John Paczkowski

Recent Posts by John Paczkowski

Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial

Hewlett-Packard describes Oracle’s efforts to subpoena CEO Léo Apotheker to testify in its trial against archrival SAP as “an effort to harass” him and “interfere with his duties and responsibilities.” But to Oracle, Apotheker is a central player and one it desperately wants to put on the stand. So much so, that Oracle attorney David Boies said today it may rest its case without showing Apotheker’s videotaped deposition in order to give itself more time to subpoena him to testify in person at the trial.

In a statement this afternoon, Boies reiterated the importance to Oracle of getting Apotheker in front of the jury, an effort thwarted so far because he has stayed out of range of a subpoena.

“[Former SAP director] Shai Agassi identified Leo Apotheker as being responsible for Safe Passage, with TomorrowNow as its cornerstone,” Boies said. “Werner Brandt [SAP director and CFO] did the same and testified that Mr. Apotheker was a member of the SAP AG Executive Board that fully supported the acquisition of TomorrowNow. He is clearly a very important witness in this case, especially now.

“When he testified at his deposition more than two years ago, it was before SAP and its wholly owned subsidiary TomorrowNow admitted infringing Oracle’s intellectual property through massive downloading and copying of PeopleSoft, JD Edwards and Siebel software. We think it is very important that Mr. Apotheker testify now, as a live witness in court, to explain his and SAP’s conduct.”

And if Apotheker still can’t be found? What then?

“Maybe we’ll just let the jury know that they’ve hidden him,” Boies said earlier. “I think it may be better for the jury to know that, here’s this guy who was at the center of all this [and we can't find him].”

In other words, jurors’ imaginations might be more powerful than the actual contents of Apotheker’s now very dated deposition. Better to tell them that the exec has been sequestered, and allow them to conclude that his testimony must be very damaging.

Of course, the flip side of this is that Apotheker and his deposition are inconsequential to the case and Oracle’s main goal in pursuing him has been to create a media circus around him to embarrass HP–which is what HP and SAP have been saying all along. And indeed, SAP repeated it again today in response to Boies’s comments. Said a spokesman, “Oracle’s heightened interest in Mr. Apotheker as a live witness came only after his appointment as HP’s CEO, a PR sideshow that has little to do with the real issues of this case–the actual damages from the limited operations of TomorrowNow.”

UPDATE: Reached for comment on Boies’ statement, HP maintained that Oracle’s efforts to put Apotheker on the stand are harassment and nothing more.

“As HP has said repeatedly, Oracle had ample opportunity to question Léo in the two years after he gave a full-day deposition,” a spokesperson told me. “Léo was never asked to give an additional deposition. As HP and SAP have noted, Oracle chose not to include Léo as a live trial witness until after he was named CEO of HP. Léo had a limited role in the matter and Oracle’s current stance is clear proof that they have been trying to harass Léo and interfere with his work at HP.”

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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik