SAP: Please Gag Oracle
With hearings in its intellectual property battle with Oracle set to begin on Nov. 1, SAP is steeling itself for what promises to be some raucous gladiatorial litigating. Last Friday, the company asked a California court to slap a gag order on Oracle’s legal counsel ahead of the trial. which will determine the damages SAP will pay for its TomorrowNow division’s admitted theft of Oracle intellectual property.
The justification for that request? A recent piece by New York Times business columnist Joe Nocera accusing TomorrowNow of “the most serious business crime you can commit” and suggesting that former SAP chief Léo Apotheker–who was recently named CEO of Hewlett-Packard– was well aware of it. “He may not have been directly involved in this brazen theft of intellectual property, but it defies belief to say he didn’t know about it,” Nocera wrote. “And he did nothing to stop it until it was far too late.”
A damning indictment, were it not for one problem: Nocera’s fiancée serves as director of communications for the law firm representing Oracle in its suit against SAP, a clear conflict of interest for the columnist and one that wasn’t disclosed when this article was first published. And for SAP, reason enough to demand an order preventing lawyers on both sides from discussing the case outside the courtroom.
“The episode involving the New York Times article–coupled with Oracle’s counsel’s refusal to eschew publicity efforts during trial despite recognizing that jurors may not heed a court instruction not to read press coverage–leads to this motion,” SAP’s attorneys wrote. “Referring to this copyright dispute as ‘the most serious business crime’ is inflammatory and, to the extent anyone credits the author, prejudicial. The same is true of almost any type of extrajudicial statements by counsel that a juror might read. The jurors should hear evidence and argument in court only; they should not be exposed to counsels’ extrajudicial repetition of, or spin on, the in-court evidence and argument.”
Arguments on the gag order are due tomorrow, with a ruling to follow sometime after that. Trial starts in a week, and with a witness list that includes Apotheker as well as his harshest critic, Oracle CEO Larry Ellison, it should be great fun to watch.