Tensions rise over damages at Oracle-SAP trial

SAP's attorney tried to undermine Oracle's damages expert but was frustrated by his responses

The Oracle-SAP trial ended its second week with some tense exchanges over how much SAP should pay in damages for the software theft committed by its TomorrowNow subsidiary.

Oracle called its last witness on Friday morning and had almost finished presenting its case when the court broke up for the weekend. After Oracle wraps up its case on Monday morning, SAP will have about two weeks to make its defense.

For its last witness Friday, Oracle played a video-taped deposition of former SAP CEO Henning Kagermann, who acknowledged that TomorrowNow's use of Oracle's software was "not appropriate in all cases."

Much of Friday was spent on SAP's cross-examination of Oracle's damages expert, Paul Meyer, who testified earlier this week that SAP should pay Oracle US$1.6 billion to compensate for the software stolen by TomorrowNow, which SAP has since shut down.

Bob Mittelstaedt, an attorney for SAP, tried to show that Meyer's analysis was flawed, but he struggled to get yes or no answers to the questions he asked.

If TomorrowNow had negotiated a license for the stolen software, he asked Meyer at one point, would SAP have had the right to sell Oracle's intellectual property to other companies?

"Can you define 'sell' for me?" Meyer asked.

Mittlestandt grew frustrated -- "Can you just answer yes or no please?" he asked several times -- but he managed to stay calm. He impeached Meyer four times during his cross-examination for appearing to contradict his earlier testimony.

He questioned Meyer's assumption that SAP expected to convert 50 per cent of Oracle's PeopleSoft customers to its own services and applications. SAP board member Shai Agassi had testified that the 50 per cent figure was an "aspirational goal" rather than an expectation.

"You're not saying that for a person making a decision on a rational basis, that an 'aspirational goal' would be a reason to pay a billion dollars [for an Oracle software license]?" Mittelstaedt asked.

"That's one piece from thousands of data sources," Meyer said.

Mittelstaedt: "Were you just looking for the highest numbers you could find?"

Meyer: "No, I was looking at all the numbers."

Under questioning from Oracle's own attorney, Meyer told the jury that the $40 million that SAP thinks it should pay for the license is inadequate. "There's no way that would compensate Oracle for the software taken in January 2005," Meyer said.

SAP will present its own damages expert when it starts its defense. It is also expected to call SAP co-CEO Bill McDermott.

It appears that former SAP CEO Leo Apotheker, who recently became chief executive at Hewlett-Packard, will be spared an appearance in court. Oracle has been unable to subpoena Apotheker and compel him to appear because he has stayed outside of California, where the trial is taking place. HP says he is on a tour visiting HP employees and customers.

Apotheker has given a deposition on video, but Oracle apparently has decided not to use it.

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James Niccolai

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