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. 16

EXHIBIT P
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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., Case No. 07-CV-1658 PJH (EDL) DEFENDANT TOMORROWNOW, INC.'S EIGHTH AMENDED AND SUPPLEMENTAL RESPONSE TO PLAINTIFF ORACLE CORPORATION'S FIRST SET OF INTERROGATORIES (SET ONE)

24 25 Defendants. 26 27 28
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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 INTERROGATORY NO. 13: Describe in as much detail as possible all Software and Support Materials that "have been downloaded beyond those that, according to TN's records, related to applications licensed to the particular customer on whose behalf the downloads were made," as alleged in ¶ 15 of Your Answer, including but not limited to Identifying the "records" You referenced in making Your determination. RESPONSE TO INTERROGATORY NO. 13: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. Subject to and without waiving the General Responses and Objections, TomorrowNow responds as follows: TomorrowNow's downloads on behalf of customers using JDE's OneWorld products were made based on instructions set forth on a Download Request Form. The Download Request Forms for Merck, OCE, SPX, Metro Machine and Yakazi instructed the download team to download all ESUs for all system codes on a particular release level. TomorrowNow's records did not show that those customers had represented that they were licensed to all system codes on a particular release level. Additionally, TomorrowNow has learned that the password and user id. for Honeywell were used to access the Customer Connection site to download materials apparently related to JDE products. Additional information responsive to this interrogatory can be derived or ascertained from the relevant customer contracts, onboarding documentation, Download Request Forms and the relevant customer files, which will be included in
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TomorrowNow's document production and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its customer contracts include but are not limited to: TN-OR00000027 ­ TN-OR00001007 and TN-OR 00004204 ­ TN-OR00004276; and that its onboarding documentation includes but is not limited to TN-OR00001008 ­ TN-OR00001277. Download material (in native format) includes but is not limited to: TN-OR00004202, TN-OR00005146 and TN-OR00005147. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that because TomorrowNow did not have access to its customers' customers' respective license agreements with the software vendor, TomorrowNow relied on the the representations of its customers in each customer's Support Services Agreement and the "Covered Products" portion of the Agreement's accompanying exhibits, as well as the product As information provided by the customer in the Product Verification Forms. As stated in the d response response above, TomorrowNow believes that there were some downloads made for products beyond those to which the customer informed TomorrowNow that the customer was licensed. However, despite numerous discovery requests for information from Plaintiffs that will map downloads to specific products, no such information has been produced which in turn means that TomorrowNow does not have the ability to map each of the specific downloads to each of the specific products. Plaintiffs have represented to the Court that they also do not have the ability post-download to determine which downloads relate to which products. Thus, without such mapping information (provided in a manner that permits an electronic "download to product" comparison), it is not possible for TomorrowNow to evaluate the appropriateness of each
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in on December 18, 2006 using the log-in credentials of Yazaki and downloaded a Customer Relationship Management ESU, PH11676, for EnterpriseOne software version 8.11.... SAP TN also used the log-in ID of OCE to download a payroll update for World Software version A7.3, A738217431, on December 21, 2006. ... None of these customers was licensed to copy these works. ... TomorrowNow was then able to use this information in ¶ 85 of the FAC to find the customer-specific download folder locations on DCITBU01_G in which these specific files were located. TomorrowNow then concluded that TomorrowNow had downloaded the ESUs with the file names JJ13072 (SPX), JK10093 (Merck) and PH11676 (Yazaki) and the SAR with the name of A738217431 (OCE), which correspond to the respective customers listed in ¶ 85 of the FAC (and as noted in parenthesis herein). See DCITBU01_G (TN-OR02989997, TN-OR02989995). By the time TomorrowNow filed its answer to the FAC on July 2, 2007 TomorrowNow had r reached reached the preliminary conclusions that: (a) TomorrowNow apparently downloaded each of the files noted in ¶ 85 of the FAC using that specific customer's username and password credentials; and (b) by referring to each specific customer's Support Services Agreement with d TomorrowNow, TomorrowNow, product verification forms and download request forms, it appeared that each of the four files noted in ¶ 85 of the FAC related to products other than those for which each respective customer had informed TomorrowNow they were licensed.2 The documents and other information on which TomorrowNow's preliminary conclusions at that time were based are as follows: SPX File name: JJ13072 File location: BU01_G\JDEUPDATES&FIXES75-84\Single Files\SPX WeilMcLain\OneWorld\Electronic Software Updates\811SP1\JJ13072_exe\JJ13072.htm System code(s) noted in file: 07 Payroll TomorrowNow Support Services Agreement: TN-OR00601393-TN-OR00601404 Product Verification Form: TN-OR00056188-TN-OR00056190 Download Request Form: TN-OR00235417 Username apparently used: wmcnc1 In preparing this supplemental response and gathering the records associated with the preliminary factual conclusions TomorrowNow made before it filed its Answer to the FAC on July 2, 2007, TomorrowNow re-examined the ESU file labeled PH11676 (Yazaki), which notes system code 90 (CRM), and Appendix A to Yazaki's Support Services Agreement with TomorrowNow (TN-OR01711151- TN-OR01711152), which indicates that Yazaki informed TomorrowNow that it was in fact licensed to the JDE OneWorld CRM application, release 8.11. Thus, it appears that TomorrowNow's preliminary conclusion as of July 2, 2007 was incorrect with respect to the ESU file labeled PH11676 that is referred to in ¶ 85 of the FAC.
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to ¶ 15 of the FAC indicating that there were downloads "beyond those that, according to TomorrowNow's records, related to applications licensed to the particular customer on whose behalf the downloads were made" and Defendants' representatives' subsequently made statements in press releases/news conferences on July 2-3, 2007 that "inappropriate downloads" took place, TomorrowNow made the following additional preliminary conclusions: a. Paragraph 76 of the FAC ­ This paragraph contains Plaintiffs' allegation regarding

