p.m.) THE VIDEO OPERATOR: the time now is 12:28. MS. HOUSE: Q. Back on the record,

Please continue. We're on Footnote 73 of My opinions are

your report, where you state:

offered on a review of the stated goals and marketing of Safe Passage. Could you please tell me what the stated

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goals of SAP were from a financial standpoint for Safe Passage? MR. McDONELL: Vague and ambiguous, object

to the form, misstates the testimony. THE WITNESS: the top of page 50. I believe I listed them at And generally what those were,

were a license credit of up to 75 percent on a customer's license, in this case I guess with SAP -- I mean, excuse me, with Oracle. And as I

noted on here, at some point it could have gone as much as a hundred percent. And that would be

applied against a new SAP license. The second bullet point referenced that maintenance support for three of the product lines -- PeopleSoft, JD Edwards, and Siebel -would be provided by TomorrowNow at 50 percent of the fee previously paid to Oracle or PeopleSoft. MS. HOUSE: Q. What you've just described

or what you've just read are descriptors of the program, Safe Passage. MR. McDONELL: Right? Vague and ambiguous.

Object to the form of the question. THE WITNESS: MS. HOUSE: Right? Q. I guess -Program parameters.

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A.

Yeah, I guess they could be described as

such, yes. Q. Do you understand that's different than

what SAP's goals were in implementing the program? MR. McDONELL: Object to the form. THE WITNESS: Do I understand those were Vague and ambiguous.

different from SAP's goals? MS. HOUSE: Q. Yes. Do you understand a

goal is different than a description of a program? A. Q. I understand the two are different. What were the goals that SAP stated that

you are providing opinions on? MR. McDONELL: THE WITNESS: Same objections. That would be on the

preceding page, where it says, SAP introduced a switching program called Safe Passage for users of those products. And the goal obviously would be to

move customers from one product line to the next. That would be the goal. MS. HOUSE: Q. Okay. Do you have any

understanding about the amount of customers that SAP was intending to move? MR. McDONELL: evidence. Assumes facts not in

Object to the form.

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THE WITNESS: scope.

That wasn't part of the

The part of my report -- but I did see some

of those kind of materials I believe in one of those depositions. MS. HOUSE: Q. Did you have any

understanding about the amount of revenue that SAP expected to get from the Safe Passage program? MR. McDONELL: the form. THE WITNESS: Again, that wasn't part of Beyond the scope, object to

my report, but I did see some claims like that, I believe, in some of those deposition documents. MS. HOUSE: Q. Do you -- so you are not

intending to provide any opinions about the specific financial goals that SAP had for Safe Passage? MR. McDONELL: THE WITNESS: Same objections. My report was to cover the

general effects of -- or the general activities of software buyers and what would cause them to move from one product to the next. I believe other

experts in this case, Messrs. Clarke and Meyer, have already opined on that from a monetary or numerical perspective. MS. HOUSE: Q. You -- in Footnote 73 --

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I'm just trying to understand the lay of the land, sir. You're talking about how your opinions in this particular section of your report on Safe Passage are offered on a review of the stated goals and marketing of Safe Passage. I want to make sure I understand what goals it is that you think you're talking about so that I -- if you're not talking about other goals, we don't have to worry about them. But I need to

understand, are you talking about the specific financial goals that SAP articulated for Safe Passage? Are you going to be offering any opinions about the reasonableness of those financial goals? MR. McDONELL: answered. THE WITNESS: I don't believe my report Object. Asked and

discussed the financial goals that SAP had for that, other than to say that it did -- that I did discuss some of the financial issues around what difficulties customers have with software implementations, total cost of ownership, and those kind of matters. MS. HOUSE: Q. Are you going to be

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offering any opinions on the reasonableness of SAP's financial goals for the Safe Passage program? MR. McDONELL: Assumes facts, beyond the Asked and answered.

scope, object to the form. THE WITNESS:

