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. 4

EXHIBIT D
Dockets.Justia.com

RICHARD ALLISON November 12, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY 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, Plaintiffs, vs. SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive, Defendants. ______________________________

) ) ) ) ) ) ) ) ) ) No. 07-CV-1658 (PJH) ) ) ) ) ) ) ) ) )

VIDEOTAPED DEPOSITION OF RICHARD ALLISON _________________________________ THURSDAY, NOVEMBER 12, 2009

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-424330)

Merrill Legal Solutions [phone]

RICHARD ALLISON November 12, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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SAN FRANCISCO, CALIFORNIA; THURSDAY, NOVEMBER 12, 2009 9:03 a.m. --o0o-PROCEEDINGS THE VIDEO OPERATOR: Here begins Volume 1, Videotape No. 1 in the 30(b)(6) deposition of Oracle with corporate designee Richard Allison in the matter of Oracle versus SAP in the US District Court, Northern District of San Francisco. The case number is 07-CV-1658. Today's date is November 12th, 2009. The time on the video monitor is 9:03. The video operator today is Patricia Guerrero, a Notary Public contracted by Merrill Legal Solutions, San Francisco, California. This video deposition is taking place at the Law Offices of Jones Day, 555 California Street, San Francisco, California. Counsel, please identify yourselves and state whom you you represent. MR. McDONELL: Jason McDonell and Jacqueline Lee for defendants. MR. HIXSON: Tom Hixson and Jennifer Gloss for Plaintiffs. THE VIDEO OPERATOR: Thank you. The court

Q. Let's do a little bit of both. So let's take the first deposition. When did you first give a deposition? A. A few months ago. Q. What was the nature of the matter? A. It was a case regarding an acquired company and a settlement that was -- took place. Q. Was this in the course of -- in connection with your work for Oracle? A. It is. Both of the cases are. Q. And what was the company, the acquired company? A. I don't remember, actually. Q. What was the nature of the dispute? A. We -- there was a settlement that took place with a customer of theirs, and the dispute was regarding escrow funds that were to be released to them. Q. This is a company that Oracle acquired? A. Yes. Q. What was the name of that company? A. We've acquired 40, so you have to bear with me. I can't remember the name of the company. Q. You've acquired 40 -A. We've acquired 40 different companies in

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reporter today is Holly Thuman of Merrill Legal Solutions. Would the court reporter please swear in the witness. --o0o-RICHARD ALLISON, _________________________________ called as a witness, who, having been first duly sworn, was examined and testified as follows: --o0o-EXAMINATION BY MR. McDONELL MR. McDONELL: Q. Would you state your full name for the record, please? A. Richard Allison. Q. Mr. Allison, where do you work? A. At Oracle Corporation. Q. What is your job there? A. Senior Vice President of Global Practices and Risk Management. Q. Have you ever given a deposition before? A. I have. Q. On how many occasions? A. Two other occasions. Q. Okay. Can you tell me what those occasions were, please? A. The topic or the time?

the last few years, so the name, I'm not sure exactly which one it was. Q. What was its business? A. Software. Q. Like enterprise software? What kind of software? A. It was software. Like I said, we've acquired 40 different businesses. I don't remember the nature of the software. Q. Do you recall, how long did your deposition last? A. One day. Q. Who represented you at the deposition? Did you have an attorney with you? A. I did. Q. Who was it? A. It was Oracle attorney as well as outside counsel. Q. Who was the Oracle attorney? A. It was John Wadsworth. Q. And who was the outside attorney? A. Actually, excuse me, it was Jeff Ross was the inside attorney. I don't remember who the outside attorney was. Q. What was your involvement in the matter?

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leave it between you and your counsel to decide whether you'll follow that instruction. Let's see. There will be a transcript of this deposition that you'll have a chance to review and make corrections to. Do you understand that? A. Yes. Q. Have you done that in connection with the other depositions? A. I've reviewed them, yes. Q. I want to put you on notice that if you make changes, we'll have the opportunity to draw attention to those changes. Is that understood? A. Yes. Q. Also, towards the goal of getting a clear transcript, I'd like you to listen carefully to my questions and answer them only if they're clear to you. Will you do that for me? A. Yes. Q. And if my questions are unclear, please ask me to clarify. And that way, we won't have to have a situation later where you'll say, gee, the question was really unclear. Understood? A. Yes.

November, when I actually had the discussion with the folks. MR. McDONELL: Next in order, please. (Deposition Exhibit 808 was marked for identification.) MR. McDONELL: Q. Mr. Allison, I'm now showing you what's been marked as Exhibit 808. It's a document entitled "Defendants' Third Notice of Deposition of Plaintiff Oracle USA, Inc. Pursuant to Federal Rule of Civil Procedure 30(b)(6)." Do you have that in front of you? A. I do. Q. Have you seen that before? A. I have. MR. McDONELL: Now I am -- next in order, please. (Discussion off the record.) MR. McDONELL: Q. Let me redescribe what it actually says. A. Okay. Q. On Exhibit 808. 808 is Defendants' Amended Third Notice of Deposition of Plaintiff Oracle USA, Inc., Pursuant to Federal Rule of Civil Procedure Rule 30(b)(6). Do you have that in front of you?

