Oracle Corporation et al v. SAP AG et al

Filing 891

Reply In Support re 764 MOTION No. 2: to exclude testimony of Defendants' Expert Brian Sommer filed byOracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (House, Holly) (Filed on 9/16/2010) Modified on 9/17/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

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BINGHAM MCCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 215695) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: 415.393.2286 [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: [phone] Facsimile: 914.749-8300 [e-mail] STEVEN C. HOLTZMAN (SBN 144177) FRED NORTON (SBN 224725) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] Facsimile: 510.874-1460 [e-mail] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: 650.506.7114 [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. Plaintiffs, No. 07-CV-01658 PJH (EDL) REPLY MEMORANDUM IN SUPPORT OF MOTION NO. 2: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT BRIAN SOMMER Date: September 30, 2010 Time: 2:30 p.m. Place: 3rd Floor, Courtroom 3 Judge: Hon. Phyllis J. Hamilton
Case No. 07-CV-01658 PJH (EDL)

SAP AG, et al., Defendants.

REPLY MEMO. ISO MOT. TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT BRIAN SOMMER
Dockets.Justia.com

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TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................. 1 SOMMER'S OPINIONS ABOUT HOW ERP CUSTOMERS MAKE DECISIONS ABOUT AFTERMARKET SUPPORT SHOULD BE EXCLUDED ......... 2 A. Sommer Lacks Relevant Expertise ........................................................................ 2 B. Sommer's Opinions Are Not Based On Sufficient Information And Data............ 4 C. Sommer's Opinions Are Not Relevant Because They Neither Consider Nor Concern The Facts Of This Case .................................................................... 6 SOMMER'S TESTIMONY RELATED TO ALTERNATIVE THIRD-PARTY SUPPORT OPTIONS SHOULD BE EXCLUDED AS UNRELIABLE AND UNTIMELY AFFIRMATIVE OPINION ......................................................................... 7 A. Sommer Lacks Relevant Experience And His Opinions Are Not Based On Sufficient Information And Data .......................................................................... 7 B. Sommer's Opinions Are Based On An Unreliable Methodology.......................... 8 C. Sommer's Generalized Opinions Are Not Relevant Because They Neither Concern Nor Consider The Facts Of This Case..................................................... 8 D. Sommer's Testimony About General Support Options Is Not Rebuttal And Should Be Excluded Pursuant To FRCP 37......................................................... 10 SOMMER'S OPINIONS AND TESTIMONY CONCERNING SELF-SUPPORT AS A "VIBRANT ALTERNATIVE" SHOULD BE EXCLUDED................................ 10 A. Sommer Lacks Relevant Expertise ...................................................................... 10 B. Sommer's Generalized Opinions Are Not Based On Sufficient Information And Are Not Relevant Because They Neither Concern Nor Consider The Facts Of This Case ............................................................................................... 11 SOMMER'S OPINIONS AND TESTIMONY REGARDING THE GENERAL EFFECTIVENESS OF SWITCHING PROGRAMS SHOULD BE EXCLUDED ........ 11 A. Sommer Lacks Relevant Qualifications............................................................... 11 B. Sommer's Opinion Is Not Based On A Reliable Methodology Applied To Sufficient Data ..................................................................................................... 12 C. Sommer's General Opinions Of Switching Programs Do Not Consider And Are Not Relevant To The Facts Of This Case ............................................. 12 SOMMER'S OPINIONS REGARDING THE EFFECTIVENESS OF SAP'S SAFE PASSAGE PROGRAM AND THE REASONABLENESS OF SAP'S EXPECTATIONS ABOUT IT SHOULD BE EXCLUDED........................................... 12 A. Sommer Lacks Relevant Experience ................................................................... 13 B. Sommer's Opinions Are Not Based On Sufficient Data And Information.......... 13 C. Sommer's Safe Passage Opinions Are Not Based On A Reliable Methodology ........................................................................................................ 14 SOMMER'S OPINIONS AND TESTIMONY REGARDING HOW ERP CUSTOMERS IN GENERAL MAKE DECISIONS ABOUT PURCHASING OF ERP SOFTWARE ALSO SHOULD BE EXCLUDED .................................................. 14 i
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TABLE OF CONTENTS (continued)

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TABLE OF AUTHORITIES Page

Abuan v. General Elec. Co., 3 F.3d 329 (9th Cir. 1993)....................................................................................................... 14 Adams v. U.S., 2009 WL 1324231 (D. Idaho)................................................................................................. 14 Andreas v. Volkswagen of Am., Inc., 336 F.3d 789 (8th Cir. 2003)................................................................................................... 15 Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685 (7th Cir. 2008)..................................................................................................... 5 Cabrera v. Cordis Corp., 134 F.3d 1418 (9th Cir. 1998)................................................................................................... 4 Carnegie Mellon Univ. v. Hoffman-Laroche, Inc., 55 F. Supp. 2d 1024 (N.D. Cal. 1999) ...................................................................................... 8 Daubert v. Merrell Dow Pharm., 43 F.3d 1311 (9th Cir. 1995)............................................................................................ passim Doan v. Astrue, 2010 WL 234935 (S.D. Cal.) .................................................................................................... 4 Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998 (9th Cir. 2004).................................................................................................. 4-5 IBM Corp. v. Fasco Industries, Inc., 1995 WL 115421 (N.D. Cal.).................................................................................................. 10 Jinro America, Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001)............................................................................................... 9, 12 Kilgore v. Carson Pirie Holdings, Inc., 2006 WL 3253490 (6th Cir.)..................................................................................................... 6 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153-55 (1999) .................................................................................................... 9 Lawson v. Trowbridge, 153 F.3d 368 (7th Cir. 1998)..................................................................................................... 9 Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 290 F. Supp. 2d 1083 (C.D. Cal. 2003) .................................................................................... 4 iii
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TABLE OF AUTHORITIES (continued)

