Oracle Corporation et al v. SAP AG et al

Filing 947

RESPONSE to re 942 Objection to Oracle's Deposition Designations by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc.. (Alinder, Zachary) (Filed on 10/26/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 947

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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) ORACLE'S RESPONSES TO Plaintiffs, DEFENDANTS' OBJECTIONS TO v. ORACLE'S DEPOSITION SAP AG, et al., Defendants.

DESIGNATIONS Date: November 1, 2010 Time: 8:30 a.m. Place: Courtroom 3 Judge: Hon. Phyllis J. Hamilton
Case No. 07-CV-01658 PJH (EDL)

RESPONSES TO DEFENDANTS' OBJECTIONS TO ORACLE'S DEPOSITION DESIGNATIONS
Dockets.Justia.com

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Pursuant to the Final Pretrial Order (Dkt. No. 914), Plaintiffs Oracle USA, Inc., Oracle International Corporation, and Siebel Systems, Inc. (collectively, "Oracle") hereby submit as Exhibit A their Responses to Defendants' Objections to Plaintiffs' Deposition Designations ("Defendants Objections") (Dkt. No. 942). In support of these Responses, Oracle has also attached true and correct copies of three potential trial exhibits (PTX 475, PTX 461 and PTX 252) as Exhibits B-D respectively. Oracle has not changed or altered any of the testimony or objections contained in Defendants' Objections and has inserted its Responses in the adjacent column. Any bolding in the testimony was originally included in Defendants' Objections and represents emphasis supplied by Defendants. Oracle makes no representations with respect to the bolding of the designated testimony. DATED: October 26, 2010 Bingham McCutchen LLP By: /s/ Zachary J. Alinder Zachary J. Alinder Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, and Siebel Systems, Inc.

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

RESPONSES TO DEFENDANTS' OBJECTIONS TO ORACLE'S DEPOSITION DESIGNATIONS

EXHIBIT A

Defendants' Objection Apotheker, Leo 10/02/08 Apotheker, Leo Defendants' MIL #9. This 147:16 - 148:1 testimony violates the Court's Q. Okay. Let's go to the next ruling on Defendants' MIL #9 one. "The big issue as we regarding Oracle's EBS know it continues to be software which is not at issue. contractual limitations." The document quoted from And you said, "My guess is discusses EBS and the that we will chart a course into testimony regarding "Oracle very dangerous waters. But contracts" is a reference to again, it is worth while to EBS. investigate the contractual language in Siebel and Oracle contracts?" Do you remember what you meant by "chart a course into very dangerous waters"? A. No, I don't. Baugh, John 128:5 - 128:16 Q. So, no later than August 28, 2007, everybody on your e-mail, Exhibit 1550, knew that these client environments were working from a shared install? MR. WILKES: Objection, form. A. Yes. Q. (By Mr. Howard) And that included Shelley Nelson? A. Yes. Q. Included Kathy Williams? A. Yes. Q. Included the Greg Lanier? MR. WILKES: Objection, form. A. Yes. Baugh, John 08/13/09 Speculation; No foundation. Mr. Baugh could not know what "everybody" knew on his email or even if "everybody" read his email.

Testimony

Oracle's Responses Oracle responds to Defendants' objection to this deposition designation as follows: Oracle will redact the quoted document to remove references to Defendants' plan to support EBS, in accordance with MIL #9. However, the cited testimony does not refer to EBS, and thus is not subject to the relevant MIL.

Ruling: _________________ Oracle responds to Defendants' objection to this deposition designation as follows: The testimony is allowed under Fed. R. Evid. 602 and 701(a), because it is rationally based on the witness's perception and personal knowledge from Exhibit 1550 (Oracle's PTX 475), attached as Exhibit B, and from his personal knowledge of subsequent actions of those involved. Baugh Tr. at 129:11-129:23 ("Q. (By Mr. Howard) Did anybody say in response to your August 28, 2007, e-mail, as Mr. Guzman writes in his meeting minutes on February 8, 2008: "These clients need to be prioritized to the front of the line in the environments project and get

A/73540637.2

Testimony

Defendants' Objection

Oracle's Responses completed immediately"? MR. WILKES: Objection, form. A. Not that I recall. Q. (By Mr. Howard) It wasn't until you gave your testimony under oath to me on February 6th, 2008, that such a meeting was convened and these environments were given that top priority; is that right? MR. WILKES: Objection, form. A. Yes."). Ruling: _________________

Baugh, John 128:17 - 128:21 Q. (By Mr. Howard) And can you explain why these environments were not prioritized at least as of your August 28, 2007, e-mail? MR. WILKES: Objection, form. A. No.

Speculation; No foundation. Mr. Baugh was not in a management position and was not a decision maker. There is no foundation laid to show that he would know "why."

Oracle responds to Defendants' objection to this deposition designation as follows: The fact that the witness has no explanation is not speculation. His testimony to that fact is allowed under Fed. R. Evid. 602 and 701(a), because it is rationally based on the witness's perception and personal knowledge. Ruling: _________________

Geib, Bob 330:14 - 331:5 Q. And to my prior question, the sentence before it says: "Effectively, on the last read of the license and then the EEL amendment that they have, they have some problem language on the ability to provide us with access to the software. I did

Geib, Bob 4/21/09 Hearsay; Fed. R. Evid. 1002. The question seeks the deponent to confirm the truth of the matters asserted in a hearsay document. To the extent the document could be otherwise admitted, the content of the document is not being offered to demonstrate the existence of the document or the deponent's

Oracle responds to Defendants' objection to this deposition designation as follows: The testimony does not violate Fed. R. Evid. 1002 as it confirms and corroborates the contents of the document, and is not offered for the truth of the statements contained

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Testimony bring in Scott Trainor, he did a great job, on handling that last issue." Do you see that? A. Yes. Q. So it appears Scott was able to handle the issue with respect to access to the software? MS. FROYD: Objection. The document speaks for itself. THE WITNESS: Yes. I don't specifically remember this, but that's what the document says. Kreutz, Mark 204:12 - 205:3 Q. You believed at the time that it was appropriate to copy downloads taken for other customers, in order to clean up and complete the Praxair folder? MR. COWAN: Objection, form. THE WITNESS: No. I don't believe that it was part of the policy that we were supposed to be following. MR. HOWARD: Q. My question is, did you believe at the time that that was appropriate, to do what you did, when you split the master folder into the specific client folders, to populate them with downloads taken from other clients? Did you believe that was appropriate or not? Yes or no. MR. COWAN: Objection to form. THE WITNESS: No.

Defendants' Objection understanding of the documents, and therefore is inadmissible because the document is the best evidence of what it states.

Oracle's Responses within the document. Ruling: _________________

Kreutz, Mark 02/19/08 Vague and ambiguous; Legal conclusion; Compound; Fed. R. Evid 403. The use of the term "appropriate" in the question is vague and ambiguous and/or renders the question compound without discerning whether "appropriate" means the conduct at issue was compliant with: (a) TN's policies; (b) the customer's license agreement with Oracle; or (c) the law. The jury could construe "appropriate" as a synonym for "legal" and thus the question calls for a legal conclusion and would otherwise confuse and mislead the jury.

Oracle responds to Defendants' objection to this deposition designation as follows: The term "appropriate" was used by Defendants in a July 3, 2007 conferance call with industry analysts following the filing of the current litigation. Specifically, SAP's then-CEO, Henning Kagermann, admitted that said "some TomorrowNow activity went beyond what is appropriate" and "TomorrowNow made some inappropriate downloads." PTX 461, attached as Exhibit C. Defendants' objection to examination about the practices they so characterized that the term is now vague or confusing has no merit given their own use of the term. Moreover, the objection that the question calls for a legal conclusion is moot as the