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Q. Also, will you do your best to give full and complete testimony here today? A. I will. Q. What if anything have you done to prepare for your deposition here today? A. I have reviewed materials as well as talked to individuals from the company. Q. Okay. What individuals did you talk to? A. That's in the list of notes I gave you. I talked to Beth Shippy, Karri Myles, John Marandola, Dr. Uwe Kohler, Julie O'Shea, Justin Kesterlyn, Ellen Eder, and Allison Adams. MR. McDONELL: Mark that next in order, please. (Deposition Exhibit 807 was marked for identification.) MR. McDONELL: Q. Mr. Allison, I'm showing you what's been marked as Exhibit 807. Do you have that before you? A. I do. Q. Can you identify it for the record, please? A. Yes. These are my notes that I took from the conversations I had with individuals at Oracle. Q. When did you make these notes? A. I made the notes on the 9th and the 10th of

A. Yes, I do. Q. And you've seen that before? A. I have. Q. When did you see it first? A. About a week ago. Q. And how did it come to your attention? A. From my legal department, some of the documents I reviewed to prepare for today. Q. So would you turn in that document to page 6? Sorry, let's start with page 5. Do you see paragraph 10? A. Yes. Q. And then do you see paragraph 11 on page 6? Have you come prepared to give testimony on behalf of Oracle in response to those topics? A. I have. MR. HIXSON: Well, subject to the objections we served. MR. McDONELL: Okay. And of course we reserve all rights with respect to your objections and don't agree with them. Q. Okay. So now, let's go back to the general question of your preparation for this deposition. When did you first get notice that you might be the witness for this deposition?

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A. Several weeks ago, when I was first given notice that I might be the person to cover this topic. I think it was confirmed a little over a week ago that I would be the person. Q. When did you first begin to prepare for this deposition? A. About a week ago. Q. And just walk me through, if you would, what you've done for your preparation. A. I reviewed all the terms of use, examples of the multiple different terms of use we have that are available, the agreements for PeopleSoft, JD Edwards, Siebel, and Oracle, some of the -obviously, the complaint, and the response. And then I had conversations with individuals at Oracle about some of those documents as well as just their roles and their involvement in the terms of use and enforcement of that. Q. Okay. And the conversations are subject to the notes you took in Exhibit 807? A. Yes. Q. Now, you say that you looked at various terms-of-use documents, but that you also looked at agreements for PeopleSoft, JD Edwards, Siebel, and Oracle. Is that right?

A. I do not. Q. Do you know who selected them? A. I just received them as a bundle from legal, so I do not know who selected them. Q. Did you draw any conclusions about the significance of the documents that were selected for you? MR. HIXSON: Objection. Vague. THE WITNESS: They were just examples. Every agreement between the customer and Oracle or the acquired companies could be unique, so you couldn't possibly read every one. So these are just examples to get an idea of what kind of terms are included. MR. McDONELL: Q. Why would every agreement be unique between Oracle and its customers? MR. HIXSON: Objection. Vague. But go ahead. THE WITNESS: They're often negotiated. So there are lawyers on the other side that negotiate specific terms or changes to the agreements. So you could have a standard agreement, but obviously, you could have a unique agreement for each customer depending on what changes were made to their

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A. Yes. Q. Are you talking about end-user customer license and support agreements? A. Yes. I was given examples -- obviously not all of the agreements between all of us and our customers, but I was given examples of customer agreements -Q. Yes. A. -- to review for license agreements. Q. Who gave you those examples? A. Legal. Q. Okay. Have you brought them with you here today? A. I have. Q. Are they in that binder? A. They are. MR. McDONELL: Okay. May I see it, Counsel? MR. HIXSON: Sure. That's fine. THE WITNESS: (Handing document.) I believe these are documents that have been previously provided to you as well. MR. HIXSON: Yes, we did. MR. McDONELL: Q. Do you know how these documents were selected?

particular order. MR. McDONELL: Q. So at any given point in time, without going to look at all the agreements and study them, one couldn't generalize about exactly what the terms are in any particular agreement? MR. HIXSON: Objection. Vague, overbroad. THE WITNESS: I think you can generalize what the material terms of an agreement are and what is normally included in an agreement. I think you -- I couldn't quantify for you the exact exception that might occur for each individual customer. MR. McDONELL: Q. Okay. Did you also meet with your counsel to prepare for your deposition? A. I did. Q. On how many occasions? A. We met -- we talked on the phone twice and met for a day yesterday. Q. So how long did you meet yesterday? A. We met from 10 o'clock until 5 o'clock. Q. Who did you meet with? A. The counsels that are here with me, Tom and Jennifer. Q. And when were the phone calls you referred

