e-filed - wired · to oracle's cross-claims, the large volume of depositions, the third-party...

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28 LATHAM&WATKINS'"

ATTORNEYS AT LAW SAN FRANCISCO

LATHAM & WATKINS LLP Daniel M. Wall (Bar No. 102580) Alfred C. Pfeiffer, Jr. (Bar No. 120965) Sadik Huseny (Bar No. 224659)

505 Montgomery Street, Suite 2000 San FrancIsco, California 94111-6538 Telephone: (415) 391-0600 FacsImile: (415) 395-8095 Email: [email protected] Email: [email protected] Email: [email protected]

ORACLE CORPORATION Dorian Daley (SBN 129049) Deborah K. MIller (SBN 095527)

500 Oracle Parkway MIS 50p7 Redwood Shores, California 94065 Telephone: (650) 506-5200 FacsImile: (650) 506-7114 Email: [email protected] Email: [email protected]

Attorneys for Defendant and Cross-Complainant ORACLE CORPORATION

GIBSON, DUNN & CRUTCHER LLP Robert E. Cooper (Bar No. 35888) Samuel Liversidge (Bar No. 180578)

333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 FacsImile: 213.229.7520 Email: [email protected] Email: [email protected]

Attorneys for Plaintiff and Cross-Defendant HEWLETT-PACKARD COMPANY

BARTLIT BECK HERMAN PALENCHAR &SCOTTLLP

Mark E. Ferguson, (pro hac vice) Sean W. Gallagher, (pro hac vice)

54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 Email: mark.ferusonbartlit-beck.com Email: sean.aHaherbartlit-beck.com

Attorneys for Plaintiff and Cross-Defendant HEWLETT-PACKARD COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA

HEWLETT-PACKARD COMPANY,

Plaintiff,

v. ORACLE CORPORATION,

Defendant.

ORACLE CORPORATION,

Cross-Complainant,

v.

HEWLETT -PACKARD COMPANY,

Cross-Defendant.

CASE NO. 1-11-CV -203163

Action Filed: June 15,2011 Trial Date: April 2, 2012

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: February 3, 2012 Time: 10:00 AM Dept. 1C Assigned for all Purposes to The Honorable James P. Kleinberg

JOINT CASE MANAGEMENT CONFERENCE STATEMENT CASE NO. J-ll-CV-203J63

SF\894209.1

E-FILEDJan 31, 2012 4:00 PM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-11-CV-203163 Filing #G-39314

By G. Duarte, Deputy

1 I. INTRODUCTION

2 Plaintiff and Cross-Defendant Hewlett-Packard Company ("HP") and Defendant and

3 Cross-Complainant Oracle Corporation ("Oracle") hereby submit this Joint Case Management

4 Conference Statement for the Further Case Management Conference ("CMC"), scheduled for

5 February 3, 2012.

6 II.

7

DISCOVERY AND TRIAL SCHEDULE

A. Status of Discovery

8 Document Productions - The parties have engaged in extensive discovery: Oracle has

9 produced approximately 400,000 documents from 31 custodians and HP has produced

10 approximately 350,000 documents from 30 custodians. Both parties are scheduled to produce

11 additional materials.

12 Third Party Discovery - Pursuant to subpoenas served by both Oracle and HP, Intel has

13 begun to produce documents. At present, Intel has produced just over 1,000 documents but has

14 made assurances that further productions are forthcoming on a rolling basis for the next several

15 weeks. Oracle has also served document production subpoenas on Microsoft Corp. and Red Hat,

16 Inc., but has not yet received responses to those requests. Both parties are currently assessing how

17 many third-party depositions will be necessary.

18 Depositions - The parties are currently engaged in the deposition process. HP has noticed

19 23 depositions and represented that this is the bulk of the depositions they intend to notice. Oracle

20 has noticed 12 depositions and will notice additional depositions shortly.

21 B. Oracle's Position On The April 2, 2012 Trial Date

22 From the very beginning of this case, HP has insisted on an extremely expedited trial date,

23 repeatedly opposing Oracle's several requests for a somewhat less compressed schedule. HP got

24 its way, and as a result witnesses and counsel were required to make significant sacrifices to meet

25 the April 2 trial date. HP took this position both before and after this case was transformed from

26 the "small" contract action HP preferred to the much larger false advertising case it now is.

