Oracle Corporation et al v. SAP AG et al

Filing 860

Declaration of Chad Russell in Support of 859 Memorandum in Opposition, to Defendants' Motion to Partially Exclude Testimony of Kevin Mandia and Daniel Levy filed byOracle International Corporation, Oracle USA Inc., Siebel Systems, 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, # 21 Exhibit U, # 22 Exhibit V)(Related document(s) 859 ) (Russell, Chad) (Filed on 9/9/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 860

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BINGHAM McCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: [phone] [e-mail] STEVEN C. HOLTZMAN (SBN 144177) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: 650.506.7114 [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., No. 07-CV-01658 PJH (EDL) v. Plaintiffs, DECLARATION OF CHAD RUSSELL IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF KEVIN MANDIA AND DR. DANIEL LEVY Date: Time: Place: Judge: September 30, 2010 2:30 pm Courtroom 3, 3rd Floor Hon. Phyllis J. Hamilton
Case No. 07-CV-01658 PJH (EDL)

SAP AG, et al., Defendants.

DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO DEFS.' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF MANDIA AND LEVY
Dockets.Justia.com

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 26 27 28 U V O P Q R S T Exhibit A B C D E F G H I J K L M N Description

Exhibit Index

Deposition Exhibit 1549, Level Set ­ "Cross-Use" Environments ­ Meeting Minutes Deposition of Kevin Mandia, May 20-21, 2010 Appendices to the Supplemental Expert Report of Kevin Mandia, dated February 12, 2010 SAP Responds to Oracle Complaint, July 3, 2007 Deposition of Mark Kreutz, October 29-30, 2007 Deposition of Shelley Nelson, October 30, 2007 How many bytes for..., http://searchstorage.techtarget.com SAP TN's First Amended and Supplemental Response to Oracle USA's Second Set of Interrogatories, Nos. 12, 13 and 14 Deposition of Gary Funck, June 1-2, 2010 Deposition of Norm Ackermann, December 1, 2009 Deposition of Edward Screven, November 30, 2009 Deposition of Greg Story, December 1, 2009 Expert Report of Stephen Gray, dated March 26, 2010 Deposition of Stephen Gray, June 8-9, 2010 Deposition Exhibit 403, Conference Call Transcript ­ SAP to Host Teleconference Regarding its Response to Oracle Lawsuit, July 3, 2007 SAP TN's Eighth Amended and Supplemental Response to Oracle Corporation's First Set of Interrogatories, No. 13 Deposition of John Ritchie, December 2, 2009 Partial Summary Judgment Hearing, May 5, 2010 Motion to Dismiss Hearing, May 5, 2010 SAP PartnerEdge, IVN and Certified Powered By SAP NetWeaver, www.nextlabs.com Federal Judicial Center, Reference Manual on Scientific Evidence, Second Edition, 2000 Deposition of Dr. Daniel Levy, April 30, 2010 1

Case No. 07-CV-01658 PJH (EDL)

DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO DEFS.' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF MANDIA AND LEVY

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I, Chad Russell, declare as follows: 1. I am an attorney at law licensed to practice in the State of California and

before this Court, and am an associate at Bingham McCutchen LLP, counsel of record for plaintiffs Oracle USA, Inc. (predecessor to Oracle America, Inc.), Oracle International Corporation and Siebel Systems, Inc. (collectively "Oracle" or "Plaintiffs") in this action. I have personal knowledge of the facts stated below by virtue of my representation of Oracle in this action and if called as a witness could competently testify as to them. 2. To the extent possible without losing context, Oracle has attached only the

relevant pages and information for all exhibits to this Declaration, including deposition transcripts. Unless otherwise noted below for a particular document, all highlighting in these exhibits has been provided by Oracle to further assist in identifying the information relevant to Oracle's Opposition to Defendants' Motion to Partially Exclude Testimony of Kevin Mandia and Dr. Daniel Levy. 3. Attached as Exhibit A is a true and correct copy of an email produced by

Defendants and entitled "Level Set ­ `Cross-Use' Environments ­ Meeting Minutes." This document was marked by Oracle as Plaintiffs' Deposition Exhibit 1549 in its originally-produced scanned "TIFF" form. Defendants have since produced a color version, which included the blacked-out box on the first page, and which Oracle substitutes here. 4. Attached as Exhibit B is a true and correct copy of portions of the transcript of

the deposition of Kevin Mandia on May 20-21, 2010. 5. Attached as Exhibit C is a true and correct copy of portions of the Appendices

to the Supplemental Expert Report of Kevin Mandia, dated February 12, 2010, which were submitted by Mr. Mandia in this case. 6. Attached as Exhibit D is a true and correct copy of a document entitled "SAP

Responds to Oracle Complaint," dated July 3, 2007, and printed from SAP's website at http://www.sap.com/global/templates/press.epx?pressid=7971&query=tomorrownow. 7. Attached as Exhibit E is a true and correct copy of portions of the transcript of
Case No. 07-CV-01658 PJH (EDL)

the deposition of Mark Kreutz on October 29-30, 2007. 2

DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO DEFS.' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF MANDIA AND LEVY

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8.