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understood it? MR. HIXSON: Objection. Asked and answered. THE WITNESS: Yeah, again, it was -- I don't remember his exact response, so I don't want to mischaracterize it. MR. McDONELL: Q. I think there's a little question of what word you said when you said -because I'm looking at the draft of the transcript right now, which I know you're not -- you said, I think his response was to their response where they claimed that we were trying to something third-party support. A. So I think if you think of a progression, I think they accessed the system -Q. They, Rimini Street? A. Right. Q. On behalf of the customer? A. We notified them of the improper use of the system. They then responded to us, which then I think they followed up later on with a legal letter to Oracle to which Dan had responded. And I think Dan responded a couple of times, because he didn't get a -- he sent them a letter a couple of times

Q. Which -- did you graduate from one? A. I graduated from high school from North Andover, Massachusetts. Q. Okay. When was that? A. 1986. Q. Then what did you do, education -- in terms of education? A. Villanova University. Q. Did you you get a degree? A. I did. Q. When was that? A. 1990. Q. What was your degree in? A. Business administration. Q. Anything beyond that? A. No. Q. Would you then please give us a brief history of your professional employment. A. Prior -- I've been with Oracle for 16 years. So prior to that, for 3 years I worked for Northwest Administrators, which was a pension fund administrator, as an auditor. Then worked at -- went from there to Oracle. Q. Where were you when you worked for

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because he did not get a response from them. Q. Okay. But when I asked you what the gist of Rimini Street's position was -A. They believed they had the right to access the system. I think they also believed that -- that we -- believed -- I think they thought that we were trying to -- it was -- they were -- talking about anticompetitive issues, is what they brought up. Q. So did they -- was the gist of it is they were arguing that Oracle was trying to crush the third-party support market? A. Yeah, that was their claim. Q. Where does that issue stand presently? MR. HIXSON: Objection. Beyond the scope of the 30(b)(6) deposition designation. THE WITNESS: I don't know where that stands now. MR. McDONELL: Q. Okay. Have you now told us of all the documents you've looked at in preparing for your deposition? A. Yes. Q. So could you give us a brief summary of your formal education starting with high school, and give me dates and so forth? A. I went to three high schools.

Northwest Administrators? A. San Mateo, California. Q. Okay. And then what was your -- how did the Oracle job come to your attention? A. I believe it was a roommate at the time in the City who worked at Oracle. Q. Okay. What was your first job with Oracle? A. Contract specialist. Drafting agreements. Q. What kind of agreements? A. Ordering documents, license agreements. Q. Other types of documents? A. Services agreements, license agreements, ordering documents, is primarily it. Q. What is an ordering document? A. It is an order that's -- when you place an order against a license agreement, so the license agreement is the master agreement, then you place an order against that. So it would be an order for database or for applications software. Q. And does Oracle also sell its software through resellers? A. We do. Q. Okay. And in that case, who is the contracting party with the customer: The reseller or Oracle?

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A. The reseller. Q. So they're the seller, in effect? A. They're the reseller. Q. Have you given us the gist of that first job that you had at Oracle? A. Yes. Q. How long were you in that position? A. For a year and a half. Q. Who did you report to? A. Brian Lindsey. Q. What was his position? A. Contracts manager. Q. Then what was your next job at Oracle? A. Contracts manager. Q. And what were your duties? A. Managing a group of contract specialists. Q. So in effect, you took over Brian Lindsey's job? A. Yeah, I became his peer. Q. And what -A. There's multiple managers, so I became his peer. Q. So you moved up the chain and you were managing a group of people that did what you were previously doing?

Q. What is the nature of that work? A. It is reviewing deal approvals for things that get escalated to the president. Q. Does that tend to be large deals, or deals with large exceptions? A. Large exceptions, larger transactions, larger discounts. Q. And when did you start that position? A. Well, I have to do my math to work my way back towards this. I think I -- you know, like I said, about 2 1/2 years in contracts, and then the remaining 13 1/2 years has been doing business practices roles with kind of escalated responsibility along the way. So as far as exact dates, switching between being an Americas approver and global approver and eventually what I'm doing now, I'm not going to be able to give you exact dates. MR. McDONELL: Could you mark this as next in order, please. (Deposition Exhibit 809 was marked for identification.) MR. McDONELL: Q. Showing you what's been marked as Exhibit 809, do you recognize this as an org chart?

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A. Exactly. Q. How long were you in that position? A. About a year. Q. What did you do next? A. Went into business practices. Q. What is the nature of that job? A. It was transaction deal approvals for the Americas. For the Senior Vice President of American sales. Q. What does that mean, transaction deal approvals for the Americas? A. Deals that had nonstandard terms or discounts got escalated through the management chain and ultimately would reach the SVP of sales. And we reviewed transactions on his behalf and helped structure those deals with the field. Q. How long did you have that job? A. About 6 years. Q. Who did you report to in that job? A. I reported to Chris -- well, to two different people in that role: Doug Roseborough and Christina Cavanna. Q. What did you do next? A. Handled business practices and deals approval for the president's office.

