Oracle Corporation et al v. SAP AG et al

Filing 921

Declaration of Jennifer Gloss in Support of 784 Plaintiffs' Administrative Motion to Permit Plaintiffs to File Under Seal Information Supporting Plaintiffs' Daubert Motions, Oppositions to Defendants' Motions in Limine and 17 U.S.C. 410(c) Motion, Filed Pursuant to Dkt. No. 915 filed by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (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. 921

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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) v. Plaintiffs, DECLARATION OF JENNIFER GLOSS IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION TO PERMIT PLAINTIFFS TO FILE UNDER SEAL INFORMATION SUPPORTING PLAINTIFFS' DAUBERT MOTIONS, OPPOSITIONS TO DEFENDANTS' MOTIONS IN LIMINE AND 17 U.S.C. § 410(C) MOTION FILED PURSUANT TO DKT. NO. 915
Case No. 07-CV-01658 PJH (EDL)

SAP AG, et al., Defendants.

DECLARATION OF JENNIFER GLOSS IN SUPPORT OF ADMINISTRATIVE MOTION TO SEAL
Dockets.Justia.com

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I, Jennifer Gloss, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am Senior

Corporate Counsel at Oracle America, Inc., successor to Oracle USA, Inc. ("Oracle"). I have personal knowledge of the facts stated within this Declaration and could testify competently to them if required. 2. I have reviewed Plaintiffs' Daubert Motion to Exclude Testimony of Defendants'

Expert Stephen Clarke and Exhibit A to the Declaration of Holly A. House in Support of Plaintiffs' Motion to Exclude Testimony of Defendants' Expert Stephen Clarke ("Exhibit A"). Exhibit A contains portions of the Report of Defendants' Expert Stephen Clarke. Exhibit A contains non-public, commercially sensitive, private and confidential Oracle and third-party information, the disclosure of which would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Specifically: a. Portions of Exhibit A, at page 56, contain proprietary and non-public details regarding certain research and development expenses incurred by Oracle, the disclosure of which would grant Oracle's competitors, partners, and other interested parties insight into strategic decisions made regarding product development, as well as insight into the cost and personnel required for market entry. b. Portions of Exhibit A, at pages 94-115 and 118-121, discuss the terms of agreements between Oracle (or its predecessors, J.D. Edwards or PeopleSoft) and its partners and other non-parties in this action. Many of these agreements contain Confidentiality or Nondisclosure provisions that extend to the terms of the agreements. These discussions, in this portion of Clarke's report, directly quote from terms of these confidential agreements with non-parties. The disclosure of this information would, therefore, result in the disclosure of third-party confidential information. In addition, the disclosure of this information would grant Oracle's competitors, potential competitors, and customers, non-public and 2 Case No. 07-CV-01658 PJH (EDL)
DECLARATION OF JENNIFER GLOSS IN SUPPORT OF ADMINISTRATIVE MOTION TO SEAL

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commercially sensitive information about Oracle's licensing practices, which customers and partners could use to their advantage in future negotiations with Oracle and which competitors could use in competing with Oracle. Such disclosure would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. c. Portions of Exhibit A, at pages 122, 138, 158, 170-171, 177, 180, 182184, 187, 191 and 197, contain information and exemplary excerpts from a compilation maintained at Oracle called an At Risk Report. The Report contains highly sensitive internal Oracle pricing and customer negotiation history and strategy for over a hundred specific customers. These portions of Exhibit A contain information which many of the noninterested third-party customers reflected in the Report might consider confidential, and in an effort to respect their information, Oracle has filed these portions seal. d. Portions of Exhibit, A at pages 273, 280 and 281, reflect Mr. Clarke's analysis of Oracle's profit margins using non-public Oracle financial information. Mr. Clarke's analysis is based on incomplete, hypothetical scenarios. To the extent his analysis is incomplete, inaccurate or misleading, the disclosure of his analysis and the results of his analysis may cause harm to Oracle's shareholders by providing misleading financial data to the market. In addition, the disclosure of his analysis, to the extent it is incomplete, inaccurate or misleading, may cause Oracle competitive harm by disclosing inaccurate and misleading data to Oracle's customers, partners, and analysts, with respect to Oracle's current or future business strategy and profitability. Accordingly, the disclosure of this information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle and its shareholders. 3
Case No. 07-CV-01658 PJH (EDL)
DECLARATION OF JENNIFER GLOSS IN SUPPORT OF ADMINISTRATIVE MOTION TO SEAL

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I have reviewed Plaintiffs' Daubert Motion to Exclude Testimony of Defendants'

Expert Stephen Clarke and the Declaration of Daniel S. Levy, Ph.D. in Support of thereof ("Levy Declaration"). Portions of the Levy Declaration, at paragraphs 8-17, 24-25, Figures 1, 2, 4, 5, and 6, and Appendix 2, contain Oracle's confidential financial information. These portions discuss the same analysis of Defendants' Expert Stephen Clarke as described in Paragraph 2.d above: Mr. Clarke's analysis of Oracle's confidential financial information using nonpublic Oracle financial information. As stated, Mr. Clarke's analysis is based on incomplete, hypothetical scenarios, and the disclosure of his analysis and the results of his analysis may cause Oracle competitive harm by misleading Oracle's customers, partners, and other interested parties such as analysts and shareholders, with respect to Oracle's current or future business strategy and profitability. Accordingly, the disclosure of this information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 4. I have reviewed Plaintiffs' Opposition to Defendants' Motions in Limine and

