Oracle Corporation et al v. SAP AG et al

Filing 975

MOTION Enforce Orders Defendants' Motion to Enforce Orders Excluding Evidence and Argument of Lost Cross-Sell and Up-Sell Opportunities and Goodwill 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. 975 Att. 2

EXHIBIT A

Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE ORACLE CORPORATION, ET AL. ) ) PLAINTIFFS, ) ) VS. ) ) SAP AG, ET AL., ) ) DEFENDANTS. ) ____________________________)

CERTIFIED COPY
NO. C 07-01658 PJH JURY TRIAL VOLUME 2 PAGES 297 - 479 OAKLAND, CALIFORNIA TUESDAY, NOVEMBER 2, 2010

(PAGES 297 THROUGH 312 ARE UNDER SEAL AND BOUND SEPARATELY)

TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BY: BINGHAM MUCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4607 ZACHARY J. ALINDER, HOLLY A. HOUSE, GEOFFREY M. HOWARD, DONN P. PICKETT, ATTORNEYS AT LAW BOIES, SCHILLER & FLEXNER LLP 1999 HARRISON STREET, SUITE 900 OAKLAND, CALIFORNIA 94612 STEVEN C. HOLTZMAN, ATTORNEY AT LAW

BY:

(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY:

RAYNEE H. MERCADO, CSR NO. 8258

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

AGO.

346 OPENING STATEMENT \ HOWARD AND IN IT, NUMBER -- STIPULATION NO. 1, TN STIPULATES TO THEREFORE STIPULATES TO ALL

ALL LIABILITY ON ALL CLAIMS.

LIABILITY ON ORACLE'S CLAIMS FOR COPYRIGHT INFRINGEMENT, VIOLATIONS OF THE FEDERAL COMPUTER FRAUD AND ABUSE ACT. RELATES TO THE DOWNLOADING. AND FRAUD ACT. THAT

CALIFORNIA'S COMPUTER DATA ACCESS

THAT'S A PROVISION OF THE CALIFORNIA PENAL CODE, BREACH OF CONTRACT, INTENTIONAL

ALSO RELATES TO DOWNLOADING.

INTERFERENCE WITH CUSTOMER RELATIONSHIPS, AND A SERIES OF OTHER CLAIMS. SAP STIPULATES TO VICARIOUS LIABILITY ON THE COPYRIGHT CLAIMS AGAINST TOMORROWNOW IN THEIR ENTIRETY. IN

ADDITION TO VICARIOUS LIABILITY, THEY'VE ALSO NOW STIPULATED TO CONTRIBUTORY LIABILITY. THESE ARE NOW ALSO ORDERS OF THE

COURT -- AND YOU'LL SEE THE COURT'S STAMP AT THE END OF DOCUMENTS IN YOUR BINDER. SO --

(DEMONSTRATIVE PUBLISHED TO JURY.) MR. HOWARD: THE GOOD NEWS IS THAT IF THERE WEREN'T

THESE STIPULATIONS, WE WOULD HAVE TO TAKE A LOT MORE TIME TO GO THROUGH ALL OF THE TECHNICAL LANGUAGE AND ALL OF THE TECHNOLOGY INVOLVED, AND WE'D HAVE TO TAKE A FAIR AMOUNT OF TIME TO EXPLAIN THAT. AND YOU WILL STILL HEAR SOME OF THESE TERMS AT THE EDGES,

BUT WITH LIABILITY BEHIND US, REALLY WHAT'S REQUIRED NOW IS FOR THE JURY TO BRING ITS COMMON SENSE TO THINK ABOUT NOW, WHAT SHOULD THE DAMAGES BE FOR THAT LIABILITY. AND SO WHAT I'D LIKE TO DO NOW IS GO THROUGH THE
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

347 OPENING STATEMENT \ HOWARD EVIDENCE THAT WE THINK WE'LL SHOW AND THAT WILL BE CONSIDERED IN CALCULATING WHAT THOSE DAMAGES ARE. (DEMONSTRATIVE PUBLISHED TO JURY.) MR. HOWARD: IF YOU THINK ABOUT THE EVENTS, JANUARY AND AS THE EVIDENCE WILL SHOW,

OF 2005, ORACLE BUYS PEOPLESOFT.

SAP DECIDES TO BUY TOMORROWNOW KNOWING THAT IT'S INFRINGING. IF THERE HAD BEEN -- IF THERE HAD BEEN A NEGOTIATION, THE WAY THE SOFTWARE INDUSTRY WORKS -- YOU'LL HEAR EVIDENCE ABOUT THIS -- YOU NEGOTIATE A LICENSE. YOU DO IT IN FAIR COMPETITION. I MEAN, THAT'S THE WAY

YOU SIT DOWN ACROSS THE TABLE

FROM EACH OTHER, LOOK EACH OTHER IN THE EYE, AND SAY, "ALL RIGHT, I'D LIKE TO USE YOUR SOFTWARE." "GREAT. RIGHT? HOW MUCH?" YOU NEGOTIATE A LICENSE TO IT.

IN ORDER TO HAVE BEEN LEGALLY ENTITLED TO DO WHAT THEY DID, SAP AND TOMORROWNOW NEEDED A LICENSE FROM ORACLE. THEY NEVER ASKED FOR THAT LICENSE, AND THE EVIDENCE WILL SHOW THAT THEY NEVER PAID FOR THEIR LICENSE. HAPPENED. THE NEGOTIATION NEVER

SO THE MEASURE -- SO IN THINKING ABOUT WHAT -- WHAT

THAT LICENSE SHOULD HAVE BEEN, WE THINK ABOUT WHAT THE FAIR MARKET VALUE WAS AT THE TIME THAT THAT HAPPENED AND IN AND AROUND THAT TIME. THE FAIR MARKET VALUE IS A CONCEPT THAT I THINK EVERYBODY, YOU KNOW, UNDERSTANDS. IT APPLIES TO A HOUSE. YOU

BUY A HOUSE, THERE'S A MARKET VALUE.

