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. 9

EXHIBIT I
Dockets.Justia.com

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION --O0o-ORACLE CORPORATION, a Delaware Corporation; ORACLE, USA, INC., a Colorado Corporation, and ORACLE INTERNATIONAL CORPORATION, a California Corporation, Plaintiffs, Vs. No. 07-CV-01658-PJH (EDL)

SAP AG, a German Corporation, SAP AMERICA, INC., a Delaware CORPORATION, TOMORROWNOW, INC., a Texas Corporation, and DOES 1-50, Inclusive, Defendants. ______________________________/

VIDEOTAPED DEPOSITION OF MICHAEL GARY FUNCK ___________________________ Tuesday, June 1, 2010 Volume I, Pages 1 - 270 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Reported By: Job 427105 WENDY E. ARLEN, CSR #4355, CRR, RMR

MICHAEL GARY FUNCK June 1, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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comparisons to determine if an alleged copyright violation had taken place? MS. PERRY: Objection, calls for a legal conclusion, vague and ambiguous, compound question. THE WITNESS: Yes, I have. Q. MR. LEWIS: Can you tell me what it was? Let's start -- let me withdraw that. How many times? A. That I'm not clear on. I'd have to think about that a moment. And I think they can be somewhat definitional in the sense I've been involved in trade secret related matters as well and there may be some overlap there. Q. Well, I want to focus -- never mind. I'll come back to this later when we talk about your experience in litigation. Have you ever offered any expert opinions regarding software licenses? A. I've been involved in cases that involved software licenses. I'm not sure whether I offered opinions or not. It would depend on the definition of opinion. Q. Would you hold yourself out as an expert in software licenses and their interpretation? MS. PERRY: Objection, calls for a legal

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conclusion, vague and ambiguous. THE WITNESS: Right, as stated, I would say no because that would require a legal background. Q. MR. LEWIS: Do you consider yourself an expert in terms of use for Web sites? MS. PERRY: Same objections. THE WITNESS: Again, I would say no as it relates to requires a legal background. Q. MR. LEWIS: Do you consider yourself an expert in any PeopleSoft software? MS. PERRY: Same objection, compound question, too. THE WITNESS: Not to my knowledge. Q. MR. LEWIS: JD Edwards software? MS. PERRY: Same objections. THE WITNESS: And same answer. No. No, I do not. Q. MR. LEWIS: Seibel? MS. PERRY: Same objections. THE WITNESS: No, I do not. Q. MR. LEWIS: Oracle? MS. PERRY: Same objections. THE WITNESS: Well, I've used Oracle products off and on. I think in terms of being an expert, I think there cold be specific areas where I might be

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MICHAEL GARY FUNCK June 1, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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able to offer some, you know, expert testimony. able Q. MR. LEWIS: What do you mean by that? What areas? A. Well, Oracle's a big -- it's a big set of products. So it, you know, there could be a case that comes along where the -- and it doesn't mean necessarily you have to be an expert in the operation of the, you know, of an Oracle product to offer an expert opinion on some aspect of, for example, using it or that sort of thing. It's a broad question. Q. Okay. Do you consider yourself an expert on Enterprise application software in general? MS. PERRY: Same objections. THE WITNESS: Right. The difficulty I'm having here is that being an expert and offering expert testimony are two different things. Q. MR. LEWIS: So you're not able to answer the question. Is that what you're telling me? A. I guess I'd like some clarification because to me someone could say -- could use the term expert and it might not be -- it might be just simply that they think they're very knowledgeable in a particular area. So I don't know if you're asking that sort of terminology when you say expert or the kind of thing where, you know, that would apply more in terms of

MS. PERRY: When you get to a good stopping point, you might want to take a quick break. MR. LEWIS: We can stop right now. That's fine. VIDEOGRAPHER: Going off the record, the time now is 10:41. This also is the conclusion of tape one. (Deposition recess taken.) VIDEOGRAPHER: The time now is 11:00 o'clock. We're back on the videotape record. This also marks the beginning of tape two. Please proceed. Q. MR. LEWIS: Mr. Funck, you understand you're still under oath? A. I do, sir. Q. As long as we have that understanding throughout, I'll stop reminding you. A. All right. Thanks. Q. Are you an expert in SQR, structured -excuse me. I'm drawing a blank. SQR. MS. PERRY: Objection, calls for legal conclusion. THE WITNESS: Something along the lines of SQR report language? Q. MR. LEWIS: Yes. A. I have no direct experience with SQR, but,

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offering expert testimony. Q. Let me try to be a little more specific. Have you ever published anything concerning Enterprise application software? A. No, I have not. Q. Have you ever testified about Enterprise application software? A. No, I have not. Q. Are you an expert in COBOL? MS. PERRY: Objection, calls for a legal conclusion, vague and ambiguous. THE WITNESS: Can we clarify what -- what expert means to you in that context? Q. MR. LEWIS: Is there any sense in which you consider yourself an expert in COBOL? MS. PERRY: Same objections. THE WITNESS: There may be some sense. In the sense that I have programmed in COBOL sometime in the distant past and there may be certain -- certain aspects of using COBOL that I could -- that I could offer an opinion on as an expert. It's a possibility. Q. MR. LEWIS: I take it you have some experience in programming COBOL? A. In the distant past, yes.

