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 Att. 2

EXHIBIT B
Dockets.Justia.com

Oracle_SAP Jury Trial

Brazile, Steven [Sara Lee] Final 2 10/14/2009

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ORACLE CORPORATION, a Delaware corporation, ORACLE USA, INC., a Colorado corporation, and ORACLE INTERNATIONAL CORPORATION, a California corporation,

Plaintiffs

vs.

Cause No. 07-CV-1658 (PJH)

SAP AG, a German corporation, SAP AMERICA, INC., a Delaware corporation, TOMORROWNOW, INC., a Texas corporation, and DOES 1-50, inclusive

Defendants

HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY VIDEOTAPED DEPOSITION OF STEVEN BRAZILE

October 14, 2009

Oracle_SAP

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questions and things of that nature. Q. Without getting into the substance of any discussions that you may have had with Sara Lee counsel, did you have an opportunity to provide this contract to Sara Lee's counsel before it was signed? A. Could you restate the question, please. Q. Sure. I don't want you to tell me anything that you discussed with the lawyers. A. Okay. Q. So leaving that out, before Sara Lee signed this contract, before R. Michael Collins signed this contract for Sara Lee, did Sara Lee's legal counsel have an opportunity to review it and comment on it? MS. MACDONALD: Objection. Foundation. BY MS. RIGGS: Q. I'm sorry? A. Yes, they did. Q. How do you know that? A. It's kind of standard operating procedure. I mean, a contract of this amount of money and duration would involve Sara Lee counsel. It's just standard operating practice. Q. At the time that Sara Lee entered into this contract with TomorrowNow, was Sara Lee aware
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that Oracle had sued TomorrowNow? A. Yes. We were aware that there was pending litigation. Q. Was there concern at Sara Lee about entering into this contract with TomorrowNow in light of the litigation with Oracle? A. Yes, there was. And that -- that kind of helps explain some of the gap between June when we didn't renew -- June of '07 when we didn't renew the agreement and why it took to December of '07 to get the contract negotiated. Q. What do you mean? A. Well, we knew there was pending litigation and so we had a number of discussions about whether or not we wanted to enter into an agreement that had, you know, this kind of uncertainty around TomorrowNow and whether or not, you know, it was going to be an agreement that would be something that would be able to be implemented over the duration of the contract. So we were evaluating a number of things. You know, do we just start implementing SAP right away and forgo the -- the Oracle license renewals? Do we enter into an agreement with TomorrowNow? Well, if we do, then why would we pay TomorrowNow
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these fees if we're going to implement SAP right away? What would be some of the reasons for entering into TomorrowNow? Why would you not enter into an agreement with TomorrowNow? So those were some of the discussions that we were having between that time period of June of '07 and December of '07 when we executed the agreement. Q. Fair to say that one thing Sara Lee did was satisfy itself that the terms of its TomorrowNow contract would not violate the terms of Sara Lee's contract with JD Edwards? A. Yes. That -- yeah, we were comfortable with that and we also felt that the protection around the termination for convenience clause that, you know, if we got paid three times the amount that we had paid TomorrowNow that would give us some coverage to either find some way to get this thing supported so that -- that was a pretty key part there that previous section on section C on the termination for convenience fees by TomorrowNow and they being a multiple of three was a key component to make sure Sara Lee had some protection in case this thing went south. Q. That was a very important term to you?
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A. Yes. Q. Did you ever provide to TomorrowNow copies of your JD Edwards contracts? A. No, I don't recall ever providing TomorrowNow copies of our contracts. I think what we provided them was a list of the applications that were supported and we did a fairly exhaustive review of the modules and what release levels we were on, but I don't ever recall giving them copies of contracts. That would have been unusual had we done that. Q. Unusual why? A. I mean, those contracts are between us and that other party. We're not in the habit of just sharing those agreements. I mean, there's concern over nondisclosure agreements that we may have and we just typically don't share contracts without getting approval from the other party. Q. Is it your understanding that those JD Edwards contracts are confidential? A. That would be my understanding, yes. Q. And you acted in accord with that understanding? A. Yes. Q. During the time that TomorrowNow supported
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