Joint Final Pre-Trial Conference Statement

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP ROBERT E. COOPER, SBN 35888 rcooper@gibsondunn.com SAMUEL LIVERSIDGE, SBN 180578 sliversidge@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP MARK E. FERGUSON, (pro hac vice) mark.ferguson@bartlit-beck.com SEAN W. GALLAGHER, (pro hac vice) sean.gallagher@bartlit-beck.com 54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 Telephone: 312.494.4400 Facsimile: 312.494.4440 Attorneys for Plaintiff and Cross-Defendant HEWLETTPACKARD COMPANY LATHAM & WATKINS LLP DANIEL M. WALL, SBN 102580, Dan.Wall@lw.com ALFRED C. PFEIFFER, JR., SBN 120965, Al.Pfeiffer@lw.com SADIK HUSENY, SBN 224659, Sadik.Huseny@lw.com 505 Montgomery Street, Suite 2000 San Francisco, California 94111 Telephone: 415.395.8240 Facsimile: 415.395.8095 Attorneys for Defendant and Cross-Complainant ORACLE CORPORATION
E-FILED
May 14, 2012 11:44 AM
David H. Yamasaki
Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-11-CV-203163 Filing #G-42892 By R. Walker, Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA HEWLETT-PACKARD COMPANY, Plaintiff and Cross-Defendant, v. ORACLE CORPORATION, Defendant and CrossComplainant. Case No. 1-11-CV-203163 Complaint Filed: Trial Date: June 15, 2011 May 31, 2012
JOINT FINAL PRE-TRIAL CONFERENCE STATEMENT Hearing Date: Hearing Time: Dept: May 16, 2012 1:30 PM 1C
Assigned for all Purposes to The Honorable James P. Kleinberg

