Oracle Corporation et al v. SAP AG et al

Filing 935

Joint Letter Brief re Oracle's Objection to SAP Proposed Witnesses Carey, Kobliska, McCloskey, Shander, and Subramanian and SAP's Objection to Oracle Proposed Expert Witness Dr. Levy filed by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(House, Holly) (Filed on 10/18/2010) Modified on 10/19/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 935 Att. 5

EXHIBIT E

Dockets.Justia.com

Hearing, Pretrial Conference before Hamilton 9/30/2010

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE ORACLE CORPORATION, ET AL. ) ) PLAINTIFFS, ) VS. ) SAP AG, ET AL., ) DEFENDANTS. ) OAKLAND, CALIFORNIA WEDNESDAY, SEPTEMBER 30, 2010 ) PAGES 1 - 124 ) ) NO. C 07-01658 PJH

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TRANSCRIPT OF PROCEEDINGS A PPEARANCES: FOR PLAINTIFFS: BOIES, SCHILLER & FLEXNER, LLP

1999 HARRISON STREET, SUITE 900 OAKLAND, CALIFORNIA 94612 BY: STEVEN C. HOLTZMAN, ATTORNEY AT LAW BINGHAM MCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4607 BY: ZACHARY J. ALINDER, ANTHONY FALZONE, HOLLY A. HOUSE, GEOFFREY M. HOWARD, DONN P. PICKETT, ATTORNEYS AT LAW FOR DEFENDANTS: JONES DAY

SILICON VALLEY OFFICE 1755 EMBARCADERO ROAD PALO ALTO, CALIFORNIA 94303 BY: THARAN GREGORY LANIER, ATTORNEY AT LAW (APPEARANCES CONTINUED NEXT PAGE) REPORTED BY: RAYNEE H. MERCADO, CSR NO. 8258

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Hearing, Pretrial Conference before Hamilton 9/30/2010
22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LANIER: AND YOUR HONOR, YOUR HONOR, THAT'S WHERE W E DO DISAGREE. THERE ARE SOME VERY BASIC FACTS THAT HAPPENED BEFORE TOMORROWNOW WAS SHUT DOWN. RIMINI STREET WAS PROVIDING SERVICE, ALONG WITH MANY OTHERS. AND TO SELECTIVELY SAY WE'RE GOING TO PICK ONE COMPANY THAT WE CAN'T SAY ANYTHING ABOUT THAT CUSTOMERS WENT THERE -THE COURT: ALL RIGHT. WE'LL SEPARATE THE TWO. LET ME JUST GET THROUGH ORACLE'S MOTIONS. YOUR MOTION IS THE -- IS TO EXCLUDE EVIDENCE WITH REGARD TO ALLEGATIONS AGAINST ORACLE IN THE OTHER TWO LAWSUITS, YOUR MOTION IS GRANTED. MR. HOWARD: THANK YOU, YOUR HONOR. THE COURT: AND I'LL DETERMINE WHEN WE GET THERE WHAT TO DO WITH THE OTHERS. MOTION NO. 8 WAS THE MOTION TO EXCLUDE DEPOSITION TRANSCRIPT DESIGNATIONS. THAT WAS WITHDRAWN. I DIDN'T UNDERSTAND IT AT ALL, AND IT'S WITHDRAWN, SO -MR. HOWARD: WE WORKED IT OUT. THE COURT: -- WON'T HAVE TO RESOLVE. SO THERE WERE ALSO MOTIONS TO SEAL WITH RESPECT TO YOUR SET OF MOTIONS. AND THAT WILL BE DEALT WITH IN THE PRETRIAL ORDER. I DON'T WANT TO HAVE ANY DISCUSSION ON THOSE. I'LL RULE ON THEM BY SEPARATE ORDER. ALL RIGHT. SO LET'S TURN TO SAP'S MOTIONS IN LIMINE. I MEAN, THE -- THE TWO THAT ARE -- WELL, THE ONE THAT'S GIVING ME THE MOST DIFFICULTY IS THE OBVIOUS BIG ONE, THE NO. 2, THE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IT'S -- THIS IS ANOTHER ONE WHERE IF THERE'S GOING TO BE THE SIMILAR RULING ON THE SAME ISSUES, THEN THE REBUTTAL TESTIMONY , SHOULD COME IN OR IT SHOULD NOT COME IN IF IT WASN'T EXPRESSLY PROVIDED. AND WE COULD LIVE WITH THAT ONE EITHER WAY. THE COURT: I'M GOING TO ALLOW IT ALL IN. YOU ALL T HE CAN PUT IN WHATEVER -- I MEAN, ESSENTIALLY YOU'LL UNDERSTAND AT THE END OF THIS PROCEEDING, I'M GOING TO PRETTY MUCH LET YOU DO W HATEVER YOU WANT. YOU'VE AGREED TO CERTAIN TIME LIMITS. YOU'RE GOING TO BE CONSTRAINED TO THOSE TIME LIMITS. WHAT YOU HAVE PRESENTED TO ME IS GOING TO BE IMPOSSIBLE TO PRESENT WITHIN THE TIME LIMITS THAT YOU'VE STIPULATED TO, SO THERE'S GOING TO BE A LOT OF SELF-EDITING OF THIS MATERIAL. AND I TRUST THAT YOU'LL DO IT IN THE WAY THAT YOU THINK BEST SO IT CAN ALL COME IN. SO THE MOTION'S DENIED. SO NO. 5 IS THE MOTION TO EXCLUDE THE IMPROPER OPINION OF LAY WITNESSES AND UNDISCLOSED EXPERTS. WELL, OBVIOUSLY, IF AN EXPERT HASN'T BEEN DISCLOSED, THE EXPERT CAN'T TESTIFY. BUT IF WE'RE TALKING ABOUT EMPLOYEES OF ORACLE OR FORMER TOMORROWNOW EMPLOYEES, JUST BECAUSE THEY HAVE TECHNICAL BACKGROUNDS AND TECHNICAL EXPERTISE DOESN'T MAKE THEM AN EXPERT, AND THEY CAN TESTIFY BY VIRTUE OF THE EXPERIENCE THEY'VE GAINED THROUGHOUT THE COURSE OF THEIR EMPLOYMENT. SO THE MOTION'S DENIED. MR. LANIER: YOUR HONOR, MAY WE ADDRESS ONE PART OF 24