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Testimony

Defendants' Objection

Oracle's Responses illegality of the predicate copying and cross-use referred to is undisputed. The testimony is also proper under Fed. R. Evid. 602, 701(a) because it is rationally based on the witness's perception and personal knowledge. Kreutz Tr. at 169:1-10 ("Q. So under World, the customers whose downloads were put into this master library that wasn't segregated by customer were Barrie Hydro, Koontz Wagner, Lexmark, Nitta Casings, Wabash and JW Harris? A. Yes, I believe that's true. Q. And for One World, the customers whose downloads were placed into this master library that wasn't segregated by customer were Wabash, Dana, Praxair and Yazaki-Europe? A. Yes."). Ruling: _________________

Lester, Beth 181:15 - 181:23 Q. Do you think it's appropriate to take one client's software and copy to create a different environment for a different customer? MR. COWAN: Objection to form ­ MR. BYE: Objection to form. THE DEPONENT: I think it would depend upon the process. My gut feeling is no, but I think it would depend

Lester, Beth 4/22/09 Vague and ambiguous; Legal conclusion; Compound; Fed. R. Evid 403; Speculation; No foundation. The use of the term "appropriate" in the question is vague and ambiguous and/or renders the question compound without discerning whether "appropriate" means the conduct at issue was compliant with: (a) TN's policies; (b) the customer's license agreement with

Oracle responds to Defendants' objection to this deposition designation as follows: The term "appropriate" was used by Defendants in a July 3, 2007 conferance call with industry analysts following the filing of the current litigation. Specifically, SAP's then-CEO, Henning Kagermann, admitted that said "some TomorrowNow activity went

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Testimony upon the process and all of the steps involved to do so.

Defendants' Objection Oracle; or (c) the law. The jury could construe "appropriate" as a synonym for "legal" and thus the question calls for a legal conclusion and would otherwise confuse and mislead the jury. There is no evidence that she has personal knowledge sufficient to testify regarding "appropriateness" of the conduct if the question relates to compliance with the customer's license agreement or the law. Thus any answer by this deponent lacks foundation and would be pure speculation.

Oracle's Responses beyond what is appropriate" and "TomorrowNow made some inappropriate downloads." PTX 461, attached as Exhibit C. Defendants' objection to examination about the practices they so characterized that the term is now vague or confusing has no merit given their own use of the term. Moreover, the objection that the question calls for a legal conclusion is moot, as the illegality of the predicate copying and cross-use referred to is undisputed. Also, the testimony is proper under Fed. R. Evid. 602 and 701(a), because testimony about a "gut feeling" is rationally based on the witness's perception and personal knowledge. Ruling: _________________

Nelson, Andrew 100:9 - 100:12 MR. HOWARD: Q. Mr. Nelson, after consulting with your counsel are you able to answer the question? A. Can you please repeat it?

Nelson, Andrew 108:9 - 109:2 THE WITNESS: Can you

Nelson, Andrew 2/26/09 Defendants' MIL #6; Relevance; Fed. R. Evid. 403. The question clearly references the attorney's privilege instruction during the deposition and has no probative value. Thus, the question violates the Court's Order granting Defendants' MIL #6. Moreover, it is confusing and unfairly prejudicial. Argumentative; Relevance; Fed. R. Evid. 403. The bolded portions have no probative

Oracle responds to Defendants' objection to this deposition designation as follows: Oracle withdraws this designation.

Oracle responds to Defendants' objection to this deposition designation as

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Testimony restate that question? MR. HOWARD: Q. It's the same question I have asked three times. What rules did you put into place, other than maintenance end date and other than not sending fixes to customers that you weren't supporting on that release, designed to ensure that PeopleSoft's intellectual property rights were not violated? MR. FUCHS: Objection to form. THE WITNESS: Sorry for my confusion. There is just a lot there, the beforehand that you are talking about. I recall maintenance end date being an issue, something that we considered. I remember making sure that we weren't taking something that was clearly tied to a product outside of what we believed the customer was licensed for. I recall those two examples.

Defendants' Objection value, highlight the argumentative nature of the question and should be removed.

