Oracle Corporation et al v. SAP AG et al

Filing 929

Declaration of Tharan Gregory Lanier in Support of 928 Defendants' Oppositions to Plaintiffs' Motions in Limine [Filed Pursuant to D.I. 915 ] filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32)(Related document(s) 915 ) (Froyd, Jane) (Filed on 10/4/2010) Modified on 10/5/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 929 Att. 25

EXHIBIT 25

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Robert A. Mittelstaedt (SBN 060359) Jason McDonell (SBN 115084) Elaine Wallace (SBN 197882) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Tharan Gregory Lanier (SBN 138784) Jane L. Froyd (SBN 220776) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Scott W. Cowan (Admitted Pro Hac Vice) Joshua L. Fuchs (Admitted Pro Hac Vice) JONES DAY 717 Texas, Suite 3300 Houston, TX 77002 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. SAP AG, et al., Defendants. Plaintiffs, CASE NO. 07-CV-1658 PJH (EDL) DEFENDANT TOMORROWNOW, INC.'S SEVENTH AMENDED AND SUPPLEMENTAL RESPONSE TO PLAINTIFF ORACLE USA, INC.'S FIRST SET OF INTERROGATORIES (SET ONE)

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TEXT REMOVED - NOT RELEVANT TO MOTION

INTERROGATORIES INTERROGATORY NO. 1: Describe in as much detail as possible the "additional operational oversight at TomorrowNow which will ensure the . . . maintenance of the SAP firewall," as referenced in Conference Call #1, including but not limited to Identifying all firewalls between and among SAP AG, SAP America and SAP TN. RESPONSE TO INTERROGATORY NO. 1: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects that this interrogatory seeks information not reasonably calculated to lead to the discovery of admissible evidence to the extent it seeks information concerning to "firewalls" unrelated to TomorrowNow, and objects that this interrogatory is compound, constituting two separate and distinct interrogatories, which TomorrowNow will treat as two in this response. Subject to and without waiving the foregoing objections and the General Responses and Objections, TomorrowNow responds as follows: the "additional operational oversight" mentioned in the referenced conference call was the appointment of Mark White as Executive Chairman of TomorrowNow. The "firewall" mentioned in the referenced conference call is the technical and operational separation of TomorrowNow's personnel, facilities, services and information technology systems from those of SAP AG and SAP America (collectively, "SAP"), including the maintenance of different email systems and the complete separation from SAP's systems of computers, computer networks and systems used by TomorrowNow for customer service, including any downloading activity. INTERROGATORY NO. 2: Describe in as much detail as possible any express or implied authorization, permission, or agreement, including any referenced in ¶¶ 9 or 72 of Your Answer, which You contend allows
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You to access or Download Software and Support Materials from Oracle-maintained software support websites, including Customer Connection. RESPONSE TO INTERROGATORY NO. 2: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects that this interrogatory is unduly burdensome and oppressive to the extent that it seeks a narrative with respect to each customer of TomorrowNow. Subject to and without waiving the foregoing objection and the General Responses and Objections, TomorrowNow responds as follows: Oracle was aware that TomorrowNow, on behalf of its customers, had access to and conducted downloads of information from Oracle-maintained software support websites, including Customer Connection, and did not object. Oracle has provided training to TomorrowNow employees concerning access to and use of materials of the type at issue in the litigation, even after this litigation began. Oracle admits in this action that third party service providers are entitled to undertake such activities on behalf of their customers to the extent the customers' license rights permit that activity. (Oracle has thus far failed to produce those licenses, which may further evidence authorization of TomorrowNow's activities on behalf of its customers.) TomorrowNow's contracts with its customers typically contain a variety of representations and warranties that the customer is entitled to permit TomorrowNow access to licensed materials for purposes of providing service to the customer. TomorrowNow typically obtains from its customers written or other representations concerning the materials to which that customer is licensed and to which TomorrowNow may have access for purposes of providing service to the customer. Additional information responsive to this interrogatory as to specific customers may be derived or ascertained from TomorrowNow's business records, including specifically its contracts with its customers, emails with customers in the contract negotiation process and initial steps to establish service for the customer (often referred to as the "onboarding" process) and documentation concerning customer representations in the customer onboarding process, which contracts, emails and onboarding documentation will be included in TomorrowNow's production of documents in this case and on which TomorrowNow relies to
