Oracle Corporation et al v. SAP AG et al

Filing 919

Declaration of Holly A. House in Support of 781 Motion No. 1: To Exclude Testimony of Defendants' Expert Stephen Clarke, Filed Pursuant to Dkt. No. 915 filed by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit A)(Alinder, Zachary) (Filed on 10/4/2010) Modified on 10/5/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 919

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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 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: [phone] [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: [phone] [e-mail] STEVEN C. HOLTZMAN (SBN 144177) FRED NORTON (SBN 224725) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] Facsimile: [phone] [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: [phone] [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., CASE NO. 07-CV-01658 PJH (EDL) DECLARATION OF HOLLY A. HOUSE IN Plaintiffs, SUPPORT OF MOTION NO. 1: TO EXCLUDE v. TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE SAP AG, et al., Date: September 30, 2010 Time: 9 a.m. Defendants. Place: Courtroom 3 Judge: Hon. Phyllis J. Hamilton FILED PURSUANT TO DKT. NO. 915
Case No. 07-CV-01658 PJH (EDL)

DECLARATION OF HOLLY A. HOUSE IN SUPPORT OF MOT. NO. 1: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE
Dockets.Justia.com

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I, Holly A. House, declare as follows: 1. I am an attorney licensed to practice law in the State of California and before

this Court, and a partner at Bingham McCutchen LLP, counsel of record for plaintiffs Oracle USA, Inc. (predecessor to Oracle America, Inc.), Oracle International Corporation, Oracle EMEA Ltd., and Siebel Systems, Inc. (collectively, "Oracle" or "Plaintiffs"). I have personal knowledge of the facts stated below by virtue of my representation of Oracle in this action if called as a witness could competently testify as to them. I make this declaration in support of Oracle's Motion No. 1: To Exclude Testimony of Defendants' Expert Stephen Clarke ("Clarke Motion"). Index of Attached Exhibits Exhibit A B C D E F G H Description Excerpts of the Supplemental Expert Report of Stephen K. Clarke Excerpts of the transcripts of the deposition of Clarke Excerpts of the transcript of the deposition of Thomas Bamberger Excerpts of the transcript of the deposition of Werner Brandt Excerpts of the transcript of the deposition of Defendants' expert Stephen Gray Excerpts of the transcript of the Rule 30(b)(6) deposition of Thomas Hurst Excerpts of the transcript of the deposition of Andrew Nelson Excerpts of the transcript of the deposition of Defendants' expert Brian Sommer Excerpts of the Expert Report of Bruce D. Spencer, served by Defendants Excerpts of the transcript of the deposition of William Thomas Excerpts of the transcript of the deposition of Thomas Ziemen Excerpts of Defendants' Deposition Exhibit 31, a document entitled "Oracle Corporation, Form 10-K Excerpts of Plaintiffs' Deposition Exhibit 450, a document produced by Defendants entitled "TomorrowNow Acquisition Monitoring, Status Update." Excerpts of Plaintiffs' Deposition Exhibit 454, an email produced by Defendants 1 Date May 7, 2010 June 8-10, 2010 January 29, 2009 October 20, 2009 June 8, 2010 April 30, 2008 February 26, 2009 June 25, 2010 March 26, 2010 February 26, 2009 September 30, 2008

Case No. 07-CV-01658 PJH (EDL)

DECL. OF HOLLY A. HOUSE IN SUPPORT OF MOT. NO. 1: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE

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entitled "FW: Q1 Oracle Disruption Plan." Plaintiffs' Deposition Exhibit 782, an email produced by Defendants entitled "Tnow: cash situation and three-year FC." Plaintiffs' Deposition Exhibit 3204, a document entitled "Scope of license." Email from Ms. MacDonald to Mr. McDonell, with an objection to the Standard Register Co. statement. Meet and confer email from Elaine Wallace, counsel for SAP.

April 9, 2010 December 7, 2009

INDEX OF ATTACHED EXHIBITS 2. For ease of use and reference and to the extent possible without losing context,

for all exhibits attached to this Declaration, including deposition transcripts, only the relevant pages and information have been provided. Unless otherwise noted below for a particular document, we have provided all highlighting and/or circling in these Exhibits to further assist in identifying the information relevant to Oracle's Clarke Motion. DAMAGES REPORTS AND CLARKE'S DEPOSITION 3. On November 16, 2009, the date affirmative expert reports were due under the

Parties' case management schedule, Oracle provided Defendants' counsel with the initial expert report of Oracle's damages expert, Paul Meyer, detailing his opinions regarding Oracle's alternate available copyright damages approaches and amounts as well as Oracle's other damages approaches and amounts under its state law claims (some of which overlap). Because discovery was ongoing and to incorporate errata, Meyer provided supplemental reports on December 4, 2009 and February 23, 2010. 4. On March 26, 2010, Defendants' provided Oracle's counsel with the expert

report of Stephen K. Clarke, the date rebuttal reports were due under the Parties' case management schedule. Defendants later produced supplements to Clarke's report on May 7, 2010, June 4, 2010, and August 4, 2010. 5. After receiving Clarke's initial report and his first supplemental report, Meyer

provided certain supplemented schedules to his report on May 9, 2010. 2

Case No. 07-CV-01658 PJH (EDL)

DECL. OF HOLLY A. HOUSE IN SUPPORT OF MOT. NO. 1: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE

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6.

