Oracle Corporation et al v. SAP AG et al

Filing 949

RESPONSE to re 943 Objection to Defendants' Deposition Designations by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit A)(Froyd, Jane) (Filed on 10/27/2010) Modified on 10/28/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 949 Att. 1

EXHIBIT A

Dockets.Justia.com

Testimony Anderson, Mark [TravelCenters] Oracle objects to the deposition testimony at: 127:9 - 127:18; 128:7 - 128:22; 129:3 - 129:17; 103:3 - 130:11; 130:22 - 131:5.

Oracle's Objections Defendants' Response Mark Anderson (Travel Centers) -- 6/8/2009 Calls for legal Lack of foundation (Legal conclusion): conclusion. Customer With the exception of the question at is asked to interpret the 128:7-9 and corresponding answer at terms and conditions of 128:11, Oracle failed to object at the its contract with deposition, thereby waiving the TomorrowNow. objection. Moreover, none of the identified testimony calls for or consists of a legal conclusion. This was a Rule 30(b)(6) deposition. As a corporate representative, the witness is competent to testify to the corporation's own understanding of and position relating to the terms of its own agreement with TomorrowNow. Note: Defendants believe the reference to 103:3-130:11 should be 130:3 ­ 130:11. Relevance: Oracle has put the customer's actions and state of mind regarding the legality of TomorrowNow at issue by designating testimony on TomorrowNow's alleged representations to the customer concerning legality and the extent of the customer's reliance thereon, and testimony on whether the customer would have entered into a business relationship with TomorrowNow had it believed there to be legality issues. The testimony to which Oracle objects is relevant to rebut the testimony Oracle has put at issue. Oracle's MIL #1: This is a Rule 30(b)(6) deposition of a TomorrowNow customer, who is not a party to this litigation and is not under TomorrowNow's control. Oracle's MIL # 1 does not concern reliance by a third party on advice of that third party's counsel. MIL # 1 was clearly limited to Defendants' reliance on the advice of their own counsel as a potential defense

Court's Ruling

Anderson, Mark [TravelCenters] Oracle objects to the deposition testimony at: 174:13 - 175:1.

Oracle objects to the deposition testimony at: 174:13 - 175:1. FRE 402 - Not Relevant; Plaintiffs' MIL 1. These questions, and the testimony they elicit, relate to whether the customer sought advice of counsel regarding its contract with TomorrowNow. This is completely irrelevant to any issue in this case. To the extent that it is relevant, it violates Plaintiffs' Motion in Limine No. 1. Defendants stated in Court that "[they] do not plan to put in any evidence that evidences advice of counsel." 9/30/10 Hrg Tr. at 8:18 - 8:19. The Court

1

Testimony

Oracle's Objections granted Plaintiffs' MIL 1 "to the extent that any witness seeks to testify that he/she relied on advice of counsel with regard to TomorrowNow's operational activities." (Dkt 914).

Brazile, Steven [Sara Lee] Oracle objects to the deposition testimony at: 68:10 - 69:3.

Defendants' Response Court's Ruling in this case, and the Court's order must be read in that context. Defendants have no access to/control over this third party's privileged information. Oracle's new claim regarding this MIL would lead to an absurd series of results, including the ability of unrelated, unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Steven Brazile (Sara Lee) -- 10/14/2009 Relevance: Oracle has put the FRE 402 - Not customer's actions and state of mind Relevant; Plaintiffs' regarding the legality of TomorrowNow MIL 1. These at issue by designating testimony on questions, and the TomorrowNow's alleged testimony they elicit, representations to the customer relate to whether the customer sought advice concerning legality and the extent of the of counsel regarding its customer's reliance thereon, and testimony on whether the customer contract with would have entered into a business TomorrowNow. This relationship with TomorrowNow had it is irrelevant to any believed there to be legality issues. The issue in this case. To testimony to which Oracle objects is the extent that it is relevant to rebut the testimony Oracle relevant, it violates has put at issue. Plaintiffs' Motion in Limine No. 1. Oracle's MIL #1: This is a Rule 30(b)(6) Defendants stated in deposition of a TomorrowNow Court that "[they] do customer, who is not a party to this not plan to put in any evidence that evidences litigation and is not under TomorrowNow's control. Oracle's MIL advice of counsel." 9/30/10 Hrg Tr. at 8:18 # 1 does not concern reliance by a third party on advice of that third party's - 8:19. The Court granted Plaintiffs' MIL counsel. MIL # 1 was clearly limited to 1 "to the extent that any Defendants' reliance on the advice of witness seeks to testify their own counsel as a potential defense in this case, and the Court's order must that he/she relied on advice of counsel with be read in that context. Defendants have no access to/control over this third regard to party's privileged information. Oracle's TomorrowNow's operational activities." new claim regarding this MIL would lead to an absurd series of results, (Dkt 914). including the ability of unrelated,

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Testimony

Oracle's Objections

Hallenberger, Tracy [Baker Botts] Oracle objects to the deposition testimony at: 50:21 - 50:25.

Hallenberger, Tracy [Baker Botts]

Defendants' Response Court's Ruling unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Tracy Hallenberger (Baker Botts) -- 11/18/2009 FRE 402 - Not Relevance: Oracle has put the customer's actions and state of mind Relevant; Plaintiffs' regarding the legality of TomorrowNow MIL 1. These at issue by designating testimony on questions, and the TomorrowNow's alleged testimony they elicit, representations to the customer relate to whether the customer sought advice concerning legality and the extent of the of counsel regarding its customer's reliance thereon, and testimony on whether the customer contract with would have entered into a business TomorrowNow. This is completely irrelevant relationship with TomorrowNow had it believed there to be legality issues. The to any issue in this case. To the extent that testimony to which Oracle objects is it is relevant, it violates relevant to rebut the testimony Oracle has put at issue. Plaintiffs' Motion in Limine No. 1. Oracle's MIL #1: This is a Rule 30(b)(6) Defendants stated in deposition of a TomorrowNow Court that "[they] do customer, who is not a party to this not plan to put in any evidence that evidences litigation and is not under TomorrowNow's control. Oracle's MIL advice of counsel." 9/30/10 Hrg Tr. at 8:18 # 1 does not concern reliance by a third party on advice of that third party's - 8:19. The Court granted Plaintiffs' MIL counsel. MIL # 1 was clearly limited to 1 "to the extent that any Defendants' reliance on the advice of witness seeks to testify their own counsel as a potential defense in this case, and the Court's order must that he/she relied on advice of counsel with be read in that context. Defendants have no access to/control over this third regard to party's privileged information. Oracle's TomorrowNow's operational activities." new claim regarding this MIL would lead to an absurd series of results, (Dkt 914). including the ability of unrelated, unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Relevance: Oracle has put the FRE 402 - Not customer's actions and state of mind Relevant; Plaintiffs' MIL 1. These regarding the legality of TomorrowNow

3

Testimony Oracle objects to the deposition testimony at: 51:8 - 51:16.