In the way that I'm

understanding your question, I think the answer is possibly no. MS. HOUSE: Q. You don't even know what

those financial goals are, do you? MR. McDONELL: THE WITNESS: MS. HOUSE: Q. Same objections. I didn't say that. Do you know what the

financial goals were for -- that SAP had for Safe Passage? A. I indicated that I saw some documents like

that, I believe, in like the Hurst -- or one of those two depositions I referenced in my Appendix C. Q. Are you intending to offer an opinion that

those financial goals of SAP for the Safe Passage program were unreasonable? MR. McDONELL: Vague and ambiguous, object

to the form, asked and answered. THE WITNESS: some -My report already has

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MS. HOUSE:

Q.

It's a yes or no question. Don't interrupt please,

MR. McDONELL: Counsel. MS. HOUSE:

No, I need a clear answer, Let's try it again.

because I need a clear record.

Can you read back the question, Holly? (Record read as follows: Question: Are you intending to offer an

opinion that those financial goals of SAP for the Safe Passage program were unreasonable?) MR. McDONELL: Object to the form of the

question, asked and answered, beyond the scope, vague and ambiguous. THE WITNESS: From about page 50 on, I

have some opinions here I've stated, and they are what they are. And if -- I don't know what you

mean by a financial deal, because I could see someone arguing that I -- that my discussion of total cost of ownership is a financial factor. So I guess if you're -- in the purest sense, yes. I would probably say no, but -Q. Well, let's figure it so

MS. HOUSE:

we can get a clean record. Do you understand that SAP had financial goals for the Safe Passage program?

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MR. McDONELL: to the form. THE WITNESS: MS. HOUSE: Q.

Lack of foundation, object

I believe they did. Okay. Are you intending

to offer an opinion that the financial goals that SAP had for the Safe Passage program were unreasonable? MR. McDONELL: to the form. THE WITNESS: Generally, my report is not Asked and answered, object

making an assessment of the financial goals of Safe Passage, other than how customers would perceive these programs. MS. HOUSE: Correct? MR. McDONELL: Asked and answered. Object Q. So the answer is no.

to the form of the question. THE WITNESS: Under the criteria I just

answered, that would be correct. MS. HOUSE: Q. And do you understand that

SAP also had other strategic goals for the Safe Passage program? MR. McDONELL: Vague and ambiguous, lack Beyond the

of foundation, object to the form. scope.

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THE WITNESS: MS. HOUSE: Q.

Define "strategic goals." Well, do you understand

what any of the strategic goals SAP had for the Safe Passage program were? MR. McDONELL: and ambiguous. THE WITNESS: Because SAP wanted to move Object to the form. Vague

customers from Oracle to SAP, one of their strategic goals must have been to increase market share. Is that what you mean by a strategic goal? MS. HOUSE: Q. I'm asking you if you

understood what SAP's strategic goals for Safe Passage were. MR. McDONELL: to the form. Asked and answered. Object

Vague and ambiguous. Again, that wasn't part of I was not I

THE WITNESS:

my scope of my report or my assignment.

to look at what SAP thought or Oracle thought.

looked at this from the perspective of how this was perceived by clients or customers of the firms. MS. HOUSE: Q. And so you are not

intending to offer an opinion that any of the strategic goals that SAP had for the Safe Passage program was unreasonable. Is that right?

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MR. McDONELL: to the form. THE WITNESS: difficult.

Asked and answered.

Object

Again, I'm not trying to be

What I wrote is what I wrote, and it speaks to some matters that could be considered either strategic or financial. But I think it was

very clear about the opinions I expressed in my report. MS. HOUSE: Q. Unfortunately, it's not.

And unfortunately, we have to get a clear record. It's a simple question. Are you -- first of all, do you even know what the strategic goals of SAP were for the Safe Passage program? MR. McDONELL: repeatedly. witness. Asked and answered

At this point, you're harassing the

Object to the form. THE WITNESS: I know what was available

publicly, and I know -- and I reference that in my report, and I know what was in those two depositions generally. And again, my report focuses on what the customers would see, so I have a general idea of that.