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Nationwide Transport Finance v. Cass Information Sys., Inc., 523 F.3d 1051 (9th Cir. 2008)............................................................................................ 14-15 Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410 (8th Cir. 2005)............................................................................................... 8, 15 Nuveen Quality Income Mun. Fund Inc. v. Prudential Equity Group, LLC, 262 Fed. Appx. 822 (9th Cir. 2008) .......................................................................................... 7 Ollier v. Sweetwater Union High School Dist., 267 F.R.D. 339 (S.D. Cal. 2010)............................................................................................. 12 Perry v. Schwarzenegger, 2010 WL 3025614 (N.D. Cal.).................................................................................................. 4 Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004)................................................................................................... 15 Rambus, Inc. v. Hynix Semiconductor, Inc., 254 F.R.D. 597 (N.D. Cal. 2008) ...................................................................................... 11, 13 Robinson v. G.D. Searle & Co., 286 F. Supp. 2d 1216 (N.D. Cal. 2003) .................................................................................... 7 Salinas v. AmTeck of Kentucky, Inc., 682 F. Supp. 2d 1022 (N.D. Cal. (PJH) 2010) .......................................................................... 3 Semerdjian v. McDougal Littell, 641 F. Supp. 2d 233 (S.D. N.Y., 2009)..................................................................................... 5 Thomas v. Newton Intern. Enterprises, 42 F.3d 1266 (9th Cir. 1994)..................................................................................................... 4 Trout v. Milton S. Hershey Medical Center, 576 F. Supp. 2d 673 (M.D. Pa. 2008) ....................................................................................... 7 U.S. v. Brooks, 610 F.3d 1186 (9th Cir. 2010)................................................................................................... 9 U.S. v. Walker, 217 Fed. Appx. 714 (9th Cir. 2007) .......................................................................................... 7 RULES Fed. R. Evid. 702 ............................................................................................................................ 6 iv
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17 U.S.C. § 504 ............................................................................................................................. 15

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I.

INTRODUCTION SAP never responds to Oracle's fundamental points: that Brian Sommer lacks relevant

