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. 3

EXHIBIT B

Dockets.Justia.com

UNITED NORTHERN BEFORE THE HONORABLE

STATES

DISTRICT

COURT

DISTRICT

OF CALIFORNIA JUDGE

PHYLLIS
ET

HAMILTON

ORACLE CORPORATION

AL NO
0701658
PJH

PLAINTIFFS

VS
SAP

Certified
ET

Copy

AG

AL
DEFENDANTS

PAGES

124

_____________________________

CALIFORNIA OAKLAND WEDNESDAY SEPTEMBER

30

2010

TRANSCRIPT

OF PROCEEDINGS

APPEARANCES
FOR

PLAINTIFFS

BOlES
1999

SCHILLER

OAKLAND

HARRISON CALIFORNIA

FLEXNER LLP STREET SUITE 900
94612 ATTORNEY LLP CENTER 94111-4607 AT LAW

BY

STEVEN

HOLTZMAN

BINGHAM MCCUTCHEN THREE EMBARCADERO

BY

SAN FRANCISCO CALIFORNIA ZACHARY ALINDER ANTHONY FALZONE HOLLY HOUSE GEOFFREY HOWARD DONN PICKETT ATTORNEYS

AT

LAW

FOR

DEFENDANTS

JONES

DAY

SILICON VALLEY OFFICE 1755 EMBARCADERO ROAD PALO ALTO CALIFORNIA

BY

THARAN

GREGORY

LANIER

94303 ATTORNEY

AT

LAW

APPEARANCES CONTINUED
REPORTED

NEXT CSR

PAGE

BY

RAYNEE

MERCADO

NO

8258

RA YNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

49

BE

CHARACTERIZED
ASKING THEM

OF

COURSE

THATS
IN

PRECISELY
-- AT

WHAT
THE

JUDGE

LAPORTE

WAS

ABOUT
SOME

INDEED
OF THE

THIS

TIME OF THE CONCERNED WAS BUT THEN

SANCTIONS ABOUT WAS

MOTION
THIS THAT
BUT TO

EVIDENCE OF

THAT

WE

WERE
HE

VERY

TESTIMONY

MR

ELLISON BEING

THAT

CONCERNED THEY

ORACLES REPUTATION DONT WORRY
COME
IN -WE

WAS
BE

HARMED

SAID

WONT

QUANTIFYING HOUR AND
SAY

THAT
THAT
--

NOW

AT NOT

THIS GOING NOT

LATE
TO

ITS

--

ITS

JUST YOUR

IM

USE

THE

ADJECTIVES
TO

IM
AND THEN

THINKING
10
11

OF
NOT

HONOR
TO DO

ITS THIS
AND
BUT

APPROPRIATE
ON WE

COME

IN

SAY

WERE

GOING TURN

NOTHING

GOOD ARE

WILL
GOING

AND
TO

MONTHS ABOUT
WE TO

LATER HARM
TO

AROUND

SAY WELL
MAKE THIS

TESTIFY THAT GOING JURY

12

GOOD WILL NUMBER

TECHNICAL
BUT

DISTINCTION ELSE
ON IS THE

13
14

WONT
HAPPEN
THEIR

HANG

ON

IT

RIGHT GOING

HERE
TO

WHAT IMPACT

OF COURSE ASSESSMENT WOULD

ITS

HAVE

15 16
17

AND

OF DAMAGES ALSO NOTE LIKE THAT THEIR EXPERT

HASNT

QUANTIFIED
IT

IT

THERE
BE

ISNT
ALLOWED

--

ITS

FIGHTING

AIR

YOUR

HONOR

18

CANNOT

19 20 21 22 23
24

MR
OF

PICKETT
NOTHING THING WAY
AS WE

JUST
IN THE

COUPLE OF QUICK RECORD
BE

POINTS

FIRST RULED
IN SHE

ALL

IVE

SEEN

THAT

JUDGE

LAPORTE

THAT
SOME

EVERY

SINGLE BROAD
ON

THAT
TO

COULD

CONSIDERED WAS
OUT

EVIDENCE

BROAD
RULED

GOOD WILL MADE
IS

OF THE
AS TO

CASE THAT
OF

NEVER

THAT
THEY

NEVER THIS YOU

STATEMENT LATE

NO
YOU READ

SAY IF

HOUR

FIRST YOU

ALL
IT IN

IF

25

-- GO BACK

AND

COULD

-- MAYBE

HAVE

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

50

MIND

BETTER
IT

THAN

ME
SAY

BUT

IF

YOU

READ ABOUT