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further respond to this interrogatory pursuant to Rule 33(d) of the Federal Rules of Civil Procedure ("Rule 33(d)"). SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its customer contracts include but are not limited to: TN-OR00000027 ­ TN-OR00001007 and TN-OR 00004204 ­ TN-OR00004276; and that its onboarding documentation includes but is not limited to TN-OR00001008 ­ TN-OR00001277. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. As stated in Defendants' General Responses and Objections, TomorrowNow objects that this interrogatory calls for a legal conclusion and for information protected by the work product immunity. TomorrowNow further supplements its interrogatory response by incorporating by reference and relying upon all of its current responses to Interrogatory No. 10 of Plaintiff Oracle Corporation's First Set of Interrogatories (Set One) and Interrogatory No. 4 contained herein. SIEBEL SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2: THIS SIEBEL SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its customer contracts include but are not limited to: TN-OR02985469 ­ TN-OR02985485; TN-OR02812692 ­ TN-OR02812735; TN-OR03712204 TN-OR03712214; TN-OR00006463 - TN-OR00006476; TN-OR03712233 - TN-OR03712239; TN-OR00006771 - TN-OR00006781; TN-OR00006952 - TN-OR00006970; TN-OR00007078 TN-OR00007092; TN-OR06085843 - TN-OR06085854; TN-OR06085827 - TN-OR06085828; TN-OR00000540 - TN-OR00000564; TN-OR00007868 ­ TN-OR00007877; TN-OR00008179 TN-OR00008192; TN-OR00008322 - TN-OR00008332; TN-OR00008389 - TN-OR00008405;
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TN-OR00008671 - TN-OR00008681; TN-OR03712369 - TN-OR03712371; TN-OR00000755 TN-OR00000772; and TN-OR02985918 - TN-OR02985931. TomorrowNow's onboarding documentation includes but is not limited to TNOR07098763 ­ TN-OR07098765, TN-OR07098766-TN- TN-OR02985469 ­ TN-OR02985485; TN-OR02812692 ­ TN-OR02812735; TN-OR03712204 - TN-OR03712214; TN-OR00006463 TN-OR00006476; TN-OR03712233 - TN-OR03712239; TN-OR00006771 - TN-OR00006781; TN-OR00006952 - TN-OR00006970; TN-OR00007078 - TN-OR00007092; TN-OR06085843 TN-OR06085854; TN-OR06085827 - TN-OR06085828; TN-OR00000540 - TN-OR00000564; TN-OR00007868 ­ TN-OR00007877; TN-OR00008179 - TN-OR00008192; TN-OR00008322 TN-OR00008332; TN-OR00008389 - TN-OR00008405; TN-OR00008671 - TN-OR00008681; TN-OR03712369 - TN-OR03712371; TN-OR00000755 - TN-OR00000772; and TNOR02985918 - TN-OR02985931.OR07098767, TN-OR07098551-TN-OR07098561, and TNOR07098924-TN-OR07098934. TomorrowNow also stored onboarding documentation within the SAS database. Examples of such documentation include, but are not limited to: · For Alcatel-Lucent: In SAS Clients v3.5.1 - 1. Support/1. All by Customer/AlcatelLucent/Customer, e-mail comments are posted under Comments/Email/Time. Alcatel-Lucent onboarding documentation includes but is not limited to Comment ­ Anthony Cefola 12/28/2008 11:53:00 AM; Proactive Call ­ Engineer ­ Vicky D'Amelio 04/01/2008 08:33:03 AM; Outgoing Email ­ Vicky D'Amelio 02/06/2008 11:17:24 AM; Incoming Email ­ Vicky D'Amelio 01/15/2008 06:22:03 AM (and accompanying attachment entitled DiscoveryDocument_Form_HCM_88.doc); and Comment ­ Chris Jackson 12/04/2007 12:43:25 PM. · For CSBP Limited: o In SAS Clients v3.5.1 - 1. Support/1. All by Customer/CSBP Limited/Customer, email comments are posted under Comments/Email/Time. CSBP Limited onboarding documentation includes but is not limited to Outgoing Email ­ Orlando de Souza 01/16/2007 07:45:32 PM (and accompanying attachment entitled Scan5131.pdf); Outgoing Email ­ Orlando de Souza 11/05/2006 11:23:33
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PM (and accompanying attachments entitled ChangeAssistant_061020.xls and Download_Directory_CSBP.txt);Incoming Email ­ Orlando de Souza 10/19/2006 04:17:04 AM; and Outgoing Email ­ Orlando de Souza 10/10/2006 06:44:18 AM (and accompanying attachment entitled CSBP ­ Kickoff Meeting Agenda (20061011A).pps). o Also, in SAS Siebel v3.5.1 ­ 1. Support/1. All by Customer/CSBP Limited/CRM/Engagement e-mail comments are posted under Comments/Email/Time. CSBP Limited onboarding documentation includes but is not limited to Incoming Email ­ Broderick Ellis 07/12/2007 02:59:35 PM (and accompanying attachment entitled SR Siebel 2007 1.1.doc). · For Fujitsu Siemens Computers: In SAS Clients v3.5.1 - 1. Support/1. All by Customer/Fujitsu Siemans Computers/Customer, e-mail comments are posted under Comments/Email/Time. Fujitsu Siemans Computers onboarding documentation includes but is not limited to Incoming Email ­ Michael Garafola 04/10/2007 12:04:24 PM; and Incoming Email ­ John Tanner 11/22/2006 02:46:22 PM. · For Madix, Inc.: In SAS Clients v3.5.1 - 1. Support/1. All by Customer/Madix, Inc./Customer, e-mail comments are posted under Comments/Email/Time. Madix, Inc. onboarding documentation includes but is not limited to Outgoing Email ­ Anthony Cefola 10/08/2007 03:42:00 PM (and accompanying attachments entitled Post kickoff call follow-up.doc and Client Connectivity Summary.doc). · For MKS, Inc.: o In SAS Clients v3.5.1 - 1. Support/1. All by Customer/MKS, Inc./Customer, email comments are posted under Comments/Email/Time. MKS, Inc. onboarding documentation includes but is not limited to Outgoing Email ­ Jerry Jin 10/31/2006 02:58:00 PM; Outgoing Call ­ Pete Surette 10/27/2006 03:41:52 PM (and accompanying attachment entitled 2006 Year-End Requirements Form v 1.0.doc); Outgoing Email ­ Pete Surette 10/25/2006 06:03:21 PM (and accompanying attachment entitled MKS DiscoveryDocMasterE1.doc); and - 13 TOMORROWNOW'S 7th AMENDED AND SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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Outgoing