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MOTION TO EXCLUDE EVIDENCE OF LOST PROFITS. SO I DO WANT TO HAVE SOME ARGUMENT ON THAT. BUT LET'S JUST GO THROUGH THE OTHER ONES 'CAUSE WE CAN DO THAT FAIRLY QUICKLY. WITH REGARD TO -- I'LL SKIP NO. 1. WE'LL TALK ABOUT 1 AND 2. GOING TO NO. 3, THAT'S THE MOTION TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING DAMAGES FOR NON-PARTY ENTITIES. THAT'S -MR. LANIER: THAT'S BEEN MOOTED. THE COURT: -- MOOTED? MR. LANIER: YES, YOUR HONOR. THE COURT: AND NO. 4, AND THAT'S THE MOTION TO EXCLUDE REBUTTAL TESTIMONY REGARDING THE SOMMER REPORT -WAIT. LET ME JUST SEE. YEAH, THIS ONE I ACTUALLY HAD A LITTLE QUESTION ABOUT. YOU KNOW, THERE ISN'T A SPECIFIC RULE ABOUT SURREBUTTAL. THERE ISN'T A RULE. BUT THERE IS A RULE ABOUT REBUTTAL. AND THE REBUTTAL, WHETHER IT'S SURREBUTTAL OR REBUTTAL REBUTTAL, IS DUE WITHIN, WHAT, 30 DAYS OF THE DISCLOSURE OF THE OPINION TO WHICH IT'S REBUTTING? SO WHY W OULDN'T THAT RULE APPLY HERE TO ANY SURREBUTTAL? MR. LANIER: YOUR HONOR, THEY'VE TAKEN AN INCONSISTENT POSITION ON THIS. AS YOU MAY KNOW FROM SOME OF THE DAUBERT MOTIONS, THEY'VE TAKEN THE POSITIONS WE'RE NOT ALLOWED TO REPLY TO THINGS THAT THEY'VE RAISED 'CAUSE THAT'S LATE. IF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THAT ONE? THAT'S A NON-ORACLE PERSON THAT'S NOT COVERED BY YOUR HONOR'S COMMENTS. THE COURT: AND WHO IS THAT? MR. LANIER: THAT'S MR. NEUENDORF OR NOIENDORF (PHONETIC). I AM NOT SURE I'M PRONOUNCING IT RIGHT. HE DID A LOT OF THE ANALYSIS THAT MR. PINTO RELIED ON. THE COURT: THE CONSULTANT. MR. LANIER: YES, EXACTLY. AND HE -- SO NOT REARGUING WHAT YOUR HONOR JUST TOLD US, BUT I THINK HE'S IN A DIFFERENT POSITION. HE ACTUALLY DID A HUGE CHUNK OF THE WORK THAT MR. PINTO PRESENTS AS HIS OPINION. HE WASN'T DISCLOSED AS AN EXPERT. WE WEREN'T GIVEN THE OPPORTUNITY TO DEPOSE HIM. HE DIDN'T DO A REPORT. HE'S REALLY THE EXPERT. THE COURT: YOU KNOW, THE QUESTION THAT COMES TO MIND IS CLEARLY HOW IS PINTO AN EXPERT IF HE CAN'T PERFORM THE FUNCTION THAT MR. NEUENDORF WAS HIRED TO PERFORM? THAT'S THE REAL QUESTION. MR. HOWARD: WELL, THE DEFENDANT'S REBUTTAL EXPERT DID SOMETHING DIFFERENT THAN WHAT MR. PINTO DID, AND SO HE HIRED A CONSULTANT TO HELP HIM TEST WHAT THAT OTHER EXPERT DID, JUST LIKE DEFENDANT'S EXPERTS HAVE CONSULTANTS WITH SPECIALIZED TRAINING THAT ARE HELPING THEIR EXPERTS DO WHAT THEY DID. ALL OF THE EXPERTS IN THIS CASE DID THAT. EVERYTHING WAS DISCLOSED WITH REGARD TO HIM. HIS