expertise, uses flawed or no methodology, and renders opinions based not on evidence from this case but on unreliable and untested inputs. Instead SAP pretends Oracle's concern is that Sommer is not a professional witness. But Oracle does not dispute that a witness may be qualified as an expert based on experience; Oracle complains because Sommer's experience is irrelevant to the issues in the case. SAP offers Sommer to provide generalized opinions on the motivations of ERP support customers he never consulted, to make aftermarket support decisions he is unfamiliar with, based on reading Internet articles he never confirmed, while ignoring the actual evidence. Sommer also offers baseless and legally irrelevant conclusions about support options purportedly available to customers (also an improper affirmative opinion disguised as rebuttal) on the efficacy of customer switching programs in general and SAP's Safe Passage in particular where he has no metrics by which to evaluate them. Literally all of Sommer's untested (and untestable) opinions are just his say-so. They do not deserve the imprimatur of being deemed reliable "expert" opinions and would confuse and mislead the jury. SAP also mischaracterizes the subject on which it offers Sommer as an expert, in an effort to evade Oracle's motion rather than respond to it. SAP has offered Sommer as an expert on, among other things, customer aftermarket support decisions, including decisions about retaining third-party support or using self-support in place of support from Oracle.1 However, Sommer admitted in deposition that he has no relevant experience about support decisions; he has literally never assisted customers with the purchase of aftermarket software support. Rather than addressing this problem, SAP tries to obscure it by submitting a 22-page declaration from Sommer, which SAP quotes at length in its brief. Most of the declaration recounts experience that Sommer supposedly has with the selection and implementation of unnamed ERP software See Dkt 765 (MacDonald Decl.) ¶ 2 Ex. A (Sommer Report) at p. 1 section I ("This rebuttal report . . . covers . . . how companies . . . support such software; and . . . how and why customers make decisions to buy, maintain and replace . . . support services . . . . The Meyer report failed to adequately define . . . the state of the market for that . . . support and the relationship between . . . customers and third-party support providers.)" 1
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applications ­ but not with software support options, which SAP offers Sommer as an expert on, and about which Oracle contends he is unqualified to opine. This lengthy and untimely declaration, and the way SAP uses it to side step Oracle's motion, are a tacit admission that Sommer lacks relevant experience on the subject of customer support options. SAP's remaining arguments have no merit either. Sommer should not be allowed to testify at trial.2 II. SOMMER'S OPINIONS ABOUT HOW ERP CUSTOMERS MAKE DECISIONS ABOUT AFTERMARKET SUPPORT SHOULD BE EXCLUDED Sommer's "general" opinions about customers' aftermarket support decision-making are based on "experience" he does not have, augmented with some material he downloaded from the Internet, in disregard of the actual evidence. This is not the basis of admissible expert testimony. A. Sommer Lacks Relevant Expertise Sommer lacks relevant experience. He testified that he has never helped a customer with the purchase of aftermarket support. MacDonald Decl., Ex. B (Sommer Tr.) at 34:12-16; 36:1-17; 300:6-16. He also testified that his work with ERP-related vendors did not involve the provision of aftermarket support for their products. Id. at 17:3-19; 19:18-20:14; 22:4-9; 23:6-24:5; 24:925:1; 26:11-27:4; 68:17-69:7. Having no response to Sommer's admitted lack of experience assessing third-party support options, SAP tries to change the subject to a company's initial decision to purchase ERP products or the ERP industry generally. Opp. 4:19-21; 9:10-12; 11:1-8. Thus, they say, Sommer characterizes "the general dynamics of what's going on in the marketplace and how these different kinds of software decisions are made by customers." Opp. 3:20-21. That doesn't cure the problem that Sommer admittedly has no knowledge of the aftermarket software support decisions by SAP TN's customers that are actually relevant here. By shifting the focus, SAP tacitly concedes Sommer has no experience on the subject on which he is offered as an expert. SAP attempts to bolster Sommer's credentials by submitting a long and belated declaration from Sommer.3 This declaration, though objectionable, confirms Sommer's lack of relevant Contrary to SAP's assertion, Oracle seeks to exclude Sommer's opinions in their entirety. See Dkt. 764, Mot. at 1:1-8; 2:26-28; 25:22; Dkt. 766, Proposed Order. 3 Oracle separately and simultaneously objects and moves to strike Sommer's declaration. 2
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experience. Sommer now claims that he began his career "as a programmer and software designer" for ERP software implementation. Dkt. 849, Sommer Decl., ¶ 4. He "assisted with systems implementations" by "redesign[ing]" applications "of one ERP application software solution" to make it work with another. Id. ¶ 7. Later, he worked for Arthur Anderson to provide consulting services to clients about purchasing and implementing ERP software and training their employees to use it. Id. ¶¶ 10-20. He attended marketing events where ERP vendors were present, id. ¶¶ 33-36, and gave talks about ERP software. Id. ¶¶ 37-40. Then he left Anderson to sell ERP software. Id. ¶¶ 42-58. By its very definition, the original sale/purchase of and implementation of an ERP system is not relevant to aftermarket decisions on support. Today he is also a part-time blogger about "the application software space (including ERP)." Id. ¶ 60. What is missing from this declaration is the relevant experience: how ERP customers make aftermarket support decisions. There are a few spots in his declaration where Sommer vaguely adds the word "support" in a longer sentence describing either what he or his department at Arthur Anderson did. E.g., id. ¶ 18 ("In the Software Intelligence role at Anderson Consulting, my staff and I requested at client sites globally to assist their ERP software and support services selection decision-making."), ¶¶ 19, 20. Even then, Sommer cannot bring himself to claim he has any experience with aftermarket support decisions ­ at issue here, and the subject of his supposed "expert" testimony. If Sommer is now trying to imply that he personally has experience with customer decisions about aftermarket support, such an implication is barred by his sworn testimony in deposition that he has no such experience. See, e.g., MacDonald Decl., Ex. B (Sommer Tr.) 33:25-34:16 (Q: Okay. Do you believe you have actually helped anybody with the purchase of after-market support? A: I don't believe I have.); 36:10-17; 37:2-16; 38:18-39:5 (never hired to advise nor has assisted any client on whether to self-support or stay with vendor maintenance). Sommer is simply not an expert on anything relevant, and his belated effort to add more (irrelevant) experience via declaration does not resuscitate him. See, e.g., Salinas v. AmTeck of Kentucky, Inc., 682 F. Supp. 2d 1022, 1030 (N.D. Cal. (PJH) 2010) (rejecting opinions on warnings by proffered expert who "had no professional training or expert qualifications to opine on the formulation or design of warning or safety labels" and had never "investigated a case with 3