Email ­ Jerry Jin 10/12/2006 04:20:03 PM (and accompanying attachment entitled Onboarding Steps_MKS.doc). o Also, in SAS Siebel v3.5.1 ­ 1. Support/1. All by Customer/MKS Inc./CRM/Engagement/Services to be Provided/24X7 Stnd ­ CRM 7.7 e-mail comments are posted under Comments/Email/Time. MKS Inc. onboarding documentation includes but is not limited to Outgoing Email ­Jerry Jin 11/09/2006 10:41:56 AM; Incoming Email ­ Jerry Jin 11/09/2006 11:02:53 AM; Incoming Email ­ Jerry Jin 11/09/2006 03:43:36; Incoming Email ­ Jerry Jin 11/09/2006 10:34:49 PM; Outgoing Email ­ Jerry Jin 11/09/2006 11:04:55 PM; and Incoming Email ­ Jerry Jin 11/23/2006 04:16:51 PM. · For PSCU Financial Services, In SAS Siebel v3.5.1 ­ 1. Support/1. All by Customer/PSCU Financial Services/CRM/Engagement/Services to be Provided/24X7 Stnd ­ CRM 7.5 e-mail comments are posted under Comments/Email/Time. PSCU Financial Services onboarding documentation includes but is not limited to Outgoing Email ­ Michael Jahrsdoerfer 03/20/2007 01:27:51 PM; Incoming Email ­ Michael Jahrsdoerfer 03/26/2007 02:17:34; Outgoing Email ­ Michael Jahrsdoerfer 03/26/2007 02:28:38 PM; Outgoing Email ­ Michael Jahrsdoerfer 04/18/2007 12:13:49 PM; · For Rockwell Automation: In SAS Clients v3.5.1 - 1. Support/1. All by Customer/Rockwell Automation/Customer, e-mail comments are posted under Comments/Email/Time. Rockwell Automation onboarding documentation includes but is not limited to Outgoing Call ­ Aaron Phillips 11/30/2006 11:54:00 AM; Incoming Email ­ George Lester 03/16/2006 06:16:55 PM (and accompanying attachment entitled Pre-install checklistv1.0.doc); and Incoming Email ­ George Lester 02/28/2006 07:32:59 PM. · For Smart Centers, LLC: o In SAS Siebel v3.5.1 ­ 1. Support/1. All by Customer/Smart Centers, LLC/CRM/Engagement e-mail comments are posted under Comments/Email/Time. Smart Centers, LLC onboarding documentation includes - 14 TOMORROWNOW'S 7th AMENDED AND SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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but is not limited to Outgoing Email ­ Michael Jahrsdoerfer 03/06/2007 02:22:06; and Outgoing Email ­ Michael Jahrsdoerfer 05/01/2007 03:06:35 PM. o Also in SAS Siebel v3.5.1 ­ 1. Support/1. All by Customer/Smart Centers, LLC/CRM/Engagement/Services to be Provided/24X7 Stnd ­ CRM 6.x (Start Date 12/20/2007; End Date 09/30/2008) e-mail comments are posted under Comments/Email/Time. Smart Centers, LLC onboarding documentation includes but is not limited to Incoming Email ­ Michael Jahrsdoerfer 03/28/2007 01:01:19 PM. For Standard Register Company: In SAS Clients v3.5.1 - 1. Support/1. All by Customer/Standard Register Company/Customer, e-mail comments are posted under Comments/Email/Time. Standard Register Company onboarding documentation includes but is not limited to Incoming Email ­Wade Walden 03/14/2007 03:54:11 PM. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. TomorrowNow further responds to this interrogatory by incorporating by reference all documents cited herein pursuant to Rule 33(d). FOURTH SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2: THIS FOURTH SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that the terms of use that purport to govern access to and use of materials available on Oracle-maintained websites permit TomorrowNow to access and download licensed materials for purposes of providing service to its customers. See e.g., November 12, 2009 Richard Allison Deposition, 234:5-235:11; see also ORCL00051971; ORCL00051974; ORCL00051976; ORCL00051977; ORCL00672413 ­ ORCL00672414 ("However, the Materials may be shared with or accessed by third parties who are your agents or contractors acting on your behalf solely for your internal business operations and you are responsible for their compliance with these Customer Connection Terms of Use."); ORCL00672415 ­ ORCL00672418; ORCL00672428 ­ ORCL00672431.
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ORACLE DATABASE AMENDED INTERROGATORY NO. 2: Describe in as much detail as possible any express or implied authorization, permission, or agreement, which You contend allows You to access or Download Software and Support Materials from Oracle-maintained software support websites, including Metalink and E-Delivery. ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2: THIS ORACLE DATABASE SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow also objects that this Topic prematurely calls for a legal opinion regarding the terms of contracts, licenses, terms of use, and agreements that Plaintiffs have only recently begun to produce on a rolling basis. Subject to and without waiving the foregoing objections, TomorrowNow responds as follows: Defendants are not aware of any such materials that were obtained from Oracle's E-Delivery Website; thus, no further response is necessary. To the extent that the materials referenced in this interrogatory are the actual database applications, it is likely that the initial instance of the database release was obtained from the public Oracle Technology Network website. TomorrowNow reasonably believes this website could be www.oracle.com/technology. To the extent the location and address of the website can be known during the relevant time period, this is information which would be within Plaintiffs' custody, control, and possession. To the extent updates/patches for Oracle database products were obtained by TomorrowNow, TomorrowNow reasonably believes that they were likely obtained by TomorrowNow employees from the metalink.oracle.com website. With regard to any downloads of database materials from www.oracle.com/technology and metalink.oracle.com, TomorrowNow employees were acting for the benefit of TomorrowNow's customers, and TomorrowNow likely used those materials to provide software support services for PeopleSoft and Siebel products for limited TomorrowNow customers. TomorrowNow reserves the right to amend this response as necessary. SUPPLEMENTAL RESPONSE TO ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS
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CONFIDENTIAL INFORMATION. TomorrowNow further responds that the terms of use that purport to govern access to and use of materials available on Oracle-maintained software permit TomorrowNow to access and download licensed materials for purposes of providing service to its customers. See e.g., November 12, 2009 Richard Allison Deposition, 234:5-235:11; see also ORCL00672419 ­ ORCL00672421; ORCL00672422 - ORCL00672423 ("However, the Materials may be shared with or accessed by third parties who are your agents or contractors acting on your behalf solely for your internal business operations and you are responsible for their compliance with these Metalink Terms of Use."); ORCL00672424 ­ ORCL00672427. INTERROGATORY NO. 3: Describe in as much detail as possible the termination or suspension of any Person(s) from SAP TN related in any way to the allegations made in the Complaint, the First Amended Complaint, Your Answer or any investigation that You have performed, including but not limited to Identifying the Employee terminated or suspended, stating the date of the termination or suspension, Identifying the Person(s) who made the decision to terminate or suspend the Employee, and stating any reasons for the termination or suspension. RESPONSE TO INTERROGATORY NO. 3: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects that this interrogatory seeks personal and private information of individual TomorrowNow employees protected from disclosure by the laws of their jurisdictions of residence and/or employment. Subject to and without waiving the foregoing objection and the General Responses and Objections, TomorrowNow responds as follows: TomorrowNow has terminated Hadi Arakib and Peter Surette. TomorrowNow has placed Gregory Nelson on a leave of absence, with pay, pending further investigation, which investigation has not been completed. SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION.
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TomorrowNow further responds that Mark White, TomorrowNow Executive Chairman, made the decisions described in TomorrowNow's Response to Interrogatory No. 3. The timing and purpose for the terminations and suspension is described in memoranda given to each employee, which will be included in TomorrowNow's production of documents in this case and on which TomorrowNow relies to further respond to this interrogatory pursuant to Rule 33(d). Gregory Nelson was placed on a leave of absence with pay beginning on July 17, 2007 and returned to work from this leave of absence on October 1, 2007. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that Ed Harris was terminated. See TN-OR02812000. Pursuant to Rule 33(d), the reasons for the terminations and suspension are described in memoranda given to each terminated or suspended employee, which are included in TomorrowNow's production of documents and on which TomorrowNow relies to further respond to this interrogatory. See TN-OR02812000, TN-OR00009540-TN-OR00009541, TNOR00009542, TN-OR00009538-TN-OR00009539. INTERROGATORY NO. 4: Identify all "agreements between Plaintiffs and their customers and/or former customers" on which you base the contentions made in Your Answer's Affirmative Defenses, including but not limited to Identifying which terms of those agreements form the basis of Your contentions. RESPONSE TO INTERROGATORY NO. 4: THIS RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects that this interrogatory is compound and unduly burdensome and oppressive to the extent it seeks a narrative answer as to each relevant customer. Subject to and without waiving the foregoing objections and the General Responses and Objections, TomorrowNow responds as follows: TomorrowNow incorporates by reference its response to Interrogatory No. 2, including the related production of documents identified in that response.
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SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4: THIS SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow further responds that its customer contracts include but are not limited to: TN-OR00000027 ­ TN-OR00001007 and TN-OR 00004204 ­ TN-OR00004276; and that its onboarding documentation includes but is not limited to TN-OR00001008 ­ TN-OR00001277. TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4: THIS SECOND SUPPLEMENTAL RESPONSE IS DESIGNATED AS HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY. TomorrowNow objects that this interrogatory calls for a legal conclusion and for information protected by the work product immunity. Subject to and without waiving the foregoing objections and the General Responses and Objections, TomorrowNow provides this further supplemental response as follows: TomorrowNow incorporates by reference and relies upon its responses to Interrogatory Nos. 10, 11 and 16 of Plaintiff Oracle Corp.'s First Set of Interrogatories to TomorrowNow. TomorrowNow further responds that it is unable to provide a full response