Oracle May Not Show Apotheker Testimony, Lawyer Says
Oracle Corp. may not show jurors testimony by former SAP AG Chief Executive Officer Leo Apotheker during a trial over illegal software downloads made by a now- defunct SAP unit, David Boies, Oracle’s trial lawyer, said.
A videotaped deposition of Apotheker, now CEO at Hewlett- Packard Co., is currently all Oracle has to show jurors at the trial in federal court in Oakland, California. Oracle says it hasn’t located Apotheker to serve him a subpoena to testify in person at the trial.
Boies said today in an interview at the courthouse that Oracle may not show the videotape. HP has refused to accept the subpoena for Apotheker.
“Maybe we’ll just let the jury know that they’ve hidden him,” Boies said. “I think it may be better for the jury to know that, here’s this guy who was at the center of all this” and he hasn’t been found.
Oracle, the second-largest maker of software for business applications behind SAP, sued its competitor in 2007. Oracle claims the TomorrowNow unit of Walldorf, Germany-based SAP made hundreds of thousands of downloads and several thousand copies of Oracle’s software to avoid paying licensing fees and to steal customers. Redwood City, California-based Oracle seeks $2 billion in damages for infringement.
SAP, saying Oracle’s damage estimates are grossly exaggerated, has said it owes about $40 million.
‘PR sideshow’
“Oracle’s heightened interest in Mr. Apotheker as a live witness came only after his appointment as HP’s CEO, a PR sideshow that has little to do with the real issues of this case -- the actual damages from the limited operations of TomorrowNow,” Bill Wohl, an SAP spokesman, said today in an e-mailed statement.
The jury heard testimony today from Paul Meyer, an expert for Oracle who said SAP documents show it planned to make at least $900 million in revenue and convert at least 3,000 Oracle customers after it acquired TomorrowNow in 2005.
The jury also was shown part of a videotaped deposition of Henning Kagermann, who served as co-CEO of SAP with Apotheker.
Kagermann said Bryan, Texas-based TomorrowNow made “inappropriate” downloads of Oracle’s software. Kagermann was asked when he became aware that TomorrowNow had put the downloaded software on its computer systems and whether it was before SAP acquired the company. Kagermann said he couldn’t recall.
Rest Case
Oracle will show more of the videotape on Nov. 15 and rest its case. Kagermann is the last of Oracle’s witnesses, said Geoffrey Howard, a lawyer for Oracle.
Oracle can show the video of Apotheker, who became the sole CEO after Kagermann retired from SAP in May 2009, during the rebuttal phase of the trial, which may begin about 10 days from now.
When Apotheker testified at his deposition more than two years ago, it was before SAP and TomorrowNow admitted infringing Oracle’s intellectual property by downloading and copying PeopleSoft Inc., JD Edwards & Co. and Siebel Systems Inc. software, Boies said in an e-mail.
“We think it is very important that Mr. Apotheker testify now, as a live witness in court, to explain his and SAP’s conduct,” Boies wrote.
Subpoena Search
Deborah Hellinger, an Oracle spokeswoman, said the company will continue to try to serve Apotheker with a subpoena.
Wohl said he didn’t know who SAP would call as its first witness.
HP has said Apotheker had “limited knowledge of and role in the matter” of TomorrowNow’s downloads and Oracle had an opportunity to question him during his sworn deposition in October 2008. Mylene Mangalindan, a spokeswoman for Palo Alto, California-based HP, has said Oracle’s subpoena of Apotheker was “no more than an effort to harass him and interfere with his duties and responsibilities as HP’s CEO.”
The case is Oracle Corp. v. SAP AG, 07-01658, U.S. District Court, Northern District of California (Oakland).
To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net.
To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net.
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