TO

THEIR

MOTION

IN IT

LIMINE TALKS
IS

NO

DOESNT

ANYTHING DAMAGES

REPUTATION

ABOUT

QUANTIFYING

DAMAGES

AND

GOOD

WILL

WHICH

MOOT

ISSUE

AS

SAY
THE

COURT
PICKETT

YEAH
AND THEY HAVE TAKEN
IS

MR
DEPOSITION
REPORTS AND AND
SO TO

MR ELLISONS
TO THE

THEYVE ASKED HIM ABOUT
ON AND
GET

REACTION
SO

PRESS

WHAT

IMPACT

THAT

HAS

THEYVE HAD AN
LATE THIS
TO BE

OPPORTUNITY
10

INTO

THIS IT
TRIAL

THERES
AND
BUT SO

NOTHING
IF WE --

HOUR ABOUT
IS NOT

THIS
GOING

THEY
TO BE

KNOW BIG

ALL

ABOUT
IN

11

DEAL

ITS

GOING

LITTLE

12

PIECE

THINK
AND

OF WHEN WITH
IT
IS

MR ELLISONS
HE

TESTIMONY
AND YOU
IT --

13

COMES

ON

YOU CAN
IS

SEE

IT

COME THAT

ON

IF

YOU

14

HAVE

PROBLEM
IT IS --

IT
THE

THINK

RULE

AT

TIME ABOUT THEY
--

15 16
17

IT
AND

TRUTH
SAP DID

WHAT

HAPPENED
ALL KINDS

THEY

CLEARLY AT
THE

-- CLEARLY

THERES

OF INTERIM

DOCUMENTS TOMORROWNOW

TIME
THE

THEY

THIS

THEY

ACQUIRED

18

FOR

VERY

PURPOSE

OF DAMAGING

ORACLES

19 20 21 22 23
24

REPUTATION

THERES IN
THE

ALL

KINDS

OF

DOCUMENTS

AND

SO

THOSE

ALL

COME

COURT
PICKETT

OKAY
AND ALL THEN YOU HAVE

MR
THE

MR

ELLISON

SAYING

--

COURT

RIGHT
OR AND

UNDERSTAND ADOPTED JUDGE

YOUR RESPECTIVE

25

POSITIONS

WHEN

AFFIRMED

LAPORTES

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

51

ORDER

IT

WAS NOT

CERTAINLY ONLY
TO

MY INTENTION THERE CLEARLY
BUT

THAT GOING

THERE
TO BE

WOULD

BE

NO

EVIDENCE
DAMAGES EVIDENCE

WAS

NO CLAIM
BE NO

OF

FOR

HARM

GOOD

WILL

THERE

WOULD

ALSO

OF GOOD

WILL
THIS DISTINCTION PROBATIVE FOR THAT VALUE
THE

UNDERSTAND

YOURE MAKING
OF THAT KIND

BUT

DONT

THINK

THAT

YOUR

-- THE THE

SUBSTANTIALLY THAT HEAR
10

OUTWEIGHS
HAS -- HAS -- EVEN

POTENTIAL

OF PREJUDICE JURY
TO TO

COUNSEL ALL

JUST
IF

DESCRIBED

MEAN
IF

FOR

OF THIS

ITS
TO

MINIMAL
OBVIOUSLY
TO

ITS

GOING

COME

FROM

MR ELLISON
BUT

ITS

GOING AS
TO

HAVE

SOME
IN

IMPACT
THE

11

EVIDENCE NOT

HARM
TO

REPUTATION
TO

12

MARKETPLACE
WITHOUT WITHOUT
-IF

THEYRE
THEY
TO

GOING

BE ABLE BY TO

HEAR

THAT PRESENTATION

13
14

ARE
PUT

PERSUADED SOME THINK GIVEN VALUE

YOUR

OVERALL EVEN

WANTING

THAT

IN

VERY
TO

KIND ALLOW
-IT

15 16
17

OF UNCONSCIOUS THAT WAS

WAY

ITS
THAT
IS

VERY VERY
THE

DANGEROUS
IT

IN
NOT

PARTICULARLY
-IT

REASON

WAS

ALLOWED

WAS

DISALLOWED

BECAUSE

THERE

WASNT ADEQUATE
BEEN ADEQUATE

18

DISCLOSURE DISCOVERY

AND

THERE

WASNT

-- OBVIOUSLY

HASNT

19 20 21 22 23
24

OF THIS
AS

ISSUE

UNDERSTAND
ON IT

IT

THE IT

EXPERTS

ARENT

--

ARENT
IN

EVEN ANY

GOING

TO IS

TESTIFY THAT

BECAUSE
50 TO

HASNT WONT

BEEN HAVE

EVALUATED ANY

WAY

CORRECT
WHAT

THE
DO

JURY

DIRECTION

WHATSOEVER

ABOUT

WITH