JOINT FINAL PRE-TRIAL CONFERENCE STATEMENT CASE NO. 1-11-CV-203163
E-FILED: May 14, 2012 11:44 AM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-203163 Filing #G-42892
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Plaintiff Hewlett-Packard Company (HP) and Defendant Oracle Corporation (Oracle) hereby submit this Joint Pre-Trial Conference Statement. I. Trial Schedule and Structure
The parties agree that the trial should begin on May 31, 2012, the date set by the Court. The parties also agree that the Court should allocate a specific number of hours to each party to present its case. The parties disagree on the structure of the trial. Each partys position is set forth below. A. HPs Position This is a breach of contract case. The basic issue to be tried is whether Oracle breached its obligation under Paragraph 1 of the Hurd Settlement Agreement to continue to offer its product suite on HPs server platforms. HP proposes a standard jury trial on all issues related to HPs breach of contract claim, including issues of duty, breach and damages, as well as on all other legal claims and cross-claims. HP does not believe that the contract issues presented in this case warrant any special phasing or bifurcation. HP thus proposes that each side be given eight trial days (approximately 36 hours) to present its case-in-chief and one day for rebuttal, for a total of 18 trial days, with the Court reserving until conclusion of the evidence what issues it will decide itself, rather than the jury. In contrast, Oracle proposes to bifurcate the trial before the jury into two phases, with the first week limited to contract interpretation issues and the remainder of the trial to issues of breach, damages and the other claims and cross-claims. Under Oracles proposal, the parties would engage in opening statements limited to the contract and contract-like claims and then present witnesses who would testify on issues relating to contract formation, course of dealing, course of performance and other issues relevant to interpretation. Oracle proposes that the Court would step in at that juncture and consider motions for directed verdict, and either adjudicate HPs declaratory relief claim or at least fill in any gaps in the terms of the contract. If HPs contract claims survive motions for directed verdict, there would be another round of opening statements covering breach, damages and any remaining claims, and then the parties would present (and recall) witnesses on those issues. Oracles proposed trial structure would unnecessarily complicate the trial without creating any economy or efficiency for the Court, the parties, the witnesses or the jurors. This is not a situation where Oracle is proposing to try a very narrow or limited threshold issue first so as to avoid a lengthy 1
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
presentation of evidence on other issues that might be rendered unnecessary by the decision on the threshold issue. The evidence relating to the parties course of dealing and course of performance will likely be considerable. In addition, as Oracle itself recognizes, many of the witnesses who would need to be called in the second phase to testify regarding breach, damages and the other claims would also have testified in the first phase, including senior executives such as Ann Livermore, Dave Donatelli, Martin Fink, Larry Ellison, Safra Catz, Mark Hurd, and Dorian Daley. Oracle has proposed this bifurcated structure not to achieve any efficiency but rather to fashion a litigation advantage by artificially compartmentalizing the presentation of evidence so that evidence relating to interpretation is divorced from evidence relating to breach. Oracle undoubtedly is pursuing this strategy to prevent HP from being able to effectively present its full story regarding Oracles breach of the contract and the covenant of good faith and fair dealing. But there is no legitimate justification for Oracles attempt to unfairly advantage itself by hamstringing HPs presentation of evidence, particularly in light of the inefficiency and inconvenience that Oracles novel structure would cause. Breach of contract cases are tried routinely in standard jury trials without resort to complex phasing or bifurcation of issues. There is nothing unique about the contract interpretation issues in this case that would require the unusual and convoluted trial structure that Oracle proposes. Rather, the trial of this case should proceed in the usual manner with a trial of all issues, which will allow each party to present[] a coherent picture to the trier of fact while also avoiding the need to call key witnesses twice, with two rounds of opening statements, and the inevitable disputes that will arise between the parties as to what evidence is properly within the scope of Oracles proposed first phase. (See Deskbook on the Management of Complex Civil Litigation 2.61[3][a].) Oracle would have the Court adjudicate, as a threshold matter before any evidence relating to breach or damages is presented to the jury, the interpretation of the contract for purposes of HPs declaratory relief claim, or failing that, at least fill in any gaps in the contracts terms. Oracles premise that the declaratory relief claim should be decided by the Court separately from the breach of contract claim is wrong. Declaratory actions may raise equitable or legal issues. (Patterson v. Insurance Co. of North America (1970) 6 Cal.App.3d 310, 315.) Here, because a breach of contract 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
is involved, the issues are legal. (Abbott v. Los Angeles (1958) 50 Cal.2d 438, 462.) Moreover, the fundamental question at issue for purposes of HPs breach of contract and declaratory relief claims is the same: whether Paragraph 1 obligated Oracle to continue to port its product suite to HPs platforms. Thus, HPs breach of contract and declaratory relief claims are overlapping and tightly intertwined, and therefore should be resolved together by the jury or, if there are no conflicts in the extrinsic evidence, by the Court. (See Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 622-623 [jury should decide equitable issues intertwined with the parties legal causes of action].) While contract interpretation is often a judicial function, [j]uries are not prohibited from interpreting contracts. (City of Hope Nat. Med. Ctr. v. Genentech, Inc. (2008) 43 Cal.4th 375, 395.) Interpretation of a contract becomes solely a judicial function only when it is based on the words of the instrument alone or when there is no conflict in the extrinsic evidence. (Id.) But where interpretation depends on the credibility of extrinsic evidence, that credibility determination and the interpretation of the contract are questions of fact that may properly be resolved by the jury. (Id.; Horsemens Ben. & Pro. Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1562.) Nor is there any requirement that the Court set a separate initial phase of the trial to conduct a gap filling exercise. To begin with, HP disagrees that this case requires a gap filling exercise. Oracle is attempting to make things appear much more complicated than they are. HPs claim in this case is that Oracle breached a contract that required Oracle to continue to offer its product suite on HPs server platforms. Whether Oracle had this duty and whether it breached the contract are the basic issues to be resolved in the case. It is not clear what, if any, terms even need to be inferred to resolve these basic issues but, regardless, it is not necessary or efficient to try to make this determination in a bifurcated phase of the trial. These issues will be resolved by the jury and/or the Court in the normal course of the trial as routinely happens in breach of contract cases. (See, e.g., Genentech, 43 Cal.4th at 385, 395-397 [jury resolved issues of interpretation and breach in one trial]; DVD Copy Control Assn, Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 718-719 [interpretation is part of the breach analysis]); San Francisco Brewing Corp. v. Bowman (1959) 52 Cal.2d 607, 615 [jury resolved missing duration term].)
3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Even if it falls to the Court to infer any necessary terms, Oracles proposal for a two-phase trial does not makes sense. The more logical and typical approach is for the Court to make appropriate rulings after all the evidence has been presented and then instruct the jury on any findings it is required to make. And following the trial the Court can, if necessary, then take up any issues relating to equitable remedies such as specific performance. This approach clearly is more efficient and avoids building into the trial structure an artificial hurdle HP must clear before presenting all of the evidence on its breach of contract claim. As Oracles proposal fails to promote the convenience of witnesses, the ends of justice or the economy and efficiency of handling the litigation, as Code of Civil Procedure Section 598 requires, the Court should deny Oracles request. B. Oracles Position Oracle and HP have agreed to dismiss several causes of action. HPs remaining causes of action are for: declaratory relief (the first cause of action in HPs Complaint); breach of contract (second); breach of the covenant of good faith and fair dealing (third); breach of an implied contract (fourth); promissory estoppel (fifth); and violation of Cal. Bus. & Prof. Code 17200 (tenth). Oracles remaining causes of action are for: violation of the Lanham Act (the first cause of action in Oracles Amended Cross Complaint); violation of Cal. Bus. & Prof. Code 17500 (second); and violation of Cal. Bus. & Prof. Code 17200 (third). 1. Oracle Proposes that the Trial Proceed in Two Stages
Oracle proposes that the trial be structured in two stages. The first stage will address the following issues, collectively referred to as the Issues of Duty: (i) the meaning of the first paragraph of the Hurd Settlement Agreement, (ii) whether an implied-in-fact contract exists between the parties, and (iii) whether Oracle owes HP any duty under principles of promissory estoppel. The second stage will address the remaining issues in the case. For the first stage, opening statements will take place on Monday, June 4, and will be limited to the Issues of Duty. The witnesses presented that week must relate to, and testify regarding only, the Issues of Duty, including matters of contract formation, course of dealing, course of performance, and other relevant topics. At the end of the first week, the Court will (a) adjudicate HPs Declaratory Relief cause of action for equitable relief and (b) if necessary, supply any contract terms that the 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Court concludes are warranted using gap-filling principles. See HP Opp. to Oracle Mot. for Summ. Adj. at 25-26 (HP Opp.). The Court will also consider at this time motions for directed verdict limited to the Issues of Duty. It is clear that adjudicating HPs Declaratory Relief cause of action and gap-filling are judicial responsibilities. See Parts B.2 and C below. Accordingly, there may be no need to make the jury sit through the first stage. Oracle believes the pros and cons of having the jury hear this testimony should be addressed at the Pretrial Conference. Trial on issues other than Issues of Duty will proceed immediately after the Court adjudicates HPs Declaratory Relief cause of action and engages in any appropriate gap-filling, with opening statements on all remaining issues, with HP completing its case-in-chief on its causes of action and Oracle putting on its defense and cross-claims. In order to address the Issues of Duty during the first week of trial, Oracle respectfully asks the Court to increase slightly the length of the first four court days so that the Court is in session from 8:00 AM until 3:00 PM. HP and Oracle will split the available time the first week, with each side having the right to call witnesses, including adverse witnesses. Each witness called during the first phase of trial will be subject to being recalled to address issues reserved to the second phase. 2. No Other Structure Makes Practical Or Legal Sense a. There is no other practical way to proceed
The practical logic of Oracles proposal is straightforward: Oracle cannot defend itself against any claim of contract or quasi-contract breach unless and until it knows the contours of the operative duty. The parties agree that the details of the alleged duty are not the subject of any material factual disputes and, indeed, were never even discussed during negotiations. See HP Opp. at 7:4-7. HP has conceded that even if its basic contract interpretation prevails, the Court must still engage in gapfilling to supply terms not actually present in the Hurd Settlement Agreement. See HP Opp. at 26:1527 (duration); id. at 25:21-25 (payment); id. at 25:6-20 (products).1 So numerous critical details
To the extent that the Court is going to embark on a process of gap-filling, the exercise should not be a oneway street in HPs favor. Oracle will ask the Court, for example, to enforce the parties unbroken past practice of barring liability for lost profits whenever they enter binding porting agreements. See Oracle
(Contd on next page) 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
