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. 22

EXHIBIT V
Dockets.Justia.com

DANIEL LEVY, PH.D. April 30, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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that can be supported by your analysis Is that fair? A Well, it would be from wherever that sample was drawn from for the population that it was drawn from Q And it's your understanding that that's PeopleSoft HRMS payroll tax and regulatory updates? A That's correct Q Where did you get the abbreviation for SAP TN? A The abbreviation for -- I don't recall where I got the abbreviation Q Would it surprise you to know that TomorrowNow never went by SAP TN? A No Not -- not particularly Q Is that something that counsel told you to use? A I don't -- I don't recall Q What if any is your basis for saying that TomorrowNow infringed Oracle copyrights in this sentence? A Well, I'm saying that I've been retained to do a sample to investigate data related to that I'm not saying in this sentence that there was a -that -- I'm not making a claim here I'm

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describing what I was asked to to do. Q. So you're not claiming that TomorrowNow infringed Oracle's copyrights. Is that correct? MR. PICKETT: In that sentence, you mean, or elsewhere? I'm sorry. Objection. Ambiguous. THE WITNESS: As I said, in this sentence. I'm just stating what I was asked to do. MR. WILKES: Q. Now, in your report as a whole, are you making any claims about whether or not TomorrowNow infringed Oracle's copyrights? A. In the report as a whole, what I'm finding is that there's significant occurrences that I understand to be related to, quote, what's called contamination, and inappropriate, impermissible cross-use that I understand to be related to infringement. And so I'm providing information about those measures that are related to infringement. Q. What did you do to investigate, quote, "contamination," if anything? A. I don't know what you mean by -- can you be more specific? Q. Sure. Did you do anything to determine whether or not the data that you were counting

12 (Pages 42 to 45) Merrill Legal Solutions [phone]

DANIEL LEVY, PH.D. April 30, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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actually reflected, quote, "contamination"? A Well, I have a general understanding of what contamination is, and I spoke about it with Mr Mandia, what he was measuring And from there, I received information from him, his measurements on various aspects of impermissible cross-use and contamination Q And so other than your discussion with Mandia, did you do anything to verify his claims of cross-use or contamination? A Well, I did the analysis that I did So I just -- I discussed it with him, received his data, and performed the analysis that I performed, with a background of a general understanding of what contamination and impermissible cross-use is Q And so my question is, did you do anything to verify the claim of contamination? Did you look at any TomorrowNow fixes? A I -- actually, I did look at them to understand what they were in general Q And what are they? A What is a fix? Q Uh-huh A It's a set of code Q Did you look at the code?

A They were -- they were -- there was material produced by Mr Mandia, but there was also just screenshots of the -- or computer records that were things that were not produced by Mr Mandia Q And what were those screenshots of? A They were just -- they were records or -of what a fix looked like or what the -- and what the recordkeeping on a fix, related to a fix, looked like Examples of them Q You're not providing any opinions regarding the ultimate determination of whether or not Defendants infringed any of Plaintiffs' copyrights Is that correct? MR PICKETT: Objection Ambiguous THE WITNESS: I'm providing a quantification of the number of times that contamination or impermissible cross-use were found in the data that Mr Mandia looked at And so in that, I'm providing information that's related to that MR WILKES: Q And you didn't do anything to check Mandia's data Is that correct? A I didn't do anything to check his what? Q Data A Well, I received his data, and the data I

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A I didn't look at individual sets of code I looked at the process they used to record information about the fixes Q And how did you make a determination that that -- what you looked at was actually contaminated? A I didn't do that MR PICKETT: And as appropriate, we've been going a little over an hour Maybe we could take a break MR WILKES: Yeah, let me finish my line MR PICKETT: How much longer do you have? MR WILKES: Probably 5 minutes Q You never read any documents or testimony describing TomorrowNow's retrofit or critical support model, did you? A Well, again, I don't know exactly how to characterize that I mean, I saw how the process was set up from some descriptions provided by -- by Mr Mandia or other folks at Mandiant So I looked at what the process was, how it was recorded They showed me examples of it Q And just so I'm clear, you're talking about looking at what Mandia had put together and what Mandia had done Is that right?

received I looked at Q Other than receiving it, you didn't do anything to independently verify the numbers that he had arrived at Is that correct? A Ah, sorry I didn't understand what you were saying No We didn't go and redo Mr Mandia's analysis Q And so is it -A To check that Q Is it fair to say that you were assuming contamination based on your discussion with Mandia? A No I don't think I am What I'm doing is, I'm quantifying what the -- the measures are that Mr Mandia provided And I am in some cases counting them up in total, and in some cases I'm extrapolating to a broader population based on those numbers I'm not really making an assumption either way Q And you're not making an assumption, then, either way on cross-use, either Same thing? A Similar -- similar answer for cross-use MR WILKES: Let's take a break THE VIDEO OPERATOR: Going off the record,

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