Oracle Corporation et al v. SAP AG et al

Filing 958

OBJECTIONS to Plaintiffs' Deposition Designations Related To Contributory Copyright Infringement by SAP AG, SAP America Inc, Tomorrownow Inc. (Froyd, Jane) (Filed on 11/1/2010) Modified on 11/2/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 958

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

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DEFS.' OBJECTIONS TO PLS.' DEPOSITION DESIGNATIONS Case No. 07-CV-1658 PJH (EDL)

Dockets.Justia.com

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Attached as Exhibit "A" is a chart of Defendants' objections to Plaintiffs' deposition designations, which includes the disputed testimony and a brief statement of the basis for each of Defendants' objections. Defendants bring these objections in light of the Court's October 28, 2010 Minute Order (ECF No. 952), prohibiting all evidence on contributory copyright infringement unless admissible on the issue of damages or for context. Plaintiffs recently disclosed that they intend to play Shai Agassi deposition designations on Tuesday, November 2, and did not withdraw testimony for him relating solely to contributory infringement. Defendants notified Plaintiffs of their objections and Plaintiff did not withdraw the associated testimony. Defendants believe that the following testimony and objections should provide guidance to the parties relating to the contributory infringement issues and the future playing of deposition designations. The disputed designations for Shai Agassi relate solely to contributory copyright infringement and thus should be excluded. Further, the disputed designations for John Ritchie relate to designations Plaintiffs sent at 9:01 p.m. October 31, 2010. Defendants object to the new John Ritchie designations based on Federal Rule of Evidence 403, as the probative value of these designations is far outweighed by the prejudicial effect.

Dated: November 1, 2010

JONES DAY

By: /s/ Scott W. Cowan Scott W. Cowan Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

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DEFS.' OBJECTIONS TO PLS.' DEPOSITION DESIGNATIONS Case No. 07-CV-1658 PJH (EDL)

EXHIBIT A

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Defendants' Objection Agassi, Shai 01/05/09 53:14 ­ 53:17 Mr. Agassi was on the SAP AG Executive Board at the Q. Didn't you acquire time of the TomorrowNow TomorrowNow with the acquisition. The testimony is knowledge that there was a not relevant under FRE 401risk that Oracle would sue? 402 and is unfairly prejudicial A. Yes. under FRE 403, as it is only relevant to contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952. 55:13 ­ 55:15 The testimony is not relevant under FRE 401-402 and is Q. Do you know the board unfairly prejudicial under FRE issued a directive to 403, as it is only relevant to TomorrowNow to stop that contributory infringement (not practice? damages) and goes beyond A. I might have. I don't what is necessary to provide know. appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952. 93:25 ­ 94:03 & 94:09 ­ 94:11 The testimony is not relevant under FRE 401-402 and is Q. Did you have any unfairly prejudicial under FRE concerns at any time with 403, as it is only relevant to the legality of contributory infringement (not TomorrowNow's damages) and goes beyond operations? what is necessary to provide A. Yes. Q. When did they first arise? appropriate context pursuant to the Court's October 28, ****** THE WITNESS: It was one 2010 Minute Order. ECF No. 952. of the questions that we've asked from the first minute is, was this legal or not? 97:04 ­ 97:09 The testimony is not relevant under FRE 401-402 and is Q. And so you deny ever unfairly prejudicial under FRE learning that TomorrowNow downloaded 403, as it is only relevant to

Testimony

Court's Ruling

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Testimony copies of software to its own servers? A. I don't know. I mean, you -- I don't recall today if you're -- you know, I'm -- I may or may not. I don't know. 104:18 ­ 104:22 Q. Do you recall that the Executive Board of SAP in which you were a member issued a directive to TomorrowNow to remove PeopleSoft software from its systems? A. No.

Defendants' Objection contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952. The testimony is not relevant under FRE 401-402 and is unfairly prejudicial under FRE 403, as it is only relevant to contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952. The testimony is not relevant 201:13 ­ 201:14 & 202:08 ­ under FRE 401-402 and is 202:17 unfairly prejudicial under FRE Q. Okay. Let me ask you to 403, as it is only relevant to look at contributory infringement (not Exhibit 212, please. damages) and goes beyond ****** what is necessary to provide Q. Did you tell Mr. Word what the role of Mr. Zepecki appropriate context pursuant and Mr. Geers was supposed to the Court's October 28, 2010 Minute Order. ECF No. to be? A. Yeah. John is our bullshit 952. detector. Q. Was that your phrase? A. No. But it's a good phrase. Q. What does it mean? A. It means that if these -- if TomorrowNow would tell things that are not credible, John has better experience than we do in understanding that material. 218:09 ­ 218:19; 218:20 ­ The testimony is not relevant 218:21; 218:25 ­ 219:04; under FRE 401-402 and is 219:09 ­ 219:22 unfairly prejudicial under FRE 403, as it is only relevant to Q. The second page of contributory infringement (not Exhibit 707 includes an

Court's Ruling

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Testimony analysis by Mr. Zepecki of the strengths, opportunities of TomorrowNow, and the weaknesses, threats. Do you see that? A. Yeah. Q. And under strengths, opportunities, the last bullet point states: Oracle's legal challenges to TomorrowNow's ability to provide derivative works/support will get customers, quote, "in the middle," close quote, no-win situation for Oracle. ****** Is this the first time you'd heard that? A. No. ****** Q. What did you understand Mr. Zepecki to mean? A. That Oracle -- if Oracle went after TomorrowNow, it would -- it would actually alienate customers. ****** Q. Was it a factor in favor of supporting the acquisition? A. Yes. Q. Under Weaknesses/Threats, about halfway down there's a bullet point that states: The access rights to the PeopleSoft software is very likely to be challenged by Oracle. SAP has to determine how much of a liability a legal challenge would be and factor it into the deal. That's not the first time used heard that at this

Defendants' Objection damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952.

Court's Ruling

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Testimony point. Correct? A. John has -- John has expressed that a few times. 242:01 ­ 242:04; 242:10 ­ 242:20; 242:22 ­ 242:22 Q. Let me show you what's been marked as Exhibit 221. This is an email from you to Mr. Mackey dated Janary 6, 2005. ***** A. But in any event, what I want to ask you about is the next sentence: Should not be an issue to do the stock deal since there is no IP to transfer to Germany, and we want a separate identity to shield liability. You did know by now that there was no IP being acquired? A. Yes. Q. So you knew that TomorrowNow had no independent right to PeopleSoft intellectual property? ***** THE WITNESS: I assumed - I assumed that. 255:06 ­ 255:09 Q. Did anyone point out concerns that hadn't been raised in the business case? A. No. The only concerning that was brought up was legal.

Defendants' Objection

Court's Ruling

The testimony is not relevant under FRE 401-402 and is unfairly prejudicial under FRE 403, as it is only relevant to contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952.

The testimony is not relevant under FRE 401-402 and is unfairly prejudicial under FRE 403, as it is only relevant to contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952. 358:21 ­ 358:22; 360:13 ­ The testimony is not relevant 360:21 under FRE 401-402 and is Q. Let me show you an exhibit unfairly prejudicial under FRE that has been marked 720. 403, as it is only relevant to

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Testimony ***** Q. In the top of the page, near the top of the page, you ask the participants to stop the thread and communicate over the phone. Why is that? A. It's a general rule that if you start these overexpanding emails, you're better off getting on the phone and hashing it out. Q. It doesn't have anything to do with the sensitivity of the topic? A. It could be. 366:15 ­ 366:18 MR. PICKETT: Q. Did Mr. Mackey tell you that TomorrowNow is a separate entity due to the threat of litigation? A. In this email, he says so.

Defendants' Objection contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952.

Court's Ruling

The testimony is not relevant under FRE 401-402 and is unfairly prejudicial under FRE 403, as it is only relevant to contributory infringement (not damages) and goes beyond what is necessary to provide appropriate context pursuant to the Court's October 28, 2010 Minute Order. ECF No. 952. Ritchie, John 12/02/10 The bolded testimony is not 180:20-23; 181:2-5 relevant under FRE 401-402 Q. Do you know what people did after things got down into and unfairly prejudicial under FRE 403. The witness was a the hard-coded download path? hostile former TomorrowNow A. No. I already said I didn't. employee at the time of his I said they could rename it deposition. The only relevance easily and copy it and move it. this could have is towards ***** contributory infringement; Q. Correct. therefore, under the Court's A. I didn't mean ­ afterward Minute Order (ECF No. 952), the testimony is not relevant. they could do whatever the Additionally, the witness want with it. They could already testified that he did download it to a flash drive not know what "people did and take it to SAP if they after things got down into the wanted. hard-coded download path" (see the underlined text). To

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Testimony

Defendants' Objection allow the witness to gratuitously say, after clearly stating that he did not know, that "[t]hey could download it to a flash drive and take it to SAP if they wanted" is unfairly prejudicial and the prejudicial effect outweighs any probative value.

Court's Ruling

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