Hewlett-Packard Co., accusing Oracle Corp. of harassing its new chief executive officer, refused to accept service of a subpoena requiring Leo Apotheker to testify at a trial over SAP AG’s downloading of Oracle software.
SAP, the largest maker of software for business applications, is defending itself against a 2007 lawsuit by Oracle over what SAP has acknowledged were “inappropriate” downloads by a now-defunct software maintenance unit. Oracle will show a videotaped deposition of Apotheker, SAP’s former CEO, today and Oracle CEO Larry Ellison will testify tomorrow, SAP said yesterday.
Mylene Mangalindan, a spokeswoman for HP, said in an e-mailed statement that Oracle chose not to include Apotheker as a live trial witness until he was named CEO of HP.
“Oracle had ample opportunity to question Leo during his sworn deposition in October 2008,” Mangalindan said. “Given Leo’s limited knowledge of and role in the matter, Oracle’s last-minute effort to require him to appear live at trial is no more than an effort to harass him and interfere with his duties and responsibilities as HP’s CEO.”
Oracle, in its trial that began this week in federal court in Oakland, California, is seeking billions of dollars in damages from SAP, according to court documents. A lawyer for Oracle told jurors on Nov. 2 that Apotheker “was very involved” with the unit, called TomorrowNow.
“Mr. Apotheker started work for HP on Monday, but it now appears that the HP Board of Directors has decided to keep him away from HP’s headquarters and outside the court’s jurisdiction,” Oracle’s spokeswoman, Deborah Hellinger, said in an e-mail. “We will continue to try to serve him.”
Apotheker went to HP after Mark Hurd resigned as CEO amid a scandal over a personal relationship with a company contractor. Ellison, 66, hired Hurd, saying in a letter to the New York Times that HP’s board had made “the worst personnel decision since the idiots on the Apple board fired Steve Jobs many years ago.”
Apotheker, 57, didn’t become SAP’s sole chief executive until after TomorrowNow was shut down in 2008, said Bill Wohl, an SAP spokesman. The executive was an SAP board member when Walldorf, Germany-based SAP bought TomorrowNow, a Bryan, Texas- based company that offered to maintain and support software for customers of Peoplesoft Inc. and JD Edwards & Co., both acquired by Oracle.
Oracle claims TomorrowNow made thousands of illegal copies of its software by using customers’ access codes instead of licensing the code from Oracle. SAP’s aim was to use TomorrowNow to steal customers from Oracle, lawyers for the company told the jury in opening arguments.
SAP has accepted liability for the unit’s conduct, says it never had access to Oracle’s intellectual property and claims Oracle’s $2 billion damage estimate is grossly exaggerated. SAP owes Oracle at most $40 million in damages, SAP’s lawyer told the jury on Nov. 2.
Hellinger declined to comment about Ellison’s appearance. She said in an e-mail that the company will call former Oracle president Charles Phillips and SAP executive John Zepecki as witnesses today. She said Zepecki will be questioned by David Boies, an attorney for Oracle.
Boies, managing partner at Boies, Schiller & Flexner LLP, represented the U.S. in its antitrust case against Microsoft Corp. and Vice President Al Gore against George W. Bush in the 2000 presidential election.
The case is Oracle Corp. v. SAP AG, 07-01658, U.S. District Court, Northern District of California (Oakland).