The hottest new game at the Oracle Corp.-SAP AG infringement trial has become “Where in the World is Leo Apotheker?”
Oracle lawyers want to put the former SAP chief executive officer on the stand in federal court in Oakland, California, to testify about the conduct of a now-defunct SAP unit that illegally downloaded Oracle’s copyrighted software. Apotheker, a 22-year SAP veteran, was on the software maker’s executive board when it bought TomorrowNow in 2005, and he oversaw the unit’s sales, according to court documents and trial testimony.
Apotheker, who resigned from SAP in February, was hired by Hewlett-Packard Co. in September and was to start as CEO on Nov. 1. HP has refused to accept papers seeking to call Apotheker to the stand, and Oracle attorneys have said they can’t find him.
“We are trying real hard to find him and he’s trying real hard not to let us find him,” David Boies, Oracle’s lead attorney at the trial, said Nov. 8. “We’ve got to find him, and we’ve got to find him in California.”
Apotheker gave an interview to the Nikkei business daily on Nov. 5, published in Japanese a day later, that said he was in Tokyo.
Redwood City, California-based Oracle, which has a video of sworn testimony that Apotheker gave its lawyers in 2008, says it’s important for the jury in Oakland to hear live testimony from him. Oracle claims Apotheker, 57, “was at the center of the infringement” and “personally approved” the activities of the Bryan, Texas-based TomorrowNow software maintenance unit, Boies said in a news conference outside the courthouse in Oakland.
$2 Billion Sought
Oracle, the second-largest maker of software for business applications behind Walldorf, Germany-based SAP, is seeking damages of as much as $2 billion in the trial.
HP said Nov. 3 that Apotheker had limited knowledge of TomorrowNow. Oracle is trying to harass him and interfere with his new role at HP, said Mylene Mangalindan, a spokeswoman for the Palo Alto, California-based company, in an e-mailed statement on Nov. 3.
Oracle included Apotheker as a trial witness only after he joined HP following CEO Mark Hurd’s resignation. Hurd left after a scandal that involved his relationship an HP contractor, who previously had been a reality television and adult-themed film actress.
Larry Ellison, Oracle’s CEO, hired Hurd and criticized HP over Hurd’s resignation, saying in an August e-mail to the New York Times that it was the “worst personnel decision since the idiots on the Apple board fired Steve Jobs.”
Ray Lane, HP’s chairman-designate, said in a letter to the Times in October that “Hurd violated the trust of the board by repeatedly lying to them” during an investigation into his conduct.
Asked whether Oracle had hired private investigators as Reuters reported to locate Apotheker, Boies responded, “I think it would be appropriate to hire people to try to locate him.”
A subpoena requiring someone to appear as a witness must be delivered to the individual in person, said Don Fritsch, president of American Legal Investigation Services Inc., a Santa Ana, California-based company that tracks down witnesses.
Finding someone “all comes down to the time we have to do it, the budget the client has to spend, the amount of private investigator skill and luck,” Fritsch said yesterday in a phone interview.
“Certainly you have situations where people are evading service,” said Fritsch, whose company isn’t involved in the Oracle case. “In today’s world, we don’t have to be in a physical location to get work done.”
David Levine, law professor at Hastings College of the Law in San Francisco, said to avoid being served with a subpoena, Apotheker would have to remain outside California.
John McCool, a spokesman for HP, said yesterday that the company had no comment on the Apotheker subpoena beyond its Nov. 3 statement.
Oracle could go to U.S. District Judge Phyllis Hamilton, who is presiding over the trial, tell her that it’s been unable to locate Apotheker, and ask her to require HP to give the subpoena to him, said Georgene Vairo, a professor at Loyola Law School in Los Angeles.
“HP would really not want this guy to testify so he’s doing a disappearing act,” Vairo said yesterday in a phone interview. “If he can’t be found in California, it becomes more difficult. He is not under control of either party in this litigation.”
Oracle fell 11 cents to $28.63 at 9:34 a.m. New York time in Nasdaq Stock Market trading. Hewlett-Packard climbed 27 cents to $44.39 in New York Stock Exchange composite trading.
The case is Oracle Corp. v. SAP AG, 07-01658, U.S. District Court, Northern District of California (Oakland).