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MS. HOUSE:

Q.

You're not intending to

offer any opinion that SAP's strategic goals for the Safe Passage program were unreasonable. that fair? MR. McDONELL: question. Object to the form of the Vague Is

Asked and answered repeatedly.

and ambiguous. THE WITNESS: assignment. That was not part of my

So no, I'm not going to be answering

that type of a question. MS. HOUSE: Q. Could you look at page 50?

You say -- in the sentence under little ii, you say: I note, however, that Mr. Meyer offers scant if any support for opinions about the merits of Safe Passage and whether the Defendants' goals for Safe Passage were reasonable or realistic. Are you intending to opine that Defendants' goals for Safe Passage were not reasonable or realistic? MR. McDONELL: and answered repeatedly. THE WITNESS: Well, as I said before, I Object to the form. Asked

offer these -- I think it's three points about this

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program.

And -- yes, three points.

And -- about

this program. I also want to note that in that sentence you just quoted about the support for opinions about the merits of the program, what I provided in my report was additional support or things that Mr. Meyer should have considered in his discussions about whether those goals for Safe Passage were reasonable or realistic. MS. HOUSE: question. I think you've said that you're not intending to opine whether or not SAP's strategic goals were reasonable. Just because of the Q. Okay. That's not my

language in this sentence, I want to make sure that's not what you intend to opine. A. In an earlier answer, I said that what I

put here were my opinions about this, and did it from a customer perspective, and that's still consistent with what I've got here in this report. Q. Are you aware that at the time SAP created

its goals and financial projections for the Safe Passage program, that SAP was the world's largest ERP application vendor? MR. McDONELL: Vague and ambiguous, object

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to the form. THE WITNESS: was one of the biggest. MS. HOUSE: Q. Would you agree that SAP If it wasn't the biggest, it

had expertise at making projections related to ERP purchasing behavior? MR. McDONELL: Object to the form. Lack

of foundation, vague and ambiguous, incomplete hypothetical. THE WITNESS: I would find it hard to

believe that they wouldn't have that sort of expertise, either in-house or under contract. MS. HOUSE: Q. And would you agree that

SAP had expertise at setting strategic goals? MR. McDONELL: undefined terms. Vague and ambiguous, Incomplete

Object to the form.

hypothetical and beyond the scope. THE WITNESS: I would -- again, I would

imagine that they would have that sort of expertise available to them. MS. HOUSE: Q. And you have no reason to

believe that they didn't apply that expertise in creating the Safe Passage program, do you? MR. McDONELL: Beyond the scope, calls for Vague and

a legal conclusion, object to the form.

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ambiguous. THE WITNESS: Well again, all of these

last few questions are all speculative about -that I would imagine that they would have some ability to come up with those kind of estimates and plans and -MS. HOUSE: imagining anything. Q. No, I didn't ask you about

I asked you if you knew of

anything that would indicate that SAP did not apply that expertise in creating the Safe Passage program. MR. McDONELL: Object to the form. Lack

of foundation, beyond the scope, incomplete hypothetical, vague and ambiguous. THE WITNESS: I'm not aware of any -- I'm

not aware of any -- I have no reason to believe they lacked that capability. MS. HOUSE: Q. Do you understand that SAP

believed that their acquisition of TomorrowNow and offering of Safe Passage could have a detrimental effect on whether or not Oracle realized the return on its investment in PeopleSoft? MR. McDONELL: Lack of foundation, beyond Vague and

the scope, object to the form. ambiguous.

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THE WITNESS:

Can you just read the last

little bit of that again, or I guess reread the question -- or can you -MS. HOUSE: Q. I can do that.