Oracle's Responses follows: The question is not unduly prejudicial as it was in fact asked multiple times leading up to the cited testimony due to counsel's objections and the witnesses failure to fully respond. Nelson Tr. at 106:5106:11 ("Q. Were there any -were there any rules at TomorrowNow prior to the acquisition by SAP designed to ensure that PeopleSoft intellectual property rights were respected? MR. FUCHS: Objection. Form. THE WITNESS: Sure."), 106:21107:2 ("Q. Other than that maintenance end date rule that you have described, were there any other rules that you put into place at TomorrowNow designed to ensure that PeopleSoft's intellectual property rights were not violated? MR. FUCHS: Objection to form. THE WITNESS: There may have been others."), 108:4108:7 ("MR. HOWARD: Q. I want to make sure I understand as best that you can recall today under oath what those rules were. You have said there was a rule about maintenance end date and a rule about providing a fix to a customer on a release that wasn't supported by TomorrowNow. Are there any other rules that you can recall that you put into place at TomorrowNow designed to ensure that PeopleSoft's

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Testimony

Defendants' Objection

Oracle's Responses intellectual property rights were not violated? MR. FUCHS: Objection. Form. THE WITNESS: Can you restate that question?") Ruling: _________________

Spencer, Phillips 45:24 - 46:1 & 46:25 - 47:4 Q. Who ­ who is Scott Trainor? A. Scott Trainor is an SAP attorney who supported TomorrowNow in the first year I was with them. . . . Q. What was his primary responsibility with respect to TomorrowNow when he was supporting TomorrowNow? MR. COWAN: Objection, form. A. To review ­ to help with contract negotiations, anything that required a change for a legal term.

Phillips, Spencer 7/22/09 No foundation. The deponent was a TomorrowNow sales person who has no personal knowledge regarding Scott Trainor's "primary responsibility with respect to TomorrowNow."

Oracle responds to Defendants' objection to this deposition designation as follows: The testimony is admissible under Fed. R. Evid. 602 and 701(a) as it is based on the witness's perception and personal knowledge. PTX 252, attached as Exhibit D; Spencer Tr. 127:12-129:16 ("Q. So, is this the e-mail that you described earlier to Raytheon where you were relaying the contents of your - of a conversation with Scott Trainor? A. That's -- that is correct. . . . Q. He was giving you -- did you make it clear to Scott that you were asking for this information so that you could relay it to a customer? A. I don't think -- I mean, he knew that I was in a sales cycle with this customer and that I was trying to gain an understanding of how the contracts evolved or why -you know, just kind of how things evolved, why, et cetera. Q. So, you told Scott Trainor that you needed information to help you with your sales cycle with a customer? A. Yeah, he

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Testimony

Defendants' Objection

Oracle's Responses -- sure. He knew I was in a sales cycle and he -- I believe, as I recall, he understood that - that I was working with a customer and my question was contract is silent here. Is there -- you know, how -- how -why would it -- why would it not mention anything to do with third-party access? Ruling: _________________

Ravin, Seth 282:17 - 283:11 MR. HOWARD: Q. Good morning, Mr. Ravin. A. Good morning. Q. Do you understand that we are here today as a continuation of your deposition on May 21st, 2009 when I deposed you at the offices of your former counsel, Wilson Sonsini? A. Yes. Q. And do you understand why you are here today? A. Yes. Q. What is that understanding? A. We are continuing the deposition that we had on May 21st of 2009. Q. Do you understand that's pursuant to a court order that requires you to answer questions related to some questions that you were instructed not to answer at that last deposition? A. I understand that this

Ravin, Seth 7/21/10 Relevance. This entire line of questioning is not probative because it simply confirms the witness' understanding that he is appearing for this deposition as a result of a U.S.D.C. ­ Nevada Court ruling related to a discovery dispute that arose in his prior deposition in this case, which was taken under a subpoena issued from that Nevada Court.