at this time as to every contract with every customer because such a response requires knowledge of each specific wrongdoing alleged by Plaintiffs. Because Plaintiffs have failed to identify this specific alleged wrongdoing and because they have refused to produce adequate information on which Defendants can make a determination of specific alleged wrongdoing, TomorrowNow's response relies only on various illustrative agreements and does not address each and every customer contract, of which they are many. Accordingly, exemplar agreements between Plaintiffs and their customers and/or former customers and the terms of those agreements upon which TomorrowNow currently bases its contentions are as follows: · Various iterations of PeopleSoft agreements, namely ORCL00007529ORCL00007533 ("PeopleSoft March 1996") under Sections 1.1 and 4.1, ORCL00017200-ORCL00017202 ("PeopleSoft December 1996") under Section 4.1,
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ORCL00007399-ORCL00007402 ("PeopleSoft 1999") under Sections 1.1 and 4.1, ORCL00082090-ORCL00082095 ("PeopleSoft 2001") under Section 2.1, ORCL00086063-ORCL00086073 ("PeopleSoft 2003") under Section 1.2, ORCL00000001-ORCL00000009 ("PeopleSoft March 2004") under Section 1.1(c), and ORCL00022649-ORCL00022657 ("PeopleSoft June 2004") under Section 1.1, state some variation of the following: "Licensee may modify or merge the Software with other software with the understanding that any modifications, however extensive, shall not diminish PeopleSoft's title or interest in the Software" and "Licensee shall have title to the modifications to the Software that it develops only to the extent that usable software remains after PeopleTools has been removed." PeopleSoft March 1996, Sections 1.1 and 4.1. See also PeopleSoft 2001, Section 2.1 (stating "PeopleSoft grants License a nonexclusive, nontransferable license to make and run copies of the Software for access by Licensee and Designates for Licensee's internal data processing operations on one or more servers and/or workstations located at facilities owned or leased by Licensee..." and defining "designate" as "Licensee's customers, suppliers, vendors, benefits providers and other such third parties providing goods or services to Licensee..."). · PeopleSoft March 1996, Section 14.2; PeopleSoft December 1996, Section 14.1; PeopleSoft 1999, Section 14.2; PeopleSoft 2001, Section 10.4; PeopleSoft 2003, Section 9.5; PeopleSoft March 2004, Section 9.4; and PeopleSoft June 2004, Section 9.4 state some variation of the following: "Licensee may provide access to and use of the Software only to those third parties, (undertaking similar nondisclosure obligations), providing services concerning Licensee's use of the Software." · PeopleSoft 1999, Section 14.4; PeopleSoft 2001, Section 10.3; PeopleSoft 2003, Section 9.4; PeopleSoft March 2004, Section 9.3; and PeopleSoft June 2004, Section 9.3 state some variation of the following: "The Agreement imposes no obligation on Recipient with respect to Discloser's Confidential Information that Recipient can establish by legally sufficient evidence: (a) was, prior to receipt from Discloser, in the - 20 TOMORROWNOW'S 7th AMENDED AND SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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possession of, or rightfully known by Recipient, without an obligation to Discloser to maintain its confidentiality; (b) is or becomes generally known to the public or comes into the public domain without violation of the Agreement or without a violation of an obligation of confidentiality owed to the Discloser; or (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality to Discloser." · Various iterations of JD Edwards contracts, namely ORCL00004747-ORCL00004748 ("JD Edwards 1991") under Section 5, ORCL00019242-ORCL00019253 ("JD Edwards 1992") under Section 5(A), ORCL00016998-ORCL00016999 ("JD Edwards 1994") under Section 5, ORCL00003025-ORCL00003028 ("JD Edwards 1995") under Section 6, ORCL00145246-ORCL00145252 ("JD Edwards 1996") under Section 5, ORCL00017745-ORCL00017748 ("JD Edwards 1997") under Article IV, Section 2, ORCL00004713-ORCL00004718 ("JD Edwards Europe 1997") under Article 5, Section 2, ORCL00103087-ORCL00103091 ("JD Edwards Australia 1999") under Section 6, ORCL00017595-ORCL00017598 ("JD Edwards 1999") under Article II, Section 1(C), and ORCL00086180-ORCL00086185 ("JD Edwards 2001") under Article II, Section 1(C), state some variation of the following: "Customer shall have the right to modify the Licensed Products without the prior consent of JDE; however, Customer understands that JDE makes no warranty, express or implied, regarding any modified portions of the Licensed Products and that no modifications, however extensive, shall reduce the title and ownership of JDE and/or J.D. Edwards & Company in the Licensed Products." JD Edwards 1991, Section 5. Further, JD Edwards 1992 under Section 5(B), JD Edwards 1997 under Article V, Section 2, JD Edwards Europe 1997 under Article V, Section 2, JD Edwards Australia 1999 under Section 6, JD Edwards 1999 under Article II, Section 1(C), and JD Edwards 2001 under Article II, Section 1(C), state with substantially similar language: "Modifications made by Customer, its employees or third-party agents to the Licensed Products shall be the property of Customer..." JD Edwards 1992, Section 5(A). - 21 TOMORROWNOW'S 7th AMENDED AND SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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·