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similar facts" and never "testified as a warnings expert"). The one case SAP relies on actually supports Oracle. In Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269-70 (9th Cir. 1994), the plaintiff sued a stevedoring company for negligence over a hatch opening near a ladder. Plaintiff's expert was a longshore worker with 29 years experience in every job category within the industry and for every stevedoring company. After reviewing all record documents and photographs of the accident site at issue, he declared that an uncovered hatch opening is an extremely unusual and hazardous condition. Thomas confirms that a witness may be qualified as an expert only based on relevant expertise, informed by the evidence in the case. SAP cannot show Sommer is so qualified or steeped in the case record. B. Sommer's Opinions Are Not Based On Sufficient Information And Data Sommer premises his opinions about customer support purchasing decisions entirely on a few web pages he downloaded, the assertions in which he did not investigate, that say nothing about that subject to begin with. Mot. 7:15-8:7. "An opinion based on . . . unsubstantiated and undocumented information is the antithesis of the scientifically reliable expert opinion admissible under Daubert and Rule 702." Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir. 1998). Sommer's nearly sole reliance on information from the Internet is insufficient in the Ninth Circuit. See e.g., Doan v. Astrue, 2010 WL 234935, at *4 (S.D. Cal.) (excluding expert testimony because his methodology was based on a newspaper article, "not from a primary source"; he did not engage in an analysis, but simply reached conclusions subjectively after examining data from the newspaper; and he did not mention or try to account for the myriad factors involved.); Matrix Motor Co. v. Toyota Jidosha Kabushiki Kaisha, 290 F. Supp. 2d 1083, 1086 (C.D. Cal. 2003) (Expert reports are irrelevant where they "merely recite hearsay statements, often verbatim, culled from a variety of Internet websites."); Perry v. Schwarzenegger, 2010 WL 3025614, at *22 (N.D. Cal.) ("mere recitation of text in evidence does not assist the court in understanding the evidence because reading, as much as hearing, is within the ability and experience of the trier of fact.") (internal quotation and citation omitted).4 SAP mischaracterizes Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1016-18 (9th Cir. 2004), implying it holds it is for the jury not the Court to assess Sommer's untested (Footnote Continued on Next Page.) 4 Case No. 07-CV-01658 PJH (EDL)
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SAP, ignoring that law, asserts that Internet sources can form the basis of reliable expert opinions if experts in the field typically rely on such information. However, SAP's two cited authorities do not support this broad proposition. See Opp. 14:2-14. The court in Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685 (7th Cir. 2008) held that the trial court did not abuse its discretion in admitting an expert opinion that Hamas was responsible for the murder at issue. The expert on terrorism in the Arab world relied in part on admissions found on websites he concluded were controlled by Hamas, and explained that "terrorist organizations rely on the web to deliver their messages to their adherents and the general public." Id. at 704. As foundation for his reliance on the websites, the expert submitted an extensive report published by The United States Institute for Peace, a nonpartisan federal institution created by Congress, on the use of the Internet by terrorists. Sommer does not rely on information from the Internet owned or controlled by a party or non-party customer in this case for the purpose of establishing an admission, and provides no foundation of reliability for the sources he relies on. In Semerdjian v. McDougal Littell, 641 F. Supp. 2d 233, 242-43 (S.D. N.Y. 2009), the plaintiff did not argue that the expert's reliance on the Internet rendered his opinion unreliable, and the court did not hold that Internet sources form the basis of reliable expert opinion. Rather, the Semerdjian court found that the expert based his analysis on a review of publisher HoughtonMifflin Harcourt's licenses for copyrighted images in two other textbooks (also the subject of litigation), conversations with the a director at defendant's affiliated textbook publisher, and visits to websites of distributors of copyrighted images that were close substitutes for the images at issue. Sommer did not supplement his web-surfing with research or interviews and does not purport to have relied on websites of affiliates of the parties, or distributors of "comparable" (Footnote Continued from Previous Page.) selection of reading materials. Opp. 13:19-14:1. It does not. Bad faith cases brought against insurance companies uniquely require an expert on the standard of care in the insurance industry. See id. (and internal citations). Such experts must rely on evidence concerning the industry to formulate an applicable industry standard of care. ERP industry norms ­ a dubious concept to begin with ­ are not at issue in this case, and Sommer is not a standard of care expert. Moreover, Hangarter provides no analysis or detail about what knowledge or experience the expert possessed, what evidence he reviewed, or the basis for his opinion; thus SAP cannot claim it endorsed allowing through the gate equally inexpert, ill-founded and untested opinion. 5
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software support because he testified that he had no idea whether the other vendors he considered offered comparable support or not. See Mot. 11:16-26. SAP asserts the blanket generality that "experts within the ERP industry rely upon the Internet to gather and disseminate information." Opp. 14:2-14. The suggestion that an expert's unquestioned reliance on the Internet passes muster is contrary to the case law in this circuit. It also misses the point: "the Internet" is a big place. SAP's generic assertion says nothing about the actual Internet sources Sommer relied upon without investigation, let alone why they are a reliable source for opinions about customers' aftermarket support purchase decisions. Sommer's last-minute declaration does not either. Sommer Decl., ¶ 61. Sommer's declaration is further unavailing, because courts have held that Internet articles are an unreliable basis for any opinion where, as here, an expert does not know "on what research or methodology the [information] was based" and "did not conduct any independent research on the subject." See, e.g., Kilgore v. Carson Pirie Holdings, Inc., 2006 WL 3253490, at *4 (6th Cir.). Next, SAP argues that Oracle must explain why the Internet sources Sommer relies upon are unreliable. Opp. 14:15-17. But it is indisputably SAP's burden to show, under Fed. R. Evid. 702, that Sommer's testimony is based upon sufficient facts or data and is the product of reliable principles and methods that Sommer has applied reliably to the facts of the case. See Mot. 3:14:11.5 SAP's attempted burden-shifting is another tacit admission that it cannot carry its burden. C. Sommer's Opinions Are Not Relevant Because They Neither Consider Nor Concern The Facts Of This Case Sommer consciously disregarded the voluminous evidence in the case, which, not coincidentally, contradicts his opinions. Mot. 9:4-10:6. Sommer's testimony is thus irrelevant, unreliable, and inadmissible several times over. See, e.g., U.S. v. Walker, 217 Fed. Appx. 714,