Attached as Exhibit A is a true and correct copy of relevant excerpts of the May

7, 2010 Supplemental Expert Report of Stephen K. Clarke ("Supplemental Clarke Report"). The Supplemental Clarke Report was the version of the Clarke report that was primarily used during the June 8-10, 2010 deposition of Clarke, which I attended. 7. Attached as Exhibit B is a true and correct copy of excerpts of the transcript of

the June 8-10, 2010 deposition of Clarke. I. NON-DAMAGES DEPOSITIONS 8. Attached as Exhibit C is a true and correct copy of an excerpt of the transcript

of the January 29, 2009 deposition of Thomas Bamberger. 9. Attached as Exhibit D is a true and correct copy of an excerpt of the transcript

of the October 20, 2009 deposition of Werner Brandt. 10. Attached as Exhibit E is a true and correct copy of excerpts of the transcript of

the June 8, 2010 deposition of Defendant expert Stephen Gray. 11. Attached as Exhibit F is a true and correct copy of excerpts of the transcript of

the April 30, 2008 Rule 30(b)(6) deposition of Thomas Hurst. 12. Attached as Exhibit G is a true and correct copy of an excerpt of the transcript

of the February 26, 2009 deposition of Andrew Nelson. 13. Attached as Exhibit H is a true and correct copy of excerpts of the transcript of

the June 25, 2010 deposition of Defendant expert Brian Sommer. 14. Attached as Exhibit I is a true and correct copy of an excerpt of the Expert

Report of Bruce D. Spencer, served by Defendants on March 26, 2010. 15. Attached as Exhibit J is a true and correct copy of an excerpt of the transcript of

the February 26, 2009 deposition of William Thomas. The parties have stipulated that "The individual testimony of John Baugh and William Thomas on December 3 and 4, 2010, respectively, may be considered as corporate Rule 30(b)(6) testimony with respect to Defendants copying and use of Oracle's Database products." Dkt. 745 at 74:8-12. 16. Attached as Exhibit K is a true and correct of excerpts of the transcript of the

September 30, 2008 deposition of Thomas Ziemen. 3

Case No. 07-CV-01658 PJH (EDL)

DECL. OF HOLLY A. HOUSE IN SUPPORT OF MOT. NO. 1: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE

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II.

DEPOSITION EXHIBITS 17. Attached as Exhibit L is a true and correct copy of an excerpt of Defendants'

Deposition Exhibit 31, a document entitled "Oracle Corporation, Form 10-K." 18. Attached as Exhibit M is a true and correct copy of an excerpt of Plaintiffs'

Deposition Exhibit 450, a document produced by Defendants entitled "TomorrowNow Acquisition Monitoring, Status Update." We have provided the circling. 19. Attached as Exhibit N is a true and correct copy of an excerpt of Plaintiffs'

Deposition Exhibit 454, an email produced by Defendants entitled "FW: Q1 Oracle Disruption Plan." We have provided the circling. 20. Attached as Exhibit O is a true and correct copy of Plaintiffs' Deposition

Exhibit 782, an email produced by Defendants entitled "Tnow: cash situation and three-year FC.". 21. Attached as Exhibit P is a true and correct copy of Plaintiffs' Deposition Exhibit

3204, a document entitled "Scope of license." provided to Defendants as part of Oracle's damages expert, Paul Meyer's notes on the Supplemental Clarke Report. III. SAP TN CUSTOMER LIST AND LATE CUSTOMER DECLARATIONS 22. SAP TN's first set of Requests for Production to Oracle, dated July 26, 2007,

attached an "Exhibit 1" that listed all of SAP TN's customers (i.e., ones that PeopleSoft or Oracle had lost) that had been identified at that time. In the two and a half years since then, the parties continually referred to and incorporated Exhibit 1 in their discovery requests and responses as the operative list of SAP TN' s customers. They also used the list to identify customers to contact, get declarations from and depose within the allotted fact discovery period, which ended December 4, 2009. 23. On April 6, 2010, Lucia MacDonald, an associate at my law firm, received an

email from Kevin Braig that was sent "[a]s requested by counsel for SAP" with an attached Supplemental Statement of Richard L. Ball of Standard Register Co. Jason McDonell, counsel for SAP, was also a recipient of the email. On April 9, 2010, Ms. MacDonald emailed Mr. 4
Case No. 07-CV-01658 PJH (EDL)

DECL. OF HOLLY A. HOUSE IN SUPPORT OF MOT. NO. 1: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE

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McDonell, copying me, with an objection to the Standard Register Co. statement. Attached as Exhibit Q is a true and correct copy of the email chain. Ms. MacDonald's April 9, 2010 email references a December 7, 2009 meet and confer email from Elaine Wallace, counsel for SAP. Attached as Exhibit R is a true and correct copy of the December 7, 2009 email. 24. On May 7, 2010, Defendants produced a Supplemental expert report of Stephen

K. Clarke, along with three new supporting materials: the Declaration of Richard L. Ball, previously sent to Oracle by Kevin Braig on April 6, the Declaration of Bill Short of Amsted Rail Company Inc., dated April 30, 2010, and the Declaration of Daniel A. Clarke of NewPage Corporation, dated May 4, 2010. 25. On May 10, 2010, Defendants produced to Oracle a second supplemental expert

report of Stephen K. Clarke, along with one new supporting document. The new supporting document was the Declaration of Andre Birrenbach of Rotkappchen Sektekkerei GmbH, dated May 10, 2010. 26. On August 4, 2010, Defendants produced to Oracle a third supplemental expert

report of Stephen K. Clarke, along with one new supporting document. The new supporting document was the Declaration of Ann Harten of Haworth Inc., dated July 27, 2010. DATED: August 19, 2010 Bingham McCutchen LLP

By:

/s/ Holly A. House Holly A. House Attorneys for Plaintiffs Oracle USA, Inc., et al.

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Case No. 07-CV-01658 PJH (EDL)

DECL. OF HOLLY A. HOUSE IN SUPPORT OF MOT. NO. 1: TO EXCLUDE TESTIMONY OF DEFENDANTS' EXPERT STEPHEN CLARKE