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. 9

EXHIBIT 9

Dockets.Justia.com

Case 3:07-cv-01658-PJH

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PAGES 1 - 76 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE ELIZABETH D. LAPORTE, MAGISTRATE JUDGE ORACLE CORPORATION, ET AL., ) ) ) PLAINTIFFS, ) ) VS. ) ) SAP AG, ET AL., ) ) ) DEFENDANTS. ) ) ___________________________________)

NO. C07-1658 PJH (EDL) SAN FRANCISCO, CALIFORNIA THURSDAY AUGUST 28, 2008 9:00 O'CLOCK A.M.

TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BINGHAM MCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4067 BY: GEOFFREY M. HOWARD, ESQUIRE AND DONN PICKETT, ESQUIRE AND HOLLY HOUSE, ATTORNEY AT LAW 262-9212 AND JENNIFER GLOSS, SENIOR CORPORATE COUNSEL ORACLE 500 ORACLE PARKWAY REDWOOD SHORES, CALIFORNIA 940656 650-506-7114 FURTHER APPEARANCES ON NEXT PAGE REPORTED BY: KATHERINE WYATT, CSR #9866, RMR OFFICIAL REPORTER - U.S. DISTRICT COURT

KATHERINE WYATT, OFFICIAL REPORTER, CSR, RMR [phone]

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DIFFERENT STAGES, SO IT IS DIFFICULT TO UNDERSTAND HOW THEY ARE GOING TO SAY: "WE HAD THIS BUSINESS PURPOSE FOR DOING THIS," WHATEVER THAT MAY MEAN, ASIDE FROM LIABILITY. AND FINALLY AND MOST IMPORTANTLY, IT DEPRIVES ORACLE OF A KEY -- AT LEAST ONE KEY ARGUMENT. OTHER THINGS, PUNITIVE DAMAGES. AND WE MAY LIKELY PORTRAY THIS CREATION OF A FIREWALL AS PART OF A DELIBERATE PLOT TO PRETEND IN BAD FAITH THAT THEY WERE TRYING TO PROTECT ORACLE'S IP RIGHTS AND WERE KEEPING THIS SEPARATE TO PROTECT ORACLE WHEN, IN FACT, THEY KNEW THAT TOMORROWNOW WAS OPERATING ILLEGALLY. AND THAT THEY, SAP, THAT WE'RE SEEKING, AMONG

SAP WOULD BE LIABLE FOR THAT ACTIVITY KNOWING THAT IT PERMITTED THAT ACTIVITY AND COULDN'T, IN FACT, PROTECT ITSELF THROUGH A FIREWALL. SO WE'RE TRYING TO GET AT THAT INFORMATION FOR THAT REASON. THE COURT: BUT TO ME THAT LAST ARGUMENT WOULD

REQUIRE A CRIME FRAUD EXCEPTION. MR. PICKETT: THE COURT: WELL, WE'RE NOT DOING THAT YET.

AND IF YOU'RE NOT GOING THAT FAR, I DON'T

THINK THAT -- YES, OF COURSE, YOU WOULD LIKE TO HAVE PUNITIVE DAMAGES, BUT YOU DON'T NORMALLY GET TO HAVE THE LAWYERS RAT ON THEIR CLIENTS TO PROVE IT, UNLESS YOU PROVE CRIME OF FRAUD. SO, YOU KNOW, BUT -- SO I TAKE IT YOU'RE TRYING TO KATHERINE WYATT, OFFICIAL REPORTER, CSR, RMR [phone]

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DRAW A LINE BETWEEN SAYING: "PROOF OF THE PUDDING IS THE POLICY ITSELF, NOT WHY WE ADOPTED IT." I MEAN, I THINK YOU ARE SOMEWHAT INCONSISTENT AS THE BUSINESS ISN'T LEGAL. BUT BUT THE FACT IS, I