regarding the content of Oracles obligation will remain unknown until the Court says what they are. Yet without knowing what the supposed terms of duration, payment and scope are, Oracle would be severely prejudiced in its effort to show the fact-finder that Oracle did not breach such a contract.2 The gap-filling exercise is focused on the same undisputed evidence that underlies HPs arguments regarding the meaning of the Reaffirmation Provision in the Hurd Settlement Agreement, and its implied contract and promissory estoppel claims. See HP Opp. at 24-27; 29-30. According to HP, the parties pre-September 2010 course of dealing informs both the viability of its claims (whether the supposed contract HP claims to exist is even plausible) and any gap-filling that the Court must perform. So the Court must consider the course of dealing evidence at the outset, both to fulfill its gap-filling duties and to determine whether that course of dealing permits HPs various contractual theories to proceed to the jury (assuming that HP has a right to take any claims to a jury). It is bad enough that so close to trial so much about the alleged contracts is unknown. But it would be a due process violation to require Oracle to defend claims of breach before the Court rules on the meaning of the contract. The only fair and sensible way to proceed in light of these concerns is for the Court to determine the contracts meaning before the parties litigate whether a breach occurred. b. Oracles proposal follows the equity first rule
The equity first rule also requires that the Court proceed as Oracle suggests: It is beyond dispute that where both legal and equitable issues are present, a jury may be empanelled to try the legal issues, and may also at the court's discretion be asked for advisory verdicts as to facts which may apply to the equitable issues, and that the equity first rule is the court should resolve the equitable issues first (see Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 609610, 53 Cal.Rptr. 25), and that the court's resolution of the equitable issues may resolve the legal issues. A-C Co. v. Sec. Pac. Nat. Bank, 173 Cal. App. 3d 462, 473 (4th Dist. 1985). HPs cause of action for declaratory relief is equitable, not legal. HP seeks (a) a declaration that requires the Court to engage in the equitable practice of gap-filling and (b) the equitable remedy (Contd from previous page)
Corporations Motion In Limine to Exclude Evidence of Hewlett Packard Companys Claims for Lost Profits (not yet filed; attached hereto as Exhibit A). HPs core factor pricing claim illustrates this problem. Without knowing what limits the Hurd Settlement Agreement imposes on Oracles ability to set market prices for its products, Oracle cannot feasibly mount a defense that it did not exceed those limits.
6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
of specific performance. See Williston on Contracts 77:17 (characterizing the discretion to supply an omitted but essential term as equitable). As a result, the gist of HPs declaratory relief cause of action is equitable. See Dow Jones Co. v. Avenel, 151 Cal. App. 3d 144, 147-48 (1st Dist. 1984) ([T]he constitutional guaranty of the right to a jury trial does not apply to actions involving the application of equitable doctrines and the granting of relief that is obtainable only in courts of equity.); C&K Engineering Contractors v. Amber Steel Co., 23 Cal. 3d 1, 9 (1978) (whether an action is legal or equitable depends upon its gist). Thus, under the equity first rule, the Court should resolve HPs declaratory relief claim before any legal cause of action HP has.3 Another threshold question for the Court is whether the terms of the Hurd Agreement are sufficiently defined to support the award of specific performance. This is at its core a question of duty: regardless of whether Oracle breached the contract, can its terms support the extraordinary equitable remedy that HP seeks? The requisite threshold of definiteness is higher when a contract claim seeks equitable relief rather than just damages. See Cal. Jur. 3d Contracts 100 (collecting cases); Weddington Prods. v. Flick, 60 Cal. App. 4th 793, 816; Oracle Mot. for Summ. Adj. at 22 n. 13. The Court needs to decide whether, as a matter of law, specific performance is an available remedy under this contract. See Ladas v. Cal. State Auto Assn, 19 Cal. App. 4th 761, 770 n.2 (1st Dist. 1993). The equity first principle dictates that the Court make that determination before the adjudication of legal issues. See Hoopes v. Dolan, 168 Cal. App. 4th 146, 156-57 (1st Dist. 2008). Finally, the Court must resolve HPs prayer for specific performance before there can be any consideration of its claim for damages, because HPs expert has estimated damages on the express assumption that HP does not win specific performance. As a result, he assumes in estimating damages that Oracles newly-developed products remain unavailable on HPs Itanium servers going forward. Frankly, that is a reasonable assumption in this case, but it is not HPs positionHP
This proposal is predicated on the Courts denying Oracles Motion for Summary Adjudication. The Courts determination that factual disputes preclude an interpretation of the contract without trial does not, of course, mean that those disputes must be resolved by a jury. Because HPs declaratory relief cause of action is equitable, it is the Courts responsibility to make any factual findings necessary to interpret the contract.
7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
continues to seek specific performance. If the Court were to order specific performance, of course, that assumption would no longer be valid. 3. HP Has No Right to a Jury Trial On Any Cause of Action
As this case has developed, it has become clear that there is no longer any basis for even empanelling a jury on the Issues of Duty. HPs own course of dealing argument dictates that it cannot seek monetary damages on any of its contract or quasi-contract claims.4 As a result, HPs only cognizable claim for relief on any of those causes of action is for specific performance, which as an equitable doctrine gives no right to a jury trial. See Lost Profits Motion in Limine (Exhibit A hereto) at 7-8; see also Van de Kamp v. Bank of Am., 204 Cal. App. 3d 819, 865 (2d Dist. 1988). HPs declaratory relief cause of action is also equitable in this instance. See Manneck v. Lawyers Title Insurance Corporation, 28 Cal. App. 4th 1294,1299-1300 (2d Dist. 1994); Benach v. County of Los Angeles, 149 Cal. App. 4th 836, 845-57 (2d Dist. 2007). That means that HP has no jury trial right on its first through fourth causes of action. HP also has no right to a jury trial on its remaining two claims in this action. HPs fifth cause of action, for promissory estoppel, is equitable. See C&K Engineering Contractors, 23 Cal. 3d at 8. HPs tenth cause of action, for violation of Cal. Bus. & Prof. Code section 17200, is also equitable. See Hodge v. Superior Court, 145 Cal. App. 4th 278, 284 (2d Dist. 2006). With none of HPs remaining claims in this litigation giving rise to a jury trial right, HPs entire case ought simply be tried to the Court. II. Issues To Be Tried
Although the parties have met and conferred on the issues to be tried at trial, they have been unable to reach agreement on a joint submission of these issues. Therefore, each partys respective issues are separately set forth below.
We explain this in greater detail in Oracles accompanying Motion In Limine to Exclude Evidence of Hewlett Packard Companys Claims for Lost Profits (Lost Profits Motion in Limine) (not yet filed pursuant to the Courts scheduling order; attached hereto as Exhibit A).