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Hearing, Pretrial Conference before Hamilton 9/30/2010
62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT. YOU'RE NOT ENTITLED TO HAVE A JURY INSTRUCTED BY A LAW PROFESSOR AS TO THE POLICY OR PHILOSOPHY BEHIND THE LAW THAT APPLIES TO THE CASE. SO I AM NOT GOING TO PERMIT THAT. THAT MOTION'S GRANTED. NOW, WITH REGARD TO THE OTHERS, I'VE INDICATED IT'S MY INTENT TO DENY THEM. WHAT I WOULD LIKE TO DO IS TO GET THROUGH EVERYTHING W E HAVE, AND IF THERE IS TIME -- IF THERE'S TIME BETWEEN THE TIME WE CONCLUDE ON ALL THE OTHER SUBJECTS AND THE TIME THAT WE NEED TO ADJOURN FOR YOU TO ARGUE THE DAUBERT MOTIONS, I WILL PERMIT YOU TIME TO ARGUE. BUT I DON'T WANT TO USE UP THE TIME NOW . SO UNLESS I -- UNLESS YOU CHANGE MY MIND OR I CHANGE MY MIND, ALL THE MOTIONS ARE DENIED WITH THE EXCEPTION OF THE MOTION TO EXCLUDE LICHTMAN. OKAY. NOW, LET'S START WITH MY LIST, AND WE'LL START FIRST WITH WITNESSES. YOU ALL HAVE SUBMITTED REVISED WITNESS LISTS, AND I CERTAINLY APPRECIATE YOUR EFFORT TO FURTHER STREAMLINE THE TRIAL BY SUBMITTING THOSE REVISED LISTS, BUT THERE -- YOU -- AND YOU LEFT OFF -- YOU DIDN'T NUMBER THE LIST. I HAD TO COUNT THEM MYSELF. ONE OF THEM HAS 81, AND ONE HAS 82, MEANING THAT THERE'LL BE 163 WITNESSES PRESENTED ON ONE LIST. I ASSUME YOU ALL REALIZE WE'RE GOING TO HAVE SOME DIFFICULTY IN OBTAINING A JURY. THERE'LL BE A PANEL SENT IN. I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OF 163 -(SIMULTANEOUS COLLOQUY.) MR. LANIER: -- ARE PURELY FOR DEPOSITION TESTIMONY -MR. HOLTZMAN: YES. MR. LANIER: -- AND WE ARE BOTH WORKING VERY HARD AND TOGETHER TO CRUNCH THAT LIST --THE COURT: RIGHT. RIGHT. NOW, THE ONLY DANGER IS OBVIOUSLY WE NEED TO KNOW IF THE JURY KNOWS ANY OF THEM, SO I DO NEED IT TO BE AS COMPREHENSIVE AS YOU THINK IT'S LIKELY TO BE, BUT I'M SURE YOU'VE INCLUDED WAY MORE THAN THAT ON THE LIST THAT YOU'VE GIVEN. MR. HOLTZMAN: YES. THE COURT: OKAY. LET'S SEE. AND YOU HAVE INDICATED THAT YOU PLAN ON CALLING THESE W ITNESSES IN THESE -- THESE LISTS BY DEPOSITION OR IN PERSON ASSUMING THEY'RE AVAILABLE. IT'S CERTAINLY BETTER, SUPERIOR TO HAVE THEM HERE. I MEAN, EVEN -- HAVE YOU ALL VIDEOTAPED ALL THE DEPOSITIONS? MR. LANIER: ALMOST EVERY ONE. WE'VE JUST NOW EXCHANGED LISTS OF PEOPLE THAT WE REALLY WANT TO BRING LIVE. AND SO WE ARE STARTING TO TALK ABOUT WHO OF OUR PEOPLE DO THEY W ANT, FOR EXAMPLE, AND FIGURING OUT HOW WE CAN WORK THROUGH ALL OF THAT AND HAVE AS MANY LIVE PEOPLE AS POSSIBLE. 64