Oracle responds to Defendants' objection to this deposition designation as follows: The testimony goes to the credibility of the witness, and impeaches the testimony designated by Defendants regarding the deponent's alleged offer to share information with Oracle. Specifically, Defendants designated testimony from this same witness that "On the call, Rimini Street offered to share Rimini Street internal information and/or work out an agreement that would utilize an independent third party auditor reporting back to both parties to confirm Rimini Street's compliance with its standard processes and procedures. Oracle never responded to any of Rimini Street's proposals." Ravin Tr. at 363:3-363:13. Oracle has objected to this testimony as

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Testimony requires me to answer questions that were posed and approved by the judge.

Defendants' Objection

Oracle's Responses inadmissible hearsay. If Oracle's objection is overruled, the testimony is necessary to fairly assess the veracity of the deponent's statements, as he refused to answer questions at his previous deposition, was ordered by the United States District Court for the District of Nevada to appear for further deposition, and was held in contempt before finally agreeing to appear almost a year later to answer the original questions. Case No. 2:09-cv-01591-KJD-GWF, Dkt. Nos. 38 & 49. Ruling: _________________

Ravin, Seth 369:7 - 370:10 MR. HOWARD: Q. Mr. Ravin, let me direct your attention to Exhibit 947, which is the Rimini Street press release. Do you have that in front of you? A. Just a second. I now have it in front of me. Q. Looking down at the -towards the bottom there is a paragraph there that begins "In February 2009." Do you see that? A. Yes. Q. That paragraph is referring to a phone call that you testified about in response to Mr. Cowan's questions between counsel for Rimini Street and counsel for

Oracle's MIL #7; Defendants' MIL #6; Relevance; Argumentative. Exhibit 947 mentions Oracle's lawsuit against Rimini Street and Rimini's counter-claims in that same suit and thus violates the Court's Order granting Oracle's MIL #7. The deponent's refusal, at his counsel's direction, to answer the bolded question during his previous deposition in this case, is both irrelevant and violations the Court's Order granting Defendants' MIL # 6. Moreover, counsel's chiding of the deponent regarding that fact is argumentative.

Oracle responds to Defendants' objection to this deposition designation as follows: Oracle will offer Exhibit 947 into evidence with any portion of the document relating to motions in limine redacted, and thus the referenced MILs are not implicated. Further, the testimony goes to the credibility of the witness, and impeaches the testimony designated by Defendants regarding the deponent's alleged offer to share information with Oracle. Specifically, Defendants have designated testimony from the

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Testimony Oracle? A. Yes. Q. You misremembered the date of that call, did you not -A. Yes. Q. -- in your testimony? A. Yes. Q. You testified that in that call your lawyer communicated that Rimini Street had local copies of Oracle software on Rimini Street systems. Is that your testimony here today? A. That's my understanding. Q. And yet you refused, at your same lawyer's direction, to answer those questions at your May 21, 2009 deposition; is that right? A. Yes.

Defendants' Objection

Oracle's Responses same witness that "[o]n the call, Rimini Street offered to share Rimini Street internal information and/or work out an agreement that would utilize an independent third party auditor reporting back to both parties to confirm Rimini Street's compliance with its standard processes and procedures. Oracle never responded to any of Rimini Street's proposals." Ravin Tr. at 363:3-363:13. Oracle has objected to this testimony as inadmissible hearsay. If Oracle's objection is overruled, the testimony is necessary to fairly assess the veracity of the deponent's statements, as he refused to answer questions at his previous deposition, was ordered by the United States District Court for the District of Nevada to appear for further deposition, and was held in contempt before finally agreeing to appear almost a year later to answer the original questions. Case No. 2:09-cv-01591-KJD-GWF, Dkt. Nos. 38 & 49.

