Oracle Corporation et al v. SAP AG et al

Filing 892

Declaration of Holly A. House in Support of 882 Objections to Declaration of Stephen K. Clarke in Support of Defendants' Opposition to Oracle's Motion No.1: To Exclude Testimony of Defendants' Expert Clarke, 888 Reply , 891 Reply, 890 Objections to the Declaration of Brian Sommer In Support of Defendants' Opposition to Oracle's Motion No. 2 to Exclude Testimony of Brian S. Sommer filed by Oracle 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)(Related document(s) 882 , 888 , 891 , 890 ) (House, Holly) (Filed on 9/16/2010) Modified on 9/17/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 892 Att. 3

EXHIBIT C
Dockets.Justia.com

Page 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ORACLE CORPORATION, a Delaware Corporation; ORACLE, USA, INC., a Colorado Corporation, and ORACLE INTERNATIONAL CORPORATION, a California Corporation, vs. Plaintiffs, 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. ______________________________/

*** HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY ***

DEPOSITION OF DAVID GARMUS June 4, 2010

Reported by: Natalie Y. Botelho CSR No. 9897

DAVID GARMUS June 4, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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A.

I haven't reviewed -- first of all, I

THE WITNESS: I don't know whether they would or wouldn't. I haven't reviewed the legal requirements of using any of the software. And I assume that it would be different, and I would assume that oftentimes clients would be given right to use the softwares they've chosen, including to have other parties maintain it, such as General Motors, where the head contracts that an outside provider was maintaining at EDS. So I do know for a fact that there were some licenses that were issued that didn't require separate authority. MR. ALINDER: Q. Was that for PeopleSoft software? A. I know that they had JD Edwards and Siebel. I'm not certain about PeopleSoft. I don't recall about PeopleSoft. Q. A. And are you aware of what EDS did to EDS was the predominant provider of provide support on that software? support for General Motors, and so application maintenance and support was predominantly accomplished by them through the contract that General Motors had with them. Q. And do you know where that software was located?

never even heard of TomorrowNow before this case. And I haven't reviewed any marketing material from TomorrowNow. I have no idea what they advertised that they could provide. Q. Would you have included those modules on your list if you had seen that they claim they could support them? A. Q. A. Probably not. Why not? Because you can always obtain software

after you claim that you can support anything. All the other companies that I've been associated with that serve in an industry such as TomorrowNow -Neoris, CACI -- advertise that, maybe not accurately, that they can support anything they -because they believe that they have expertise to provide support even though they have no expertise. Q. You're saying that these other companies advertise support as to which they had no expertise to provide? A. I'm saying that's a commonality in the software industry, that people advertise they can do practically anything when, in fact, they can't. They have to obtain the people to provide that

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support after they win a contract to do that. Q. So your assumption is that TomorrowNow is MR. BUTLER: Objection to the form, outside the scope of Mr. Garmus's expertise, vague and ambiguous. THE WITNESS: I have seen none of TomorrowNow's advertising. Let me emphasize that. I haven't seen any advertising by TomorrowNow as to what they could do or couldn't do, so it's a little hard for me to make an assumption based upon that. I do know that as a development manager of CACI, when we advertised what we could and we couldn't do, we advertised that we could do practically anything, you know, including fly you to the moon, but that doesn't mean that we had a spaceship on hand, right. MR. ALINDER: Q. I hope so. A. Q. Although we developed modules for TomorrowNow would need a license to the spaceships. software before it provided that support, though, correct? MR. BUTLER: Objection to the form, vague, ambiguous, outside the scope of Mr. Garmus's expertise and expert report. advertising support that they couldn't provide to?

MR. BUTLER: Objection to the form, outside the scope of Mr. Garmus's expertise, vague and ambiguous. THE WITNESS: I didn't actually look at the source of where the software was actually located. MR. ALINDER: Q. Did you look at General Motors' license agreements with JD Edwards or Siebel? A. Q. A. Q. A. I said before that I didn't, right. Did you look at your -- the license No, I did not. So you have no opinion about whether what I have no opinion to that, no. I know

agreements between EDS and General Motors?