Oracle's Objections questions, and the testimony they elicit, relate to whether the customer sought advice of counsel regarding its contract with TomorrowNow. This is completely irrelevant to any issue in this case. To the extent that it is relevant, it violates Plaintiffs' Motion in Limine No. 1. Defendants stated in Court that "[they] do not plan to put in any evidence that evidences advice of counsel." 9/30/10 Hrg Tr. at 8:18 - 8:19. The Court granted Plaintiffs' MIL 1 "to the extent that any witness seeks to testify that he/she relied on advice of counsel with regard to TomorrowNow's operational activities." (Dkt 914).

Defendants' Response at issue by designating testimony on TomorrowNow's alleged representations to the customer concerning legality and the extent of the customer's reliance thereon, and testimony on whether the customer would have entered into a business relationship with TomorrowNow had it believed there to be legality issues. The testimony to which Oracle objects is relevant to rebut the testimony Oracle has put at issue. Oracle's MIL #1: This is a Rule 30(b)(6) deposition of a TomorrowNow customer, who is not a party to this litigation and is not under TomorrowNow's control. Oracle's MIL # 1 does not concern reliance by a third party on advice of that third party's counsel. MIL # 1 was clearly limited to Defendants' reliance on the advice of their own counsel as a potential defense in this case, and the Court's order must be read in that context. Defendants have no access to/control over this third party's privileged information. Oracle's new claim regarding this MIL would lead to an absurd series of results, including the ability of unrelated, unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Relevance: The testimony is relevant to causation of damages because it is Rule 30(b)(6) testimony concerning the customer's view of the quality of support that it had been receiving from PeopleSoft prior to terminating its PeopleSoft support contract and joining TomorrowNow. Lack of foundation (Speculation): The testimony is not speculative. The

Court's Ruling

Hallenberger, Tracy [Baker Botts] Oracle objects to the deposition testimony at: 60:16 - 61:1.

FRE 402 - Not Relevant; FRE 602 Calls For Speculation. The deponent is asked about the meaning of a statement made by someone else, to someone else. This is not relevant and the witness lacks personal knowledge of the

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Testimony

Defendants' Response Court's Ruling witness testified based on her own personal knowledge regarding her own understanding of a statement in a document on which the witness was copied. The statement at issue was made by an employee whom the witness supervises and relates to an issue within the scope of the employee's work. In addition, this was a Rule 30(b)(6) deposition. The witness testified as a corporate representative regarding a statement by an employee of the corporation regarding a matter relating to the corporation. Robyn Harrel (Apria Healthcare) -- 9/8/2009 Rule 403: The testimony is highly Harrel, Robyn FRE 403 - Probative probative on the key issue of causation [Apria value outweighed by of damages because it addresses the Healthcare] prejudice; FRE 802 reasons why the customer terminated its Oracle objects Hearsay; FRE 1002 support agreement with Oracle and left Requirement of to the Original. The question for TomorrowNow. Neither the deposition asks for and the witness testimony at issue nor the memo to testimony at: which it relates, a copy of which is testifies about out of 29:8 - 30:12. attached for the Court's convenience to court statements the lodged version as Attachment 1, is contained in a memo. unfairly prejudicial. The customer This is hearsay, as created and sent the memo to Oracle to statements in the support a request for reimbursement of document are offered costs incurred by the customer in for the truth of the connection with the complaints matter asserted. Hearsay is not described in the memo. The purpose of admissible at trial just the memo provides a sufficient guarantee of trustworthiness for the because it is provided complaints described therein. Oracle by a 30(b)(6) witness. See e.g., Cincinnati Ins. has had a fair opportunity to address the Co. v. Gray, 2010 WL issue because the memo, which was 3522954, at *7 (S.D. produced by Oracle, has been in Oracle' possession for years and the witness was Ind. 2010). subject to cross examination at the Furthermore, the deposition regarding its contents. original is required to prove the contents of Hearsay: The testimony is not hearsay this writing. In addition, the testimony because the declarant is unavailable at is unfairly prejudicial trial and because Oracle had an as the document was opportunity to cross examine the witness

Oracle's Objections matter.

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Testimony

Rule 1002: FRE 1002 does not apply when a witness testifies from personal knowledge of the events described in the document. The testimony at issue was based on the witness's personal knowledge of the events described in the memo, as IT manager and employee of the customer for 17 years and as a participant in the events. In addition, this was a Rule 30(b)(6) deposition. As corporate representative, the witness testified based on the knowledge of the corporation. Rule 403: The testimony is highly Harrel, Robyn FRE 403 - Probative probative on the key issue of causation [Apria value outweighed by of damages because it addresses the prejudice; FRE 802 Healthcare] reasons why the customer terminated its Oracle objects Hearsay; FRE 1002 support agreement with Oracle and left Requirement of to the Original. The question for TomorrowNow. Neither the deposition asks for and the witness testimony at issue nor the memo to testimony at: which it relates, a copy of which is testifies about out of 30:22 - 31:4; attached for the Court's convenience to court statements 31:12 - 32:11. the lodged version as Attachment 1, is contained in a memo. This is hearsay, as unfairly prejudicial. The customer created and sent the memo to Oracle to statements in the support a request for reimbursement of document are offered costs incurred by the customer in for the truth of the matter asserted. connection with the complaints described in the memo. The purpose of Hearsay is not the memo provides a sufficient admissible at trial just guarantee of trustworthiness for the because it is provided by a 30(b)(6) witness. complaints described therein. Oracle See e.g., Cincinnati Ins. has had a fair opportunity to address the issue because the memo, which was Co. v. Gray, 2010 WL produced by Oracle, has been in 3522954, at *7 (S.D. Ind. 2010). Oracle's possession for years and the Furthermore, the witness was subject to cross examination at the deposition regarding original is required to

Oracle's Objections created by the witness/customer for purposes of renegotiating its contract with Oracle (see 25:14-17) ("Q. What was your understanding of why Apria sent this memo to J.D. Edwards? A. As I recall, we -- we wanted to renegotiate the license costs.")

Defendants' Response at deposition. The memo to which the testimony relates is a business record and, in addition, falls within the FRE 807 residual exception based on the guarantees of trustworthiness described above.