THAT
BUT THE

PICKETT
REPUTATION WAS

THATS TRUE
WHAT

DAMAGE WAS

TO THE

25

DISCLOSED

WASNT

DISCLOSED

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

52

UP-SELL/CROSS-SELL FOR YOUR

OPPORTUNITIES
SO IT

-- AT

LEAST

THATS

THE

BASIS

HONORS ORDER
THE

WAS

DISCLOSED
ABOUT

COURT
IT

ILL
BUT
BUT

THINK

IT

ITS IT

NOT

LIKELY GIVE HER

IM

GOING ORDER
IT AS

TO

ALLOW

IN

ILL

THINK

ABOUT

ILL

ANOTHER

READ

MY UNDERSTANDING WAS
TO

AT

THE

TIME WAS

THAT

WOULD
THE

-- THAT

MY INTENT

PRECLUDE
IT BE

ALL

EVIDENCE
--

AS WELL

DAMAGES

ON

IT

BUT

ILL
IT

GIVE MAY

ANOTHER
-IT

MR
OR RELEVANT
10

PICKETT
OTHER

AND

MAY

BE ADMISSIBLE

FOR THE

PURPOSES
WHAT MAY
BE --

COURT

11

SIMULTANEOUS

COLLOQUY
GAME OF WHACK-A-MOLE THAT
SAP

12

MR MCDONELL

THIS
THE

IS

13
14

MR
ORACLE
AND

PICKETT

FACT ONE TO

INTENDED THINGS

TO

ATTACK

ORACLE

SAYS YEAH

OF THE

THEY ABOUT

DID
WHAT

THEY THEY

15

SUCCEEDED
WERE DOING

THATS BACKGROUND
WITH THE RESPECT
TO

THEIR

KNOWLEDGE

16
17

PURCHASING

TOMORROWNOW
WHAT

COURT NOW

DONT UNDERSTAND
SAYING
--

YOURE

-- WHAT

18

YOURE SAYING YOURE SAYING

YOURE

DONT

UNDERSTAND

WHAT

19 20 21 22 23
24

MR
THE OTHER PURPOSES

PICKETT

PART WHEN

OF -- LET
SAY IT

ME

TRY
BE

AGAIN THEN
ADMISSIBLE
FOR

COURT WHATS

YOU

MAY

THE

IT
THAT ORACLE
FELT ITS

MR
DAMAGED
IN THE

PICKETT

REPUTATION

WAS

MARKETPLACE

25

THE

COURT

OKAY

ALL

RIGHT

ILL

BE

VERY

CLEAR

IN

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

53

THE

ORDER

AS TO FOR ALL

WHETHER
-- ANY

OR NOT

IM

GOING

TO

PERMIT

THAT

KIND

OF

TESTIMONY

ANY

PURPOSE
TO THE

RIGHT

TURNING WE

SECOND

ONE

-- WE TO

NEED

TO

MOVE

THINGS

ALONG
THAT

CAUSE
IS THE

HAVE

LOT OF THINGS

GET

THROUGH

-- AND

LOST

PROFITS
ON

MR McDONELL
LIMINE

YES
WE

NO

DEFENDANTS PROBLEM
THAT WAS

MOTION
THE

IN

NO

YOUR

HONOR
IS

HAVE

SIMILAR ORDER

-- THE

BACKGROUND
CLEAR
10

AGAIN

JUDGE

LAPORTES

CRYSTAL

IN

EXCLUDING AND

EVIDENCE THOSE AS ANY ARE

OF CROSS-SELL BASICALLY
TO

AND

UP-SELL OF SOFTWARE

OPPORTUNITIES LICENSES
BECOME

SALES

11

AS WELL

SALES

CUSTOMERS

THAT

HAD

NEVER

12

CUSTOMERS THEY

OF TOMORROWNOW APPEALED
BE

13
14

THAT
TO

ORDER

TO

YOUR THAT

HONOR EXCLUDED

AND ASKED EVIDENCE
BE

THAT
AS

THEIR WAY AND

WITNESSES

ABLE WHY

TALK

ABOUT

15 16
17

OF EXPLAINING LOST PROFITS

THEIR

OTHER
BE

DAMAGES AND
BE

CLAIMS MAY THEY

HIGH YOUR
TO

THE

CLAIM MAY THEIR

LOW

ALSO ASKED
TO

HONOR ALL

SPECIFICALLY IMPACTS

THAT

WITNESSES FROM

ALLOWED

TESTIFY

18

THE

THEY

PERCEIVED

DEFENDANTS

UNLAWFUL

19 20 21 22 23
24

ACTIVITIES
AND OBJECTION
TO WE

CITE

THERE

TO

THEIR

APPLICATION

TO

YOU OR THEIR