5

SAP asserts that Meyer too "relies" on Internet sources, based on two out of approximately 857 footnotes in his report. Opp. 14:19-26. Meyer's first citation is to an Internet article about Seth Ravin for the simple acknowledgment that Meyer understood Oracle was seeking additional discovery from Ravin and Rimini Street and he reserved the right to supplement his report pending such further discovery. Meyer's second citation to an Internet article contains a public admission from Andrew Nelson, SAP TN's founder and CEO, downplaying the significance of Rimini Street as a competitor. By contrast, Sommer's report, when there are citations at all, is almost entirely based on Internet sources. See MacDonald Decl., Ex. A (Sommer Report). 6
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716-17 (9th Cir. 2007) (generalized expert testimony inadmissible as unreliable and lacking sufficient nexus to case facts); Trout v. Milton S. Hershey Medical Center, 576 F. Supp. 2d 673, 678 (M.D. Pa. 2008) (expert testimony based on generalizations excluded because opinions not applied to the specific case); Robinson v. G.D. Searle & Co., 286 F. Supp. 2d 1216, 1221 (N.D. Cal. 2003) (expert's testimony inadmissible when based on factual premise contradicted by the evidence). SAP's assertion that Sommer need not consider customer specific evidence because he covers "general information about the ERP industry" doesn't save him. Opp. 13:13-16. Sommer's factual deficit is not limited to his failure to consider customer specific evidence, but includes the fact that he ignored contrary evidence and testimony (Mot. 9:4-10:6) from the two companies (Oracle and SAP TN) whose competition in the support aftermarket (not in "general" ERP, which SAP TN did not even offer) is at issue. See e.g., Nuveen Quality Income Mun. Fund Inc. v. Prudential Equity Group, LLC, 262 Fed. Appx. 822, 824-25 (9th Cir. 2008) ("An expert opinion is properly excluded where it relies on an assumption that is unsupported by the evidence in the record and is not sufficiently founded upon the facts"); Robinson, 286 F. Supp. 2d at 1221; see also Mot. 9:4-10:6. III. SOMMER'S TESTIMONY RELATED TO ALTERNATIVE THIRD-PARTY SUPPORT OPTIONS SHOULD BE EXCLUDED AS UNRELIABLE AND UNTIMELY AFFIRMATIVE OPINION Sommer's opinions about alternative support options are inexpert, unsupported, unreliable, untethered to the facts, and untimely. They should be excluded. A. Sommer Lacks Relevant Experience and His Opinions Are Not Based On Sufficient Information And Data

With no relevant personal or professional experience to rely on, Sommer based his thirdparty support opinions on unspecified conversations with people he "ran into" at trade shows, and his research consisted of web-surfing. Mot. 10:27-11:15. But SAP cannot deny that Sommer did not follow up on what he found on the Internet verify its reliability. He did not independently analyze particular vendors, so knows little about any vendor's competitive capabilities, the period of time for which such capabilities may have existed, and how they compared (or failed to compare) with SAP TN or Oracle in important respects. Mot. 11:16-28. His uninformed opinion, 7
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based on Internet research lacking any scientific rigor, is unreliable and unhelpful. See Carnegie Mellon Univ. v. Hoffman-Laroche, Inc., 55 F. Supp. 2d 1024, 1034-35 (N.D. Cal. 1999); see also above at 4:10-6:13. B. Sommer's Opinions Are Based On An Unreliable Methodology Unfamiliar with the customers at issue, Sommer does not know the level of support they would have demanded or found attractive, and does not purport to compare the service offerings of the vendors he found on the Internet to those of SAP TN, he simply assumes customers would have found them comparable. Mot. 8:10-19, 9:4-10:3, 11:16-28, 12:9-18. Had he considered the evidence, he would know they are not the same. See, e.g., id. at 9 n.1 (actual customer opinions); MacDonald Decl., Ex. B (Sommer Tr.) 220:10-221:10 (Sommer acknowledges SAP TN differed from other vendors). Assuming without research, testing or knowledge is the opposite of reliable science. See, e.g., Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1319 n.11 (9th Cir. 1995) (Daubert II) (party must demonstrate in some objectively verifiable way that its expert has chosen a reliable method and followed it properly, particularly where no independent, pre-litigation analysis to rely on). And ignoring the facts that inform (and contradict) his opinion on comparability of support offerings makes Sommer's opinion inadmissible. Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir. 2005) ("An expert opinion that fails to consider the relevant facts of the case is fundamentally unsupported" and "should not be admitted if it does not apply to the specific facts of the case") (internal citation omitted). SAP does not defend the reliability of Sommer's methodology but contends that a reliable methodology is not part of the Daubert inquiry as long as Sommer has relevant experience. Opp. at 13. Leaving aside the fact that Sommer does not have the relevant experience, SAP is wrong about the law. Sommer's purported experience is not a substitute for a reliable methodology. Daubert II, 43 F.3d at 1317-19 (excluding causation testimony where, as here, court was "presented with only the experts' qualifications, their conclusions and their assurances of reliability. Under Daubert, that's not enough."). C. Sommer's Generalized Opinions Are Not Relevant Because They Neither Concern Nor Consider The Facts Of This Case 8