Yes. Do you see your name reflected on it? I do. Is that your current position? Yes, it is. Senior Vice President, Global Practices -Risk Management. Oh, Risk Management. Who do you currently report to? A. Safra Catz, the president of the company. Q. And what is the scope of your responsibilities currently? A. Currently I manage the organization that I mentioned earlier, which is the deal approval organization, for the president's office and the CEO's office. Also, an organization which creates all the standard agreements for all the lines of business, be it license, support, education, consulting or On Demand. Manage a group that handles the pricing of our products and services. And the other organization, which is risk management, which is not insurance, like it sounds like. It's consulting bid review. Q. Okay. You referenced an organization which creates all the standard agreements for all the

A. Q. A. Q. A. Q. A. Q.

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the existing Oracle software and support agreements. True? A. True. I don't think anybody has. Q. Are the terms of Oracle's software and support agreements publicly available? A. We do publish our standard agreement. You can get it via the Oracle store. Q. What's the Oracle store? A. It's an e-commerce site to buy Oracle software, license Oracle software. Q. And what agreement is publicly available there? A. The OLSA, which is the Oracle License and Services Agreement. A form of it, I think substantially similar to the one that's used off line. Q. How long has that been publicly available? A. Well, the store has been available for over 10 years. Q. So the Oracle standard form license and support agreement has been publicly available for 10 years? A. For over. Q. How about the -- did PeopleSoft have a standard form license and support agreement?

MR. McDONELL: Q. Do those customer -- I'm sorry, do those confidentiality agreements that are included in your software license agreements typically require both Oracle and the customers to keep the terms confidential? MR. HIXSON: Vague, overbroad. THE WITNESS: I know the ordering document for the order of licenses does. As far as the confidentiality in the master agreement, there is a confidentiality, and I'm not sure if it covers specifically the agreement. MR. McDONELL: Q. But we'll take a look at some throughout the course of the day. A. That's fine. Q. For long-term customers of Oracle, do the terms of agreements with customers change over time? MR. HIXSON: Objection. Vague, overbroad. THE WITNESS: There are -- so we sign term agreements typically with our customers, you know, for a 2-, 3-, 4-year term. And at the end of that term, they'll typically sign another agreement. That's our current practice. MR. McDONELL: Q. By term agreement, are you talking about software licenses? A. No. I'm talking about the -- the licensing

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A. They did. Q. Was that publicly available? A. I do not know if that was publicly available. Q. Did Siebel Systems have a standard form license and support agreement? A. They did. Q. Was that publicly available? A. I do not know. Q. Did JD Edwards have a standard form license and support agreement? A. They did. Q. Was that publicly available? A. Not that I know -- I do not know. Q. As a general proposition, once Oracle and a customer enter into a software license and support agreement, is it Oracle's general practice to require a provision in that agreement that requires the customer to keep the terms confidential? A. Yeah. MR. HIXSON: Objection. Overbroad. THE WITNESS: Yes. Most of our ordering documents and license agreements have a confidentiality term, both for the customer -customer and us.

agreement itself. Not the software licenses, which you gain under the -- you know, an ordering document, which refers back to the license agreement, but the license agreement itself is a term agreement. Now, it's term for purposes of continuing orders, but it's not term in that it doesn't -- it does continue to apply in perpetuity for the licenses already acquired under it, obviously. So it just ends for your right to use going forward. Q. I'm not sure I understand that. When Oracle sells a software license, the license of that software is typically perpetual. Right? A. Typically. Q. And then Oracle also typically sells a support services agreement that goes with the software. Correct? A. Correct. Q. And it's the normal practice that Oracle sells software together with the first year of support at the same time? A. Yes. Q. And thereafter, Oracle sells renewal support agreements on a year-by-year basis. A. Correct.

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Q. What is the part of the agreement that you said is typically 3 or 4 years? A. So it's -- your ability to acquire additional -- so it's a term for your right to acquire a license against that agreement. So it's a term for that purpose. And what it -- you know, because industry -- there's changes to how people use and buy software, so it makes sense to kind of take a look at it again in 4 years and see if things have changed. So they can acquire licenses during the term of that agreement. After that, they typically sign another agreement. But that doesn't change the fact that the agreement that was originally used applies to any licenses required under that. We don't changes terms on existing licenses. Q. I see. But the typical contract provides that in addition to the software the customer is buying on day one, they've got the rights to purchase other software on various terms and conditions during the course of that agreement? A. Yeah. Usually it's created so that you can place multiple orders against it rather than have to sign an ordering document -- a license agreement each time.

agreements that were from acquired companies. So they could have a PeopleSoft license agreement and also have an Oracle license agreement that they purchased database for the programs under, so they could have multiple agreements. But it would not be multiple agreements applying to the same license. MR. McDONELL: Q. I understand. A. Okay. Q. So at any given point in time, like a large Oracle customer might have a license agreement with Oracle for some Oracle software product, but they might simultaneously have an existing license agreement for a PeopleSoft product, and another license agreement for a JD Edwards product, and they could even have yet another license agreement for a Siebel product. Is that possible? A. Correct. You could add 30 more companies to that example. Q. Do the Oracle -- and by Oracle here, I'm talking about Oracle, PeopleSoft, JD Edwards, Siebel, all of those companies -- do the agreements for those companies with various customers vary from customer to customer with respect to the rules governing third-party access to software? MR. HIXSON: Objection. Overbroad.