Do you understand that SAP believed that their acquisition of TomorrowNow and offering of Safe Passage could have a detrimental effect on whether or not Oracle realized the return on its investment in PeopleSoft? MR. McDONELL: Lack of foundation, calls

for speculation, beyond the scope, vague and ambiguous, object to the form. THE WITNESS: That was -- that wasn't

exactly part of my report, but here's my answer on it: I believe that someone put together a business plan in all likelihood for this, and they probably had assumptions about market share growth and penetration estimates. Whether those

assumptions covered what competitors would do also in response or other kinds of assumptions I don't know, and I don't know how or what was in those plans. So -MS. HOUSE: Q. Assuming it's true, do you

intend to opine that that was unreasonable goal for

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SAP? MR. McDONELL: Object to the form,

incomplete hypothetical, beyond the scope, vague and ambiguous. Object to the form. That they were going -- when

THE WITNESS:

you said that that was an unreasonable, that -what is the "that"? MS. HOUSE: Q. That is using TomorrowNow

and the Safe Passage to have a detrimental effect on Oracle's ability to get a return on investment on PeopleSoft. MR. McDONELL: Same objection. Vague as

to undefined terms, object to the form, beyond the scope, vague and ambiguous. THE WITNESS: I believe that -- it's hard

for me to imagine what somebody thought or did since I wasn't there. But as to its reasonableness, every day there's probably a couple of dozen companies pitching a business plan somewhere here in the Bay Area for a new startup, and somebody probably thinks it's going to work and it's going to be very viable and so forth, and not all those pan out. fact, very few. MS. HOUSE: Q. That's not my question. In

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I'm asking assuming that that was a strategic goal for SAP, are you intending to opine that that was an unreasonable goal? MR. McDONELL: Object to the form, beyond

the scope, calls for speculation, lack of foundation, vague and ambiguous. THE WITNESS: I'm saying that -- again,

this is not part of my overall assignment to deal with this market generally -- that if someone had made certain assumptions, whether those came true or not, I don't know, and I'm not going to -- but I am saying in this report, I have three key points: That marketing by these large vendors generally isn't as effective, that -- and there's more detail on that. That Safe Passage didn't offer enough incentive, and I had a number of points regarding TCL and why that's tough to do. And the third point, that a support option with TomorrowNow might actually keep customers on older products. Those were the opinions I put in there, and that's what I've rendered an opinion of in my expert report. MS. HOUSE: Q. So from your answer, it's

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clear that you're not going to be intending -you're not going to be offering an opinion that if that was a goal of SAP, that that was an unreasonable goal? MR. McDONELL: the same question. MS. HOUSE: answer. MR. McDONELL: answer. Well, he's giving you the Counsel, you keep asking

You're badgering the witness. I'm trying to get a clean

You apparently -MS. MacDONALD: The witness is being very So --

evasive and not responding to the question. MR. McDONELL: one attorney speaking. MS. HOUSE: Just let's keep going.

Counsel, we can only have

We're

trying to get clean answers. Q. It's very simple. You've said, I've only

got it in my report.

So the simple answer is -- do

you intend to opine that -- if having a detrimental effect on whether Oracle realized its return on investment for PeopleSoft was a goal of SAP, do you intend to opine that that was an unreasonable goal? MR. McDONELL: answered repeatedly. witness. It's been asked and You're now harassing the

I repeat all my prior objections.

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THE WITNESS: in my report.

I -- my opinions are what's

And you're asking me if I'm going to

opine on some things that may or may not be in my report. That's my understanding of your question. And that's why I'm struggling with your question, is because you're asking, am I going to give an opinion about whether the -- whether some goals about SAP's program were reasonable or not. And all I could do is talk about the ones that I put in this particular report, particularly those that have a customer -- a significant customer impact and focus. MS. HOUSE: triggered this. Q. Your report, sir, is what

You have language in there where

you criticize Mr. Meyer about not considering things that you say, whether the defendants' goals for Safe Passage were reasonable or realistic. That is your language, sir. MR. McDONELL: itself. Correct?