Sommer studiously avoided the voluminous evidence in the record, including documents
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and testimony from the parties and their customers. Thus, his opinions about supposedly available alternatives are not tied to the relevant time period, products, or competition among support vendors actually at issue. He does not know whether customers would have considered the vendors he identifies, whether those vendors even existed at the time the customers considered aftermarket support, or the level of support they offered. He ignores the evidence showing customers would not have considered alternatives to SAP TN or Oracle. Mot. 9:4-16 and n.1. SAP's effort to offer Sommer as a "general ERP industry expert" does not cure, or even address, the problem. Sommer's "fundamentally unsupported" generalizations are legally irrelevant to the issues in this case. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153-55 (1999) (deposition of tire failure analyst supported exclusion where expert could not answer basic questions about the specific tire at issue in the case); Jinro America, Inc. v. Secure Investments, Inc., 266 F.3d 993, 1010-1011 (9th Cir. 2001) (generalized expert testimony, not based on personal knowledge of specific party or transaction at issue inadmissible). SAP's authorities do not suggest Sommer's opinions are relevant and, instead, support exclusion. Opp. 9:17-25. First, U.S. v. Brooks, 610 F.3d 1186 (9th Cir. 2010) affirmed the admission of expert testimony because, unlike Sommer, the expert had extensive experience directly relevant to the specific issues in the case and helped place other witnesses' testimony into specific context: "[The expert's] testimony concerning the role of . . . a pimp's most senior prostitute, who often trains new prostitutes . . . potentially helped the jury evaluate [the senior prostitute's] testimony that she was acting at [the pimp's] direction, not on her own accord," and testimony that pimps isolate new prostitutes from familiar areas "provided context for evaluating Appellants' intentions" in transporting the girls across state lines. Id. at 1196. In Lawson v. Trowbridge, 153 F.3d 368 (7th Cir. 1998), a § 1983 action brought against an arresting police officer and others, the appellate court found the expert testimony concerning the complained-of officer's police training (an issue in the case) proper because the experts actually trained the arresting officer on the conduct at issue. See id. at 375 ("What made them experts in the district court's eyes was that [they] had specialized knowledge concerning . . . how police officers such as [the complained-of officer] are trained to approach knives in varying contexts."). SAP's 9
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authorities do not support its argument that Sommer's generalized opinions ­ which do not concern nor consider the facts of this case ­ are relevant or would aid (as opposed to mislead) the jury. D. Sommer's Testimony About General Support Options Is Not Rebuttal And Should Be Excluded Pursuant To FRCP 37

Sommer's "general overview" of alternative "third-party and self-support options available to customers as a substitute for vendor-provided support" is not proper rebuttal to begin with. Meyer did not offer a "general overview," but a specific opinion as to the demonstrated lack of support alternatives comparable to SAP TN's support (allegedly equal to or better than Oracle's) contemporaneously available for Oracle customers who had switched to SAP TN, based on the voluminous evidence in this case. Sommer's generalized musings about more "limited" support "alternatives" expressly do not rebut Meyer's specific opinion -- indeed, that was "not part of [his] assignment" -- but constitute a new (albeit legally irrelevant) and impermissible affirmative opinion. Mot. 14:5-27; IBM Corp. v. Fasco Industries, Inc., 1995 WL 115421 at *3 (N.D. Cal.) (rebuttal report must rebut, not offer affirmative opinions). SAP's claim that Meyer had an opportunity but was unprepared to contradict all of Sommer's opinions at deposition is incorrect (and irrelevant) for three reasons. Opp. 17:21-28. First, there was no agreement that Meyer would offer sur-rebuttal testimony in a further report or at deposition. Second, Meyer was not designated as a sur-rebuttal expert. Finally, Sommer's report was not rebuttal in the first place, but an untimely affirmative report that should itself be precluded. See Dkt 790 (Plaintiffs' Opp. to Defs' Motion In Limine ) at Section V. Oracle is prejudiced because, had it gotten Sommer's opinion in November, Meyer would have had time to address and rebut per the case schedule or Oracle could have secured a new rebuttal expert. IV. SOMMER'S OPINIONS AND TESTIMONY CONCERNING SELF-SUPPORT AS A "VIBRANT ALTERNATIVE" SHOULD BE EXCLUDED Sommer's self-support opinions are similarly inexpert, untested, and unreliable. A. Sommer Lacks Relevant Expertise Sommer's sole experience with self-support is a single chat he once had with an unnamed CIO of an unspecified company. Mot. 15:24-16:5. One chat does not constitute expertise. Mot. 4:13-23 (citing authorities). SAP attempts to buttress Sommer's experience by claiming 10 Case No. 07-CV-01658 PJH (EDL)
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"Sommer's extensive technological knowledge of ERP software also provides him with a basis to opine that some companies use software that is so heavily modified that self-support is almost necessary." Opp. 16:19-21. SAP's attempt to cure fails. Neither Sommer's declaration, nor his deposition testimony, reveals any relevant experience with self-support. To the contrary, Sommer testified he has never been hired by a client to assist in deciding whether to self-support software. Mot. 15:24-16:5; see also above at 3:18-25, 8:5-18. B. Sommer's Generalized Opinions Are Not Based On Sufficient Information And Are Not Relevant Because They Neither Concern Nor Consider The Facts Of This Case Sommer did not know how many customers at issue, if any, were capable of self-support based on the attributes he identified (albeit lacking the expertise to do so). He admitted one would have to study the question for customers individually, but also admitted he did not do so. He also admitted capability is different from actually choosing to self-support, but did not know the factors that influence that choice, including, fundamentally, relative cost. In short, Sommer admitted he did not ask, and cannot answer, the relevant questions ­ which SAP does not dispute. His opinions are inapplicable to any question before the jury. Mot. 16:8-17:5. V. SOMMER'S OPINIONS AND TESTIMONY REGARDING THE GENERAL EFFECTIVENESS OF SWITCHING PROGRAMS SHOULD BE EXCLUDED Sommer's generalized opinion that customer switching programs "rarely produce the kinds of major changes vendors hope to achieve" is uninformed, untied to the facts, not based on any methodology, speculative, and inherently unreliable. A. Sommer Lacks Relevant Qualifications