Exhibits D, N, P, Q, R and T to the Declaration of Chad Russell in Support thereof ("Russell Declaration"). Exhibits D, N, P, Q, R and T to the Russell Declaration contain testimony and confidential documents regarding internal Oracle decision-making business processes and valuation decisions, competitive business analyses, and the methods of valuation of assets in the context of acquisitions. Disclosure of such information would grant Oracle's competitors, partners, customers, and other interested parties an insight into Oracle's internal strategy and operations that would provide them with an unfair competitive advantage with respect to current and future operations and negotiations. Accordingly, the disclosure of this testimony would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. 5. I have reviewed Plaintiffs' Motion Pursuant to 17 U.S.C. § 410(c) and Exhibits A-

D and F-H to the Declaration of John A. Polito in Support thereof ("Polito Declaration"). Exhibits A-D and F-H to the Polito Declaration contain non-public, commercially sensitive, private and confidential Oracle information, the disclosure of which would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. Specifically: a. Exhibit A to the Polito Declaration contains excerpts of Oracle's source 4 Case No. 07-CV-01658 PJH (EDL)
DECLARATION OF JENNIFER GLOSS IN SUPPORT OF ADMINISTRATIVE MOTION TO SEAL

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code. Although these excerpts were submitted to the U.S. Copyright Office as a part of Oracle's deposit materials, it is my understanding that public access to this information is limited; although a member of the public may physically inspect these materials at the Copyright Office, the Copyright Office may not provide a member of the public a copy of these deposit materials. Oracle employs extraordinary measures to protect the confidentiality of its software code, including by restricting the redistribution, copying, or other disclosure of the code by customers and others with access to the code. Oracle's code is extremely sensitive, valuable and proprietary information, and is at the core of the products and services Oracle provides to its customers. Public disclosure of this information would cause competitive harm by giving competitors, as well as would-be infringers, unrestricted access to Oracle's source code. b. Exhibits B, C, D, G and H to the Polito Declaration contain portions of Oracle's Release Notes, Programmer's Guides and Maintenance Guides. These documents contain non-public, commercially sensitive and confidential technical information regarding Oracle's software and support materials that Oracle creates for its customers. Disclosure of such information would also grant Oracle's competitors, partners, customers, and other interested parties an insight into Oracle's operations that would provide them with an unfair advantage with respect to current and future operations and negotiations. Accordingly, disclosure of such confidential information would create a risk of significant competitive injury and particularized harm and prejudice to Oracle. c. Exhibit F to the Polito Declaration contains excerpts of a confidential internal Oracle spreadsheet, which lists the dates, descriptions and resources associated with the development of over 49,000 Service Action Requests from 1991 to 2000. Exhibit F provides the names and titles of 5 Case No. 07-CV-01658 PJH (EDL)
DECLARATION OF JENNIFER GLOSS IN SUPPORT OF ADMINISTRATIVE MOTION TO SEAL

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O r a c l e ' s c u r r e n t a n d former e m p l o y e e s a n d f u r t h e r p r o v i d e s i n s i g h t o n h o w O r a c l e d e v e l o p s its s o f t w a r e . D i s c l o s u r e o f s u c h i n f o r m a t i o n w o u l d also g r a n t O r a c l e ' s competitors, p a r t n e r s , c u s t o m e r s , a n d o t h e r interested p a r t i e s a n i n s i g h t into O r a c l e ' s o p e r a t i o n s t h a t w o u l d p r o v i d e t h e m w i t h a n u n f a i r advantage with respect to c u r r e n t a n d future operations and n e g o t i a t i o n s . F i n a l l y , the d i s c l o s u r e o f s u c h a c o m p r e h e n s i v e l i s t o f O r a c l e ' s talented software d e v e l o p e r s a n d e n g i n e e r s w o u l d enable O r a c l e ' s competitors to q u i c k l y and e a s i l y b e g i n contacting and trying to r e c r u i t O r a c l e ' s top talent. A c c o r d i n g l y , d i s c l o s u r e o f s u c h c o n f i d e n t i a l i n f o r m a t i o n w o u l d create a r i s k o f s i g n i f i c a n t c o m p e t i t i v e i n j u r y a n d particularized h a r m and prejudice to Oracle. 6. Oracle h a s p r o t e c t e d the information described i n Paragraphs 2-5 above from

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p u b l i c disclosure t h r o u g h t h e Stipulated Protective O r d e r ( " P r o t e c t i v e Order") b y designating t h i s i n f o r m a t i o n as " C o n f i d e n t i a l " o r " H i g h l y C o n f i d e n t i a l I n f o r m a t i o n Only." A t t o r n e y s ' Eyes

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O r a c l e h a s n a r r o w l y t a i l o r e d i t s r e q u e s t b y s e e k i n g t o seal o n l y t h e m o s t s e n s i t i v e

portions o f the d o c u m e n t s described in Paragraphs 2-5 above. I d e c l a r e u n d e r p e n a l t y o f p e r j u r y t h a t t h e f o r e g o i n g is t r u e a n d c o r r e c t . E x e c u t e d i n R e d w o o d Shores, C a l i f o r n i a , on August 1 9 , 2 0 1 0 .

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

D E C L A R A T I O N O F J E N N I F E R GLOSS IN SUPPORT O F A D M I N I S T R A T I V E MOTION T O SEAL