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)

Oracle Corporation et al v. SAP AG et al

Doc. 865 Att. 9

EXHIBIT 9

Dockets.Justia.com

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CONFIDENTIAL - ATTORNEYS' EYES ONLY BRIAN S. SOMMER - 6/25/2010
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation, ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) No. 07-CV-1658 (PJH) ) 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 BRIAN S. SOMMER _________________________________ FRIDAY, JUNE 25, 2010

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CONFIDENTIAL - ATTORNEYS' EYES ONLY HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-429044)

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MS. HOUSE:

Q.

And you'd agree you can't

generalize about whether a customer would switch from manufacturer support based on whether they just evaluate another alternative. MR. McDONELL: Right?

Vague and ambiguous. Incomplete

Object to the form of the question. hypothetical. THE WITNESS:

If I were doing the

customer-by-customer review, I would want to see something else in addition to that possibly, unless there was just some -- I mean, somebody -- if someone did a really, really detailed evaluation, I would think that was somebody who was probably very serious. If all they did was some very cursory,

well, I made a phone call, I'd need to see something else. This was all sort of a judgment call, and this was outside of the scope of my piece of the report or -MS. HOUSE: Q. And you can't say whether

any TomorrowNow customer who ever evaluated another third-party vendor would have actually chosen that vendor. Right? MR. McDONELL: question. Object to the form of the

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THE WITNESS:

That any customer who looked

at something -- I'm sorry, just -MS. HOUSE: Q. You're not saying whether

any TomorrowNow customer who ever evaluated another third-party vendor would have actually chosen that vendor if TomorrowNow wasn't around? MR. McDONELL: Objection. Lack of

foundation, beyond the scope of this witness's opinion. THE WITNESS: I can't say with certainty

what they would have done or what they would have found out if TomorrowNow was or wasn't there. If TomorrowNow wasn't there, they may have done, let's say, additional due diligence with another vendor or provider. I don't know. That's

kind of an interesting hypothetical. MS. HOUSE: Q. And you're not intending

to opine that any TomorrowNow customer who ever considered or mentioned self-support actually would have chosen self-support over TomorrowNow. MR. McDONELL: question. THE WITNESS: I'm not saying that just Right?

Object to the form of the

because they considered it, they would have gone with it, just as I'm not saying that just because

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they considered it, they could have done -- they could have done it, too. know. I -- you know, I don't

You'd have to do a customer-by-customer

assessment.

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Okay.

So looking at that first sentence,

that some customers possess the ability to self-support their ERP software, do you understand this to be a large or a small percentage of ERP customers? MR. McDONELL: to the form. THE WITNESS: I can't answer it with any Vague and ambiguous, object

kind of specificity, because some of the -- for example, some PeopleSoft customers may be very large organizations for the most part, and some JD Edwards customers, particularly those on the older AS/400 platforms, may be much smaller -- have much smaller IT organizations and smaller businesses. So the answer is somewhat customer-specific, and it may be a little bit product-specific there. Again, the only way you can determine the ability to do self-support, you'd have to look at like the record on every single customer to make that determination. MS. HOUSE: Q. Okay. You note on page

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43, self-supporting customers -- ah, it's the last paragraph before ii -Self-supporting customers can take advantage of other resources to assist them, if needed. These software companies can

retain the services of software product experts on a contract or permanent hire basis. The cost to bring these individuals

in-house may be substantially less than what a company is paying a software vendor for an annual maintenance arrangement. So you don't know if these other resources are more expensive or not. MR. McDONELL: question. THE WITNESS: something. I think I have a misstated word here. says, these software -- in the second sentence, "these software companies." I think that should be It First let me just correct Right?

Object to the form of the

"customers," and my apologies on not catching that. I think that's what it's supposed to say. MS. HOUSE: A. Q. Okay.

And your question was, would those

retained experts necessarily cost more or less than

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what comes from a software company? Q. A. Q. Right. Do you know?

I don't know. You don't know if they would be more or

less expensive than TomorrowNow, do you? MR. McDONELL: question. THE WITNESS: Again, I think that's going Object to the form of the

to be on an case-by-case basis based on what kind of people skills, whether independent, whether they come from a very large consulting firm, what kind of overhead rates and everything else they have. I think that's again customer-specific and outside the scope of my report.

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