Oracle Corporation et al v. SAP AG et al

Filing 988

UPDATED OBJECTIONS AND DEFENDANTS RESPONSES RE CUSTOMER TESTIMONY AND RELATED EXHIBITS re 943 Objections by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Howard, Geoffrey) (Filed on 11/15/2010) Modified on 11/16/2010 (kc, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 988

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BINGHAM McCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: [phone] Facsimile: [phone] [e-mail] STEVEN C. HOLTZMAN (SBN 144177) FRED NORTON (SBN 224725) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., CASE NO. 07-CV-01658 PJH (EDL) v. Plaintiffs, ORACLE'S UPDATED OBJECTIONS AND DEFENDANTS' RESPONSES RE CUSTOMER TESTIMONY AND RELATED EXHIBITS

SAP AG, et al., Defendants.

Case No. 07-CV-01658 PJH (EDL)
UPDATED OBJECTIONS AND RESPONSES RE CUSTOMER TESTIMONY AND RELATED EXHIBITS

Dockets.Justia.com

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Pursuant to the Court's direction, Oracle has revised its deposition designation objections to focus, wherever possible, on exemplar objections that pertain to a broader category. Two such categories are (1) customer testimony about license provisions and advice of counsel and (2) customer exhibits. CATEGORY ONE: TESTIMONY AND EXHIBITS RELATING TO CUSTOMER LICENSES AND ADVICE OF COUNSEL Rules 402 (relevance) and 403 (unfair prejudice and confusion); calls for a legal conclusion. Defendants intend to submit excerpts from customers' depositions about whether and why customers sought and relied upon attorney advice relating to contracts with TomorrowNow. For example: Q: There is a sub bullet point, the last one, it says, `Perform legal review of company's service model and contracts.' Do you see that? A: Yes. Q: What did that mean? A: We reviewed the TomorrowNow contract to see if we felt it was a legal service model. Q: And did you have your attorneys involved in that review? A: Yes. Q: And did your attorneys participate in reviewing your agreements with PeopleSoft in terms of what you were allowed to do or not do under the PeopleSoft agreements? A: To review the PeopleSoft agreements? Q: Yes. A: Yes, that review was done. Exhibit A (Pepsi Americas (Kreul) Depo.) at 133:9-134:2 (objections omitted); see also id. 135:9-135:17; at 88:20-25.1 Similar testimony, which the Parties expect to resolve based on the Court's ruling on this example but which Oracle has not re-submitted, is attached as Exhibit B (Sara Lee (Brazile) Depo.) at 68:10-69:3, 70:9-71:18; Exhibit C (Baker Botts (Hallenberger) Depo.) at 50:21-25, -1(Footnote Continued on Next Page.)
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Evidence that a specific customer reviewed the support agreements with its attorneys would only be relevant, if at all, to a liability defense ­ but as TomorrowNow has admitted all liability and dismissed its license affirmative defense, whether its conduct was permissible under those licenses is now irrelevant. See Joint Trial Exhibit ("JTX") No. 4 (Amended Trial Stip. No. 1). In other words, Defendants have already admitted that the licenses no longer matter. Nor is such evidence admissible for context, because all it would provide context for is a possible liability defense, which TomorrowNow and SAP have dismissed. Oracle has limited its objections to a relatively small number of excerpts (approximately 14), and has not objected to the vast majority of Defendants' customer designations (over 200). In addition, this testimony signals a back-door attempt to assert an advice of counsel defense ­ i.e., that because attorneys reviewed these licenses, and approved them, attorneys must have (expressly or impliedly) approved of TomorrowNow's conduct. This violates the Court's order on Oracle's Motion in Limine No. 1, which prevents Defendants from relying on an advice of counsel defense. Defendants should not be permitted to circumvent the Court's Order on Oracle's Motion in Limine No. 1 by simply shifting their reliance from their attorneys to the customers' counsel. Defendants suggested in meet and confer that they selected these and other customer designations in response to Oracle's designations of customer testimony.2 That is incorrect: Oracle will not offer any customer testimony as part of its case-in-chief and made its customer designations, approximately 24 minutes' worth, in response to Defendants,' lasting over 1.5 hours. Unlike the designations to which Oracle objects, Oracle's very limited designations of customer testimony nearly all specifically relate to the fact that each customer (Footnote Continued from Previous Page.) 51:8-16; Exhibit D (Lexmark (O'Donnell) Depo.) at 27:4-15, 28:2-24; Exhibit E (McLennan (Wasson) Depo.) at 139:24-140:9, 142:18-143:5. 2 Defendants offered on November 11 to withdraw some designations in this category if Oracle withdrew its customer-related designations. Because the offer would withdraw sets of designations that bear no relationship to each other (and because Oracle respectfully submits that only Defendants' designations are truly objectionable), Oracle declined. -2Case No. 07-CV-01658 PJH (EDL)

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would not have gone to TomorrowNow had it known of TomorrowNow's illegal conduct, and perceived itself as having few if any alternatives ­ facts directly going to the causation issues that Defendants have tried to place front and center. Defendants' claim that they need testimony about licenses to counter Oracle's limited designations makes no sense. Defendants have also designated as potential trial exhibits license agreements between customers and TomorrowNow (A-0547, A-0646, A-0730, and A-745) and license agreements between customers and PeopleSoft (A-1329 and A-1738). For the reasons outlined above, these agreements are irrelevant and should be excluded. II. CATEGORY TWO: HEARSAY TESTIMONY AND EXHIBITS Rules 802 (hearsay), 602 (speculation), and 402 (relevance). Defendants intend to offer the following testimony regarding hearsay statements made from one person to another, neither of whom is the witness: Q. Okay. Do you understand ­ what does the statement by Ms. Garrett to Mr. Walden that states, "Now I really do feel like the stepchild. Not a peep out of them about not renewing service contract." What does that statement mean to you? A. I mean, I would say that was a comment just on the level of sort of support and care and feeding that we were or were not getting from PeopleSoft as a customer of theirs. Exhibit C (Baker Botts (Hallenberger) Depo.) at 60:16-61:1 (objection omitted). This testimony is hearsay and 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 matter. Further, hearsay is not admissible at trial just because it is provided by a Rule 30(b)(6) witness. See, e.g., Cincinnati Ins. Co. v. Gray, 2010 WL 3522954, at *7 (S.D. Ind. 2010). Oracle also objects to the email about which this testimony pertains on the same hearsay and speculation grounds. See Exhibit F (A-0777). Defendants also intend to introduce two documents and emails from customers that contain hearsay statements from customers and/or third-party analyst sources. The statements within these documents are being offered for the truth of the matter asserted and -3Case No. 07-CV-01658 PJH (EDL)

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should therefore be excluded. See Exhibit G (A-0546) and related testimony in Exhibit E at 141:13-141:24, 142:18-143:1; Exhibit H (A-1339).

DATED: November 15, 2010

Bingham McCutchen LLP

By:

/s/ Geoffrey Howard Geoffrey Howard Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation and Siebel Systems, Inc.

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Case No. 07-CV-01658 PJH (EDL)

UPDATED OBJECTIONS AND RESPONSES RE CUSTOMER TESTIMONY AND RELATED EXHIBITS