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 W ILL ASK THEM TO BE TIME SCREENED. BUT I DON'T KNOW IF YOU -IF YOU REALLY APPRECIATE HOW DAUNTING IT IS FOR A JURY TO BE GIVEN ON THE DAY THAT THEY'RE ANSWERING QUESTIONS ABOUT THEIR AVAILABILITY A LIST OF 163 PEOPLE ARE POTENTIALLY GOING TO BE W ITNESSES AT THIS TRIAL. I KNOW THAT YOU WANT TO COVER ALL OF YOUR BASES BECAUSE YOU CAN'T CALL A WITNESS UNLESS YOU'VE IDENTIFIED THE W ITNESSES, BUT PERHAPS YOU WANT TO RETHINK THIS. YOU CAN SUBMIT TO THE COURT A LIST OF ALL WITNESSES IN ORDER TO PRESERVE YOUR ABILITY TO CALL SOMEBODY, BUT I THINK THAT YOU OUGHT TO CONSIDER PERHAPS GIVING THE JURY -- BECAUSE GIVEN THE TIME CONSTRAINTS, YOU'RE NEVER GOING TO BE ABLE TO PUT ON 163 WITNESSES. SO YOU MIGHT WANT TO GIVE THE JURY THE LIST OF WITNESSES THAT YOU KNOW WILL BE CALLED AND GIVE TO THE COURT A LIST OF WITNESSES THAT YOU KNOW WILL BE CALLED AND COULD BE CALLED. MR. HOLTZMAN: ABSOLUTELY, YOUR HONOR. AND THAT'S REALLY EXACTLY WHAT WE'VE CONTEMPLATED DOING. I THINK THERE'S A BIT OF A DYNAMIC AS BETWEEN PARTIES HERE, WHERE EACH PARTY'S A LITTLE AFRAID TO REDUCE FIRST AND THERE'S GOING TO BE BACK-AND-FORTH, AND WE ANTICIPATE HAVING THAT. THE COURT: BUT I'VE JUST GIVEN YOU A WAY TO AVOID ANY KIND OF OBJECTIONS. YOU CAN GIVE ME THE FULL LIST, AND I W ON'T HOLD YOU TO THE LIST YOU GIVE TO THE JURY. BUT YOU NEED TO GIVE THE JURY SOMETHING A LITTLE LESS FRIGHTENING THAN A LIST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: OKAY. CERTAINLY THE VIDEOTAPED PRESENTATION IS PREFERRABLE TO READING THE TRANSCRIPTS. BUT WE NEED TO DEAL WITH A COUPLE OF THINGS WITH REGARD TO THE DEPOS. IF YOU'RE GOING TO HAVE A LOT OF WITNESSES APPEAR BY DEPOSITION, W E NEED TO DEAL WITH THE OBJECTIONS. GENERALLY, IT'S MY EXPERIENCE THAT BY THE TIME WE GET TO TRIAL, THE OBJECTIONS GO BY THE WAYSIDE. EDIT THEM OUT. IF THERE ARE SOME OBJECTIONS THAT NEED RESOLUTION, I NEED SOME WAY TO DO THAT IN ADVANCE OF THE WITNESS BEING CALLED. HAVE YOU ALL GIVEN ANY THOUGHT TO HOW YOU WANT TO ACCOMPLISH THAT? MR. LANIER: WE ARE ACTUALLY TALKING AMONGST OURSELVES, BOTH ON THAT AND ON EXHIBITS, WHICH WE MAY COME TO, ABOUT HOW WE CAN EXCHANGE CUT-DOWN LISTS OF ALL OF THIS TO REDUCE WHAT WE HAVE TO TALK ABOUT AND MEET AND CONFER BETWEEN OURSELVES AND THEN COME BACK TO YOUR HONOR. BUT WE WANTED TO ASK YOUR HONOR ABOUT, DID YOU HAVE A PREFERENCE THAT YOU LIKE IN THIS CIRCUMSTANCE? THE COURT: WELL, I JUST NEED THEM IN -- WITH ADVANCE NOTICE. I MEAN, I HAVE HUNDREDS OF CASES, AND THEY GO ON WHILE I'M IN TRIAL, AND SO I'M BUSY. SO YOU NEED TO GET TO THE -- GET THEM TO ME IN ADVANCE AND NOT JUST, YOU KNOW, TEN MINUTES BEFORE THE TRIAL STARTS. MR. LANIER: IS A WEEK BEFORE TRIAL SUFFICIENT TIME? OR WOULD YOUR HONOR --

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