SOMETIMES YOU NEGOTIATE.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

348 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OPENING STATEMENT \ HOWARD YOU LOOK AT WHAT THE MARKET IS. BUY A CAR, THERE'S A MARKET VALUE FOR THAT. THAT LICENSE. AND THERE ARE SOME FACTORS THAT YOU LOOK AT IN DECIDING WHAT THAT VALUE IS. EXPECT AT THE TIME? SITTING THERE? PROPERTY? HOW IMPORTANT AND VALUABLE DID SAP SAME WITH SOFTWARE. THERE'S A MARKET VALUE FOR

WHAT DID IT EXPECT WHEN IT WOULD HAVE BEEN

WHAT DID IT EXPECT TO GET FROM THE COPYRIGHTED

AND WHAT WOULD ORACLE HAVE EXPECTED TO GET IF IT KNEW

AT THE TIME, A FEW DAYS AFTER IT HAD SPENT $11 BILLION, THAT IT WAS GOING TO BE FACING THE DOMINANT PLAYER IN THE SOFTWARE MARKET USING THE IP THAT IT JUST BOUGHT? WHEN SAP BOUGHT TOMORROWNOW, ITS BOARD OF DIRECTORS CONSIDERED SOME THINGS. THE EVIDENCE WILL SHOW THAT THEY

CONSIDERED THE ENORMOUS BENEFITS THAT SAP WOULD GET AND THE ENORMOUS HARM THAT THEY COULD CAUSE ORACLE. AND I'M GOING TO SHOW YOU SAP'S OWN DOCUMENTS. 'CAUSE YOU'LL HEAR FROM WITNESSES, AND THEY'LL SAY WHAT THEY SAY, BUT WE HAVE WHAT THEY WROTE AT THE TIME. THEY -- WE HAVE

WHAT THEY WROTE DOWN AS THEIR EXPECTATIONS FOR THEMSELVES AND AS THEIR EXPECTATIONS FOR HOW THEY WOULD HARM ORACLE. AND THOSE DOCUMENTS SHOW THAT THEY EXPECTED BOTH OF THOSE THINGS, THE BENEFIT TO THEM AND THE HARM TO ORACLE, TO BE IN THE BILLIONS OF DOLLARS. ORACLE'S OWN DOCUMENTS ALSO SHOW THAT THE VALUE THAT THEY PUT ON THOSE COPYRIGHTS WAS IN THE BILLIONS OF DOLLARS.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

349 OPENING STATEMENT \ HOWARD AND WE HAVE TO CONSIDER -- WE HAVE TO CONSIDER ALSO IN TAKING ACCOUNT OF VALUE -- YOU HAVE TO CONSIDER THE RISK THAT THE -- SAP BOARD OF DIRECTORS -- THE EVIDENCE WILL SHOW THE RISK THAT THEY KNEW THAT THEY WERE TAKING, THE RISK OF KNOWINGLY INFRINGING ORACLE'S COPYRIGHTS. FOR A COMPANY LIKE SAP, TO TAKE THE RISK OF BEING HERE IN COURT TODAY, HAVING NOW ADMITTED COPYRIGHT INFRINGEMENT, THINK THE EVIDENCE WILL SHOW THAT THAT THING, THAT IP MUST HAVE BEEN VERY VALUABLE TO THEM. WHY? WHY WAS IT SO VALUABLE?

(DEMONSTRATIVE PUBLISHED TO JURY.) MR. HOWARD: BOARD OF DIRECTORS. THIS DOCUMENT WAS APPROVED BY THE SAP

ONE DAY AFTER THEY ANNOUNCED THE THE GOAL THEY SAY WHAT THEIR GOAL

ACQUISITION OF TOMORROWNOW. IS.

THEY WANT TO CONVERT APPROXIMATELY 50 PERCENT OF THE SO THAT ALMOST

PEOPLESOFT AND JD EDWARDS' CUSTOMERS TO SAP.

10,000 CUSTOMERS THAT ORACLE WAS GETTING IN ITS $11 BILLION TRANSACTION FOR PEOPLESOFT, THE IDEA WAS LET'S -- WELL, EVIDENCE WILL SHOW THAT THEY PLANNED TO TAKE TOMORROWNOW, OFFER THE SUPPORT TO THOSE CUSTOMERS, BUT NOW TOMORROWNOW IS SAP, SO THE CUSTOMERS ARE SAP CUSTOMERS, AND THEN WE'LL SELL THEM SAP SOFTWARE. THEY GET THE BENEFIT OF THE CUSTOMERS, ORACLE LOSES THE BENEFIT OF THE CUSTOMER. AND THAT THREE -- THREE GOALS: SHRINK

DISRUPT ORACLE'S ABILITY TO PAY FOR THE ACQUISITION.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

479

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WEDNESDAY, NOVEMBER 3, 2010 ___________________________________ DIANE E. SKILLMAN, CSR, RPR, FCRR ___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR CERTIFICATE OF REPORTER WE, RAYNEE H. MERCADO AND DIANE E. SKILLMAN, OFFICIAL REPORTERS FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C07-01658PJH, ORACLE USA, INC., ET AL. V. SAP AG, ET AL., WERE REPORTED BY US, CERTIFIED SHORTHAND REPORTERS, AND WERE THEREAFTER TRANSCRIBED UNDER OUR DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY US AT THE TIME OF FILING. THE VALIDITY OF THE REPORTERS' CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE.

/s/

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]