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again, as it relates to at some point in the future of would I be involved in a situation where my experience as an expert could apply, you know, I really can't say. So I think the direct answer would be that I don't have any experience in SQR. Q. How about SQC? MS. PERRY: Same objection. THE WITNESS: I don't have any experience with SQC either. Q. HTML? A. I do have some experience with HTML. MS. PERRY: Same objection. Q. MR. LEWIS: Do you consider yourself an expert? MS. PERRY: Objection, calls for a legal conclusion. THE WITNESS: So this goes back to something we were talking about before. I think the difficulty answering are you, you know, are you an expert in a certain area, it's been my experience as an ex -offering expert testimony that there have been situations where my -- my experience might apply. And so -- and/or within a sufficient access to resources and perhaps other people that I can use as resources, then I might feel that I've gained

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sufficient experience and expertise to offer an opinion. So that's why I have difficulty saying am I an expert or am I not. Do I have some familiarity with HTML? Yes, I do. Q. MR. LEWIS: Let me see if I understand. You think it may be possible for you in some circumstances to offer an expert opinion related to, for example, HTML, without being a thorough-going expert in the subject. Is that what you're saying? MS. PERRY: Objection, mischaracterizes the testimony. THE WITNESS: Well, I'm having -- you haven't really defined expert in your question. So as I would define expert in the context of a litigation setting, it's someone who can offer an informed expert opinion and, you know, I can see scenarios where -- where circumstances would be that I could. It doesn't necessarily mean that I have total command of all the HTML that there is out there. Q. MR. LEWIS: Do you have experience with Visual Basic? A. I do. Q. Would you consider yourself an expert in that subject? MS. PERRY: Objection, calls for a legal

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code; is that right? A. That's correct. The particular file that I referred to. Q. Did you feel -- you felt competent to review that? A. To the level that I needed to express my -my informed opinion, yes. Q. How would you describe the expertise that you applied in this case? MS. PERRY: Objection, vague and ambiguous. THE WITNESS: That's too broad for me to answer directly. Q. MR. LEWIS: How would you describe the field in which you applied expertise in this case? MS. PERRY: Objection, vague and ambiguous. Q. MR. LEWIS: I'm not limiting you to one. If there's more than one, please feel free to tell me. MS. PERRY: Same objection. THE WITNESS: I don't know, it's so broad. Computer technology. Q. MR. LEWIS: Anything more specific you can say about your field of expertise? MS. PERRY: Objection, vague and ambiguous. THE WITNESS: When I think about that question, no particular words come to mind. I view

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conclusion. THE WITNESS: My answer is similar and more specific. I have actually served as an expert where Visual Basic was involved as the -- as the subject source language. Q. MR. LEWIS: And when you say you served as an expert, what do you mean by that? A. I offered -- if not -- I would actually have to think about the specific cases involved, but one that I can think of that's more recent I reviewed Visual Basic and offered an expert opinion to counsel. Q. As a consultant as opposed to being a witness? A. That's correct. I can come back to -- I can think of another and maybe another example might come as I think about it further. Q. You examined some Visual Basic code in this case, did you not? A. Examined could be a broad term. As I would define it in this case, I reviewed certain parts of certain, you know, certain files that I cite in my report and related that to a response to Mr. Mandia's report. Q. What you're talking about is the Titan source

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it more as specific skills and experience and not as some categorization by -- by industry or something like that. Q. MR. LEWIS: Let me ask you to take a look at your report, Exhibit 3016. And ask you to turn to page 2. A. Okay. Q. Down toward the bottom of that page, you say that you have drawn on your experience in the following areas in reviewing Mr. Mandia's report. Do you see that? A. Yes, I do. Q. And the first one system log file analysis, also computer forensics, on the next page Internet Web sites and Web applications and the last one is large scale electronic evidence collection. Do you see where I am? A. I do, sir. Q. Are there any other areas of experience that you would add to that list that you drew on in reviewing Mr. Mandia's report, or does that pretty well cover it? MS. PERRY: Objection, vague and ambiguous, compound question. THE WITNESS: Well, I tried to cover what I

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