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 Att. 12

EXHIBIT L
Dockets.Justia.com

GREG STORY December 1, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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If there are communications solely between you and the Bingham lawyers or in-house Oracle lawyers that do not involve Mr. Mandiant -Mr. Mandia or anyone with his firm, the Mandiant firm, I think that's what's covered by Mr. Polito's instruction. He can instruct you otherwise. If it's any communication involving Mr. Mandia and you providing any information to Mr. Mandia, I'm entitled to know that. A. Understood. MR. POLITO: I'm going to object to the characterization. MR. COWAN: Q. Well, if there's an issue there, I need to at least know on the record if you're not answering my question, and the -- and not answering my question, it still involves some communication you had with Mr. Mandia or anyone at his firm that you believe may be privileged. And I may have to give you an opportunity to consult with counsel, but I want that clear on the record? MR. POLITO: I'm going to object to the statement on the record. There's no question pending. MR. COWAN: Q. Well, my question is: Will

A. In the hotel lobby. Q. And how long was the meeting? A. I'd have to guess, half hour. Q. Okay. And what did you -- who was there? Was Kevin Mandia there? A. No. Q. Was it Cory Altheide? A. Yes. Q. What did you discuss with Mr. Altheide at that meeting, if you recall? MR. POLITO: I'm going to caution you not to answer to the extent that it reveals confidential attorney-client communication. THE WITNESS: Basically, just exchanging backgrounds. He had a background in AS/400, I had a background in AS/400. Other than that, I don't recall anything specific regarding ... MR. COWAN: Q. Other than the introductions and explaining your relative expertise to each other, do you recall anything specific about what was going to be accomplished -- discussing anything specific about what was going to be accomplished the next day at that inspection? MR. POLITO: And I'm going to instruct you not to answer that question as phrased.

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you -- if you take your counsel's instruction not to answer my question, will you at least identify whether the communication involved someone with Mr. Mandia's firm? MR. POLITO: And I'm going to remind you that I'm here as your attorney today, so I will instruct you appropriately. THE WITNESS: I will use my counsel's judgment. MR. COWAN: Q. Okay. Assuming he permits you to do so, will you do that? A. Absolutely. Q. So you don't recall any communications with anyone at Mr. Mandia's firm prior to traveling to Bryan, Texas? MR. POLITO: Misstates the witness's testimony. THE WITNESS: No, thanks. No, I don't recall. MR. COWAN: Q. All right. And you indicated you believe the first communication you had with anyone at Mr. Mandia's firm was the night before the inspection on November 11th, 2008? A. Yes. Q. Where did that meeting occur?

THE WITNESS: Yeah, I cannot answer that question as phrased. MR. COWAN: Q. Do you recall having specific discussions with Mr. Altheide the evening before the November 11th, 2008 inspection regarding what Mr. Altheide wanted to do during the inspection? A. It was not discussed. Q. Okay. The morning of the inspection, did you have any meeting before you went to the facility to inspect the AS/400s in Bryan? A. I believe we met for breakfast. Q. Other than just having breakfast, do you recall any specific discussion about -- with Mr. Altheide about what he intended to do during the inspection? MR. POLITO: I'm going to caution you not to answer to the extent that it would reveal privileged attorney-client communications. THE WITNESS: And I don't recall. MR. COWAN: Q. Do you have an understanding, when Mr. Polito tells you, what a privileged attorney-client communication -- what that means? A. I do.

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Q. And then did you select the entire contents of the tape to restore onto the AS/400? A. No, I don't believe so. I -- if I remember correctly, TomorrowNow gave us everything that was on their system, and we did not restore everything. Specifically, data libraries. We weren't interested in data libraries or customer data. They were omitted. Q. So you did not do a restoration in Denver of the same AS/400 completely that was inspected on November 11, 2008. Correct? MR. POLITO: Misstates witness testimony. THE WITNESS: Correct. MR. COWAN: Q. You only restored off of those tapes portions of what was installed on the AS/400 you inspected in Bryan. Correct? A. Correct. Q. Do you recall what criteria you used, if any, to determine which portions of data off of the tapes that you selected to restore onto the AS/400 in Denver? A. When you say data, do you mean objects? Q. Yeah, any type of computer data. Well, okay. Fair enough. Because you're distinguishing between like customer data versus

some idea of what we wanted to restore. And I don't recall where that came from or what criteria was used. Q. If -- so you're saying there was some criteria used; you just don't recall what it was? A. Well, there has to be some criteria; it wouldn't just restore things haphazardly. And I do not recall what that criteria was. Q. You don't recall getting any email communication from Mr. Altheide telling you specifically what he wanted you to restore? A. I don't recall. Q. Have you kept any record as to what is on the AS/400 that's in Denver? It's the same -- let me back up. Is -- does the restored data that you restored in January of '09 still exist on the AS/400 in Denver as we sit here today? A. No, sir. Q. When was it removed? A. The end of the week after the Mandiant representative and I were finished with it. Q. Has there been any additional restorations of any of the tapes by you on any AS/400 since January of '09?