Attached as Exhibit F is a true and correct copy of portions of the transcript of

the deposition of Shelley Nelson on October 30, 2007. 9. Attached as Exhibit G is a true and correct copy of a document entitled "How

many bytes for...," printed from http://searchstorage.techtarget.com/sDefinition/0,sid5_gci944596,00.html. 10. Attached as Exhibit H is a true and correct copy of portions of Defendant

TomorrowNow, Inc.'s First Amended and Supplemental Response to Oracle USA's Second Set of Interrogatories, Responses Nos. 12, 13 and 14. 11. Attached as Exhibit I is a true and correct copy of portions of the transcript of

the deposition of Defendants' expert Gary Funck on June 1-2, 2010. 12. Attached as Exhibit J is a true and correct copy of portions of the transcript of

the deposition of Oracle employee Norm Ackermann on December 1, 2009. 13. Attached as Exhibit K is a true and correct copy of portions of the transcript of

the deposition of Oracle employee Edward Screven on November 30, 2009. 14. Attached as Exhibit L is a true and correct copy of portions of the transcript of

the deposition of Oracle employee Greg Story on December 1, 2009. 15. Oracle produced the working notes of former Mandiant employee Cory

Altheide with Bates number ORCLX-MAN-000207 on November 16, 2009, together with Mandia's original expert report. 16. The chart below shows the date on which Defendants deposed the Oracle

employee indicated: Deponent Norm Ackermann Uwe Koehler Buffy Ransom Jason Rice Edward Screven Greg Story Dan Vardell Date December 4, 2009 December 4 & 5, 2008 September 26, 2008 & April 30, 2009 December 4, 2009 November 30, 2009 December 1, 2009 November 25, 2009

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Case No. 07-CV-01658 PJH (EDL)

DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO DEFS.' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF MANDIA AND LEVY

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17.

Attached as Exhibit M is a true and correct copy of portions of the Expert

Report of Defendants' expert Stephen Gray, dated March 26, 2010, as corrected on June 3, 2010, which was submitted by Mr. Gray in this action. 18. Attached as Exhibit N is a true and correct copy of portions of the transcript of

the deposition of Mr. Gray on June 8-9, 2010. 19. Attached as Exhibit O is a true and correct copy of portions of Plaintiffs'

Deposition Exhibit 403, a document entitled "Conference Call Transcript ­ SAP to Host Teleconference Regarding its Response to Oracle Lawsuit," dated July 3, 2007. 20. Attached as Exhibit P is a true and correct copy of portions of Defendant

TomorrowNow, Inc.'s Eighth Amended and Supplemental Response to Plaintiff Oracle Corporation's First Set of Interrogatories, Response No. 13. 21. Attached as Exhibit Q is a true and correct copy of portions of the transcript of

the deposition of former SAP TN employee John Ritchie on December 2, 2009. 22. Based on my electronic search and review of the Supplemental Expert Report

of Kevin Mandia, including the Appendices, neither the word "infringement" nor similar words such as "infringe," "infringed" or "infringing" appear in Mandia's Supplemental Expert Report or Appendices. See ¶ 4 & Ex. B; Decl. of Scott Cowan in Supp. of Defs.' Mot. ("Cowan Decl."), Dkt. 782, Ex. A (Mandia Report). 23. Attached as Exhibit R is a true and correct copy of portions of the transcript of

the May 5, 2010 Partial Summary Judgment Hearing before the Court. 24. Attached as Exhibit S is a true and correct copy of portions of the transcript of

the May 5, 2010 Motion to Dismiss Hearing before the Court. 25. Attached as Exhibit T is a true and correct copy of a document entitled "SAP

PartnerEdge, IVN and Certified Powered By SAP NetWeaver," printed from http://www.nextlabs.com/html/?q=sap. 26. Attached as Exhibit U is a true and correct copy of portions of the Federal

Judicial Center Reference Manual on Scientific Evidence, Second Edition, 2000, printed from http://www.fjc.gov/public/pdf.nsf/lookup/sciman00.pdf/$file/sciman00.pdf. 4 Case No. 07-CV-01658 PJH (EDL)
DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO DEFS.' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF MANDIA AND LEVY

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27.

Attached as Exhibit V is a true and correct copy of portions of the transcript of

the deposition of Dr. Daniel Levy on April 30, 2010.

DATED: September 9, 2010

Bingham McCutchen LLP By: /s/ Chad Russell Chad Russell Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, and Siebel Systems, Inc.

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Case No. 07-CV-01658 PJH (EDL)

DECLARATION OF CHAD RUSSELL IN SUPPORT OF ORACLE'S OPPOSITION TO DEFS.' MOTION TO PARTIALLY EXCLUDE TESTIMONY OF MANDIA AND LEVY