Court's Ruling

6

Testimony

Rule 1002: FRE 1002 does not apply when a witness testifies from personal knowledge of the events described in the document. The testimony at issue was based on the witness's personal knowledge of the events described in the memo, as IT manager and employee of the customer for 17 years and as a participant in the events. In addition, this was a Rule 30(b)(6) deposition. As corporate representative, the witness testified based on the knowledge of the corporation. Harrel, Robyn FRE 403 - Probative Rule 403: The testimony is highly value outweighed by [Apria probative on the key issue of causation prejudice; FRE 802 Healthcare] of damages because it addresses the reasons why the customer terminated its Oracle objects Hearsay; FRE 1002 Requirement of support agreement with Oracle and left to the Original. The question for TomorrowNow. Neither the deposition asks for and the witness testimony at issue nor the memo to testimony at: testifies about out of which it relates, a copy of which is 33:3 - 33:17; court statements attached for the Court's convenience to 33:20 - 34:5. contained in a memo of the lodged version as Attachment 1, is complaints. This is unfairly prejudicial. The customer hearsay, as statements created and sent the memo to Oracle to in the document are support a request for reimbursement of offered for the truth of costs incurred by the customer in the matter asserted. connection with the complaints Hearsay is not described in the memo. The purpose of admissible at trial just the memo provides a sufficient because it is provided guarantee of trustworthiness for the by a 30(b)(6) witness. complaints described therein. Oracle

Oracle's Objections prove the contents of this writing. In addition, the testimony is unfairly prejudicial as the document was created by the witness/customer for purposes of renegotiating its contract with Oracle (see 25:14-17) ("Q. What was your understanding of why Apria sent this memo to J.D. Edwards? A. As I recall, we -- we wanted to renegotiate the license costs.")

Defendants' Response its contents. Hearsay: The testimony is not hearsay because the declarant is unavailable at trial and because Oracle had an opportunity to cross examine the witness at deposition. The memo to which the testimony relates is a business record and, in addition, falls within the FRE 807 residual exception based on the guarantees of trustworthiness described above.

Court's Ruling

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Testimony

Oracle's Objections See e.g., Cincinnati Ins. Co. v. Gray, 2010 WL 3522954, at *7 (S.D. Ind. 2010). Furthermore, the original is required to prove the contents of this writing. In addition, the testimony is unfairly prejudicial as the document was created by the witness/customer for purposes of renegotiating its contract with Oracle (see 25:14-17) ("Q. What was your understanding of why Apria sent this memo to J.D. Edwards? A. As I recall, we -- we wanted to renegotiate the license costs.")

Defendants' Response has had a fair opportunity to address the issue because the memo, which was produced by Oracle, has been in Oracle's possession for years and the witness was subject to cross examination at the deposition regarding its contents. Hearsay: The testimony is not hearsay because the declarant is unavailable at trial and because Oracle had an opportunity to cross examine the witness at deposition. The memo to which the testimony relates is a business record and, in addition, falls within the FRE 807 residual exception based on the guarantees of trustworthiness described above. Moreover, the deponent indicates her specific recollection of the events described in the document. Thus, even if the statement in the document is inadmissible hearsay (which it is not) the deponent's recollection of the events is admissible. Rule 1002: FRE 1002 does not apply when a witness testifies from personal knowledge of the events described in the document. The testimony at issue was based on the witness's personal knowledge of the events described in the memo, as IT manager and employee of the customer for 17 years and as a participant in the events. In addition, this was a Rule 30(b)(6) deposition. As corporate representative, the witness testified based on the knowledge of the corporation. Relevance: Oracle has put the customer's actions and state of mind regarding the legality of TomorrowNow at issue by designating testimony on TomorrowNow's alleged representations to the customer concerning legality and the extent of the

Court's Ruling

Harrel, Robyn [Apria Healthcare] Oracle objects to the deposition testimony at:

FRE 402 - Not Relevant; Plaintiffs' MIL 1. These questions, and the testimony they elicit, relate to whether the customer sought advice

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Testimony 58:8 - 58:19.

Jerome, Daniel [Electrolux] Oracle objects to the deposition testimony at: 59:5 - 59:18.

Oracle's MIL #1: This is a Rule 30(b)(6) deposition of a TomorrowNow customer, who is not a party to this litigation and is not under TomorrowNow's control. Oracle's MIL # 1 does not concern reliance by a third party on advice of that third party's counsel. MIL # 1 was clearly limited to Defendants' reliance on the advice of their own counsel as a potential defense in this case, and the Court's order must be read in that context. Defendants have no access to/control over this third party's privileged information. Oracle's new claim regarding this MIL would lead to an absurd series of results, including the ability of unrelated, unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Daniel Jerome (Electrolux)-- 10/7/2009 FRE 802 - Hearsay. Hearsay: This was a Rule 30(b)(6) The question elicits deposition. The witness testified as a testimony regarding an corporate representative regarding the out an out of court information known to the corporation. statement about why The statement to which Oracle objects company left Oracle was made to the witness by another that is offered for the employee of the corporation as part of truth of the matter the witness's preparation for the Rule asserted, and does not 30(b)(6) deposition. See Tr. at 17:6-18, fall within any hearsay 84:6-9, 85:5-14 (to prepare for his exception. Hearsay is testimony on behalf of the company, the not admissible at trial witness had a conversation with Jakob just because it is From, who has worldwide responsibility provided by a 30(b)(6) for the company's business software

Oracle's Objections of counsel regarding its contract with TomorrowNow. This is completely irrelevant to any issue in this case. To the extent that it is relevant, it violates Plaintiffs' Motion in Limine No. 1. Defendants stated in Court that "[they] do not plan to put in any evidence that evidences advice of counsel." 9/30/10 Hrg Tr. at 8:18 - 8:19. The Court granted Plaintiffs' MIL 1 "to the extent that any witness seeks to testify that he/she relied on advice of counsel with regard to TomorrowNow's operational activities." (Dkt 914).

Defendants' Response customer's reliance thereon, and testimony on whether the customer would have entered into a business relationship with TomorrowNow had it believed there to be legality issues. The testimony to which Oracle objects is relevant to rebut the testimony Oracle has put at issue.

Court's Ruling

9

Testimony

Oracle's Objections witness. See e.g., Cincinnati Ins. Co. v. Gray, 2010 WL 3522954, at *7 (S.D. Ind. 2010).

Defendants' Response applications, regarding the reasons why the company cancelled its support with Oracle and went to TomorrowNow). Hearsay is not a proper objection to a statement from within the corporation that a corporate representative witness relied on as part of his obligation to prepare to testify on behalf of the corporation. See, e.g., Med. Alert Found. U.S., Inc. v. Corel Corp., 43 F. Supp. 2d 933, 936 n.2 (N.D. Ill. 1999), (admitting 30(b)(6) testimony regarding customer phone calls and letters that demonstrating customer confusion because the statements were "within the company's knowledge."). If Oracle's objection were proper, Rule 30(b)(6) would lose much of its utility as a discovery device. In addition, the statement is admissible under FRE 807 because it goes to the material fact of causation of damages, it is more probative than any other evidence Defendants can procure from this third party, Oracle had a fair opportunity to cross examine the corporate representative at deposition regarding the statement, and the interests of justice are served by admission of the statement because it is probative of a key issue. Hearsay: This was a Rule 30(b)(6) deposition. The witness testified as a corporate representative regarding the information known to the corporation. The statement to which Oracle objects was made to the witness by another employee of the corporation as part of the witness's preparation for the Rule 30(b)(6) deposition. See Tr. at 17:6-18, 84:6-9, 85:5-14 (to prepare for his testimony on behalf of the company, the witness had a conversation with Jakob From, who has worldwide responsibility

Court's Ruling

Jerome, Daniel [Electrolux] Oracle objects to the deposition testimony at: 86:7 - 86:11.