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Q. I see. A. It's a master ordering vehicle, is a way to describe it. And that's true of us and the acquired companies. Q. Are there -- so the answer to my question is that for long-term Oracle customers, contracts do change over time. Right? MR. HIXSON: Vague, overbroad. THE WITNESS: Generally that's the case. MR. McDONELL: Q. And generally they get negotiated each time they come up for renegotiation. Right? MR. HIXSON: Calls for speculation, overbroad. THE WITNESS: Again, some customers do sign agreements without negotiation. But typically, your largest customers you will have a renegotiation at renewal time. MR. McDONELL: Q. Is it fairly common for Oracle to have customers who have more than one license agreement at any given time with Oracle or an Oracle entity? MR. HIXSON: Vague as to "fairly common." THE WITNESS: Well, typically, a customer has one Oracle agreement, but they may have other

THE WITNESS: They do vary. MR. McDONELL: Q. Do the rules in those contracts for those type of customers vary from customer to customer with respect to the issue of the customer's right to make modifications to software? MR. HIXSON: Overbroad. THE WITNESS: Again, there will be cases where they differ. I can't tell you the percentage. MR. McDONELL: Q. I understand. It's a hundred thousand customers. You're not going to know them all. But my point is, they do vary. It's not one size fits all for all hundred thousand customers? A. Well, no, because you have three different companies. If you said generally for Oracle did we have standard terms that apply for the majority of the cases, yes. Did PeopleSoft generally have terms that applied, yes. But there's multiple iterations of agreements over a period, so if you're talking about now or 30 years ago, you know, there's -- so there's a lot of variables here. Q. I understand. And even within a company, there are variables in the contracts because of

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individual negotiations. Correct? A. Correct. Q. Did these contracts vary over time with respect to the definition of what's considered confidential information under the agreements? MR. HIXSON: Objection. Overbroad. THE WITNESS: I do not know specifically what changes took place from one agreement to the next regarding confidentiality terms. MR. McDONELL: Q. But is it your assumption based on what you know that there are likely changes -- I'm sorry, variations in the terms defining confidential information as between, say, a PeopleSoft agreement and an Oracle agreement and a Siebel agreement? A. The variation is -- normally in confidentiality is regarding what information of the customer's is confidential. I see very little variability in people discussing confidentiality of the agreement as an issue. That doesn't come up as an exception. It's normally, they want their personally identifiable information to be held to high confidentiality, or specific business plans. It's more about customer confidentiality; not about confidentiality of the agreement.

agreements. Isn't that right? MR. HIXSON: Objection. Overbroad, vague, as to "you." THE WITNESS: I would personally look at the agreement. MR. McDONELL: Q. Why would you do that? A. Because those are the terms of the rights of use. Now, in this case, Rimini -- we're not looking at an agreement between us and Rimini. We're looking at an agreement between us and the customer. Q. And why would you look at an agreement between Oracle and the customer? A. Well, I think you asked me would I look at the agreement between us and Rimini, was what I thought your first question was. Q. Well, is there any agreement between Oracle and Rimini Street? MR. HIXSON: Objection. THE WITNESS: No. But if you're looking at a situation with a customer, you asked me would I like at the agreement. I would look at the agreement between us and the customer. MR. McDONELL: Q. That's what I was

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Q. And the agreement itself is typically confidential? A. Yeah. And people don't negotiate that fact, generally. Q. Because of this variability we're talking about, when you have to make a determination in your work about whether a certain practice is or isn't permitted, do you have to actually go look at the applicable contract? MR. HIXSON: Overbroad. THE WITNESS: Typically, somebody sends a request to us with the standard language and the exception to the language, with legal analysis on that change. MR. McDONELL: Q. So you're talking about exceptions that come to your attention. Right? A. Correct. Q. Okay. Let me -- talking about a slightly different concept here. Generally speaking, if an issue comes to your attention like whether a customer -- you know, whether Rimini Street was within the customer's rights in downloading Oracle software in a particular way, in order to analyze that issue, one thing you have to do is go look at the customer's

asking. And why would you look at that agreement? A. Because those are the terms between the two companies. Q. Okay. And again, because they vary over time and from customer to customer, you've got to know in order to do that analysis what the actual terms were between Oracle and that customer. Isn't that right? MR. HIXSON: Objection. Vague, overbroad. THE WITNESS: Yes. MR. McDONELL: Q. Okay. So let me focus on the Oracle acquisition of PeopleSoft. So Oracle acquired PeopleSoft in early 2005. Correct? A. It closed in 2005, yes. Q. The -- and as of that time, PeopleSoft had already acquired JD Edwards. So in that acquisition, Oracle acquired basically PeopleSoft and JD Edwards. Correct? A. Correct. Q. Was there some formal process thereafter to get customers off the old PeopleSoft and JD Edwards license forms and onto a new Oracle form of contract? MR. HIXSON: Exceeds the scope of the

