Oracle Corporation et al v. SAP AG et al

Filing 865

Declaration of Elaine Wallace in Support of 851 Memorandum in Opposition, Declaration of Elaine Wallace in Support of Defendants' Opposition to Plaintiffs' Motion No. 1 to Exclude Expert Testimony of Stephen K. Clarke [AMENDED] filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36)(Related document(s) 851 ) (McDonell, Jason) (Filed on 9/10/2010)

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Oracle Corporation et al v. SAP AG et al Doc. 865 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 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: (415) 626-3939 Facsimile: (415) 875-5700 ramittelstaedt@jonesday.com jmcdonell@jonesday.com ewallace@jonesday.com Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 739-3939 Facsimile: (650) 739-3900 tglanier@jonesday.com jfroyd@jonesday.com Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: (832) 239-3939 Facsimile: (832) 239-3600 swcowan@jonesday.com jlfuchs@jonesday.com 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., Defendants. Case No. 07-CV-1658 PJH (EDL) DECLARATION OF ELAINE WALLACE IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION NO. 1 TO EXCLUDE EXPERT TESTIMONY OF STEPHEN K. CLARKE [AMENDED] Date: Time: Courtroom: Judge: September 30, 2010 2:30 p.m. 3, 3rd Floor Hon. Phyllis J. Hamilton AMENDED WALLACE DECLARATION ISO DEFS' OPP. TO PLFS.' MOT. TO EXCLUDE EXPERT TEST. OF CLARKE Case No. 07-CV-1658 PJH (EDL) Dockets.Justia.com 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 I, ELAINE WALLACE, declare as follows: I am an attorney in the law firm of Jones Day, 555 California St., 26th Floor, San Francisco, California 94104, and counsel of record for Defendants SAP AG, SAP America, Inc. (together, "SAP"), and TomorrowNow, Inc. ("TN") (collectively, "Defendants") in the abovecaptioned matter. I am a member in good standing of the state bar of California and admitted to practice before this Court. I make this declaration based on personal knowledge and, if called upon to do so, could testify competently thereto. 1. Attached as Exhibit 1 is a true and correct copy of excerpts from the supplemental Expert Report of Stephen K. Clarke dated May 7, 2010 ("Clarke Report"). The original report was served on Plaintiffs on March 26, 2010. The relevant pages of the Clarke Report are: 22, 9095, 157-58, 201-235, 294. 2. Attached as Exhibit 2 is a true and correct copy of excerpts from the Deposition of Paul K. Meyer dated May 12, 2010. The relevant pages are: 137:15-150:12, 153:10-19. 3. Attached as Exhibit 3 is a true and correct copy of excerpts from the Deposition of Stephen K. Clarke dated June 9, 2010. The relevant pages are: 361:16-362:10, 375:10-381:21, 385:25-386:13, 396:10-400:19, 452:16-454:8, 459:11-25, 630:10-635:4. 4. Attached as Exhibit 4 is a true and correct copy of Plaintiffs' deposition exhibit 608, including only the cover page SAP-OR00136760, page SAP-OR00136764, and a legible substitution for SAP-OR00136764. These pages come from a powerpoint presentation titled "Business Case TomorrowNow 2006" and dated November 16, 2005. 5. Attached as Exhibit 5 is a true and correct copy of Plaintiffs' deposition exhibit 436, including only the cover page SAP-OR0014570 and SAP-OR00141571. These pages come from a powerpoint presentation titled "Supervisory Board Meeting TomorrowNow Status Update" and dated February 2007. 6. Attached as Exhibit 6 is a true and correct copy of excerpts from the Deposition of Werner Brandt dated November 13, 2008. The relevant pages are: 262:15-263:17, 273:19-276:7. 7. Attached as Exhibit 7 is a true and correct copy of excerpts from the Deposition of AMENDED WALLACE DECLARATION ISO DEFS' OPP. TO PLFS.' MOT. TO EXCLUDE EXPERT TEST. OF CLARKE Case No. 07-CV-1658 PJH (EDL) Stephen K. Clarke dated June 8, 2010. The relevant pages are: 24:23-28:18, 103:3-104:2, 107:2-1- 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 28 108:2, 112:1-116:13, 124:1-136:17, 139:20-141:15, 158:17-163:25. 8. Attached as Exhibit 8 is a true and correct copy of excerpts from the Deposition of Stephen K. Clarke dated June 10, 2010. The relevant pages are: 659:18-664:5, 807:23-810:1, 929:13-930:12. 9. Attached as Exhibit 9 is a true and correct copy of excerpts from the Deposition of Brian S. Sommer dated June 25, 2010. The relevant pages are: 206:1-208:4, 330:3-332:14. 10. Attached as Exhibit 10 is a true and correct copy of excerpts from the Deposition of Paul K. Meyer dated May 13, 2010. The relevant pages are: 572:3-575:5. 11. Attached as Exhibit 11 is a true and correct copy of an email between Holly House and myself dated December 8, 2009. 12. Attached as Exhibit 12 is a true and correct copy of a declaration signed on April 5, 2010 by Richard L. Ball of Standard Register Company and marked as Defendants' Deposition Exhibit 2047. 