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. 18

EXHIBIT R
Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE ORACLE CORPORATION, ET AL. ) ) PLAINTIFFS, ) ) VS. ) ) SAP AG, ET AL., ) ) DEFENDANTS. ) ____________________________)

NO. C 07-01658 PJH (EDL)

CERTIFIED COPY
PAGES 1 - 56 OAKLAND, CALIFORNIA WEDNESDAY, MAY 5, 2010

TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BY: BINGHAM MUCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4607 ZACHARY J. ALINDER, AMY K. DONNELLY, HOLLY A. HOUSE, GEOFFREY M. HOWARD, DONN P. PICKETT, JOHN POLITO, CHAD RUSSELL, ATTORNEYS AT LAW JONES DAY SILICON VALLEY OFFICE 1755 EMBARCADERO ROAD PALO ALTO, CALIFORNIA 94303 JANE L. FROYD, THARAN GREGORY LANIER, ELAIN WALLACE, ATTORNEYS AT LAW

FOR DEFENDANTS:

BY:

REPORTED BY:

RAYNEE H. MERCADO, CSR NO. 8258

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

28 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 SAID IF YOUR HONOR GRANTS THEIR MOTION, THIS RIGHT DISAPPEARS. THE FACT IS IT DID. ORACLE STRUCTURED ITS CORPORATE RELATIONSHIPS THE WAY IT DID FOR WHATEVER REASONS IT HAD. THERE'S NO SUGGESTION

THERE'S ANYTHING WRONG WITH THAT, OR WHATEVER TRANSFERS THEY DID. IT NEEDS TO LIVE WITH THE CONSEQUENCES OF THAT. SO THE ABSOLUTE INEVITABLE RESULT OF THE COURT'S ORDER GRANTING OUR MOTION TO DISMISS IS THAT OSC NEVER HAD THE RIGHT TO SUE FOR PAST INFRINGEMENT, AND THE PURPORTED TRANSFER A YEAR AND A HALF AFTER THE RULING AND FOUR YEARS OR MORE AFTER THE ACQUISITION OF THAT RIGHT IS OF NO EFFECT, DELAWARE LAW NOT TO THE CONTRARY. THAT'S IT IN A NUTSHELL. AND GIVEN THE LIMITED TIME

THAT WE HAVE, WE'VE DONE THE REST ON THE PAPERS, UNLESS THE COURT HAS ANY SPECIFIC QUESTIONS ON THAT ISSUE. THE COURT: MR. LANIER: NO. THANK YOU.

THE NEXT MAJOR ISSUE ON WHICH MR. HOWARD TOUCHED WAS THIS QUESTION OF CONTRIBUTORY LIABILITY. AND REALLY WHAT

MR. HOWARD DID WAS MAKE AN ARGUMENT FOR VICARIOUS LIABILITY. GOSH, THEY OWNED IT. THEY WANTED THE BUSINESS TO BE SUCCESSFUL. THEREFORE, THEY

THEY GAVE HIM SOME MONEY TO DO SOME BUSINESS. MUST BE CONTRIBUTORILY LIABLE. CASE.

AND THAT'S OBVIOUSLY NOT THE

THERE'S A DIFFERENCE BETWEEN VICARIOUS LIABILITY, A RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

29 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 POINT ON WHICH FOR THE CONDUCT THAT'S AT ISSUE HERE, WE'VE CONCEDED, AND CONTRIBUTORY LIABILITY. AND HERE -- AND I'LL ALSO

BRIEFLY ADDRESS THE CFAA AND DIRECT LIABILITY 'CAUSE THE CONCEPTS ARE VERY SIMILAR. I THINK IT MIGHT BE HELPFUL.

AGAIN, IT'S IMPORTANT TO KNOWLEDGE WHAT IT WAS THAT WE HAVE CONCEDED FOR PURPOSES OF THIS MOTION, THAT THE SPECIFIC CONDUCT IN THE MOTION THAT IS WORKING WITH THE PEOPLESOFT SOFTWARE IN THESE PARTICULAR WAYS AND USE OF THE DATABASE SOFTWARE TO SUPPORT TOMORROWNOW CUSTOMERS -- THAT CONDUCT BY TOMORROWNOW WAS INFRINGEMENT OF THE REGISTRATION THEY PUT IN THE MOTION. SO WHAT THEY NEED TO PROVE TO MEET THEIR BURDEN TO SHOW THAT THERE'S NO DISPUTE OF FACT AND THEY'RE ENTITLED TO SUMMARY JUDGMENT OF THE CONTRIBUTORY LIABILITY IS THAT SAP AG OR SAP AMERICA KNEW ABOUT THAT CONDUCT AND DIRECTED OR FACILITATED THAT CONDUCT, AND THAT EVIDENCE ISN'T THERE. WE HEARD A LOT

ABOUT SAP -- OR ABOUT SAP ACKNOWLEDGING THE RISK THAT IT MIGHT BE SUED, NOT SURPRISING GIVEN THE HISTORY BETWEEN THESE TWO COMPETITORS. WE HEARD ABOUT -- THE ONLY ACTUAL EVIDENCE THAT WE HEAR THAT'S SPECIFIC TO SAP SAYING ANYTHING, DO THIS OR DON'T DO THIS WHEN IT RELATES TO USE OF SOFTWARE IS ALL EVIDENCE THAT SAYS DON'T DO SOMETHING. THAT'S, A, NOT WHAT'S AT ISSUE ON THIS

MOTION; AND, B, IT'S DON'T DO SOMETHING THAT THEY MAY LATER CONTEND IS COPYRIGHT INFRINGEMENT. RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

56 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 RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone] ___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR MONDAY, MAY 10, 2010 CERTIFICATE OF REPORTER I, RAYNEE H. MERCADO, OFFICIAL REPORTER FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C07-01658PJH(EDL), ORACLE CORPORATION, ET AL. V. SAP AG, ET AL., WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY ME AT THE TIME OF FILING. THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE.