Oracle Corporation et al v. SAP AG et al

Filing 974

MOTION Exclude Evidence Defendants' Motion to Exclude Evidence Related Solely to Contributory Infringement filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Froyd, Jane) (Filed on 11/5/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 974 Att. 2

EXHIBIT A

Dockets.Justia.com

No.

Date

Exhibit No.

Description of Exhibit From Exhibit List

Objection (Party and Brief Statement)

Response (Party and Brief Statement)

1

11/4/2010 PTX 0009

FRE 401-403 - Exhibit is not relevant, unfairly prejudicial, confusing and a waste of time, as it is only relevant to contributory infringement (not damages) and goes beyond what is necessary to Email from James Mackey to Arlen provide appropriate context pursuant to Shenkman re TomorrowNow meeting the Court's October 28, 2010 Minute next week Order (ECF No. 952) FRE 401-403 - Exhibit is not relevant, unfairly prejudicial, confusing and a waste of time, 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) Email from John Zepecki to Arlen Shenkman, Torsten Geers, James Mackey re TN Overview

This document is probative of the value Defendants placed on Oracle's intellectual property prior to and at the time of the acquisition of TomorrowNow (and the hypothetical license negotiation), as it goes to Defendants' awareness of the infringement and the risk of liability. See, e.g., Georgia-Pacific , 318 F. Supp. 1116, 1123, 1131 (S.D.N.Y. 1970) (decision to "assume substantial risks and costs in order to make and sell" the infringing product indicates infringer "would have been willing to pay a substantial royalty"); Gyromat Corp. , 735 F.2d 549, 552 (Fed. Cir. 1984) ("decision to risk infringement liability indicates the value it placed on the patented features"); Pentech , 931 F. Supp. 1167, 1175 (S.D.N.Y. 1996) ("the fact that [the defendant] would risk the expense of a law suit implies the product is valuable"). The probative value as to damages outweighs any prejudice to Defendants. Moreover, the testimony appropriately provides context for Oracle's claims, as it relates to basic facts the jury is entitled to hear in order to understand to what conduct t

2

11/4/2010 PTX 0014

See # 1 above, incorporated by reference here. Specifically, this document is relevant to SAP's knowledge of the potential risk of litigation by Oracle at the time of the TomorrowNow acquisition re risk of legal liability needing to be called out more explicitly in Board presentation.

Page 1

No.

Date

Exhibit No.
FRE 401-403 - Exhibit is not relevant, unfairly prejudicial, confusing and a waste of time, 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) FRE 401-403 - Exhibit is not relevant, unfairly prejudicial, confusing and a waste of time, 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) FRE 401-403 - Exhibit is not relevant, unfairly prejudicial, confusing and a waste of time, 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) Defendants' Motion in Limine No. 9 -reference to EBS and Hyperion

Description of Exhibit From Exhibit List

Objection (Party and Brief Statement)

Response (Party and Brief Statement)

3

11/4/2010 PTX 0035

Email from Thomas Ziemen to Lars Lamade re Risk Management for TN?!?

See # 1 above, incorporated by reference here. Specifically, this document is relevant to SAP's knowledge of the potential risk of infringement during its risk management process: "I think we have a general Portfolio Risk with TN, since the whole business model is based on a marginal legal area."

4

11/4/2010 PTX 0108

Email from John Zepecki to Arlen Shenkman re TN meeting Tuesday

See # 1 above, incorporated by reference here. Specifically, this document is relevant to SAP's knowledge of the potential risk of infringement during its due dilligence process.

5

11/4/2010 PTX 0226

Email from Florence Henemann to Florence Henemann re TNow info/guideline update Mandy Wheeler appointment reminder re updated with Thomas FRE 1006 Summary - Top 10 Environments Used to Support Multiple Customers (Referenced on page 91 of Appendices to Mandia Report - Review of SAP TN Supplemented on 5/12/10)

6

11/4/2010 PTX 0430

Oracle withdraws this exhibit. Oracle agrees to redact references to EBS and Hyperion and has sent an exhibit with proposed redactions.

7

11/4/2010 PTX 1723

FRE 703; FRE 403; Hearsay; Improper summary under FRE 1006; No foundation Oracle withdraws this exhibit.

Page 2

No.

Date

Exhibit No.

Description of Exhibit From Exhibit List

Objection (Party and Brief Statement)

Response (Party and Brief Statement)

8

11/4/2010 PTX 1792

SAP-TN CD binders and other media in custody of Jones Day

Overly broad, imprecise, and unduly burdensome; To the extent Oracle intends to offer any specific media or data as an exhibit, Defendants request immediate identification of the media and reserve all rights associated with Please identify specific media to which such identification and exchang you object.

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