Sommer has never worked on a switching program like SAP's Safe Passage or evaluated one's success. Mot. 17:12-21. Indeed, none of his work had anything to do with evaluating the success or failure of any ERP vendor's marketing programs. Id. He is unqualified to testify on this topic. See, e.g., Rambus, Inc. v. Hynix Semiconductor, Inc., 254 F.R.D. 597, 603-05 (N.D. Cal. 2008) (testimony of electrical engineer on "commercial success" inadmissible because he had no marketing or business training in commercial aspects of claimed invention); see also Mot. 4:13-23 (citing authorities). Sommer's purported generalized experience about what doesn't motivate switching, based 11
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on non-case-related "discussions" he has had (Opp. 15:17-16:3), does not provide him with expert qualifications or yield reliable opinions on Safe Passage, the switching program at issue here. His opinion is inadmissible. See, e.g., Ollier v. Sweetwater Union High School Dist., 267 F.R.D. 339, 341-42 (S.D. Cal. 2010) (excluding expert testimony for lacking a reliable methodology applying to the facts of the case). B. Sommer's Opinion Is Not Based On A Reliable Methodology Applied To Sufficient Data Sommer's report mentioned four switching programs irrelevant to this case, and three others he read about on the Internet. Sommer admitted it was "not part of [his] assignment" to understand whether those three succeeded or failed, so he does not know. He relied instead on an analyst interview he read that such programs generally have "limited success," but did nothing to investigate that claim or evaluate it in light of the facts here. Mot. 17:22-18:16. Repeating vague, untested generalizations is not a reliable methodology. See, e.g., Ollier, 267 F.R.D. at 341-42; see also Mot. 4:24-5:8. Again, Sommer's limited experience (Opp. 15-16) cannot compensate for his lack of a reliable, or any, methodology. See, e.g., Daubert II, 43 F.3d at 1317-19. C. Sommer's General Opinions Of Switching Programs Do Not Consider And Are Not Relevant To The Facts Of This Case Sommer made no effort to tie his generalized opinion on marketing programs to this case. He did not speak to any of SAP's employees or evaluate any Oracle or SAP switching program, much less Safe Passage itself, which was unique in important respects (and which his primary Internet source called a "great strategy"). Mot. 17:23-19:8. His generalized opinion is irrelevant to the specific facts at issue here. See, e.g., Jinro, 266 F.3d at 1010-11. SAP does not respond. VI. SOMMER'S OPINIONS REGARDING THE EFFECTIVENESS OF SAP'S SAFE PASSAGE PROGRAM AND THE REASONABLENESS OF SAP'S EXPECTATIONS ABOUT IT SHOULD BE EXCLUDED The opinion Sommer first hatched at deposition about the effectiveness of SAP's Safe Passage program and the reasonableness of SAP's expectations about Safe Passage is uninformed by any expertise or the evidence and is pure ipse dixit. Mot. VIII. Significantly, SAP offers no substantive defense of Sommer's late-proffered opinion about Safe Passage. Indeed, SAP now retreats from Sommer's opinion that it would have been unreasonable for SAP to have had a goal to convert 50% of the PeopleSoft/JD Edwards customers. Opp. 18:11-27 ("Although Sommer 12
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will testify that marketing programs generally, and Safe Passage specifically, are not particularly effective in the industry, Defendants will not offer his testimony regarding the 50% issue"). SAP claims this withdrawal "moot[s]" Oracle's Daubert attack. Id. Not so. Oracle moved to exclude the entirety of Sommer's opinions about Safe Passage. Mot. VIII. SAP does not respond to those problems, which concern more than Sommer's now-withdrawn attack on the reasonableness of his own client's specific Safe Passage goals. Specifically, Sommer opined in his report that SAP's Safe Passage program (which offered Oracle customers discounts on SAP's ERP software and provided discounted or free SAP TN support for their Oracle products while they transitioned from Oracle to SAP), was an ineffectual marketing strategy and that sales of SAP TN support for Oracle products were at cross-purposes with and a barrier to SAP's sales of its own applications to those customers. Mot. 19:11-18. SAP does not state Sommer's opinion concerning the effectiveness of Safe Passage is withdrawn entirely. Opp. 18:11-27. Oracle therefore again addresses the problems with that part of Sommer's opinion below. A. Sommer Lacks Relevant Experience Oracle showed that Sommer is unqualified to offer his opinions regarding the effectiveness of Safe Passage. He has no experience with any switching program, much less with Safe Passage or any program that offered free software support. Mot. 20:21-21:6. Having no knowledge or experience with the very program about which he wants to opine would yield an unreliable opinion that would not aid but would instead mislead the jury. Rambus, 254 F.R.D. at 603-05. B. Sommer's Opinions Are Not Based On Sufficient Data And Information

