Oracle Corporation et al v. SAP AG et al

Filing 923

Declaration of Chad Russell in Support of 790 Plaintiffs' Opposition to Defendants' Motions in Limine, Filed Pursuant to Dkt. No. 915 filed by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit D, # 2 Exhibit N, # 3 Exhibit P, # 4 Exhibit Q, # 5 Exhibit R, # 6 Exhibit T)(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. 923 Att. 1

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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) EXHIBIT D TO THE DECLARATION OF Plaintiffs, CHAD RUSSELL IN SUPPORT OF v. PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS IN LIMINE SAP AG, et al., Date: September 30, 2010 Time: 2:30 pm Defendants. Place: Courtroom 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton FILED PURSUANT TO DKT. NO. 915
Case No. 07-CV-01658 PJH (EDL)

Dockets.Justia.com

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

EXHIBIT D

LARRY ELLISON May 5, 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 LARRY ELLISON

TUESDAY, MAY 5, 2009

HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY

REPORTED BY:

HOLLY THUMAN, CSR No. 6834, RMR, CRR (1-418128)

Merrill Legal Solutions [phone]

LARRY ELLISON May 5, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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websites. Q. What were your goals in filing suit? A. To get them to stop taking information off our website. Q. Any other goals? MR. HOWARD: In answering that, Mr. Ellison, let me instruct you that you're not to reveal anything that is the subject of discussion with counsel. If you can answer that question outside of discussions with counsel, then you may do so, beyond what you already have. THE WITNESS: Well, we feel we've been severely damaged by what they've -- what they stole, and we're seeking compensation for those damages. MR. LANIER: Q. Without telling me anything lawyers have told you or that's been the subject of your conversations with the lawyers, what's your own understanding as you sit here today of the extent of the damage that Oracle has suffered? A. Well, we've lost -- you mean the extent -you just want me to give you a number? Q. Yes, and I'll follow up. I'll probably have some more questions. But what's your

with. Q. Do you have any estimate of your own -don't tell me what the lawyers have told you -- but any estimate of your own of how many customers fall into those two categories of customers that you mentioned? A. You'd have to -- I guess we'd have to look at every deal that -- we'd have to talk to every customer and figure out what -- you know, what -you know, how they made the decision to buy SAP rather than buy Oracle, or buy DB2, and -- you know, what influenced them to make those decisions. The other thing I'd like to add is, when we lose a deal with a customer, a transaction, they decide to buy SAP Accounting rather than Oracle Accounting, for example, and then they pay a million dollars to SAP, that million dollars does really not tell the whole story. Once they've made a design decision for Oracle or SAP, that customer continues to buy from Oracle or SAP for the next 20 years, probably. And a million-dollar deal, if you look at how much -you know, once you acquire the customer, that customer is worth tens of millions of dollars, not that first million-dollar transaction -- that first

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understanding of the number? A. Billions of dollars. Q. Can you be more precise than that? A. 5 to 10 billion dollars. Q. What's the basis of that estimate? A. That we've lost -- I think there are three bases. SAP was successful in taking some of our customers from us by saying that we were overcharging our customers for support and they could do just as good a job for much less money. That SAP won competitive deals against us -- in fact, avoided competing with us entirely -by saying Oracle wasn't the kind of company you want to do business with, because they overcharge for support, and we can do a better job for, you know, a fraction of that cost. So you shouldn't even look at their software. So they won a number of deals with us. And finally, thirdly, reputational damage. That even if you're a database customer, and SAP doesn't sell a database, you should consider the IBM database or someone else's database or someone else's middleware, because Oracle is the kind of company that overcharges for support, and it's just not the kind of company you want to do business

million-dollar transaction is just the beginning of the relationship. So when we lose customers to SAP, we lose them for a decade or two. Q. So again, without telling me what the lawyers may have told you or people who've hired them have calculated, as you sit here today, do you have a number in your own mind of how many customers are on the table? How many customers you lost because of SAP's conduct? A. I've never gone back and looked at each transaction. I don't have access to the information. I don't know how many customers SAP won during this period of time when they were telling people that Oracle was overcharging for support. So without actually examining SAP's books and seeing how many deals they won, talking to the customers and finding out, you know, what are the things that influenced them to buy SAP versus Oracle, it's very hard -- you know, I can't really name the number of customers. Q. You mentioned a period of time during which SAP said that Oracle was overcharging for support. What period of time is that?

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, MR. LANIER: Q. Let's go back to the PeopleSoft acquisition. What were your goals in entering into the PeopleSoft acquisition? A. To expand our applications business.

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LARRY ELLISON May 5, 2009 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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Q. Okay. And I'm done with this one. We will look at something else in a moment. Another one that has not yet been marked -- we'll get to some that have soon, I am sure -- is a document that was also produced by Oracle. This one is highly confidential, attorneys's eyes only. It's titled "PeopleSoft, Inc. 2004 Forecast/2005 Planning Model - For Discussion Purposes Only," ORCL312844 through -868, and I believe it becomes Exhibit 401. (Deposition Exhibit 401 was marked for identification.)

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MR. LANIER: Q. Mr. Ellison, I will ask you about a few specific pieces of this. I'm going to ask you some general questions about it first. But if you want to take a moment, just at least flip through it, because the first thing I'm going to ask you is if you've ever seen it before. So review it to whatever extent you think necessary. A. Not that I recall. Q. Okay. Do you recall seeing documents like this in the course of either considering the acquisition or integration planning with PeopleSoft? A. Sure. Yes. Q. Do you recall -- were you personally involved in planning for integration of the two companies after completion of the acquisition? A. On the engineering side only. Q. Okay. What about on the operations side? Meaning, you know, sales, marketing, support, things like that? A. No. Q. Who led those efforts? A. The existing team in sales and marketing. Q. So for example -- well, would Ms. Catz have been involved in those efforts, post -- planning for post-merger integration?

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A. I think she certainly would have attended the meetings, but the primary responsibility would have been the sales and marketing guys.

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