EDS was doing was licensed or not, correct? that General Motors was using the applications and EDS was maintaining them. That's all. Q. So if TomorrowNow is holding itself out as being able to provide support on certain modules, do you have an understanding as to what rights they would need from Oracle in order to do that? MR. BUTLER: Objection to the form, vague, ambiguous, outside the scope of Mr. Garmus's expertise.

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DAVID GARMUS June 4, 2010 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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including Marketing Automation, Sales Force Automation, Call Center and Service, Self Service & eBilling, Customer Order Management, Partner Relationship Management, Business Analytics." Do you see that? A. Q. Yes. Is that different from what your

they can support these products? MR. BUTLER: Objection to the form, vague, ambiguous, lack of foundation, argumentative, mischaracterizes the document. THE WITNESS: I don't believe I can answer that question the way that you phrased it. MR. ALINDER: Q. You don't know one way or the other what TomorrowNow did to support these products, correct? A. these. Q. A. So you believe that Andrew Nelson was not I believe he -MR. BUTLER: Object -- excuse me. Sorry. Objection to the form, vague, ambiguous, lack of foundation, mischaracterizes the document. THE WITNESS: I believe that he was advertising just like every other software company advertises. MR. ALINDER: Q. You think he was inflating his opinion of what he could do? MR. BUTLER: Lack of foundation, vague, ambiguous, mischaracterizes the document. THE WITNESS: I think that's common. It being honest when he put together this document? I don't believe that they did support all

understanding of the software that TomorrowNow supported when you generated your report? MR. BUTLER: Objection to the form, vague, ambiguous, and mischaracterizes this document. THE WITNESS: Yes, it is totally different. In fact, I believe this is just like marketing material that would advertise capabilities to support things that providers don't necessarily have the capability to do at that particular time when they advertise. MR. ALINDER: Q. Do you think -A. Q. I've never seen this page before. You understand it's TomorrowNow's CEO and

president, and this states the software he claims they can support, correct? MR. BUTLER: Objection to the form, mischaracterizes the document, vague and ambiguous. THE WITNESS: I see that that's what that

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page says, yes. I see other things too in the document, like languages. MR. ALINDER: Q. We'll get to that page. My question on this page for now is, Mr. Nelson in this document doesn't limit the modules that were supported for PeopleSoft, JD Edwards, or Siebel Systems software, correct? MR. BUTLER: Objection; lack of foundation, mischaracterizes the document, vague and ambiguous. THE WITNESS: I see that he doesn't limit himself, but on the other hand, I don't believe that Oracle limits themselves in a lot of their advertisement either. Just as like I said earlier, most software companies advertise they can provide support for doing things that they currently don't have the capabilities for. MR. ALINDER: Q. I understand that you don't believe that Mr. Nelson was telling the truth in this document, but -A. Q. A. Q. I didn't say that. -- that's what it's saying, right? I didn't say that at all. Well, which one is it? I mean, is he

happens a lot of times. It happened early on in the software industry when IBM advertised capability that they didn't have. In order to stay ahead of the industry, it was a common practice. MR. ALINDER: Q. You don't know one way or the other whether they actually did support these software products, correct? A. All I know is the list of support that they were providing in a particular period of time, that's what I looked at. Q. Right. So you have the four spreadsheets and Appendix L that were provided to you by Jones Day, and that's the limit of what you know about what they provided support on, correct? A. Q. right? MR. BUTLER: Objection to the form, vague, ambiguous, mischaracterizes the document. MR. ALINDER: Q. Right? A. Q. A. I said no. You don't think this -No. I said it's typical of companies in Absolutely. That's all I know. But this document suggests otherwise,

the software industry to advertise that they have -they can support things that they don't have the

telling the truth in this document or is it that

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