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30(b)(6) deposition. THE WITNESS: So you're talking specifically about the master license agreements? MR. McDONELL: Q. Yeah. A. Correct? Q. I'm talking about customer -- well, let's get some terminology straight here. When you use that term, master license agreement, what do you mean by that? A. I mean the OLSA. If we use that term, I'll know exactly what you mean. Q. So tell us what "OLSA" means. A. It's Oracle License and Services Agreement. Q. And what is that? A. That is the master licensing agreement which orders are placed against and referred to. Q. What do you mean when you say orders are placed against and referred to? A. Orders -- you know, when you you buy a software -Q. Yes. A. Multiple orders over time, they -- it's an order, names of programs, the quantity of programs, the value of the programs, and then -- and those licenses -- and that ordering document refers to the

So often we just end up referring to the Oracle license agreement on a go-forward basis for new purchases. But then, that's customer-specific, and I can give you the general answer, but you have to look at individual situations to know what applied to them. MR. McDONELL: Q. You indicated that you read the complaint in this lawsuit as part of your preparation for the deposition. Is that right? A. Yes. Q. Why did you do that? A. Well, I'm giving a deposition, so I'm curious about how that complaint was written and what I would be responding to today. Q. Was there anything in particular in your review of the complaint that informed your preparation for today? A. No. MR. HIXSON: Vague. (Deposition Exhibit 810 was marked for identification.) MR. McDONELL: Q. Showing you what's been marked as Exhibit 810, and it's a document with Bates numbers ORCL00017200 through -215. It purports to be a software license and service

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master license agreement for the terms that apply to those licenses. So it's orders against a master license agreement. Q. Okay. So the master -- the OLSA contains terms and conditions. Correct? A. Correct. Q. And those become terms and conditions -- if accepted by the customer and by Oracle, those become the terms and conditions that govern the rights between the customer and Oracle. Is that right? A. Yes. Q. Okay. So was there some process to get customers off their old PeopleSoft and JD Edwards licenses and onto Oracle master -- or master license agreements? MR. HIXSON: Exceeds the scope. THE WITNESS: I wouldn't say there's a process to move one to the other. It kind of happens naturally. When you have all these acquired companies and you have customers who have multiple agreements, they typically -- streamlining the relationship between the two parties and having one agreement that kind of handles the relationship between the two makes sense.

agreement between PeopleSoft, Inc. and Ace Parking. Would you take a moment to look that over? MR. HIXSON: Do you want him to read the whole thing? MR. McDONELL: Q. No, just generally familiarize yourself with what it is. A. (Examining document.) Okay. Q. Have you had a chance to look over Exhibit 810? A. I have briefly, yes. Q. Does it look familiar to you? A. Not the particular customer order, but as an agreement in general, yes. Q. And in the course of your work at Oracle, have you had occasion to become familiar with agreements similar to this? A. Yes. Q. And how so? What part of your work has caused you to become familiar with the form of agreement that we see in Exhibit 810? A. Seeing exceptions to transactions. You'd refer to the master agreement at some point and review it if you were looking at an exception or a change to it. And generally, I've looked at a basic SLSA

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or Software License and Services Agreement for PeopleSoft during the acquisition period, just -the standard agreement. Q. Okay. On the first page of Exhibit 810, I want to call your attention to Section 1.1. Do you see that there? A. I do. Q. Is that term the basic license grant? Is that what you would refer to that as in your terminology? A. Yes, for this particular order. Q. And in this order, it indicates that the -that PeopleSoft was granting a license to use a number of copies of the software. Do you see that? A. To use the licensed number of copies, yes. Q. And it goes on to say: Solely for licensee's internal data processing operations on the corresponding number of servers located at the sites. Do you see that? A. Yes. Q. The term "internal data processing operations," are you familiar with that? A. I am.

customer's benefits. And so that's the type of exception you'd make specific to a customer that was running that type of business. Q. So ADP, for example, provides payroll services? A. Correct. Q. Are they an SAP -- I'm sorry, an Oracle customer? A. They are. Q. So -A. I'm using that as an example, not specific to what we've licensed them. Q. So let me go back to my question. Have you in your own experience ever negotiated with a customer exactly what it means in the agreement to limit the use of software to internal data processing operations? A. Yes. Q. With whom? A. I couldn't tell you. Q. Give me an example of the negotiations you've had over that point. A. An example would be to clarify that -well, the example I gave you was that we would make

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Q. What does that mean to you? A. That means using the license to run your own business, not to run someone else's. Q. So for example, in this case, Ace Parking, pursuant to this agreement, could use copies of the software so long as they were using it to run Ace Parking's business. Right? A. Correct. Q. They couldn't give it to, you know, Wal-Mart and say, hey, Wal-Mart, here's a copy of the software for you to run your business with? A. Correct. Nor could they offer services to someone else to run their business, either. Q. The -- have you ever actually negotiated that term, "internal data processing operations," with a customer? MR. HIXSON: Vague. THE WITNESS: There are cases where we do license people to do data processing for other companies. So for example, if you licensed software to ADP -Q. Yes. A. -- you may be providing software to them that they do actually use to provide services to third parties not for their benefit but for their

an exception to -- for someone who may be in the business of hosting software or actually running software and services for third parties to grant them that specific right. Or you may have -- you may give an example where a customer has a public store using our software, and they wanted to clarify that their customers accessing that store was still for their internal business operations. So it's a clarification to the language, or a change to grant them an additional right that doesn't happen to be in there like I mentioned for hosting business. Q. Okay. How about a situation where a systems integrator -- not Oracle, but a third-party company -- is going to assist the company, the customer, in installing the software. Is that deemed their internal use? A. Granting the -MR. HIXSON: Vague, calls for speculation and a legal conclusion. MR. McDONELL: Q. Let me try to be more clear. If a -- if in this case, for example, the customer wanted to use, you know, a third party to