8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
A.
HPs Proposed Issues To Be Tried Declaratory Relief Does Paragraph 1 of the Settlement Agreement require Oracle to continue to offer its product suite on HPs Itanium-based servers in a manner consistent with the HP-Oracle partnership as it existed prior to Oracles hiring of Mark Hurd?
Breach of Contract Does Paragraph 1 of the Settlement Agreement require Oracle to continue to offer its product suite on HPs Itanium-based servers in a manner consistent with the HP-Oracle partnership as it existed prior to Oracles hiring of Mark Hurd? Was Oracles March 22, 2011 decision to stop offering new versions of the products in its software suite on HPs Itanium-based servers a breach of the Settlement Agreement? Was HP harmed by Oracles breach of the Settlement Agreement? If HP was harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles breach of the Settlement Agreement? What are the appropriate, additional remedies based on the jury verdict and/or the Courts findings?
Breach of Covenant of Good Faith and Fair Dealing Was Oracles March 22, 2011 decision to stop offering new versions of the products in its software suite on HPs Itanium-based servers, including the manner in which that decision was implemented, a breach of the covenant of good faith and fair dealing? Was Oracles December 1, 2010 decision to double the core factor used to determine the licensing fee charged by Oracle for software offered on certain of HPs Itanium-based servers a breach of the covenant of good faith and fair dealing? Was HP harmed by Oracles breaches of the covenant of good faith and fair dealing? If HP was harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles breach of the covenant of good faith and fair dealing?
Breach of Implied Contract Was Oracles March 22, 2011 decision to stop offering new versions of its software products on HPs Itanium-based servers a breach of an implied contract between Oracle and HP? Was HP harmed by Oracles breach of the implied contract between Oracle and HP? If HP was harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles breach of the implied contract between Oracle and HP?
Promissory Estoppel Did HP reasonably and foreseeably rely upon Oracles promises to continue software development for the Itanium platform? 9
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Was HP harmed by Oracles failure to honor its promises to continue software development for the Itanium platform? If HP was harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles failure to honor its promises to continue software development for the Itanium platform?
Violation of Bus. & Prof. Code 17200 Does Oracles conduct constitute unfair competition, including any unlawful, unfair or fraudulent business act or practice, or unfair, deceptive, untrue or misleading advertising? What equitable relief is appropriate if the Court finds a violation?
Lanham Act (Oracle Cross Claim) Did HP make false or misleading statements of fact in a commercial advertisement about a material aspect of the nature, quality or characteristics of its Itanium servers that likely influenced the purchasing decision of high-end, mission critical server customers? Did HP know that such statements were false or have serious doubts about whether they were true? Did such statements actually deceive or have a tendency to deceive a substantial segment of high-end, mission critical server customers? Did such statements harm Oracle by diverting sales from Oracle to HP?
Violation of Bus. & Prof. Code 17200 (Oracle Cross Claim) B. Does HPs conduct constitute unfair competition, including any unlawful, unfair or fraudulent business act or practice, or unfair, deceptive, untrue or misleading advertising? What equitable relief is appropriate if the Court finds a violation? Oracles Proposed Issues To Be Tried HPs First Cause of Action: Declaratory ReliefCal. Civ. Proc. Code 1060 Whether HP and Oracle objectively manifested a mutual intent to strike the same bargain a present and future commitment to port Oracle software to the HP-UX platform without compensation, and database pricing protection in the Reaffirmation Provision in the Hurd Agreement. What was the mutual intention of the parties, as it existed at the time the Hurd Agreement was executed, as to the meaning of the Reaffirmation Provision of the Hurd Agreement, specifically regarding the software development and pricing obligations HP claims Oracle undertook and the product support obligations HP claims to have undertaken itself? What specific contractual duties and obligations should the Court add to the Reaffirmation Provision using gap-filling principles, particularly as to: o the scope of the Oracle products and HP platforms covered; o the duration of any support or development obligations; 10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
o the payments involved with any support or development obligations; o HPs obligation to provide equipment to enable Oracle to carry out any development obligations; o intellectual property rights in any resulting software; o Oracles ability and discretion to set the license pricing for its software products in the future; o termination or modification rights as to any support or development obligations; o remedies that may be sought by the parties in the event of a breach; o the nature and scope of any other partnership obligations allegedly reaffirmed between the companies. How many, and which of, the terms from the parties express Porting Agreements should the Court use to fill in the gaps of the Reaffirmation Provision? Which of the express Porting Agreements should the Court use where the terms of different agreements conflict? How does the Reaffirmation Provision affect the parties obligations regarding products, such as the E-Business Suite, as to which Oracle and HP had executed express, written Porting Agreements at the time the Hurd Agreement was executed? Whether the Court should ultimately issue the two judicial declarations that HP seeks in its Complaint regarding the software development and pricing contractual obligations that the parties allegedly agreed to in the Reaffirmation Provision: o declaring specifically that, as to any Oracle software product that was offered on HPs Itanium-based server platforms at the time Oracle signed the Hurd Agreement, Oracle is required to continue to offer and support that product, including any new versions, revisions, patches or updates of the product, on HPs Itanium-based server platforms in a manner and on terms consistent with the way those products were offered and supported prior to Oracles hiring of Hurd. (Compl. 115) o declaring that the Hurd Agreement requires Oracle (i) to maintain the pricing formula for its software license for HPs Itanium-based server platforms in a manner consistent with the way in which that formula was defined prior to Oracles hiring of Hurd; and (ii) to release its products, including any new versions, revisions, patches or updates of those products, for HPs Itanium-based server platforms consistent with the timing of when such products were released, in relation to other UNIX architectures, prior to Oracles hiring of Hurd. The specific Oracle products as to which HP seeks this declaratory judgment include, but are not limited to, the Oracle database (including version 12g) (Compl. 115) HPs Second Cause of Action: Breach of Contract Whether HP has performed and intends to perform all conditions, covenants, and promises required on its part to be performed in accordance with the terms and conditions of the Hurd Agreement. (Compl. 65) Pursuant to the Courts holdings regarding any contractual duties or obligations arising from the Reaffirmation Provision of the Hurd Agreement, and the terms thereof, whether Oracle breached its commitments and obligations under the HurdAgreement by 11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