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source, et cetera. I'm using it in a very generic term. Any binary data. A. Understood. And the -- please restate the question again? Q. Yeah. The tape that you had had binary data on it, did it not? A. Yes. Q. And you did a command on the system to determine the contents on the tape. Correct? A. Correct. Q. And you were able to view the contents of the tape. Yes? A. From a library level, yes. Q. Okay. And then you made decisions as to which libraries you wanted to restore to the AS/400 in Denver. Right? A. Correct. Q. And my question is, what criteria, if any, did you use to make those decisions? A. I don't recall. Q. Were you provided some criteria by Mr. Altheide? A. Yeah, I don't remember making any decisions myself. Certainly we would have had to have had

A. No, sir. MR. POLITO: Take a second to let me object. (Discussion off the record.) MR. COWAN: Q. How long was Mr. Altheide in Denver looking at the portions of the tape that were restored onto the AS/400 in Denver? A. I believe it was a week, 5 days. Q. What did he do, if you know? A. We sat in the basement and looked at innumerable objects and countless lines of source code. Q. Are you a developer, a World developer? A. No, sir. I'm a system administrator. I've been around developers, I work with developers, I help developers, and I'm -- exposure to code, but I am not a developer. Q. You've never written any World code? A. World, JD Edwards World code? Q. Yes. A. No, sir. Q. Would you know how to write World code? A. I have written small CL programs -- CL is command -- it stands for command language, and it's the command like I gave you before, "work library,"

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probably a collaborative effort, but I don't recall anything specific that I was interested in or that he was interested in that we were looking at specifically, outside of what I've already answered, the lines of code and code changes. Q. Right. But that's a generic description of what you're looking at. I was more interested in whether you made -- provided any input whatsoever as -- to figure out which portions of source code would be reviewed by anyone at Mandiant. MR. POLITO: Is there a question pending? Hold on. There's no question pending. MR. COWAN: Okay. Let me rephrase it in the form -- a better form of a question. Q. Did you provide any input whatsoever into the decision regarding which portions of source code Mandiant would review? A. I believe we looked at metadata, and also work libraries. Those -- that's where we I guess began. And I might have provided information as to, if you look at the metadata in this manner, you can see source change dates and that sort of thing. Q. In other words, you helped Mr. Altheide understand what data he was looking at and the amount of information that was available in the

A. I don't recall for certain. Q. Did you have any input whatsoever in determining -- and I'm going to break it up -what -- let me back up. I'm going to break this up into two pieces. Did you have any input whatsoever into determining what source code Mr. Altheide or anyone else at Mandiant was interested in reviewing? A. No. I believe -- my best recollection is that the decision was made to look at code changes, and they might have been related to year-end updates, something like W-2, T4, something along those lines, and I was not involved with that decision. Q. Did you have any input whatsoever into determining what libraries Mr. Altheide or anyone else at Mandiant was interested in reviewing? A. I do not remember a specific case where I was interested in something and directed the -would this be an investigation? I don't know -- in any way. Q. So your answer is, you don't remember a specific case that you were interested in something and directed the investigation in any way? A. Correct.

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data? A. I would say more in a navigational standpoint. Q. Okay. A. So how to get the information that he was interested in. Q. And that's my question. Did you have any input in determining what Mr. Altheide was interested in reviewing? Did you help him decide what that was? Not help him navigate through the review of what he wanted to review, but helping decide what it is he wanted to review? MR. POLITO: That's compound. MR. COWAN: Q. Do you understand my question? A. Yeah, I believe I do. So -Q. And let me -- because it was a compound question, given that it has two question marks in the question. Did you have any input in determining what Mr. Altheide was interested in reviewing? A. Possibly. Is that an acceptable answer? Q. Well, I'm trying to figure out what that is. If it's a possible, then I need you to tell me what it was.

Q. Was there anyone else in the room with you and Mr. Altheide when you were reviewing the restored portions of the backup tape on the AS/400 in Denver? A. There were times when system engineers -it was in a locked room, so only certain people had access, and there were times when system engineers would come through and work in the same room, but it was a big room. It was larger than this room. So yes. Q. But no one working with the two of you? A. No, sir. Q. And just the two of you worked together for 4, 4 1/2, 5 days that one week in January of '09? A. Correct. Q. No one else from Oracle was involved? A. No, sir. Q. And no one else from Mandiant was involved? A. Not in the room, no. Q. And no one from Bingham law firm or in-house lawyers at Oracle were there either? A. No. Q. Correct? A. Correct. (Deposition Exhibit 794 was marked for

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