Ruling: _________________ Ravin, Seth 370:18 - 371:25 MR. HOWARD: Q. Now, you testified to Mr. Cowan that you reviewed and approved Oracle's MIL #7; Relevance; Argumentative; Fed. R. Evid. 403. Exhibit 947 mentions Oracle's lawsuit against Rimini Street and Rimini Oracle responds to Defendants' objection to this deposition designation as follows:

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Testimony Exhibit 947 before it was released to the public. Is that right? A. That is correct. Q. And you believe each statement in this press release to be an accurate statement of fact; is that right? A. Yes. Q. Looking at that same paragraph that begins "In February 2009," the second sentence of that paragraph, would you please read that sentence? A. "On the call, Rimini Street offered to share Rimini Street internal information and/or work out an agreement that would utilize an independent third party auditor reporting back to both parties to confirm Rimini Street's compliance with its standard processes and procedures." Q. It says that Rimini Street offered to share, does it not? A. Yes. Q. It doesn't say shared. True? A. Yes. But this is an additional information on top of what was already presented in the call. Q. Does it say that Rimini Street shared internal information, including the existence of local environments on Rimini Street systems? A. It does not say that. Q. So, which is incorrect, your testimony here today, or this press release?

Defendants' Objection Street's counter-claims in that same suit and thus violates the Court's Order granting Oracle's MIL #7. Moreover, counsel's insinuation that the witness stated that Rimini Street actually shared information regarding the existence of local environments on Rimini Street systems is false and thus the bolded question is argumentative, unfairly prejudicial, and misleading.

Oracle's Responses Oracle will offer Exhibit 947 into evidence with any portion of the document relating to motions in limine redacted, and thus the referenced MILs are not implicated. The testimony is also admissible because it is offered in rebuttal to designated testimony by Defendants where the witness stated "The facts that I understood from that call related to the fact that we provided Oracle with information about the fact that we kept separate silos for every client, that we only did downloads for authorized work by clients, that we only did downloads relating to each client relative to the licensed products that they represented to us in our individual agreements, and tried to -- that we did testing and development on individual environments." Ravin Tr. at 357:19-358:8. Oracle has objected to the inclusion of that testimony as inadmissible hearsay. If Oracle's objection is overruled, the rebuttal testimony is necessary to fairly assess the veracity of the deponent's statements, and thus serves as admissible impeachment evidence. This designation complies with the cited motions in limine as it implicates neither the attorney-client privilege nor

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Testimony MR. WEBB: Objection, argumentative. THE WITNESS: Neither.

Defendants' Objection

Oracle's Responses the Oracle/Rimini lawsuit. Ruling: _________________ Oracle responds to Defendants' objection to this deposition designation as follows: The Court has already overruled Defendants' objections twice, and should do so again. Defendants themselves have argued that there is foundation for the testimony. Defendants' Motion in Limine No. 5, seeking in part to "exclude evidence or testimony related to Ritchie's improper opinions on the technical question of the existence or cause of any purported crashes of Plaintiffs' websites," was denied in full. See Defs' Mots. in Limine, Dkt. 728 at 14:1517 (moving to exclude Ritchie); Final Pretrial Order, Dkt. 914 at 3:3-4 (denying Defs.' motion). Further, in their Motion in Limine No. 5, Defendants unsuccessfully argued that Ritchie's testimony was based on his "`experience' and `perspective.'" Dkt. 728 at 14:3. Earlier, in Defendants' Objections to Evidence, Dkt. 672, Defendants objected to Oracle's use of this precise testimony in support of

Ritchie, John 12/02/09 Ritchie, John No foundation; Speculation. 56:1 - 56:5 The answer is purely speculative because the Q. And based on that deponent confirmed that he experience and based on did not ever have personal what you observed with Titan, did you conclude that knowledge of the structure of the website that Titan Titan had crashed the accessed, including: (a) basic Oracle website? MR. LANIER: Object to form. information such as how many servers comprised the A. Yes. infrastructure for that website (166:19-167:7); and (b) what percentage of downloads TomorrowNow made from Oracle's website as compared to all of the other customers (167:25-168:5). See, e.g.,: Q. How many -- do you know anything about the actual operation and structure of the website that Titan would access? A. Yes. Q. How many computers was it based on? A. How many computers? Q. How many servers? A. Don't know. Q. How many servers were JDE? A. How many servers for JDE? Q. Yeah, had JDE stuff on them. A. I don't know. Q. How many had PeopleSoft? A. Don't know. (166:19-167:7)

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Testimony

Defendants' Objection Q. What percentage of the downloads done from Oracle's website in any interval -month is fine -- are done by TomorrowNow or were done by TomorrowNow as compared to all the other customers? A. As opposed to all other customers? I don't know all the other customers. (167:25-168:5).