o ceasing and refusing to continue with the porting of its product suite to HP s Itanium platform, telling customers that it will not offer new versions of its software products on the Itanium platform; o refusing to fix critical defects, which is a fundamental aspect of supporting customers, in existing versions of its software products designed for use with HPs Itanium servers; and o changing its longstanding software license pricing formula to specifically disadvantage Itanium platforms. (Compl. 67) Was HP cognizably harmed by any Oracle breach of the Hurd Agreement? Whether the Court may and should grant the equitable remedy of specific performance of any of the above claimed obligations under the Hurd Agreement, including whether the contractual obligations are definite enough as a matter of law to allow for the specific performance requested by HP. If HP was cognizably harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles breach of the Hurd Agreement? Is HP precluded from seeking consequential damages, including alleged lost profits, allegedly resulting from Oracles claimed breach of the Hurd Agreement?
HPs Third Cause of Action: Breach of the Covenant of Good Faith and Fair Dealing Was Oracles March 22, 2011 decision to stop offering new versions of the products in its software suite on HPs Itanium-based servers, including the manner in which that decision was implemented, a breach of the covenant of good faith and fair dealing? Can the manner in which Oracles March 22, 2011 decision was implemented be a breach of the covenant of good faith and fair dealing when HP is not claiming that the actual contractual provision (the Reaffirmation Provision of the Hurd Agreement) regulated the manner in which Oracle made or communicated any decisions that potentially led to a breach of the Reaffirmation Provision? Was Oracles December 1, 2010 decision to change the core factor used to determine the licensing fee charged by Oracle for software offered on certain of HPs Itanium-based servers a breach of the covenant of good faith and fair dealing? Was HP harmed by Oracles breaches of the covenant of good faith and fair dealing? If HP was harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles breach of the covenant of good faith and fair dealing?
HPs Fourth Cause of Action: Breach of Implied Contract Did HP and Oracle have an implied contract whereby Oracle was obligated to (i) port all of its software products to HPs platforms on an ongoing basis and without compensation and (ii) price Oracle database software on such terms that did not disadvantage the use of Itanium microprocessors used by HP in its server offerings?
12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Would the porting obligations HP asserts as the implied porting contract conflict with the express contracts actually entered into between the parties for the porting of specific software products on detailed and limited terms? How, if at all, is the determination of the existence and scope of the parties alleged implied contract affected by the Hurd Agreement? What specific contractual duties and obligations are imposed on the parties by virtue of the alleged implied contract, particularly as to o the scope of the Oracle products and HP platforms covered; o the duration of any support or development obligations; o the payments involved with any support or development obligations; o HPs obligation to provide equipment to enable Oracle to carry out any development obligations; o intellectual property rights in any resulting software; o Oracles ability and discretion to set the license pricing for its software products in the future; o termination or modification rights as to any support or development obligations; and o remedies that may be sought by the parties in the event of a breach?
How many, and which of, the terms from the parties express Porting Agreements should the Court use to fill in the gaps of the alleged implied contract? Was Oracles March 22, 2011 decision to stop offering new versions of its software products on HPs Itanium-based servers a breach of an implied contract between Oracle and HP? Did HP perform its obligations under the implied contract between Oracle and HP? Was HP harmed by Oracles breach of the implied contract between Oracle and HP? Whether the Court may and should grant the equitable remedy of specific performance of any of the above claimed obligations under the alleged implied contract, including whether the contractual obligations are definite enough as a matter of law to allow for the specific performance requested by HP. Whether the implied contractual obligations are definite enough to allow for the specific performance requested by HP. If HP was harmed, what is the dollar amount that will reasonably compensate HP for the harm caused by Oracles breach of the implied contract between Oracle and HP? Is HP precluded from seeking consequential damages, including alleged lost profits, allegedly resulting from Oracles claimed breach of an implied contract?
HPs Fifth Cause of Action: Promissory Estoppel Did Oracle make clear and unambiguous promises to HP to continue future software development for the Itanium platform? 13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Did HP reasonably and foreseeably rely to its detriment upon any such clear and unambiguous promises by Oracle to continue future software development for the Itanium platform? Was HP harmed by Oracles alleged failure to honor any such clear and unambiguous promises to continue software development for the Itanium platform? If HP was harmed, what is the dollar amount that will reasonably compensate HP for its detrimental reliance on Oracles clear and unambiguous promises to continue software development for the Itanium platform?