13. Attached as Exhibit 13 is a true and correct copy of a declaration signed on April 30, 2010 by Bill Short of Amsted Rail Company and marked as Defendants' Deposition Exhibit 2048. 14. Attached as Exhibit 14 is a true and correct copy of a declaration signed on May 4, 2010 by Daniel A. Clark of NewPage Corporation and marked as Defendants' Deposition Exhibit 2042. 15. Attached as Exhibit 15 is a true and correct copy of a declaration signed on May 10, 2010 by Andre Birrenbach of Rotkšppchen Sektkellerei GmbH and marked as Defendants' Deposition Exhibit 2041. 16. Attached as Exhibit 16 is a true and correct copy of a declaration signed on July 27, 2010 by Ann Harten of Haworth and produced by Stephen K. Clarke as SAP-SKC-11835657. 17. Attached as Exhibit 17 is a true and correct copy of a declaration signed on July 21, 2009 by Gary Gates of Amsted Rail Company and produced by Paul K. Meyer as ORCLXNAV-00058. -2AMENDED WALLACE DECLARATION ISO DEFS' OPP. TO PLFS.' MOT. TO EXCLUDE EXPERT TEST. OF CLARKE Case No. 07-CV-1658 PJH (EDL) 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 18. Attached as Exhibit 18 is a true and correct copy of a declaration signed on November 11, 2009 by Richard L. Ball of Standard Register Company and produced by Paul K. Meyer as ORCLX-NAV-00063. 19. Attached as Exhibit 19 is a true and correct copy of a declaration signed on March 4, 2010 by Kathy Sauer of Cowlitz County, Washington and marked as Defendants' Deposition Exhibit 2049. 20. Attached as Exhibit 20 is a true and correct copy of excerpts from the Deposition of Richard Allison dated November 12, 2009. The relevant pages are: 215:17 ≠ 216:1. 21. Attached as Exhibit 21 is a true and correct copy of Plaintiffs' deposition exhibit 3210, bates labeled ORCL00670717-26. It is a blank Oracle License and Services Agreement ("OLSA"). 22. Attached as Exhibit 22 is a true and correct copy of excerpts from the Supplemental Expert Report of Paul K. Meyer dated February 23, 2010. The relevant paragraphs are: 91-95, 157-58, 166-167, 252. 23. Attached as Exhibit 23 is a true and correct copy of Bowling v. Hasbro, Inc., No. 05-229, 2008 U.S. Dist. LEXIS 30043 (D.R.I. Mar. 17, 2008). 24. Attached as Exhibit 24 is a true and correct copy of Burnham v. United States, No. CV-07-8017, 2009 U.S. Dist. LEXIS 62602 (D. Ariz. Jul. 20, 2009). 25. Attached as Exhibit 25 is a true and correct copy of Capitol Justice LLC v. Wachovia Bank, N.A., No. 07-2095, 2009 U.S. Dist. LEXIS 126573 (D.D.C. Dec. 8, 2009). 26. Attached as Exhibit 26 is a true and correct copy of Gray v. United States, No. 05- CV-1893, 2007 U.S. Dist. LEXIS 17937 (S.D. Cal. Mar. 12, 2007). 27. Attached as Exhibit 27 is a true and correct copy of Humphreys v. Regents of Univ. of Cal., No. C-04-03808, 2006 U.S. Dist. LEXIS 47822 (N.D. Cal. Jul. 6, 2006). 28. Attached as Exhibit 28 is a true and correct copy of International Business Machines Corp. v. Fasco Indus., Inc., No. C-93-20326, 1995 WL 115421 (N.D. Cal. Mar. 15, 1995). 29. Attached as Exhibit 29 is a true and correct copy of Indus. Automation Supply, -3AMENDED WALLACE DECLARATION ISO DEFS' OPP. TO PLFS.' MOT. TO EXCLUDE EXPERT TEST. OF CLARKE Case No. 07-CV-1658 PJH (EDL) 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 LLC v. United Rentals Highway Techs., No. 3:04-CV-99, 2006 WL 5219390 (D. N.D. Feb. 8, 2006). 30. Attached as Exhibit 30 is a true and correct copy of Luke v. Family Care and Urgent Med. Clinics, 323 Fed. Appx. 496 (9th Cir. 2009). 31. Attached as Exhibit 31 is a true and correct copy of Maionchi v. Union Pacific Corp., No. C-03-0647, 2007 U.S. Dist. LEXIS 53169 (N.D. Cal. Jul. 9, 2007). 32. Attached as Exhibit 32 is a true and correct copy of MMI Realty Servs., Inc. v. Westchester Surplus Lines Ins. Co., No. 07-00466, 2009 U.S. Dist. LEXIS 18379 (D. Haw. Mar. 10, 2009). 33. Attached as Exhibit 33 is a true and correct copy of Powell v. Carey Int'l, Inc., No. 05-21395, 2007 WL 1068487 (S.D. Fla. Apr. 9, 2007). 34. Attached as Exhibit 34 is a true and correct copy of SEC v. Badian, No. 06-Civ- 2621, 2009 U.S. Dist. LEXIS 120951 (S.D.N.Y. Dec. 22, 2009). 35. Attached as Exhibit 35 is a true and correct copy of Secure Energy, Inc. v. Coal Synthetics, LLC, No. 4:08CV1719, 2010 U.S. Dist. LEXIS 41120 (E.D. Mo. Apr. 27, 2010). 36. Attached as Exhibit 36 is a true and correct copy of United States v. 14.3 Acres of Land, No. 07CV886, 2008 U.S. Dist. LEXIS 66667 (S.D. Cal. Aug. 29, 2008). I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed on this 10th day of September, 2010 in San Francisco, California. /s/ Elaine Wallace Elaine Wallace SFI-649577v1 -4- AMENDED WALLACE DECLARATION ISO DEFS' OPP. TO PLFS.' MOT. TO EXCLUDE EXPERT TEST. OF CLARKE Case No. 07-CV-1658 PJH (EDL)

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