Oracle's Responses Oracle's March 2010 motion for summary judgment. Defendants argued that the testimony constituted "improper lay opinion," noting that Ritchie was testifying about "what he believed, in his mind and based on his experience." Dkt. 672 at 5-6 (internal quotation marks and punctuation omitted). Those objections were also overruled. Defendants' make the same argument a third time here, and it again lacks merit. As established in testimony that Oracle cited to the Court in response to Defendants' objections at summary judgment, and referred to again in response to Defendants' motion in limine, the witness was reporting observations he personally made. See Oracle's Opp'n to Defs' Mots. in Limine, Dkt. 790, 17:7-12; Oracle's Response to Objections to Evidence, Dkt. 703 at 11:2112-6; id. at 12:16-26. This testimony is thus admissible under Fed. R. Evid. 602 and 701(a), as it is based on the deponent's perception and personal knowledge. Defendants argue based on Ritchie's testimony at 166:19167:7 and 167:25-168:5 that the witness is wrong about his observations, because there were other facts he did not know. There is no foundation

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Testimony

Defendants' Objection

Oracle's Responses that those facts are relevant; in fact, the witness said they were not. E.g., Ritchie Tr. at 168:17-168:20 ( Q. And you don't have any idea how many computers the Oracle website is actually based on, right? A. That's actually immaterial; but if you want to ask me that question, I'll say I don't know.) The application of those irrelevant facts to the testimony Defendants seek to exclude amounts to counsel's opinion about website crash events that the witness observed but counsel did not. Counsel's opinion is not supported by any disclosed expert or lay opinion in the case, and none is cited. The jury should be allowed to hear the evidence and decide issues of credibility. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge" or counsel, as Defendants seek here. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-151 (2000). Ruling: _________________

Ritchie, John 56:17 - 57:8 Q. ­ while Titan was running, did you conclude that the Oracle website was unavailable to any third party during those times?

No foundation; Speculation. The answer is purely speculative because the deponent confirmed that he did not ever have personal knowledge of the structure of the website that Titan

Oracle responds to Defendants' objection to this deposition designation as follows: Plaintiffs incorporate by reference their response to

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Testimony MR. LANIER: Object to form. A. That's -- that's my main concern for denial of service, is that while Titan is hitting their servers, their other customers cannot log on and get the information they need. Q. (BY MR. HOWARD) And -- and -- and did you conclude that that was the case, that during those times where you couldn't log on, that other customers also could not log on? MR. LANIER: Object to form. A. To the best of my ability, yes. Q. (BY MR. HOWARD) Did you voice those concerns regarding Titan's impact on the availability of the Oracle website to others at TomorrowNow? A. Yes. Ritchie, John 62:1 - 63:13 Q. Did anybody -- Mr. DeLing, Mr. Guzman, anybody instruct you to take any measures to modify Titan in order to minimize the impact on the Oracle website? A. No. I did it myself. Q. What did you do? A. I toned it down to 15 multiple threads at a time, maximum. Q. After you did that, did you -A. It still was hitting the server hard, but it was crashing less. Q. Okay. So, after you modified Titan so that it only

Defendants' Objection accessed, including: (a) basic information such as how many servers comprised the infrastructure for that website (166:19-167:7); and (b) what percentage of downloads TomorrowNow made from Oracle's website as compared to all of the other customers (167:25-168:5). See above.

