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Oracle Itanium Filing: "Weekend At Bernie'ss

Oracle Itanium Filing: "Weekend At Bernie'ss

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Published by Arik Hesseldahl

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Categories:Business/Law
Published by: Arik Hesseldahl on Nov 19, 2011
Copyright:Attribution Non-commercial

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05/24/2012

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ORACLE CORPORATION’S CASE MANAGEMENT CONFERENCE STATEMENTCASE NO. 1-11-CV-203163
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 2000San Francisco, California 94111-6538Telephone: (415) 391-0600Facsimile: (415) 395-8095ORACLE CORPORATIONDorian Daley (SBN 129049)Deborah K. Miller (SBN 095527)500 Oracle ParkwayM/S 5op7Redwood Shores, California 94065Telephone: (650) 506-5200Facsimile: (650) 506-7114Attorneys for Defendant and Cross-ComplainantORACLE CORPORATIONSUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SANTA CLARAHEWLETT-PACKARD COMPANY,Plaintiff,v.ORACLE CORPORATION,Defendant.ORACLE CORPORATION,Cross-Complainant,v.HEWLETT-PACKARD COMPANY,Cross-Defendant.CASE NO. 1-11-CV-203163Action Filed: June 15, 2011Trial Date: February 27, 2012
ORACLE’S CASE MANAGEMENTCONFERENCE STATEMENT
Date: November 22, 2011Time: 10:00 AMDept. 1CAssigned for all Purposes toThe Honorable James P. Kleinberg
PUBLIC REDACTED VERSION
E-FILED
Nov 18, 2011 3:29 PM
David H. Yamasaki
Chief Executive Officer/ClerkSuperior Court of CA, County of Santa ClaraCase #1-11-CV-203163 Filing #G-36984By S. Gancayco, Deputy
 
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ORACLE CORPORATION’S CASE MANAGEMENT CONFERENCE STATEMENTCASE NO. 1-11-CV-203163
Defendant Oracle Corporation (“Oracle”) hereby submits this Case ManagementConference Statement for the Second Case Management Conference (“CMC”), scheduled forNovember 22, 2011.Oracle is filing this single-party Case Management Statement because HP refused to signon to a Joint Case Management Statement unless Oracle removed its own explanation for thefiling of its forthcoming Amended Cross-Complaint (set forth in Section I, below). HP’sposition is curious, at best, because a mere three days ago, HP took Oracle to task for not tellingthe Court the basis for its Amended Cross-Complaint, only providing “mysterious” hints. Oraclebelieves it necessary to preview the basis for the additional causes of action that Oracle willbring in the amended pleading because those new claims contribute to the need for a new trialdate in this matter.
I. INTRODUCTION
Oracle asked for this Case Management Conference, over HP’s objection, to request thatthe Court move the existing trial date. It did so for two reasons.First, discovery in this matter has proven to be broader, more complex and more timeconsuming than either party anticipated. Despite both parties’ intense and best efforts, it hasnow become apparent that the discovery necessitated by the parties’ claims simply cannot becompleted in advance of the present trial date of February 27, 2012. HP claims that it can meetthe trial date notwithstanding the current discovery status and schedule, but this is completelyunrealistic. The parties are barely halfway through their initial document productions (havingproduced hundreds of thousands of documents, with hundreds of thousands more to come), andthe scope of discovery remains contested and unsettled. The full scope of discovery will noteven be finalized for weeks or months to come. No depositions of 
any employees
have beenconducted, and none will be able to be conducted effectively until weeks from now (particularlygiven the approaching holiday season). Indeed, Oracle is the only party to have noticed anydepositions so far, and even for those—the two individuals who directly negotiated the alleged“contractual obligation” underlying the bulk of HP’s claims in this case—HP has objected, andthe parties are simultaneously filing IDC briefs on that very issue. No third party depositions
 
E-FILED: Nov 18, 2011 3:29 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-203163 Filing #G-36984
 
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ORACLE CORPORATION’S CASE MANAGEMENT CONFERENCE STATEMENTCASE NO. 1-11-CV-203163
have been scheduled so far, and discovery of Intel in particular is proving to be contentious. Toput all of this in context, the date the parties were required to have filed motions for summary judgment
 
given the February 27 trial date
 passed 
 
 yesterday, before deposition discovery had even begun.
 Second, and critically, what discovery Oracle has received to date makes clear that thescope of this case needs to expand in order for Oracle to fairly defend itself and present allclaims at once.At the heart of this is something that—at great effort—HP has kept secret from the marketplacefor years but which in its filing two days ago objecting to this very CMC, HP has at last revealed:“HP and Intel have a contractual commitment that Itanium will continue through the next twogenerations of microprocessors….” HP’s Response to Oracle’s Notice of Intention To FileCross-Complaint at 4:6-7, filed Nov. 16, 2011. As innocuous as HP tries to make that sound, themarket has never been told that Itanium lives on only because HP is paying Intel to keep it going.To the contrary, HP has made countless statements to the marketplace to the effect that Intel’scommitment to Itanium is its own, based on Intel’s normal calculus of investing inmicroprocessors that it believes have a future. That simply is not true with respect to Itanium.Intel’s independent business judgment would have killed off Itanium years ago. But HP hassecretly contracted with Intel to keep churning out Itaniums so that HP can maintain theappearance that a dead microprocessor is still alive. The whole thing is a remake of 
Weekend at  Bernie’s
.Because HP has claimed that Oracle has only made “mysterious hints” about itsforthcoming cross-claims, we take a moment to describe them in detail.Oracle intends to add claims under California Business & Profession Code § 17500 andthe federal Lanham Act (over which California courts have concurrent jurisdiction) for falselyrepresenting material facts concerning the Itanium microprocessor family and in particularIntel’s support for it. HP made these false statements—with the specific intent of taking serverbusiness away from Oracle Sun and indeed attaining a duopoly in the high-end server businesswith IBM. The strategy was also intended to permit HP to continue to reap lucrative revenues
 
E-FILED: Nov 18, 2011 3:29 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-203163 Filing #G-36984

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