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28 1

LATHAM-WATKINS'" ATTORNEYS AT LAW JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. J-ll-CV-203J63 SAN FRANCISCO

SF\894209.1

E-FILED: Jan 31, 2012 4:00 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-203163 Filing #G-39314

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HP made clear-a mere two months ago, when it was pressing for the Court to maintain the

initial February 27,2012 trial date-that the parties were more than able to handle all issues related

to Oracle's cross-claims, the large volume of depositions, the third-party discovery in this case,

and general discovery/motion mechanics. In stating that "there was and is a plan for getting this

case to trial on February 27,2012," HP noted:

• It was ... contemplated from the beginning that Oracle would file cross-claims and that these claims would be part of the expedited discovery and trial schedule proposed to the Court."

• "The remainder of Oracle's argument focuses on the enormity of the task at hand, which is not something new. The parties understood and contemplated these issues from the beginning. "

• "Oracle's characterization of the remaining discovery as something insurmountable is overstated and unconvincing; the various issues cited by Oracle are common in all complex litigations and there is no reason why the parties cannot overcome them within the current schedule .... HP is prepared to do so."

14 HP November 21,2011 Case Management Statement at 9-12. Both parties have always

15 recognized the critical business importance of an expedited resolution, to minimize any consumer

16 confusion, marketplace uncertainty, and general business disruption. Those realities have not

17 changed. HP's claimed "reluctant conclu[ sion] that the April 2 trial date is no longer feasible" is

18 incorrect. That which HP claimed in November 2011 was imminently reasonable remains so, and

19 HP's own arguments still apply and support keeping the current April 2 trial date. The real

20 explanation for HP's change of heart seems plain: in the face of imminent public disclosure at trial

21 of the truth, HP is stalling and retreating.

22 The current trial date is entirely feasible and the parties should be encouraged to continue

23 to move swiftly and efficiently to meet that date. This is particularly true given that discovery is

24 well under way, and should be complete in time for an April 2 trial. The parties have agreed to a

25 deposition schedule whereby all of the parties' initial 18 noticed depositions will be complete

26 before the initial summary judgment motion due date; indeed, 10 have already occurred, and three

27 more will occur this week. Additional deposition testimony can be incorporated into opposition

28 2

LATHAM&WATKI NS'" ATTORNEYS AT LAW JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. 1-11-CV-203163 SA.N FRANCISCO

SF\894209.1


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LATHAM&WATKINS'" ATTORNEYS AT LAW

SAN FRANCISCO

and reply briefing, as appropriate, and the parties have further agreed to resolve any remaining

document production disputes in expedited fashion. Moreover, changing the date at this juncture

will lead to serious scheduling conflicts and difficulties, including another trial commitment by

Oracle's counsel in July.

For these reasons and because the parties have a schedule whereby they will complete fact

discovery by March 12 at the latest, Oracle believes that the Court should maintain the April 2,

2012 trial date. Oracle proposes the following case schedule, which HP agreed was appropriate for

the currently scheduled April 2, 2012 trial:

• Mediation date:

• End of fact discovery:

• Motions for Summary Judgment:

o Cross motions filed:

o Oppositions filed:

o Replies filed:

o Hearing:

• Expert discovery o Initial reports due:

o Rebuttal reports due:

o Close of expert discovery:

• Settlement Conference:

• Trial:

February 17,2012

March 5,2012 (March 12 for depositions that cannot be scheduled prior to March 5)

February 17,2012

March 2, 2012

March 9,2012

March 16, 2012

March 2, 2012

March 9, 2012

March 23,2012

March 28, 2012

April 2, 2012

C. HP's Position On The April 2, 2012 Trial Date

HP consistently has sought the earliest feasible trial date in this matter, and this remains

HP's position. However, in light of the Court's direction that the parties candidly evaluate the trial

schedule in light ofthe work remaining to be completed before trial, HP has reluctantly concluded

that the April 2 trial date is no longer feasible as a practical matter and therefore HP proposes a

SF\894209.1

3 JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. l-1l-CV-203163


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LATHAM&WATKINS'" ATTORNEYS AT LAW

SAN FRANCISCO

continuance of at least 45-60 days to allow the parties and the Court sufficient time to resolve the

pleadings with respect to Oracle's cross-claim, complete document and deposition discovery, brief

and argue cross-motions for summary judgment, conduct expert discovery and resolve other

pretrial matters. For example, with regard to discovery, as of February 3, 24 noticed depositions

will remain outstanding, eleven of which have not yet been scheduled (including Larry Ellison),

and Oracle has indicated that it intends to notice the depositions of a dozen or so additional HP

witnesses. Oracle has already proposed three depositions take place after the March 5 discovery

cut-off

With respect to written discovery, neither of the parties' document productions is yet

complete and the parties have met and conferred about potential deficiencies in the respective

document productions, some of which likely will need to be resolved by the discovery referee,

upon whom the parties have yet to reach agreement. Additionally, as noted above, Intel's

document production is still ongoing. In addition, on January 26, 2012, Oracle served document

subpoenas on two additional third parties, Microsoft and Red Hat.