Sommer came to his opinions without benefit of facts or analysis. He did not know the basis for SAP's Safe Passage customer conversion goals, did not talk to any SAP employees or read their depositions, and did not review the relevant materials Meyer's report identified. He did not even know, until told at deposition, that the Safe Passage program provided customers with free software support. He did, however, acknowledge that SAP executives thought Safe Passage was a good idea -- as did industry analysts Sommer finds reliable and relies on -- and agreed they knew what they were doing. His opinions that they did not ignores and contradicts the facts, and is therefore inadmissible. Mot. 21:8-22:21; see also, Adams v. U.S., 2009 WL 1324231 at *1 13
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(D. Idaho) (precluding expert from testifying at trial about DuPont's intent because being an expert in the industry did not make him an expert on defendant DuPont; he never worked for DuPont and had never done any consulting work for it). C. Sommer's Safe Passage Opinions Are Not Based On A Reliable Methodology Lacking relevant information, Sommer did not follow a reliable methodology, or any at all, to reach his opinions. He did not analyze, and does not know, how SAP TN's low-cost support -- a Safe Passage "cornerstone" -- affected customers' decisions whether to convert from Oracle's products to SAP's. He has nothing on the actual conversion rate for Safe Passage, and no other metric for its success by which his assertion that it was ineffectual can be tested. Mot. 22:23-23:11. SAP does not and cannot cure these gaping deficiencies. Sommer's unreliable ipse dixit, created for litigation, is why Daubert's gatekeeper role was created. See Daubert II, 43 F.3d at 1317. VII. SOMMER'S OPINIONS AND TESTIMONY REGARDING HOW ERP CUSTOMERS IN GENERAL MAKE DECISIONS ABOUT PURCHASING OF ERP SOFTWARE ALSO SHOULD BE EXCLUDED A. Sommer Lacks Relevant Experience Or Factual Support

Sommer's involvement with ERP purchasing decisions is marginal, outdated, and in any case irrelevant. He has no experience with the major ERP vendors involved in this case or their interactions with the relevant SAP TN customers. His limited experience with ERP purchasing decisions, except one (not involving the products or parties here) occurred more than five years before the relevant time period here. In any event, the issue here is not general ERP purchases. Sommer has no basis to opine about how the relevant customers' choices among the relevant support products and vendors here impacted their ERP purchasing decisions. Mot. 23:14-24:7. B. Sommer's Opinion That ERP Customers Do Not Select Their Future ERP Vendor Simply Because Of A Lower-Cost Support Offering On Their Existing ERP Software Should Be Excluded

Sommer's opinion is based on the wrong legal standard and so is inadmissible. See, e.g., Abuan v. General Elec. Co., 3 F.3d 329, 332 (9th Cir. 1993). SAP does not dispute that Sommer will opine that "lower-cost support services would not `trigger' a customer to switch software." Opp. 11:7-13. This opinion is based on the wrong legal standard for infringer's profits and 14
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therefore should be excluded as irrelevant and misleading. Nationwide Transport Finance v. Cass Information Sys., Inc., 523 F.3d 1051, 1055-64 (9th Cir. 2008) (affirming preclusion of expert testimony based on "erroneous or inapplicable legal theories" in part because it "may confuse or mislead the jury"). It is not Oracle's burden to show that SAP's license sales or profits were "triggered" by SAP's infringement. Rather, Oracle need only show it is targeting SAP's revenues that were "attributable" to SAP's infringement. See 17 U.S.C. § 504(b).6 Meyer's opinion meets Oracle's statutory and causal burden. See Dkt. 846 (Pltfs.' Opp. to Defs' Mot. to Exclude Meyer) at pp. 21-25. The burden thus shifts to SAP to "prov[e] apportionment (i.e., the contribution to profits of elements other than the infringed property)." Andreas v. Volkswagen of Am., Inc., 336 F.3d 789, 796 (8th Cir. 2003); 17 U.S.C. § 504(b). For Sommer to rebut Meyer and support SAP's contention that no portion of the relevant SAP sales are recoverable infringer's profits, Sommer must opine that SAP TN's infringing use of Oracle's software was not even a factor in contributing to the relevant sales. See Dkt. 853 (Wallace Decl.), Ex. 1 (Clarke Report) at 217 (eliminating purchases from infringer's profit analysis, even where infringing support was provided for free). Sommer does not and cannot offer that opinion. Mot. 24:9-25:20. Sommer does not opine on the legally relevant question. He failed to consider how SAP TN's low prices for its infringing services actually affected its customers' switching decisions, but said cost didn't matter in the unrelated customer choices he is familiar with, none of which involved SAP TN-like "equal or better support" to Oracle's at half Oracle's price or less." Mot. 25:4-20. Sommer's disregard of the relevant facts exposes an analytical gap between his opinion and the issues before the jury that makes his opinion inadmissible. Nebraska Plastics, 408 F.3d at 416.

6

Oracle also must "`present a modicum of proof linking the infringement to the profits sought.'" Dkt. 846 (quoting Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 715 (9th Cir. 2004). 15
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DATED: September 16, 2010

Bingham McCutchen LLP By: /s/ Holly A. House Holly A. House Attorneys for Plaintiffs Oracle USA, Inc., et al.

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