JD Edwards 1991, Section 6; JD Edwards 1992, Section 4(B); JD Edwards 1994, Section 4(B); JD Edwards 1995, 5(B); JD Edwards 1996, Section 4(b); JD Edwards 1997, Article V, Section 1(C); JD Edwards Europe 1997, Article V, Section 1(C); and JD Edwards Australia 1999, Section 5(C) state some variation of the following: "CUSTOMER ACKNOWLEDGES THAT JDE HAS INSTALLED DISABLING PROCEDURES IN THE LICENSED PRODUCTS. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SELF DISABLING PROCEDURES WOULD RENDER THE LICENSED PRODUCTS INOPERABLE."

·

JD Edwards 1999 and JD Edwards 2001 under Article II, Section 4, state some variation of the following: "J.D. Edwards, not more frequently than annually and at its own expense, may audit Customer's use of Licensed Products. Any such audit shall be conducted during regular business hours at Customer's facilities and shall not unreasonably interfere with Customer's business activities."

·

One exemplar Oracle contract at ORCL00142315-ORCL00142318 under Section 2.4 states: "On Oracle's written request, not more frequently than annually, Client shall furnish Oracle with a signed certification (a) verifying that the Programs are being used pursuant to the provisions of this Agreement, including any User limitations; and (b) listing the locations, types and serial numbers of the Designated Systems on which the systems are run. Oracle may, at its expense, audit Client's use of the Programs." Similar language is contained in ORCL00042995-ORCL00043004 under Section O.