The document speaks for

You're arguing with the witness. MS. HOUSE: Q. Yes?

A.

Yes. MR. McDONELL: MS. HOUSE: Q. Object. Okay. So I'm asking you,

sir:

Are you intending to opine whether any of the

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goals that SAP had for Safe Passage were reasonable or unreasonable -- or I'm sorry. Are you intending to opine whether any of the goals that SAP had for Safe Passage were unreasonable or unrealistic? no, then we can move on. MR. McDONELL: question. Object to the form of the And if the answer is

It's been asked and answered repeatedly.

He's given you an answer, and I reincorporate all of my prior objections. THE WITNESS: I'm only going to opine on That's

the three opinions that I have right here. it. That's the limit of my opinions.

And these

are the things that I thought were things that Mr. Meyer needed to include in his report, and that's why I put them in mine. MS. HOUSE: Q. So -- so we have a clean

record, you don't intend to talk about SAP's goals. Is that right? You're not going to opine about

whether they were realistic or unrealistic for Safe Passage. Is that correct? MR. McDONELL: repeatedly. objections. THE WITNESS: I'm only going to opine on Object. Asked and answered Incorporate all my prior

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these points that are already in my report. the limit of what I'm talking about -MS. HOUSE: Q.

That's

And you don't articulate

what any of the goals are for SAP, do you, in this section of your report. MR. McDONELL: MS. HOUSE: Right? The document --

Let's try it this way. The document speaks for

MR. McDONELL: itself. MS. HOUSE: Q.

Do you articulate what any

of SAP's goals are for the Safe Passage program? MR. McDONELL: itself. The document speaks for Object

You're arguing with the witness.

to the form.

And it's been asked and answered. Q. Now you've read it for the

MS. HOUSE:

third time, do you see whether you articulate any goals of SAP? And if you do, are you intending to

opine if any of those goals are unreasonable? MR. McDONELL: form. Compound, object to the Assumes

You're arguing with the witness.

facts not in evidence, and it's been asked and answered repeatedly. THE WITNESS: On page 49, I state here

that I will reiterate the program's two primary incentives.

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I did not use the word "goals" there. used the word "incentives."

I

And you're right, on the next page, page 50, under -- in this section we've been going back and forth on, about the -- and whether the defendants' goals for Safe Passage were reasonable or unrealistic, while I do not explicitly state in this -- in my report those -- whatever goals there were for Safe Passage, I did discuss and did create three opinions on three different subjects in this section of the report. MS. HOUSE: Q. And so we're clean, you're

not intending to articulate what the goals of SAP were for the Safe Passage program. of your opinion. Right? He's asked and answered Object to the form. That's not part

MR. McDONELL:

this question repeatedly. MS. HOUSE:

Can you answer it yes or no? Counsel, don't cut me off.

MR. McDONELL:

I'm entitled to state my objections. It's been asked and answered to the best of his ability. Your badgering the witness. The

question is vague and ambiguous. THE WITNESS: question many times. I think I've answered that

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MS. HOUSE:

Q.

So the answer is no,

you're not intending to articulate the goals that SAP had for the Safe Passage program. MR. McDONELL: question. Right?

Object to the form of the

It's been asked and answered repeatedly,

it's vague and ambiguous, you're confusing the way you're putting the question. THE WITNESS: I'm only offering opinions

about what's in my report. MS. HOUSE: report. on it. Q. That language is in your

That's why we're spending this much time It's very simple, sir. Can you please try

to answer the question: Are you or are you not intending to opine about the reasonableness of SAP's goals for the Safe Passage program? MR. McDONELL: question. Object to the form of the You're badgering

Asked and answered.

the witness.

It's vague and ambiguous.

Incorporate all my prior objections. THE WITNESS: I just don't know any other

way to answer it other than the way I've answered it before. I have three main opinions about Safe

Passage, and they're right here in these pages in this report.