MEAN, BOARDS MAKE BIG DECISIONS ALL THE TIME WITH ADVICE OF COUNSEL. AND AND THE DECISION, THE RESULT OF THE DECISION, THE POLICY ITSELF CAN BE REVEALED AND DISCUSSED AND USED IN THE LITIGATION WITHOUT TRANSLATING INTO OPENING, WAIVING THE PRIVILEGE IN ANY WAY. AND I DON'T THINK THIS IS THE KIND OF THING LIKE IN A PATENT CASE WHERE YOU RELY ON THE ADVICE OF COUNSEL: "THEY TOLD US WE WEREN'T INFRINGING." INSTEAD, THEY ARE RELYING ON THEY HAD THIS FIREWALL. IT EITHER IS A POTEMKIN VILLAGE, WHICH IS, YOU KNOW, FULL OF HOLES AND, YOU KNOW, TO MIX A LOT OF METAPHORS, THAT IT'S NO GOOD, AND YOU PROVE THAT -- AND SOUNDS LIKE YOU THINK YOU CAN -AND THAT IS THE BAD FAITH. YOU KNOW. THIS WAS A BIG PHONY THING THAT WAS. AND THEY KNEW IT.

NEVER GOING TO WORK.

BUT YOU DON'T NEED THE LAWYERS' ASSISTANCE -- YOU'RE NOT ENTITLED TO LAWYERS' ASSISTANCE TO DO THAT. IT SEEMS TO ME THE APPROPRIATE TIME TO MAKE SURE THAT THEY DON'T BLEED THAT DEFENSE OVER IS A MOTION IN LIMINE. MEAN, I THINK YOU WILL HAVE TO LIVE BY THE RESTRICTIONS. ULTIMATELY, JUDGE HAMILTON IS GOING TO HAVE TO DECIDE KATHERINE WYATT, OFFICIAL REPORTER, CSR, RMR [phone] I

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IF THERE IS A GRAY AREA.

PRESUMABLY, SHE WILL DECIDE, BECAUSE I

THINK IT'S A MOTION-IN-LIMINE-TYPE ARGUMENT. BUT THE MINUTE YOU TRY GOING BEYOND THAT AND SAY -LIKE IF THEY SAY: "WELL, YOU KNOW, THIS POLICY WAS NO GOOD. FIREWALL WAS FULL OF HOLES," AND YOU SAY: "WELL, BUT WE ADOPTED IT IN GOOD FAITH BECAUSE OUR LAWYERS TOLD US IT WOULD WORK," YOU CAN'T SAY THAT. YOU'RE NOT GOING TO BE ABLE TO SAY ANYTHING LIKE THAT. AND I'M SURE THEY ARE GOING TO JUMP DOWN YOUR THROAT THE MINUTE YOU TRY, AND YOU PROBABLY SHOULDN'T GET AWAY WITH THAT. BUT TO ME THAT'S THE ANSWER. MR. PICKETT: THE COURT: THEMSELVES -MR. PICKETT: THE COURT: JUST ONE -OKAY. THANK YOU. THIS

OKAY. AND AS TO THE DOCUMENTS

YES.

MR. PICKETT:

YOU'RE ALSO RULING ON THE SELECTIVE

WAIVER ISSUE, WHICH I KNOW IS A VERY SLIPPERY ISSUE. THE COURT: EITHER. YEAH, I DON'T SEE A SELECTIVE WAIVER,

BUT I'M GOING THROUGH THE DOCUMENTS. MR. PICKETT: I KNOW IT'S A DIFFICULT ISSUE, AND I AND I KNOW THE

WONDER THERE MAY NOT BE ENOUGH DATA POINTS. CONCERN ABOUT TIME.

WE MAY OR MAY NOT BRING BACK SOME MORE DATA

POINTS TO YOU AT SOME POINT. KATHERINE WYATT, OFFICIAL REPORTER, CSR, RMR [phone]

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CERTIFICATE OF REPORTER I, KATHERINE WYATT, THE UNDERSIGNED, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED BY ME INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS. I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR ATTORNEY FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING PROCEEDINGS AND CAPTION NAMED, OR IN ANY WAY INTERESTED IN THE OUTCOME OF THE CAUSE NAMED IN SAID CAPTION. THE FEE CHARGED AND THE PAGE FORMAT FOR THE TRANSCRIPT CONFORM TO THE REGULATIONS OF THE JUDICIAL CONFERENCE. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS 4TH DAY OF SEPTEMBER, 2008.

S/S KATHY WYATT

KATHERINE WYATT, OFFICIAL REPORTER, CSR, RMR [phone]