TomorrowNow further responds that these agreements must be read as a whole and each in context of the entire agreement; TomorrowNow's failure to set forth above any particular provision is not a waiver of its right to rely on it as part of its overall contentions. Additionally, TomorrowNow notes that it grounds its affirmative defenses not only on the language of the agreements, but also on its understanding, based on discovery and fact investigations to date, of how Plaintiffs and the customers at issue have interpreted the agreements and conducted themselves with respect to the agreements.
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TomorrowNow reserves the right to further supplement this response as necessary during the course of document production. SIEBEL SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4: THIS SIEBEL SUPPLEMENTAL RESPONSE IS DESIGNATED AS HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY. This compound interrogatory would require TomorrowNow to chronicle information that involved numerous customers, took place over several years, and is too complex and detailed to describe in an interrogatory response. Subject to and without waiving the foregoing objections and the General Responses and Objections, TomorrowNow provides this further supplemental response as follows: TomorrowNow responds that it is unable to provide a full response at this time as to every contract with every customer because Plaintiffs have failed to produce all customer contracts and the total number of contracts is many. TomorrowNow's response thus relies only on various illustrative agreements and does not address each and every customer contract individually. Accordingly, exemplar agreements between Plaintiffs and their customers and/or former customers and the terms of those agreements upon which TomorrowNow currently bases its contentions are as follows: · Various iterations of the Siebel agreements, namely ORCL00523974ORCL00523982 ("Alberto-Culver Agreement") under Sections 2.1(A) and (B), ORCL00524227-ORCL00524238 ("Alcatel Agreement") under Sections 2.1(A) and (B), ORCL00524202-ORCL00524218 ("Alcatel e-Business Agreement") under Sections 3.1(1)(f) and 3.1(2)(a)-(d), ORCL00524261-ORCL00524264 ("By Referral Agreement") under Section 2.1, ORCL00524272-ORCL00524280 ("Wesfarmers Agreement") under Section 2.1, ORCL00524384-ORCL00524392 ("Everdream Agreement") under Sections 2.1(A) and (B), ORCL00524650ORCL00524659 ("Madix Agreement") under Sections 2.1(A) and (B), ORCL00524678-ORCL00524687 ("Mortice Agreement") under Sections 2.1(A) and (B), ORCL00524778-ORCL00524788 ("Pomeroy Agreement") under Sections 2.1(A) and (B), and ORCL00524873-ORCL00524882 ("Standard
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Register Agreement") under Sections 2.1(A) and (B) state some variation of the following: "Subject to the terms and conditions of this Agreement, Siebel grants Customer the worldwide, nonexclusive, perpetual right, solely for its own internal business operations...to use the Programs and Ancillary Programs solely on the Designated System for production purposes, on an additional Designated System for testing purposes, or on a backup system if the Designated System is inoperative...and to have third parties (e.g., system integrators) install, integrate, and implement the Programs and Ancillary Programs for the Customer...[and] (i) to copy the System Programs as reasonably necessary to support the maximum number of named Users; (ii) to copy the User Programs and Ancillary Programs up to the maximum number of named Users, provided that Customer may make on additional copy of each User Program for use on one User System, per named User, so long as such User operates only one copy of the User Program at any given time; (iii) to make a reasonable number of additional copies of the Programs and Ancillary Programs solely for archival, emergency back-up, or disaster recovery purposes; and (iv) to copy the on-line help Documentation as reasonably necessary to support its Users." · Various iterations of the Siebel agreements, namely the Alberto-Culver Agreement under Section 2.7, the Alcatel Agreement under Section 2.6, the Alcatel e-Business Agreement under Section 5.3, the By Referral Agreement under Section 9.3, the Wesfarmers Agreement under Section 9.3, the Everdream Agreement under Section 2.5, the Madix Agreement under Section 2.5, the Mortice Agreement under Section 2.7, the Pomeroy Agreement under Section 2.5, and the Standard Register Agreement under Section 2.5 state some variation of the following: "At Siebel's written request, but not more frequently than annually, Customer shall furnish Siebel with a document signed by Customer's authorized representative verifying that the Programs are being used pursuant to the provisions of this Agreement and the applicable Order Form. Customer is responsible for - 24 TOMORROWNOW'S 7th AMENDED AND SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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implementing reasonable means to monitor its compliance with the terms of this Agreement. Siebel reserves the right to audit Customer's use of the Programs no more than once annually at Siebel's expense." · Various iterations of the Siebel agreements, namely the Alberto-Culver Agreement under Section 9.1, the Alcatel Agreement under Section 9.1, the Alcatel e-Business Agreement under Section 14.1, the By Referral Agreement under Section 9.1, the Wesfarmers Agreement under Section 9.1, the Everdream Agreement under Section 9.1, the Madix Agreement under Section 9.1, the Mortice Agreement under Section 9.1, the Pomeroy Agreement under Section 9.1, and the Standard Register Agreement under Section 9.1 state some variation of the following: "A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior t o the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information; or (v) is required to be disclosed by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued." · The Wesfarmers Agreement, under Section 2.1 further states: "The parties acknowledge that a User may access the Programs in a number of application environments (for example, production environments, development environments, training environments) ("Application Environments"). The use of the Programs by a Named User in multiple Application Environments will not incur additional license fees under this Agreement, provided that the number of individuals - 25 TOMORROWNOW'S 7th AMENDED AND SUPP. RESP. TO ROGS. Case No. 07-CV-1658 PJH (EDL)