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MS. HOUSE:

Q.

And none of them are about

SAP's goals and the reasonableness of them, are they? MR. McDONELL: and answered repeatedly. objections. MS. HOUSE: times. Yes or no? MR. McDONELL: your questions. Counsel, he's answering Q. You've read it three Object to the form. Asked

Incorporate all my prior

You may not be happy with the

answer, but he's answered -MS. HOUSE: if you keep this up. Q. question. MR. McDONELL: objections. witness. THE WITNESS: I don't know -- I just don't Incorporate all my prior Come on. Answer the question. Answer the I'm going to ask for more time

You're arguing with and badgering the

either -- I'm sorry if we're not communicating, but I'm not offering any opinions other than the three that are right here in the report. And I don't

know how much clearer I can make that for you. MS. HOUSE: Q. So if you know what the

three are, then you can say whether or not the one

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I'm asking about is part of those three. You're very comfortable knowing what the three are. Let's try to say that the other ones Very simple.

are excluded from those three.

Are you intending to opine about SAP's goals and whether they were unreasonable? MR. McDONELL: been asked and answered. objections. Object to the form. It's

Incorporate all my prior

You just -- you don't like the answer,

Counsel, but he's answered it. THE WITNESS: I'm just really

uncomfortable with your question in the way you're talking about, am I going to opine about something that -- about somebody's goals. We haven't even really covered what those are. So how can I answer yes or no on that, other

than to tell you, what I'm going to give you an opinion on is what's in my report? MR. McDONELL: break, Counsel. We're going to take a lunch

Maybe we can smooth this over and

make things move along faster this afternoon, because you're clearly just repeating yourself. MS. HOUSE: This is ridiculous. I'm

really -- off the record.

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14:26:54 14:27:01 14:27:30 14:27:34 14:27:52 14:27:55 14:27:57 14:27:59 14:28:01 14:28:05 14:28:06 14:28:07 14:28:09 14:28:10 14:28:13 14:28:14 14:28:17 14:28:19 14:28:20 14:28:21

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Q.

Let me hand you his report.

And you can

turn to page -- to paragraphs 439 and 440. And this paragraph, 439, discusses evidence in the case. MR. McDONELL: THE WITNESS: MS. HOUSE: Q. Do you see that? Vague and ambiguous. I see that. And that's material that Correct?

you yourself did not review. MR. McDONELL: THE WITNESS: MS. HOUSE: Q.

Vague and ambiguous. Excuse me? That's material that you Correct? It's vague and ambiguous

did not yourself review. MR. McDONELL:

the way you're phrasing the question. THE WITNESS: I read Mr. Meyer's report.

Are you asking about the specific footnoted items that he has below? to? MS. HOUSE: Q. And the quotes, yes. Is that what you're referring

Other than reading what was a paraphrase

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in the report, you didn't go to the source documents yourself. A. Q. Right?

That's correct. And these look like some of SAP's goals

for the Safe Passage program, don't they? MR. McDONELL: Object to the form. THE WITNESS: And it's -- Mr. Meyer's Vague and ambiguous.

words here say SAP's goal was to convert 50 percent of Oracle's PeopleSoft and JD Edwards customers to SAP, and he continues on with other -- another primary goal. So yes, these look like goals. Q. Okay. And are you

MS. HOUSE:

intending to opine about the reasonableness of these goals, sir? MR. McDONELL: question. Object to the form of the

Asked and answered repeatedly. THE WITNESS: I am going to give an

opinion about the reasonableness of these generally, yes. MS. HOUSE: Q. Is that something that you

came to over lunch, sir? MR. McDONELL: Argumentative. THE WITNESS: I think over lunch I came to Object to the form.