Oracle's Responses Defendants' objection to Ritchie 56:1-5 above, which applies equally here. In addition, Defendants' objections are overbroad: Ritchie Tr. at 57:5-8 deals with whether Ritchie "voice[d] [his] concerns . . . to others at TomorrowNow," which is subject matter clearly within the deponent's perception and personal knowledge, and thus admissible under Fed. R. Evid. 602 and 701(a). Ruling: _________________

No foundation; Speculation. The answers (including the statement that the Oracle website was "crashing less" and that there was a "decrease in performance of the Oracle website") are purely speculative because the deponent confirmed that he did not ever have personal knowledge of the structure of the website that Titan accessed, including: (a) basic information such as how many servers comprised the infrastructure for that website (166:19-167:7); and (b) what percentage of downloads TomorrowNow made from Oracle's website as compared

Oracle responds to Defendants' objection to this deposition designation as follows: Plaintiffs incorporate by reference their response to Defendants' objection to Ritchie 56:1-5 above, which applies equally here. In addition, Defendants' objections are overbroad. Testimony about what Ritchie was "instruct[ed]" to do, 62:14, and about Ritchie's own programming activity, 62:5-8; both are subject matter within the deponent's perception and personal knowledge. This testimony is admissible under

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Testimony Defendants' Objection was downloading 15 threads at to all of the other customers (167:25-168:5). See above. a time, did you still observe instances where you believe that it was crashing the Oracle server? A. No. It seemed to be able to handle it. But like I said, logging in was still difficult. It would be very sluggish; and you could see that by just the fact that when you logged on normally under a normal circumstance, it would take, say, 3.5 seconds. Under these circumstances, we're looking at maybe 10 to 15 seconds versus, you know, trying to get logged on. And that's not even searching anything. That's just logging on. Q. So, did you compare manually logging on while Titan was running to manually logging on when Titan was not running? A. Yes. Q. And when Titan was running 15 threads -A. Big difference. Q. What was the difference? A. You're looking at -- like I said, it was very sluggish -- 15 seconds -- 10 to 15 seconds to log on only. Q. Compared to what, when Titan wasn't running 15 threads? A. Three seconds. Q. So, is it fair to say that you observed a decrease in the performance of the Oracle website in responding to a manual logon while Titan was running at the 15 thread rate?

Oracle's Responses Fed. R. Evid. 602 and 701(a).

Ruling: _________________

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Testimony MR. LANIER: Object to form. A. Yes. Ritchie, John 120:16 - 121:12 Q. And we've talked earlier about Titan maxing out at threads per session? A. What happens when you have multiple instances of it running? Q. Right. A. Worse. Q. But am I right that -- that -that you would have up to 15 threads running on each individual machine that was conducting a -- a -- a download search? A. That is correct. And they had problems that they realized from this. Q. What were the problems? A. Well one of the problems before I came on board, when they were tracked doing the downloads, their IP had been blacklisted. That means basically Oracle's website did not allow any IP from TomorrowNow to access their servers. We had to manually change our IP in-house to a new one to get around that blacklisting. MR. LANIER: Object. Move to strike. A. So, these are the -- some of the problems that they ran into with running multiple instances. They were causing the server to crash more often.

Defendants' Objection Hearsay; Speculation. The deponent's answer confirms that the "problems" at issue occurred before he "came on board" at TomorrowNow and thus he has no personal knowledge and is simply repeating out of court assertions from one or more unidentified individuals.

Oracle's Responses Oracle responds to Defendants' objection to this deposition designation as follows: Plaintiffs incorporate by reference their response to Defendants' objection to Ritchie 56:1-5 above, which applies equally here, save that 120:16-121:12 was not the subject of Defendants' Objections to Evidence. In addition, the cited testimony relates to a functional specification and user guide written by this deponent, John Ritchie; the discussion of development "problems" is admissible to show Ritchie's state of mind regarding the functional constraints imposed upon his development activities, as well as to provide context for the effect of those constraints on Ritchie, the listener. See Ritchie Tr. 111:11-18 ("Q. . . . Same drill as before, Mr. Ritchie. Take whatever time you need to review this; and when you're ready, let me know if you recognize the e-mail and the attached document. A. . . .Yeah. Josh had never done documentation for Titan. So, this was my attempt to do some documentation for the program.") Ruling: _________________

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EXHIBIT B

EXHIBIT C

EXHIBIT D