In addition to the approximately 36 depositions of party witnesses described above that

remain to be taken (which does not include those depositions that have begun but remain to be

completed), both parties have indicated that they expect to take depositions of Intel employees.

Because Intel's document production is not yet complete, no Intel depositions have been noticed or

scheduled. Other third-party depositions, including depositions of Microsoft and Red Hat, may

also be noticed. Completing all of the noticed and anticipated discovery by March 5, 2012 is

simply not realistic, even allowing for some depositions to occur after the March 5 discovery

cut-off as Oracle has proposed.

Moreover, many depositions (including those of Mark Hurd and Larry Ellison, the central

figures in the case) will not have been taken as of the due date for the summary judgment motions

under the proposed briefing schedule, and it would be difficult to push that schedule back any

further because the hearing is set to occur only one week after reply briefs are to be filed andjust

two weeks before trial. HP believes the pretrial schedule should afford the Court a reasonable

SF\894209.1


CASE NO. l-Il-CV-203163


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opportunity to carefully consider the parties' summary judgment motions. Also, Oracle may' still

amend its fraud/equitable rescission cross-claim, which likely would generate another demurrer by

HP on the ground that the claim is barred by the litigation privilege. In that event, summary

judgment motions would be due before HP's demurrer to Oracle's fraud/equitable rescission claim

would be resolved and before HP's Answer to Oracle's other claims would be due.

As the Court noted at the December 16, 2011 in directing the parties to meet and confer

regarding the trial schedule, "It is important to get the case to trial. No question. But it's at least as

important that both sides have an opportunity to do the work they need to do to get the case in good

shape for trial." While the parties have strived to meet the April 2 trial date, HP no longer believes

that date will allow sufficient time for the parties and the Court to properly prepare the case for

trial.

III. ADDITIONAL PARTIES

None at this time.

DISCOVERY TO DATE

See above.

APPLICABILITY OF ARBITRATION CLAUSE

There is no applicable arbitration clause in the agreements at issue.

RELATED PENDING LITIGATION

There is no related litigation pending in other courts.

SETTLEMENT/ADR

The parties have engaged a mediator and are scheduled to appear before him on February

17,2012.

SF\894209.1


CASE NO. J-ll-CV-203J63


1 VIII. SERVICE LIST

2 For Plaintiff and Cross-Defendant Hewlett Packard For Defendant and Cross-Complainant 3 Company Oracle Corporation

4 GIBSON, DUNN & CRUTCHER LLP Robert E. Cooper, [email protected]

5 Samuel Liversidge, [email protected] 333 South Grand Avenue

6 Los Angeles, California 90071-3197 Telephone: (213) 229-7000

7 Facsimile: (213) 229-7520

8 BARTLIT BECK HERMAN PALENCHAR & SCOTTLLP

9 Philip S. Beck, [email protected] Mark Ferguson, [email protected]

10 54 West Hubbard Street, Suite 3000 Chicago, Illinois 60654 Telephone: (312) 494-4400 11

12 Facsimile: (312) 494-4440

Dated: January 31,2012 13

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LATHAM & WATKINS LLP Daniel M. Wall, [email protected] Alfred C. Pfeiffer, Jr., [email protected] Sadik Huseny, [email protected] 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: (415) 391-0600 Facsimile: (415) 395-8095

Respectfully Submitted,

LATHAM & WATKINS LLP

Daniel M. Wall Alfred C. Pfeiffer, Jr. Sadik Huseny

By /s/ Daniel M. Wall Attorneys for Defendant and Cross-Complainant ORACLE CORPORATION

GIBSON, DUNN & CRUTCHER LLP

BARTLIT BECK HERMAN PALENCHAR & SCOTTLLP

By /s/

6

Robert E. Cooper Attorneys for Plaintiff and Cross-Defendant HEWLETT-PACKARD COMPANY

LATHAM&WATKINS'" ----------------------------------ATTORNEYS AT LAW

SAN FRANCISCO

SF\894209.1

JOINT CASE MANAGEMENT CONFERENCE STATEMENT CASE NO. J-JJ-CV-203J63


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