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better understand maybe where you and I weren't communicating I guess on our question-and-answer session. MS. HOUSE: Q. Looking at paragraph 439,

which goal that is listed in that paragraph do you intend to offer an opinion on? MR. McDONELL: question. Object to the form of the

Asked and answered. THE WITNESS: In particular, this one that

says:

SAP's goal was to convert 50 percent of

Oracle's PeopleSoft and JD Edwards customers to SAP. That one I discuss in a couple of spots in the report that -MS. HOUSE: that goal? MR. McDONELL: Counsel. THE WITNESS: was -MS. HOUSE: Q. Where in your report? I have not Where do you You I'm sorry, I'm done. What Well, don't cut him off, Q. Where do you reference

said you reference it in the report. seen that cite in your report, sir. cite that goal of SAP? A. I didn't cite that goal.

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Q.

Is this the first time that you decided

that you're going to be opining about it? MR. McDONELL: with the witness. Counsel, you're arguing

He's explained his position and

the scope of his opinion. MS. HOUSE: Q. Do you understand that

your report was supposed to tell us what you were going to be testifying about, sir? MR. McDONELL: with the witness. THE WITNESS: MS. HOUSE: Q. Yes. Okay. And you don't Object. You're arguing

reference that goal that SAP had to convert 50 percent of Oracle's PeopleSoft and JD Edwards customers to SAP anywhere in your report, do you, sir? MR. McDONELL: answered. MS. HOUSE: pending. A. Q. Yes or no? Please say the question again. You do not reference the goal of SAP to Q. There's a question Same objection. Asked and

convert 50 percent of Oracle's PeopleSoft and JD Edwards customers to SAP anywhere in your report, sir, do you?

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A.

I do not explicitly express that or state

that goal, that is correct. Q. And do you even know where that goal is

articulated? MR. McDONELL: MS. HOUSE: Q. Vague and ambiguous. By SAP? Vague -Or what any of the

MR. McDONELL: MS. HOUSE: Q.

witnesses said about it? MR. McDONELL: ambiguous. THE WITNESS: Mr. Meyer's report. MS. HOUSE: Q. So other than the I know it's right here in Compound, vague and

reference in Mr. Meyer's report, you have no other information about that goal of SAP. correct? MR. McDONELL: Misstates the testimony. Is that

Object to the form of the question. THE WITNESS: Can you repeat that?

(Record read as follows: Question: So other than the reference in

Mr. Meyer's report, you have no other information about that goal of SAP. correct?) Is that

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THE WITNESS:

I believe that may be

correct, unless it was already indicated in one of the other two depositions that I had listed at the top of Appendix C. MS. HOUSE: Q. And what are you intending

to opine about that goal now? MR. McDONELL: question. MS. HOUSE: Q. With my objection about Object to the form of the

whether it's appropriate to be doing so, having not disclosed it -MR. McDONELL: witness. MS. HOUSE: I'm reserving our rights here. That's fine. But don't You're arguing with the

MR. McDONELL: argue with him.

Ask your questions. Q. What do you intend to

MS. HOUSE:

opine about that goal, sir? A. I'm -MR. McDONELL: testimony. I object. What I have already included And you're misstating his

THE WITNESS:

in my report is that when customers go to make software-changing -- software change decisions, that they -- as I stated in my report, they often

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have these software products installed for many years, and that these are very expensive projects to change out one package to another. That -- I also state somewhere in my report that most of these programs aren't going to work unless they happen to catch customers who are already motivated or in the market for new solutions. So for someone to convert 50 percent of the installed base of another vendor's product in any kind of short order, that would be an exceptionally aggressive deal, because a lot of those customers, in my expert opinion, would not be in the market for a solution at that point in time. They may get there eventually over a period of many years, but not in a short order -short amount of time. MS. HOUSE: Q. So are you going to be

opining that that was an unreasonable goal? MR. McDONELL: question. Object to the form of the

He's asked and answered it. THE WITNESS: A goal to convert 50 percent

of the PeopleSoft/JD Edwards customers to SAP in a short amount of time, yes, I'm opining that would be -- that would not be a reasonable goal.

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