FRE 802 - Hearsay. The question elicits testimony regarding an out an out of court statement about why company left Oracle that is offered for the truth of the matter asserted, and does not fall within any hearsay exception. Hearsay is not admissible at trial just because it is

10

Testimony

Oracle's Objections provided by a 30(b)(6) witness. See e.g., Cincinnati Ins. Co. v. Gray, 2010 WL 3522954, at *7 (S.D. Ind. 2010).

Defendants' Response for the company's business software applications, regarding the reasons why the company cancelled its support with Oracle and went to TomorrowNow). Hearsay is not a proper objection to a statement from within the corporation that a corporate representative witness relied on as part of his obligation to prepare to testify on behalf of the corporation See, e.g., Med. Alert Found. U.S., Inc. v. Corel Corp., 43 F. Supp. 2d 933, 936 n.2 (N.D. Ill. 1999), (admitting 30(b)(6) testimony regarding customer phone calls and letters that demonstrating customer confusion because the statements were "within the company's knowledge."). If Oracle's objection were proper, Rule 30(b)(6) would lose much of its utility as a discovery device.

Court's Ruling

Jones, Juan Oracle objects to the deposition testimony at: 136:7 - 136: 15.

In addition, the statement is admissible under FRE 807 because it goes to the material fact of causation of damages, it is more probative than any other evidence Defendants can procure from this third party, Oracle had a fair opportunity to cross examine the corporate representative at deposition regarding the statement, and the interests of justice are served by admission of the statement because it is probative of a key issue. Juan Jones -- 4/24/2009 FRE 403 - Unduly Rule 403: The testimony and document Prejudicial; FRE 402 - it references, a copy of which is attached Not Relevant. This for the Court's convenience to the testimony, and the lodged version as Attachment 2, go to document it references, the central issue of causation of damages have no probative and the reasons why customers value. The document is cancelled Oracle support and left for an Oracle-internal TomorrowNow. The document and the communication and testimony are highly probative. The relates to a nonwitness and author of the document is relevant customer that Oracle's Senior Vice President of

11

Testimony

Oracle's Objections never left Oracle for TomorrowNow. This is substantially outweighed by the likelihood of undue prejudice that may be caused by the potentially inflammatory language.

Defendants' Response Court's Ruling Support Services, a managing agent of Oracle whose supervisor reports directly to Oracle's CEO, Larry Ellison. The fact that the document and testimony are unhelpful to Oracle does not make them unfairly prejudicial. The "inflammatory language" to which Oracle refers consists of a single word in a two page document that otherwise consists of information regarding the cost of support services, which Oracle contend is the primary reason customers left for TomorrowNow, and other relevant information such as customer satisfaction with Oracle's support services, Oracle's support customer retention rates, and the percentage of customers considering leaving for third party support. The minimal risk of prejudice from a single "inflammatory" word is far outweighed by the probative value of the information contained in the document. The fact that it is an internal Oracle document increases its probative value and reliability. Relevance: As discussed above, the document is highly relevant to the central issue in the case, causation of damages. Rule 403: The testimony and document it references, a copy of which is attached for the Court's convenience to the lodged version as Attachment 3, are directly relevant to the extent to which Oracle considered TomorrowNow and SAP's Safe Passage Program a threat. This, in turn, is central to Oracle's massive hypothetical license damages claim. The witness and author of the document is Oracle's Senior Vice President of Support Services, a managing agent of Oracle whose supervisor reports directly to Oracle's CEO, Larry Ellison. The fact that the

Jones, Juan Oracle objects to the deposition testimony at: 137:11 - 138:5; 138:14 138:22.

FRE 403 - Unduly Prejudicial; FRE 402 Not Relevant. This testimony has no probative value. The testimony concerns an internal e-mail regarding an employee's personal opinions. This is substantially outweighed by the likelihood of undue prejudice that may be caused by the

12

Testimony

Oracle's Objections Defendants' Response Court's Ruling potentially document and testimony are unhelpful inflammatory language. to Oracle does not make them unfairly prejudicial. The "inflammatory language" to which Oracle refers consists of a single capital letter (which the witness himself testified under oath that he does not recall what that letter was intended to mean) in an eight page document that otherwise consists of highly relevant information and party admissions regarding the threat posed by third party support providers and SAP's Safe Passage program. The minimal risk of prejudice from a single "inflammatory" word is far outweighed by the probative value of the information contained in the document. The fact that it is an internal Oracle document increases its probative value and reliability. Relevance: As discussed above, the document is highly relevant to Oracle's primary damages theory. John Kreul (Pepsi Americas) -- 6/2/2009 Relevance: Oracle has put the FRE 402 - Not customer's actions and state of mind Relevant; Plaintiffs' regarding the legality of TomorrowNow MIL 1. These at issue by designating testimony on questions, and the TomorrowNow's alleged testimony they elicit, relate to whether the representations to the customer customer sought advice concerning legality and the extent of the of counsel regarding its customer's reliance thereon, and contract with testimony on whether the customer would have entered into a business TomorrowNow. This is completely irrelevant relationship with TomorrowNow had it to any issue in this believed there to be legality issues. The case. To the extent that testimony to which Oracle objects is it is relevant, it violates relevant to rebut the testimony Oracle has put at issue. Plaintiffs' Motion in Limine No. 1. Defendants stated in Oracle's MIL #1: This is a Rule 30(b)(6) deposition of a TomorrowNow Court that "[they] do customer, who is not a party to this not plan to put in any evidence that evidences litigation and is not under

Kreul, John [Pepsi Americas] Oracle objects to the deposition testimony at: 133:14 - 134:2; 135:9 - 135:17

13

Testimony

Oracle's Objections advice of counsel." 9/30/10 Hrg Tr. at 8:18 - 8:19. The Court granted Plaintiffs' MIL 1 "to the extent that any witness seeks to testify that he/she relied on advice of counsel with regard to TomorrowNow's operational activities." (Dkt 914).

Kreul, John [Pepsi Americas] Oracle objects to the deposition testimony at: 141:12 141:19.

Calls for legal conclusion. Customer is asked to interpret the terms and conditions of its contract with TomorrowNow.