Honeywell. TomorrowNow only serviced Honeywell's PeopleSoft applications. However, TomorrowNow concluded that it had stored in Honeywell's download folders at TomorrowNow certain downloads related to JDE, for which Honeywell had not indicated to TomorrowNow it was licensed. Specifically, TomorrowNow concluded that Honeywell's download folder on TomorrowNow's servers contained product roadmaps for certain JDE EnterpriseOne Products. See six separate "EnterpriseOne" folders in Honeywell\Product Roadmaps\2005\2005-Q1 on the DCITBU01_G server, which has been produced as part of TomorrowNow's Data Warehouse native file production. See DCITBU01_G (TN-OR02989993). TomorrowNow also concluded that Honeywell's download folder on TomorrowNow's servers contained red papers for certain JDE EnterpriseOne Products. See three separate "EnterpriseOne" folders in Honeywell\Red Papers on DCITBU01_G server (id.). The statement in TomorrowNow's July 2, 2007 answer to ¶ 15 of the FAC that there were downloads "beyond those that, according to TomorrowNow's records, related to applications licensed licensed to the particular customer on whose behalf the downloads were made" and Defendants' representatives' subsequent statements in press releases/news conferences on July 2-3, 2007 that "inappropriate downloads" took place simply acknowledge the fact that TomorrowNow's y downloads downloads of JDE materials for Honeywell, a PS customer, were considered by TomorrowNow to it to to be "inappropriate" because it was TomorrowNow's policy to only download materials for the customers related to those products for which the customer had informed TomorrowNow they were were licensed. However, as noted above, that does not mean that TomorrowNow concedes either that Honeywell was not in fact licensed to receive the subject files or that the licenses Honeywell had or has with Plaintiffs do not permit Honeywell, or TomorrowNow acting on its behalf, to
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download all of the files specifically referenced in ¶ 76 of the FAC. b. Paragraphs 77-81 of the FAC ­ Plaintiffs make several customer specific