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authorized to use the Programs in all Application Environments does not exceed the maximum number of authorized Users at any time." Further, in Section 1.12, "Users" is defined as potentially including third parties. Two exemplar Global Master Services Addendums at ORCL00524699-ORCL00524701 and ORCL00523983-ORCL00523984 under Section 3 state: "Customer acknowledges that, subject to the license grants set forth in Section 2 of the SLSA, Siebel owns all intellectual property rights in and to the Deliverables and the Deliverables are deemed to be Confidential Information of Siebel; provided, however, that to the extent the Deliverables incorporate Customer's Confidential Information as defined in the SLSA, Customer shall retain all right, title and interest therein." TomorrowNow further responds to this interrogatory by incorporating by reference all documents and testimony cited herein pursuant to Rule 33(d). ORACLE DATABASE SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4: THIS ORACLE DATABASE SUPPLEMENTAL RESPONSE IS DESIGNATED AS CONFIDENTIAL INFORMATION. TomorrowNow objects that this interrogatory is compound and unduly burdensome and oppressive to the extent it seeks a narrative answer as to each relevant customer. TomorrowNow also objects that this Topic prematurely calls for an expert opinion regarding the terms of contracts, licenses and agreements that Plaintiffs have only recently begun to produce on a rolling basis. TomorrowNow's analysis of Plaintiffs' production is ongoing, and TomorrowNow will supplement its response as necessary. Subject to and without waiving the foregoing objections: TomorrowNow incorporates by reference its responses to Interrogatory No. 2 from Plaintiff Oracle USA's First Set of Interrogatories to Defendant TomorrowNow, Inc., above.

TEXT REMOVED - NOT RELEVANT TO MOTION

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PROOF O F S E R V I C E
I, Laurie Paige B u m s , declare: I a m a c i t i z e n o f t h e U n i t e d States a n d e m p l o y e d i n S a n t a C l a r a C o u n t y , California. I a m o v e r the age o f eighteen years a n d n o t a party to the within-entitled action. M y b u s i n e s s address is 555 California St, 2 6th Fl., S a n Francisco, C A 94104. O n D e c e m b e r 4 , 2 0 0 9 , I served a c o p y o f the attached document(s):

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D E F E N D A N T S ' S E V E N T H A M E N D E D AND S U P P L E M E N T A L RESPONSE TO PLAINTIFFS' FOURTH SET OF INTERROGATORIES T O D E F E N D A N T T O M O R R O W N O W , I N C . AND T H I R D S E T O F I N T E R R O G A T O R I E S T O D E F E N D A N T S S A P A G AND S A P A M E R I C A , INC.

D

b y t r a n s m i t t i n g v i a f a c s i m i l e t h e d o c u m e n t ( s ) l i s t e d a b o v e t o t h e fax n u m b e r ( s ) s e t forth b e l o w o n t h i s d a t e b e f o r e 5 : 0 0 p.m. b y p l a c i n g the document( s) listed above i n a s e a l e d envelope a n d causing such envelope to b e h a n d delivered to the office o f the addressee o n the date specified above. b y t r a n s m i t t i n g v i a e - m a i l o r e l e c t r o n i c t r a n s m i s s i o n the d o c u m e n t ( s ) listed a b o v e t o t h e p e r s o n ( s ) a t t h e e - m a i l addressees) s e t forth b e l o w . D o n n P i c k e t t , Esq. G e o f f r e y M . H o w a r d , Esq. H o l l y H o u s e , Esq. Zachary 1. Alinder, Esq. B r e e H a n n , Esq. BINGHAM McCUTCHEN LLP Three Embarcadero Center S a n Francisco, C A 9 4 1 1 1 - 4 0 6 7 [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

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E x e c u t e d o n D e c e m b e r 4, 2009, at S a n Francisc.o, ; a l i f o r n i a .

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HUI-121368vl PROOF O F S E R V I C E C a s e No. 0 7 - C V - 1 6 5 8 P J H ( E D L )