Defendants' Response Court's Ruling TomorrowNow's control. Oracle's MIL # 1 does not concern reliance by a third party on advice of that third party's counsel. MIL # 1 was clearly limited to Defendants' reliance on the advice of their own counsel as a potential defense in this case, and the Court's order must be read in that context. Defendants have no access to/control over this third party's privileged information. Oracle's new claim regarding this MIL would lead to an absurd series of results, including the ability of unrelated, unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Lack of foundation (Legal conclusion): Oracle failed to object at the deposition, thereby waiving the objection. Moreover, none of the identified testimony calls for or consists of a legal conclusion. This was a Rule 30(b)(6) deposition. As corporate representative, the witness is competent to testify to the corporation's own understanding of the terms of its own agreement with TomorrowNow.

Nelson, Andrew Oracle objects to the deposition testimony at: 260:25 - 263:4; 263:20 - 264:7.

Andrew Nelson -- 2/26/2009 Hearsay: This is testimony elicited by FRE 802 - Hearsay; FRE 602 - Lack of Oracle on cross-examination. There is Foundation. The no out of court statement being offered. witness testifies about The witness was specifically asked out of court statements about his "understanding" and not what made by SAP and was said or told to him. Additionally, to inferred from these the extent this testimony contains an out statements. The witness of court statement, it is not offered to lays no foundation of show the truth of what was said in any his personal knowledge discussions (i.e. the actual content of about what SAP those instructions), but it is offered to allegedly instructed show the deponent's knowledge of the TomorrowNow to do instruction, his beliefs regarding that and testifies only to his instruction, and that an instruction was alleged understanding given. As such, it is either not hearsay

14

Testimony

Oracle's Objections of the alleged instruction. This testimony is offered only to show the truth of the matter asserted -- that SAP gave instructions to TomorrowNow and is therefore hearsay that does not fall within any exception.

Defendants' Response under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Lack of foundation: This is testimony elicited by Oracle on cross-examination and the objection is waived as no objection was made during the deposition. Further, the deponent is the former CEO of TomorrowNow and is asked about his understanding. He certainly has personal knowledge regarding his own understanding about facts and events that he was personally involved in.

Court's Ruling

Nelson, Andrew Oracle objects to the deposition testimony at: 273:8 - 273:24.

Oracle objects to the deposition testimony at: 273:25 - 274:9.

Andrew Nelson -- 4/29/2009 Hearsay: This is testimony elicited by FRE 802 - Hearsay; Oracle on cross-examination. There is FRE 602 - Lack of no out of court statement being offered. Foundation. The The witness was specifically asked witness testifies about out of court statements about his "understanding" and not what was said or told to him. Additionally, to made by SAP and the extent this testimony contains an out information inferred of court statement, it is not offered to from these statements. show the truth of what was said in any The witness lays no discussions (i.e. the actual content of foundation of his those instructions), but it is offered to personal knowledge about what SAP show the deponent's knowledge of the instruction, his beliefs regarding that allegedly instructed instruction, and that an instruction was TomorrowNow to do and testifies only to his given. As such, it is either not hearsay under Rule 801(c), or qualifies as an understanding of the alleged instruction. exception under Rule 803(3) as the state of mind of TomorrowNow and its This testimony is former employees is at issue in this case offered only to show with regard to punitive damages. the truth of the matter asserted -- that SAP Lack of foundation (Speculation): This gave instructions to is testimony elicited by Oracle on crossTomorrowNow and is therefore hearsay that examination. The deponent is the does not fall within any former CEO of TomorrowNow and is asked about his understanding. He

15

Testimony

Oracle's Objections exception. FRE 602 - Lack of Foundation; calls for speculation. Witness testifies that he can only speculate about when SAP's alleged communication to TomorrowNow occurred and that he does not recall the details. FRE 802 - Hearsay; FRE 602 - Lack of Foundation; calls for speculation. The witness testifies about out of court statements made by SAP and information inferred from these statements. The witness lays no foundation of his personal knowledge about what SAP allegedly instructed TomorrowNow to do and testifies that he does not recall. This testimony is therefore speculation. The testimony is offered only to show the truth of the matter asserted -- that SAP gave instructions to TomorrowNow and is therefore hearsay that does not fall within any exception.

Defendants' Response certainly has personal knowledge regarding his own understanding. Additionally, the claim of speculation again relates to something that is within the witnesses personal knowledge (i.e. whether he knows and can recall the details of the communication and the timing).

Court's Ruling

Nelson, Andrew Oracle objects to the deposition testimony at: 343:5 - 344:5.

Hearsay: This is testimony elicited by Oracle on cross-examination. There is no out of court statement being offered as the deponent does not recite the contents of any conversations. Additionally, to the extent this testimony contains an out of court statement, it is not offered to show the truth of what was said in any discussions (i.e. the actual content of those instructions), but it is offered to show the deponent's knowledge of the instruction, his beliefs regarding that instruction, and that an instruction was given. As such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Lack of foundation (Speculation): This is testimony elicited by Oracle on crossexamination. The deponent is the former CEO of TomorrowNow and is asked about his own memory and actions. He certainly has personal knowledge regarding his own memory and actions. Additionally, the claim of speculation again relates to something that is within the witnesses personal knowledge (i.e. whether he knows and

16

Testimony Nelson, Andrew Oracle objects to the deposition testimony at: 362:13 - 36224.

Defendants' Response Court's Ruling can recall the details of the communication and the timing). FRE 802 - Hearsay; Hearsay: This is testimony elicited by calls for speculation. Oracle on cross-examination. There is The witness testifies no out of court statement being offered about out of court as the deponent does not recite the statements that he made contents of any conversations and to SAP. The statements instead discusses his understanding of are offered for the truth what was being done and his of the matter asserted perceptions. Additionally, to the extent -- that he this testimony contains an out of court communicated often to statement, it is not offered to show the SAP about his truth of what was said in any discussions progress -- and do not (i.e. the actual content of those fall within a hearsay instructions), but it is offered to show exception. The witness the deponent's knowledge of the also speculates about instruction, his beliefs regarding that the progress instruction, and that an instruction was TomorrowNow was given. As such, it is either not hearsay making. under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Lack of foundation (Speculation): This is testimony elicited by Oracle on crossexamination and the objection is waived as no objection was made during the deposition. The deponent is the former CEO of TomorrowNow and is asked about his own memory and actions. He certainly has personal knowledge regarding his own memory and actions. Additionally, the claim of speculation (i.e. whether he knows and can recall the details of the communication and the timing). Greg Nelson -- 2/19/2009 FRE 802 - Hearsay. Hearsay: This is testimony elicited by The deponent testifies Oracle on cross-examination. There is about out of court no out of court statement being offered statements made by as the deponent does not recite the Andrew Nelson. These contents of any conversations and out of court statements instead discusses his understanding of

Oracle's Objections

Nelson, Greg Oracle objects to the deposition testimony at: 198:20 - 199:6.