YOU AT

ECF499
AND

PAGE WE

16

OBJECTED

SAID OUT
UP

NO

THIS

IS

JUST

KIND

OF

ROUNDABOUT ACTUALLY
TO

WAY BEEN

OF GETTING EXCLUDED
OUT TO

VALUE PROP TALK

OF THE

EVIDENCE DAMAGES

THATS
CLAIMS OR

YOUR

OTHER

25

OUTRIGHT

COME

AND

ABOUT

EXACTLY

WHATS

BEEN

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

54

PRECLUDED

AND

YOUR

HONORS ORDER WAS VERY
DIRECTLY OR SO
ONE WE

CLEAR

NO

THAT
THE

WONT DOOR
IN THE

BE SO --

ALLOWED
ISSUE
IN THE --

EITHER

OR

INDIRECTLY UNTIL

THROUGH RECENTLY JURY NOW

BACK

SOLVED
--

THOUGHT
IN

AGAIN

FOR

EXAMPLE JURY

THE

DAMAGES THEY

INSTRUCTIONS INSTRUCTION CUSTOMERS

OR IN
TO

THEIR

INSTRUCTIONS LOSSES
TO

HAVE

AN

SEEKING UNDER

RECOVER

FOR

PROSPECTIVE

THEIR

INTERFERENCE

CLAIM
WOULD BECAME JUDGE
BE

WELL
THAT
10

PROSPECTIVE

CUSTOMERS AND
BY

THESE

CUSTOMERS NEW ORDER
TO

HAD

NOT

BEEN

ORACLE CUSTOMERS WHAT WAS

-- WERE

CUSTOMERS
THAT THERE

EXACTLY

EXCLUDED

LAPORTES
SALES

11

WONT
OTHER AND

BE

EVIDENCE
THE 358

OR ARGUMENT THAT ARE AT

OF LOST ISSUE
THE

THESE

12

COMPANIES

THAN THEN USES

HERE DOOR THEIR
OPPORTUNITIES AS

13
14

MORE LOST

SUBTLY

THROUGH AND

BACK

DAMAGES FAIRLY WHERE LITTLE UP-SELL
HE

EXPERT

CROSS-SELL

UP-SELL

15

IMPORTANT BASICALLY
-- THAT

CENTERPIECE
SAYS -- AND IS

OF HIS THIS

FAIR-VALUE-OF-USE
US

ANALYSIS

16
17

GETS

BACK TO

GOOD WILL AND

BIT

GOOD WILL
SO

LARGELY

THESE
TO

CROSS-SELL LOSE THAT

18

OPPORTUNITIES

ORACLE WAS

GOING

VALUE

19

TOO
WE

20 21 22 23
24

AGAIN

THINK
THE

THATS

JUST

THE

BACK DOOR AND

HAS

THE

EFFECT

OF EVISCERATING WOULD

SENSE OF JUDGE WITH

LAPORTES

ORDER

SUBMIT

THAT
IS

YOUR ABOUT VALUE VALUE

HONOR
LOST OF USE ORACLE

PICKETT HONOR
EXPERT
IT IS

THIS FAIR AT
THE

NOT

PROFITS
AND PAID

YOUR OUR

ABOUT

THE

MARKET TOTAL

WHETHER
FOR

25

CAN

-- CAN

LOOK

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530

124

CERTIFICATE RAYNEE STATES
THAT

OF REPORTER OFFICIAL
OF IN ET

MERCADO
DISTRICT

REPORTER

FOR

THE

UNITED

COURT

NORTHERN

CALIFORNIA C07-01658

HEREBY

CERTIFY

THE

FOREGOING
ET

PROCEEDINGS
SAP

PJH

ORACLE
BY

CORPORATION CERTIFIED UNDER
10

AL

AG

AL
WERE

WERE

REPORTED

ME

SHORTHAND DIRECTION AND
OF

REPORTER
INTO TRUE

AND

THEREAFTER
THE

TRANSCRIBED
IS

MY

TYPEWRITING RECORD
OF

THAT

FOREGOING
AS

FULL
ME AT

COMPLETE
THE TIME THE

SAID

PROCEEDINGS

BOUND

BY

11

FILING
OF THE

12

VALIDITY
BE

REPORTERS

CERTIFICATION AND/OR REMOVAL

OF

SAID THE

13

TRANSCRIPT COURT

MAY

VOID

UPON

DISASSEMBLY

FROM

14

FILE

15

16
17

RAYNEE

MERCADO MONDAY

CSR

RMR

CRR
2010

FCRR

CCRR

18

OCTOBER

19
20

21 22 23
24

25

RAYNEE

MERCADO CSR RMR CRR FCRR CCRR 510

451-7530