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install the software, would they be permitted to do so? MR. HIXSON: Vague, calls for a legal conclusion. THE WITNESS: I have to read through the -I would have to read through the rest of the agreement to see if there's something that discusses specifically that issue. There is a -- there is a difference, like you brought up earlier between the terms between the PeopleSoft agreement and JDE agreement or an Oracle agreement as a standard form, also as an exception basis. So there are cases where if you look at Oracle's current agreement, it does talk about third-party usage. So -- and allowances for the purpose you're talking about, about outsourcing you're business. IBM Global Services taking over and running your data center on your behalf, for example, or a consultant coming in and working on your systems on site to make a modification to the system so that our standard language in our current agreements does address that. MR. McDONELL: Q. And which current agreement referring to? The OLSA? A. The OLSA, the current version.

MR. HIXSON: Exceeds the scope. THE WITNESS: I'd prefer not to guess. MR. McDONELL: Q. Okay. Changing the concept slightly from installing the software to assisting the customers in running it, you know, take the last 4 years. 2005 through today. Has Oracle -- is Oracle aware that there are third party consulting firms that assist Oracle customers in making modifications to their Oracle software? A. Yes. Q. Are there more than ten such companies? MR. HIXSON: Exceeds the scope. THE WITNESS: Yes. MR. McDONELL: Q. Are there more than a thousand? MR. HIXSON: Exceeds the cope. THE WITNESS: Globally, I wouldn't be surprised, but I don't know the exact number. MR. McDONELL: Q. Are those third-party companies that come in and help customers, you know, run or modify their software, is there a standard term Oracle uses to describe them? MR. HIXSON: Vague as to product line, overbroad.

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Q. Generally speaking, going back in time, let's say to the 2005 time frame, you're aware that there were many third-party companies that assisted Oracle customers in installing their software. Right? A. Correct. Q. Typically, for a third party to install software, they'd have to have access to the code. Right? A. Correct. Q. So I mean, like can you give me a rough order of magnitude -- say let's take 2005. How many systems integrators were out there in the world assisting Oracle customers in installing it their software? MR. HIXSON: Exceeds the scope of the designation. THE WITNESS: I have no idea. MR. McDONELL: Q. More than ten? A. More than ten, sure. Q. More than a thousand? MR. HIXSON: Exceeds the scope. THE WITNESS: I don't know if more than a thousand. MR. McDONELL: Q. More than a hundred?

THE WITNESS: Typically in our agreements, I think it's handled as contractors or agents acting on the customer's behalf. MR. McDONELL: Q. Okay. And typically in your agreements, contractors or agents acting on the customer's behalf are entitled to get access to the code. Is that right? MR. HIXSON: Vague, overbroad. THE WITNESS: Well, again, it depends on the specific agreement. Often it's -- it's rights to use of the software. Now -- and it's rights to use subject to the terms of the license agreement, so subject to the terms of the quantity of users that they have for be it the application or the database. So if you have a CPU license, they can use some of the -- you know, they can be users of that CPU license, but they don't get their own. MR. McDONELL: Q. But the general idea is, as long as the third party is supporting the customer's use under their -- within the rights of the customer under the agreement, that it's understood that third parties will get access to the Oracle code? MR. HIXSON: Vague, overbroad. You can

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RICHARD ALLISON November 12, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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Customer's operation so long as Customer ensured that the use of the programs is in accordance with the terms of this agreement. Do you see that? A. I do. Q. And then it goes on to say: Justification: To be consistent with third-party usage rights granted in our current agreements. Do you see that? A. I do. Q. Okay. Do you understand what that's a reference to? A. I do. Q. And what is that? A. Well, we reviewed an OLSA earlier where you saw that we granted third-party rights, the one you just mentioned. I think it was 813. Q. Correct. A. This is just referring that this was an older form of agreement that didn't grant those rights, and that we were going to amend the agreement to allow those rights for this particular OLSA. Q. Thank you. By the way, are you -- do you know what HQAPPS is?