17

Testimony

Nelson, Shelley Oracle objects to the deposition testimony at: 453:7 - 453:11; 453:17 -453:21.

Nelson, Shelley Oracle objects to the deposition testimony at: 459:19 - 460:7.

Defendants' Response Court's Ruling what was being done and his perceptions. Additionally, to the extent this testimony contains an out of court statement, it is not offered to show the truth of what was said in any discussions (i.e. the actual content of the directive), but it is offered to show the deponent's knowledge of the directive, his beliefs regarding that directive, and that a directive was given. As such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Shelley Nelson -- 4/18/2008 FRE 802 - Hearsay. Hearsay: This is testimony elicited by The deponent testifies Oracle on cross-examination. There is about an out of court no out of court statement being offered statement she implies as the deponent does not recite the someone else made to contents of any conversations and her -- since she "did instead discusses her understanding of not speak to SAP what was being done and her directly" --regarding perceptions. Additionally, to the extent what SAP allegedly this testimony contains an out of court told TomorrowNow to statement, it is not offered to show the do. These out of court truth of what was said in any discussions statements are offered (i.e. the actual content of the for the truth of the discussions), but it is offered to show matter asserted, and do the deponent's knowledge of the not fall within any discussions, her beliefs regarding those exception. discussions, and that such discussions occurred. As such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Hearsay: This is testimony elicited by FRE 802 - Hearsay; Oracle on cross-examination. There is FRE 602 - Calls for Speculation. The no out of court statement being offered deponent testifies about as the deponent does not recite the out of court statements contents of any conversations and made by SAP. These instead discusses her understanding and

Oracle's Objections are offered for the truth of the matter asserted, and do not fall within any exception.

18

Testimony

Oracle's Objections out of court statements are offered for the truth of the matter asserted, and do not fall within any exception. Furthermore, the deponent's testimony calls for speculation because she says her answers are guesses.

Defendants' Response Court's Ruling perception of why something was done. Additionally, to the extent this testimony contains an out of court statement, it is not offered to show the truth of what was said in any discussions (i.e. the actual content of those discussions), but it is offered to show the deponent's knowledge of the discussions, her beliefs regarding those discussions, and that such discussions occurred. As such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages.

Nelson, Shelley Oracle objects to the deposition testimony at: 462:17 - 463:3.

Lack of foundation (Speculation): This is testimony elicited by Oracle on crossexamination and the objection is waived as no objection was made during the deposition. The deponent is the former head of TomorrowNow's service of the PeopleSoft products line and is asked about her own understanding. She certainly has personal knowledge regarding her own understandings (i.e. whether she knows and can recall the details of why something was done). FRE 802 - Hearsay; Hearsay: This is testimony elicited by calls for legal Oracle on cross-examination. The conclusion. The majority of the excerpt is not hearsay as deponent testifies about there is no out of court statement. It out of court statements appears Oracle's objection is to what a made by unnamed customer may have stated. This persons. These out of testimony is not offered to show the court statements are truth of any statements. Rather, it is offered for the truth of offered to show the deponent's state of the matter asserted, and mind. As such, it is either not hearsay do not fall within any under Rule 801(c), or qualifies as an exception. Question exception under Rule 803(3) as the state also elicits a legal of mind of TomorrowNow and its opinion about whether former employees is at issue in this case there was a "valid with regard to punitive damages. justification" for

19

Testimony

Oracle's Objections changing it's business model.

Nelson, Shelley Oracle objects to the deposition testimony at: 631:8 - 631:24.

Defendants' Response Lack of foundation (Legal Conclusion): This is testimony elicited by Oracle on cross-examination. The deponent is the former head of TomorrowNow's service of the PeopleSoft products line and is asked about her own beliefs and thoughts. She certainly has personal knowledge regarding her own understandings and thoughts. Additionally, the testimony in no way calls for a legal conclusion as it asks the former head of TomorrowNow's service of the PeopleSoft group questions about the justification for changing TomorrowNow's PeopleSoft service business model during the time at which she was head of the group. Shelley Nelson -- 9/3/2009 Hearsay: This is testimony elicited by FRE 802 - Hearsay; Oracle on cross-examination. There is calls for legal conclusion. The no out of court statement being offered deponent testifies about as the deponent does not recite the out of court statements, contents of any conversations and even though she could instead is asked about her not remember whether understanding. Additionally, to the the statements were extent this testimony contains an out of made by John Baugh or court statement, it is offered to show the George Lester. These deponent's state of mind (i.e. her beliefs out of court statements and knowledge), including the basis for are offered for the truth her understandings. As such, it is either of the matter asserted, not hearsay under Rule 801(c), or and do not fall within qualifies as an exception under Rule any exception. 803(3) as the state of mind of Question elicits legal TomorrowNow and its former opinion testimony employees is at issue in this case with about witness's regard to punitive damages. understanding of a license agreement. Lack of foundation (Legal Conclusion): This is testimony elicited by Oracle on cross-examination and the objection is waived as no objection was made during the deposition. The deponent is the former head of TomorrowNow's PeopleSoft service of the products line and is asked about her own.

Court's Ruling

20

Testimony

Oracle's Objections

O'Donnell, Jeffrey [Lexmark] Oracle objects to the deposition testimony at: 27:4 - 27:15.

O'Neil, Owen

Defendants' Response Court's Ruling understanding. She certainly has personal knowledge regarding her own understandings (i.e. whether she knows and can recall the details of why something was done). Jeffrey O'Donnell (Lexmark) -- 9/15/2009 Relevance: Oracle has put the FRE 402 - Not customer's actions and state of mind Relevant; Plaintiffs' regarding the legality of TomorrowNow MIL 1. Customer at issue by designating testimony on sought advice of TomorrowNow's alleged counsel regarding its representations to the customer contract with TomorrowNow. This is concerning legality and the extent of the customer's reliance thereon, and irrelevant to any issue testimony on whether the customer in the case. To the would have entered into a business extent that it is relationship with TomorrowNow had it relevant, it violates believed there to be legality issues. The Plaintiffs' Motion in testimony to which Oracle objects is Limine No. 1. relevant to rebut the testimony Oracle Defendants stated in has put at issue. Court that "[they] do not plan to put in any evidence that evidences Oracle's MIL #1: This is a Rule 30(b)(6) deposition of a TomorrowNow advice of counsel." 9/30/10 Hrg Tr. at 8:18 customer, who is not a party to this litigation and is not under - 8:19. The Court granted Plaintiffs' MIL TomorrowNow's control. Oracle's MIL 1 "to the extent that any # 1 does not concern reliance by a third witness seeks to testify party on advice of that third party's counsel. MIL # 1 was clearly limited to that he/she relied on advice of counsel with Defendants' reliance on the advice of their own counsel as a potential defense regard to in this case, and the Court's order must TomorrowNow's be read in that context. Defendants have operational activities" no access to/control over this third (Dkt 914). party's privileged information. Oracle's new claim regarding this MIL would lead to an absurd series of results, including the ability of unrelated, unaffiliated entities with no common interests to claim privilege over communications and, alternatively, to waive such communications. Owen O'Neil -- 3/10/2009 FRE 602 - Lack of Lack of foundation: This is testimony

21

Testimony Oracle objects to the deposition testimony at: 109:22 - 110:9.