HPs Tenth Cause of Action: For Violation of Cal. Bus. & Prof. Code 17200 et seq. Is HPs 17200 claim cognizable under law given HPs abandonment of the predicate causes of action (defamation and intentional interference)? Did Oracle engage[] in fraudulent and deceptive business practices by, among other things, making false and deceptive statements to HP and its customers about its commitment to HPs Itanium servers, its intent to make new versions of Oracle software available to the Itanium platform, and its intent to continue to support existing versions of its Oracle software for the Itanium platform? (Compl. 114) Did Oracle also engage[] in fraudulent and deceptive practices by, among other things, disseminating false, deceptive, and defamatory statements to its customers and the marketplace regarding the alleged status and future viability of Itanium products and platforms, and HPs alleged lack of candor with its customers about the expected longevity of the Itanium architecture? (Compl. 114) Have Oracles alleged statements deceived, or are they likely to deceive, customers and the public? Does Oracles conduct constitute unfair competition, including any unlawful, unfair or fraudulent business act or practice, or unfair, deceptive, untrue or misleading advertising? What equitable relief is appropriate if the Court finds a violation?
Oracles First Cause of Action: Violation of the Lanham Act, 15 U.S.C. 1501 et seq. and Second Cause of Action: Violation of Cal. Bus. & Prof. Code 17500 et seq. Did HP make false or misleading statements regarding Itanium, HPs Itanium-based servers or Intel? Were such statements literally or explicitly false, or have a tendency to mislead customers? Was Oracle injured as a result of HPs alleged deceptive conduct? What amount of monetary damages, if any, is Oracle entitled to recover? Should HP be enjoined from engaging in the alleged deceptive conduct?
Oracles Third Cause of Action: Violation of Cal. Bus. & Prof. Code 17200 et seq. Did HP make false or misleading statements regarding Itanium, HPs Itanium-based servers or Intel? 14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Did HP make false or misleading statements as to Oracle, including regarding Oracles announcements about Itanium and Oracle causing harm to customers? Have HPs alleged statements deceived, or are they likely to deceive, customers and the public? Does HPs conduct constitute unfair competition, including any unlawful, unfair or fraudulent business act or practice, or unfair, deceptive, untrue or misleading advertising? What equitable relief is appropriate if the Court finds a violation? III. Witnesses To Be Called
The parties agree that it is premature to assign time estimates for each witness at this time because the Court has not yet decided the trial structure and schedule. Once the Court resolves those issues and sets a total length for the trial, the parties will set forth time estimates for the witnesses. The parties have exchanged preliminary witness lists, and have agreed that their respective lists are subject to change until required to be finalized and submitted to the Court on May 25, 2012. The witnesses who currently appear on both parties lists, along with a general description of the subjects matters about which they are expected to testify, are as follows:
Witness Timothy Aylott HPs Description of Subjects Mr. Aylott will testify on topics relating to the relationship and course of dealing between the parties, and the parties performance under the contract at issue. Mr. Block will testify on topics relating to Oracles conduct prior to and after Oracles Itanium announcement, and the UNIX server market generally. Ms. Catz will testify on topics relating to the negotiation of the contract at issue, the relationship and course of dealing between the parties, Oracles Itanium announcement, and Oracles conduct prior to and after Oracles Itanium announcement. Mr. Donatelli will testify on topics relating to the contract at issue HPs Itanium-based server business, including the relationship between the parties, HPs relationship with Intel, the Itanium roadmap, and the impact of Oracles Itanium announcement, and the UNIX server market generally. Oracles Description of Subjects Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers regarding server sales; Oracle damages Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers regarding server sales; Hurd Agreement; Oracle software development and licensing; Oracle damages Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information; HP damages
Keith Block
Safra Catz
David Donatelli
15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Martin Fink
John Fowler
Mr. Fink will testify on topics relating to HPs Itanium-based server business, including the relationship between the parties, HPs relationship with Intel, the Itanium roadmap, and the impact of Oracles Itanium announcement, and the UNIX server market generally. Mr. Fowler will testify on topics relating to Oracles hardware business, and the UNIX server market generally.
David Hicks
Mark Hurd
Cathie Lesjak
Paul Otellini
Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information; HP damages Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets Itanium and x86; HP public statements and customer outreach; Oracle damages Mr. Hicks will testify on topics relating to Oracle/HP relationship prior and subsequent to the relationship and course of dealing Hurd Agreement; competition and customers in between the parties and Oracles conduct server markets Itanium and x86; HP public prior to and after the Itanium statements and customer outreach; Oracle announcement. damages Mr. Hurd will testify on topics relating to Oracle/HP relationship prior and subsequent to the relationship between the parties, the Hurd Agreement; competition and customers in contract at issue, the Itanium roadmap, server markets; Intel/HP relationship; Itanium Oracles hardware business, and Oracles and x86; HP server strategy and plans; HP conduct prior to and after its Itanium public statements and customer outreach; HP announcement. server-related financial information; HP damages Ms. Lesjak will testify on topics relating to Oracle/HP relationship prior and subsequent to HPs business, including the relationship Hurd Agreement; Hurd Agreement; between the parties and the contract at issue. competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information; HP damages Mr. Otellini will testify on topics relating to Intel/HP relationship; Intel microprocessor Intels business, including Intels strategy and plans; competition and customers relationship with the parties, the Itanium in server markets; HP server strategy and plans; roadmap and Oracles Itanium public statements and customer outreach announcement. regarding Itanium and x86
A.
HPs Additional Witnesses The additional individuals currently identified on HPs preliminary witness list are:
Witness Judson Althoff Kirk Bresniker Andrew Canham Sumanta Chatterjee Bert Collins Steve Connor