Q. What is it? A. It's an Oracle License and Services Agreement. Q. Is it a document pursuant to which, among other things, database software was licensed by Oracle to the customer? A. To this particular customer or to any customer? Q. To this customer? A. I don't know if the customer bought database under this OLSA or not. Q. Take a look at page 11 of Exhibit 820. A. Yep. Q. Do you see there the reference -- well, can you tell from looking at this agreement whether database software was sold? A. You cannot. What you're referring to in this table is simply the product minimums that are included in every OLSA. Q. I see. So without the attachment, or addenda, you can't tell what this is? A. I don't know what they licensed without the ordering document. Q. But this is the form of license agreement that is used from time to time for licensing

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A. Very familiar. Q. Raw member of HQAPPs? A. That's my team. Q. Oh, that is your team. A. Yeah. Q. Who are your direct reports to you? A. You want me to name them all? Q. Well, how many are there? A. There's not that many. Q. Yeah, if it's a handful -A. Saintley Wong, Mike Seaman, Brian Lindsay, Ellen Eder, Scott Toth, and Tony Ashton. Q. Okay. A. And Juliana Tieu, T-I-E-U. (Deposition Exhibit 820 was marked for identification.) MR. McDONELL: Q. Showing you what's been marked as Exhibit 820, which is a document entitled Oracle License and Services Agreement, the customer appears to be a company called Ciber, Inc., dated in April of 2006. Would you take a moment to look that over? A. (Examining document.) Okay. Q. Do you recognize this document? A. I do.

database software. A. Yes. We license all of our programs under an agreement like this. Q. So the same principles that we discussed in connection with the OLSA in terms of third-party access and the rights of third parties to provide support to customers apply when licensing database software under an OLSA as would apply to licensing applications software. Is that right? MR. HIXSON: Vague, overbroad. THE WITNESS: Can you be specific to a section you're -MR. McDONELL: Q. Yeah. I mean, for example, we talked about Section C, that sentence you pointed out before, that the -- well, let's take Section C, second sentence. You may allow your agents and contractors to use the programs for this purpose, and you are responsible for their compliance with the agreement -- this agreement and such use. Do you see that? A. Yes, and that applies to any program that's licensed under this agreement. Q. Including database software? A. Yes.

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RICHARD ALLISON November 12, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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MR. McDONELL: Lack of foundation, vague and ambiguous, and calls for a legal conclusion. THE WITNESS: They're presented with the terms upon logging in. They have to read the terms, then click to accept the terms. MR. HIXSON: Q. If a third-party support provider uses the process you've just described to click through and accept the terms, in your view, are they agreeing to the terms of use? MR. McDONELL: Calls for speculation, leading, vague and ambiguous, lack of foundation. THE WITNESS: I believe they agree to terms, and I also believe the last sentence that talks about in the event of a conflict between either your agreement or the Oracle.com terms of use or the following terms, the terms below will control your use and access to the Customer Connection. In addition, as I mentioned earlier, partners also use this as well, so I don't think the term "customer" necessarily means that it only applies to a customer as defined in a license agreement. MR. HIXSON: Q. Can you turn to Exhibit 826? A. Yes.

terms is a person who's agreeing to those terms. MR. HIXSON: Q. And would that include a third-party support provider who did that? MR. McDONELL: Same objections. THE WITNESS: It would apply to anyone who clicked through the agreement, including a third-party support provider. MR. HIXSON: Q. Given your role in business practices and in approving exceptions to license agreements, are you aware of any time that Oracle has agreed to terms that would allow a customer or third-party support provider to access Oracle's support website for any purpose other than in support of the specific customer whose credentials were used to gain access? MR. McDONELL: Lack of foundation, calls for a legal conclusion, compound, vague and ambiguous. THE WITNESS: Again, based on my knowledge -- based on my knowledge, because I would see an exception of that nature coming to my team for approval, that I don't believe we made an exception in those cases. MR. HIXSON: Q. Likewise, given the role that you've had in business practices, are you aware

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Q. In the first paragraph, the second sentence states, quote: "By using a Secured Website, you are agreeing to accept and comply with these additional terms and conditions below, 'Special Terms of Use,'" End quote. How did someone agree to accept and comply with these additional terms and conditions below? MR. McDONELL: Lack of foundation, calls for a legal conclusion. THE WITNESS: Again, a customer or the person who logged in would be presented with the -these terms to be able to proceed to the special terms. They'd have to read the terms and then accept the terms to be able to proceed and to review the special content governed by the Special Terms of Use. MR. HIXSON: Q. If a third-party support provider engaged in the process you just described and accepted these Special Terms of Use, were they agreeing to the terms of use? MR. McDONELL: Objection. Calls for a legal conclusion, lack of foundation, it's vague and ambiguous, leading. THE WITNESS: Again, a person who is presented with terms and clicks through "I accept"

of any time that Oracle has agreed to terms that would allow a customer or a third-party support provider to use a customer's password to take materials off of Oracle's support website to which that customer was not licensed? MR. McDONELL: Vague and ambiguous, lack of foundation, calls for a legal conclusion, leading. THE WITNESS: I do not. And the agreements, if you look at them, talk about the access to licensed programs for which a customer or which a customer has a license. And so it's very specific in the download agreements that it's only for licensed programs, and we have not received exceptions to that, because we don't make changes to the Terms of Use agreements as a practice. MR. HIXSON: Q. Are you aware of any time that Oracle has agreed to terms in the license agreement that would allow a customer or a third-party support provider to use a customer's password to take materials off of Oracle's support site to put them in a master library to use to support other customers? MR. McDONELL: Same objections. Lack of foundatio