Ravin, Seth Oracle objects to the deposition testimony at: 18:6 - 18:13.

Defendants' Response elicited by Oracle on cross-examination and the objection is waived as no objection was made during the deposition. The deponent is a former TomorrowNow employee and he specifically stated that he was aware of "rules related to using customer software, including using environments" and he then explains his understanding of those rules at Oracle's request. A witness is not required to perform every activity in a company to know company policies and rules. Seth Ravin -- 5/21/2009 FRE 802 - Hearsay. Hearsay: This is testimony elicited by Former PeopleSoft Oracle on cross-examination. There is CEO's statement is not no out of court statement being offered. a party admission as is The deponent's testimony is based on he is not a his own percipient knowledge and representative of includes no indicia that the testimony at Oracle, never worked issue is merely repeating statements of for Oracle, and at the others. time, PeopleSoft's interests were adverse to Oracle's. FRE 802 - Hearsay; FRE 402 - Relevance; FRE 403 - Unduly Prejudicial. Deponent is testifying about out of court statements made by him and others at an alleged meeting, and those statements are offered for the truth of the matter asserted. The statements allegedly made by former PeopleSoft employees are not party admission as they were made prior to Oracle's acquisition of the company, and at a time Hearsay: This is testimony elicited by Oracle on cross-examination. The out of court statements are party admissions under Rule 801(d)(2)(D) as Oracle fully acquired PeopleSoft and Oracle is a party. Relevance: The testimony is relevant as to punitive damages and TomorrowNow's state of mind regarding what PeopleSoft (now Oracle) knew and acquiesced to regarding TomorrowNow's conduct. Rule 403: The probative value outweighs any unfair prejudice given that the testimony shows TomorrowNow's beliefs regarding PeopleSoft's knowledge and/or acquiescence to TomorrowNow's

Oracle's Objections Foundation. The question asks about any rules relating to use of customer software. The witness admits that he never "did any of this" and so he lacks the personal knowledge required by Rule 602.

Court's Ruling

Ravin, Seth Oracle objects to the deposition testimony at: 25:3 -25:23.

22

Testimony

Oracle's Objections Defendants' Response when PeopleSoft's service offering. interests were adverse to Oracle's. Even if true, the statements are also not relevant because they do not bear on any issues in this case, including whether Defendants are liable, or whether Defendants caused customers to leave. Finally, it would unduly prejudicial to admit unsubstantiated deposition testimony regarding accusations of market-fixing. FRE 802 - Hearsay. The question at 26:826:12 contains out of court statements from an alleged meeting, that are offered for the truth of the matter asserted, that was previously testified to at 25:3 25:23 and objected to herein. are previously objected to above. Deponent's answer at 26:17-26:19 relays out of court statements made by him and others at an alleged meeting, and those statements are offered for the truth of the matter asserted. The statements allegedly made by former PeopleSoft employees are not party admission as they were made prior to Oracle's Hearsay: This is testimony elicited by Oracle on cross-examination. The portion of the testimony that contains an out of court statement is a party admission under Rule 801(d)(2)(D) as Oracle fully acquired PeopleSoft and Oracle is a party. The reference to Kevin Maddock, who was a PeopleSoft employee at the time of communication, confirms the party admission exception even though Kevin Maddock is currently employed by Rimini Street (see Plaintiffs' objections to Ravin's 7/21/10 Deposition at 346:3 ­ 346:16).

Court's Ruling

Ravin, Seth Oracle objects to the deposition testimony at: 26:8-26:19.

23

Testimony

Oracle's Objections acquisition of the company, and at a time when PeopleSoft's interests were adverse to Oracle's. FRE 802 - Hearsay. The testimony relays out of court statements by the deponent, which are offered for the truth of the matter asserted.

Defendants' Response

Court's Ruling

Ravin, Seth Oracle objects to the deposition testimony at: 41:13-41:18; 41:6-41:11.

Oracle objects to the deposition testimony at: 41:19-42:5.

FRE 602 - Calls for Speculation. Deponent is speculating about what PeopleSoft's company-wide policy about what was "allowed" "for years."

Hearsay: This is testimony elicited by Oracle on cross-examination. There is no out of court statement by the deponent being offered. The questioner asks the witness whether he did something (answer "yes") and the basis for that answer. Additionally, to the extent this testimony contains an out of court statement, it is offered to show the deponent's state of mind (i.e. his beliefs and knowledge) regarding his belief that it was appropriate for TomorrowNow to have customer software on TomorrowNow's systems. As such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Lack of foundation (Speculation): This is testimony elicited by Oracle on crossexamination and the objection is waived as no objection was made during the deposition. Because the employee is discussing things he personally did and his own personal experiences, he is competent to testify on this point. Hearsay: This is testimony elicited by Oracle on cross-examination. There is no out of court statement by the deponent being offered. Additionally, to the extent this testimony contains an out of court statement, it is offered to show the deponent's state of mind (i.e. his beliefs and knowledge) regarding his belief of the basis for a possible Oracle lawsuit against TomorrowNow. As

Ravin, Seth Oracle objects to the deposition testimony at: 71:4-71:5; 71:9-71:13; 71:18-71:22.

FRE 802 - Hearsay; Foundation. Deponent is testifying about out of court statements by SAP employees regarding Oracle, which are offered for the truth of the matter asserted. Witness admits he has no

24

Testimony Oracle objects to the deposition testimony at: 71:4-71:5; 71:9-71:13; 71:18-71:23.

Oracle's Objections personal knowledge for testifying to such hearsay. Tr. at 71:1671:17.

Defendants' Response such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Lack of foundation: This is testimony elicited by Oracle on cross-examination and the objection is waived as no objection was made during the deposition. The witness actually refrains from speculating and only testifies to his own beliefs (as opposed to Mackey's belief) based on his own interactions with SAP and knowledge regarding Oracle. Relevance: This testimony is relevant to TomorrowNow's state of mind at the time of the acquisition which is relevant as to punitive damages. Character: The testimony is not being offered to show Oracle's conformity with its prior conduct, but rather that it was perceived by TomorrowNow at the time of its acquisition by SAP as being an aggressive competitor. Rule 403: The probative value outweighs any unfair prejudice given that the testimony shows TomorrowNow's beliefs regarding Oracle's intentions and conduct.