Subjects/Topics Mr. Althoff will testify on topics relating to the course of dealing between the parties, and the parties performance under the contract at issue. Mr. Bresniker will testify on topics relating to HPs Itanium servers, including the Itanium roadmap, HPs relationship with Intel, and Oracles Itanium announcement, and the UNIX server market generally. Mr. Canham will testify on topics relating to Oracles conduct prior to and after Oracles Itanium announcement, and the UNIX server market generally. Mr. Chatterjee will testify on topics relating to the relationship and course of dealing between the parties. Mr. Collins will testify regarding the impact on customers of Oracles decision to stop software development on Itanium-based servers. Mr. Connor will testify on topics relating to the relationship and course of dealing between the parties, Oracles Itanium announcement, and Oracles conduct prior to and after the Itanium announcement.
16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Jeb Dasteel Juan Garcia-Rovetta Michael Holston Renee James Timothy Kelly Ann Livermore Kathryn McQueen Andrew Mendelsohn Jonathan Orszag Ed Screven Kirk Skaugen Joel Steckel Binoy Sukumaran David Tucker Sandy Vella
Mr. Dasteel will testify on topics relating to the course of dealing between the parties, Oracles conduct prior to and after the Itanium announcement, and customer reactions to Oracles Itanium announcement. Mr. Garcia-Rovetta will testify on topics relating to the relationship and course of dealing between the parties. Mr. Holston will testify on topics relating to the Mark Hurd lawsuit, the negotiation of the contract at issue, and related matters. Ms. James will testify on topics relating to Intels relationship with the parties, and Oracles Itanium announcement. Mr. Kelly will testify on topics relating to Oracles conduct prior to and after Oracles Itanium announcement, and the UNIX server market generally. Ms. Livermore will testify on topics relating to HPs business, including the relationship and course of dealing between the parties, the negotiation of the contract at issue, and Oracles Itanium announcement, and the UNIX server market generally. Ms. McQueen will testify on topics relating to HPs financial performance relating to Itanium-based servers. Mr. Mendelsohn will testify on topics relating to the relationship and course of dealing between the parties Oracles Itanium announcement, and Oracles conduct prior to and after Oracles Itanium announcement. Mr. Orszag will testify regarding HPs damages. Mr. Screven will testify on topics relating to Oracles business, including Oracles hardware business and the parties performance under the contract at issue, and the UNIX server market generally. Mr. Skaugen will testify on topics relating to Itanium including the Itanium roadmap, the relationship between HP and Intel, Oracles announcement regarding Itanium, and the UNIX server market generally. Dr. Steckel will testify as a rebuttal witness to Kent Van Liere. Mr. Sukumaran will testify on topics relating to the relationship and course of dealing between the parties. Mr. Tucker will testify on topics relating to the relationship and course of dealing between the parties. Ms. Vella will testify on topics relating to the relationship and course of dealing between the parties, and Oracles conduct prior to and after Oracles Itanium announcement.
B.
Oracles Additional Witnesses The additional individuals currently identified on Oracles preliminary witness list are:
Witness Bartlett, Lorraine
Cooper, Robert Crowsen, Michael Daley, Dorian Ellison, Lawrence Kurian, Thomas
Subjects/Topics Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information; HP damages Hurd Agreement Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information Oracle/HP relationship prior and subsequent to Hurd Agreement; Hurd Agreement Oracle/HP relationship prior and subsequent to Hurd Agreement; Hurd Agreement; competition and customers in server markets; Itanium and x86; HP public statements and customer outreach; Oracle software development and licensing; Oracle damages Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets; Itanium and x86; HP public statements and customer outreach; Oracle software development and licensing; Oracle damages
17
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Liversidge, Samuel Lee, Joseph Mayer, Bethany Palk, David
Shehadeh, Ramsey Tredennick, Nick Van Liere, Kent Wohl, Bill
Hurd Agreement Competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP serverrelated financial information Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach Oracle/HP relationship prior and subsequent to Hurd Agreement; competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP public statements and customer outreach; HP server-related financial information; HP damages HP and Oracle damages and underlying/related data and issues Competition and customers in server markets; Intel/HP relationship; Itanium and x86; HP server strategy and plans; HP server-related financial information; HP damages Competition and customers in server markets Itanium and x86; HP server strategy and plans; HP damages Oracle/HP relationship subsequent to the Hurd Agreement; Intel/HP relationship; HP public statements and customer outreach
IV.
Exhibit Lists
The parties have exchanged preliminary exhibit lists, which are Attached as Exhibit A (HP) and Exhibit B (Oracle). Both parties continue to work on finalizing their respective lists. V. Procedures For The Presentation Of Testimony And Exhibits
The parties intend to follow the standard procedures set forth by the Court regarding the presentation of testimony and exhibits. The parties will be prepared to discuss at the Joint Pre-Trial Conference a protocol for deposition designations, including the resolution of objections. VI. Other Matters To Expedite Trial
The parties continue to work together to reach agreement on logistical and substantive aspects of the trial. Other than the issues contemplated in the Courts Pre-Trial Conference Order, and certain limited remaining discovery disputes that the parties are endeavoring to resolve without Court intervention, no significant issues requiring the Courts attention currently have been identified. DATED: MAY 14, 2012 GIBSON, DUNN & CRUTCHER LLP BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP By: /s/ Robert E. Cooper Robert E. Cooper
Attorneys for Plaintiff HEWLETT-PACKARD COMPANY
18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DATED: MAY 14, 2012
LATHAM & WATKINS LLP By: /s/ Daniel M. Wall Daniel M. Wall
Attorneys for Defendant ORACLE CORPORATION
19

Joint Final Pre-Trial Conference Statement

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Joint Final Pre-Trial Conference Statement

Uploaded by

Copyright:

Available Formats

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Gibson, Dunn & Crutcher LLP

Assigned for all Purposes to The Honorable James P. Kleinberg

(Contd on next page) 5

Witness Bartlett, Lorraine

Liversidge, Samuel Lee, Joseph Mayer, Bethany Palk, David

Shehadeh, Ramsey Tredennick, Nick Van Liere, Kent Wohl, Bill

Attorneys for Plaintiff HEWLETT-PACKARD COMPANY

DATED: MAY 14, 2012

Attorneys for Defendant ORACLE CORPORATION

You might also like