allegations in ¶¶ 77-81 of the FAC. Although Plaintiffs did not provide (and as of September 23, 2009 still have not provided) the specific file names of each file it contends in ¶¶ 77-81 were improperly downloaded, Plaintiffs did provide certain file counts. And, TomorrowNow attempted to determine the accuracy of those counts. However, TomorrowNow was not and is still not able to definitively conclude whether the file counts in ¶¶ 77-81 of the FAC are accurate. But, as part of its investigation before it filed its answer to the FAC on July 2, 2007, TomorrowNow confirmed that its records for Merck (¶ 77), SPX (¶ 78), OCE (¶ 79) and Yazaki (¶ (¶ 81) showed that those customers had indicated to TomorrowNow that they were licensed to some, but not all of Plaintiffs' JDE products. Before TomorrowNow filed its answer to the FAC on July 2, 2007, TomorrowNow confirmed that its download request forms indicated that at the time that TomorrowNow conducted downloads on behalf each of these customers, of TomorrowNow downloaded all available ESUs for certain releases instead of only those ESUs for r those releases that note the system codes that those customers told TomorrowNow they were t those licensed licensed to. Likewise, for each of those customers, TomorrowNow's records indicated that at the time that TomorrowNow conducted downloads on behalf each of these customers, TomorrowNow may have downloaded SARs for certain releases that note system codes other than those the referenced customers told TomorrowNow they were licensed to. The records that TomorrowNow used to make these preliminary conclusions include download request forms (TNOR00235417, TN-OR00000479-TN-OR00000478, TN-OR00000490- TN-OR00000495, TNOR00001002-TN-OR00001007, TN-OR00000990-TN-OR00000995, TN-OR05941642-TNOR05941647, TN-OR00081327), product verification forms (TN-OR00056188-TNOR00056190, TN-OR01573472-TN-OR01573474, TN-OR00001163-TN-OR00001165), Appendix A forms to TomorrowNow's Support Services Agreements (TN-OR00601393-TNOR00601404, TN-OR00000464-TN-OR00000478, TN-OR01711142-TN-OR01711158, TNOR00602324-TN-OR00602335), and log files (TN-OR02193737, TN(Disc).82). The following table compares Plaintiffs' allegations in ¶¶ 77-81 of the FAC to the
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TomorrowNow's Fourth Supplemental Response to Interrogatory No. 13 is further supplemented to correct a clerical error as follows: The sentence in the penultimate pararaph of TomorrowNow's Fourth Supplemental Response to Interrogatory No. 13 that states: "However, as noted above, that does not mean that TomorrowNow concedes that IMCD was not in fact licensed to receive a white paper with the file name "ods-00-0136.txt" titled "Landed Costs in Enterprise One" or that the license IMCD had or have with Plaintiffs do not permit IMCD, or TomorrowNow acting on its behalf, to download all of the files specifically referenced in ¶¶ 77-81 of the FAC." Is hereby amended to state: "However, as noted above, that does not mean that TomorrowNow concedes that IMCD was not in fact licensed to receive a white paper with the file name "ods-00-0136.txt" titled "Landed Costs in Enterprise One" or that the license IMCD had or have with Plaintiffs do not permit IMCD, or TomorrowNow acting on its behalf, to download all of the files that were downloaded by or on behalf of IMCD." For ease of reference, the amended language affected by this Fourth Supplemental Response to Interrogatory No. 13 is underlined above. INTERROGATORY NO. 14: Describe in as much detail as possible all Software and Support Materials Downloaded by Describe Software described You which were "inappropriate downloads," as described by Henning Kagermann in Conference Call #1 and Conference Call #2, including but not limited to why the Download was "inappropriate," "inappropriate," Identifying any rule, policy or other safeguard that the Download violated, the Person(s) conducting or involved in the Downloading, which Customer's credentials were used for the Download, when and where the Download took place, and a brief description of the means or methods employed to conduct the Download.

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RESPONSE TO INTERROGATORY NO. 14: TomorrowNow objects that this interrogatory seeks information not in the possession of TomorrowNow seeks TomorrowNow. TomorrowNow further objects that this interrogatory is compound and duplicative of Interrogatory No. 13. Subject to and without waiving the foregoing objections or and the General Responses and Objections, TomorrowNow responds by incorporating by reference its response response to Interrogatory No. 13. SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 14: TomorrowNow further responds by incorporating by reference its supplemental response to Interrogatory No. 13. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 14: TomorrowNow also incorporates by reference all of its current responses to Interrogatory 16 No. 12, Interrogatory No. 13, and Interrogatory No. 16 and the documents cited therein to further respond to this interrogatory pursuant to Rule 33(d). INTERROGATORY NO. 15: Describe in as much detail as possible Your investigation of the "inappropriate" downloads, including but not limited to the name of the Person(s) who initiated the investigation and conducted the investigation, when the investigation began, the reason for the investigation, a description of any results or reports arising from the investigation, the names of all Customers investigated, the names of all Customers on whose behalf any "inappropriate" downloading occurred, and a brief description of the procedures used to investigate the "inappropriate" downloads. RESPONSE TO INTERROGATORY NO. 15: TomorrowNow objects that this interrogatory seeks information not in the possession of TomorrowNow. TomorrowNow further objects that because the investigation of the issues referenced in this interrogatory was and is conducted in response to the filing of Oracle's complaint, this interrogatory seeks information that is protected from disclosure by the attorneyclient privilege and the work product doctrine. Non-privileged documents and information

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