Court's Ruling

FRE 402 - Relevance; FRE 404 - Character Evidence; FRE 403 Unduly Prejudicial. Testimony about Oracle's "history of litigation" for "purposes of trying to stop a competitor" is improper character evidence offered to prove conformity therewith in the current action. Such testimony is also irrelevant to the issues to be resolved in this action.

Ravin, Seth Oracle objects to the deposition testimony at: 222:4-222:8; 224:14; 226:20226:23; 227:7227:10; 227:20-

FRE 602 - Calls for Speculation; FRE 402 Relevance; FRE 403 Unduly Prejudicial. Deponent has no basis for knowledge that the letter testified to was ever mailed to PeopleSoft, as he

Lack of foundation (Speculation): The deponent is testifying to as to his understandings and beliefs regarding the letter. He was a co-founder of TomorrowNow and worked at TomorrowNow in 2002. The deponent is the person who directed that the letter be sent and he testified that he read the letter at the time and that he understood

25

Testimony 227:23; 227:8227:18; 228:24230:8; 231:1822.

Oracle objects to the deposition testimony at: 223:23-224:9; 226:15-226:19; 226:24-227:6; 227:11-227:19; 227:24-228:6; 228:24-231:22; 232:12-17.

Oracle's Objections alleges. Deponent admits the letter was "signed in Texas" and that he was only "told that it was mailed," which is also inadmissible hearsay. Thus, all testimony based on the assumption of the letter being sent to PeopleSoft was made without personal knowledge as was based on inadmissible hearsay. The testimony is additionally unreliable as the referenced Exhibit 1324 is unsigned, and neither Oracle, Defendants, nor the deponent have ever located or produced a signed copy.

Defendants' Response and believed that the letter was sent. Relevance: The testimony is relevant as to punitive damages and TomorrowNow's state of mind regarding what PeopleSoft (now Oracle) knew and acquiesced to regarding TomorrowNow's conduct. Rule 403: The probative value outweighs any unfair prejudice given that the testimony shows TomorrowNow's beliefs and state of mind regarding PeopleSoft's acquiescence and its relevance to punitive damages. Moreover, to the extent Oracle contends that Chavez (a PeopleSoft employee and in-house lawyer) never received the letter, Oracle has the ability to put on evidence to support that contention.

Court's Ruling

Oracle objects to the deposition

Rule 1002: The testimony is not being offered in lieu of the document in an attempt to prove up the contents of the document itself. Rather, it is being offered to demonstrate the existence of the document and the deponent's Moreover, an allegation understanding regarding the information that Defendants sent and positions contained in the PeopleSoft a letter in document. 2002 describing the alleged propriety of its Hearsay: There are no out of court business model is not statements offered for the truth of the relevant to any issue in matter. Oracle specifically objects to this action, including discussions with former a PeopleSoft liability or damages. employee. These are party admissions Whether a letter has under Rule 801(d)(2)(D) as Oracle fully been sent is not acquired PeopleSoft and Oracle is a probative of the fact or party. Moreover, even though the amount of damage, or communications with PeopleSoft at as to causation. issue occurred before Oracle acquired PeopleSoft, the communications were made during time periods relevant to this case.

26

Testimony testimony at: 232:12-232:24.

Oracle's Objections FRE 1002 Requirement of Original. The testimony is offered to prove the contents of the referenced letter. To prove the content in the writing, Defendants are required to use the original document, not the proferred testimony. Attorney even notes on the record to reporter that "Just one second. Are you getting all this? Because he is reading pretty fast. Do you have a copy of the document to help review the transcript?" Oracle objects to the deposition testimony at: 228:19-228:23. FRE 802 - Hearsay; FRE 402 - Relevance; FRE 403 - Unduly Prejduicial. Deponent is testifying about alleged out of court statements made by others at an alleged meeting, and those statements are offered for the truth of the matter asserted. The statements allegedly made by former PeopleSoft employees are not party admission as they were made prior to Oracle's

Defendants' Response

Court's Ruling

Oracle objects to the deposition testimony at: 233:4-233:10.

Oracle objects to the deposition testimony at: 233:19-233:25; 234:9-234:23;

27

Testimony

Oracle's Objections Defendants' Response acquisition of the company, and at a time when PeopleSoft's interests were adverse to Oracle's. Even if true, the statements are also not relevant because they do not bear on any issues in this case, including whether Defendants are liable, or whether Defendants causes customers to leave. Finally, it would unduly prejudicial to admit unsubstantiated deposition testimony regarding accusations of market-fixing.

Court's Ruling

FRE 802 - Hearsay. Deponent is testifying about a previous statement he allegedly made in 2002, and that statement is being offered for the truth of the matter asserted.

FRE 1002 Requirement of Original. The testimony is offered to prove the contents of the referenced letter. To prove the content in the writing, Defendants are required to use the original document, not the proferred testimony. Attorney

28

Testimony

Oracle's Objections even notes on the record to reporter that "Just one second. Are you getting all this? Because he is reading pretty fast. Do you have a copy of the document to help review the transcript?" Oracle objects to the deposition testimony at: 228:19-228:23. FRE 1002 Requirement of Original. The testimony is offered to prove the contents of the referenced letter. To prove the content in the writing, Defendants are required to use the original document, not the preferred testimony.

Defendants' Response

Court's Ruling

Ravin, Seth Oracle objects to the deposition testimony at: 236:3-236:8; 236:25-237:5; 237:9-12; 237:18-238:20; 239:20-240:4; 240:8-240:15; 240:20-241:2.

The document and testimony at issue was previously the subject of Oracle's MIL #6 that was denied by the Court. See Dkt. 914 ¶ 6. For the same reasons the Court Denied Oracle's MIL #6, the Court should overrule these objections. Rule 1002: The testimony is not being offered in lieu of the document in an attempt to prove up the contents of the document itself. Rather, it is being offered to demonstrate the existence of the document and the declarant's understanding regarding the document. As allowed by the Court in its prior ruling on Oracle's MIL #6, the document itself will be offered as the best evidence of the contents of the document at trial. Hearsay: The testimony is not offered to show the truth of what was said. Rather, it is offered to show the deponent's state of mind. As such, it is either not hearsay under Rule 801(c), or qualifies as an exception under Rule 803(3) as the state of mind of TomorrowNow and its former employees is at issue in this case with regard to punitive damages. Lack of foundation: The objection is waived as no objection was made during

Oracle objects to the deposition testimony at: 238:23-239:7

Oracle objects to the deposition testimony at: 241:6-241:11.

FRE 802 - Hearsay Deponent is testifying to his prior statement, and an out of court response, both of which are out of court statements offered for the truth of the matter asserted. FRE 602 - Lack of Foundation Deponent has no basis for knowing whether anyone at PeopleSoft may have contacted anyone at TomorrowNow,

29

Testimony

Oracle's Objections including Mr. N