HP Blocks Oracle Subpoena For Apotheker Trial Appearance

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HP is refusing to allow its new CEO Leo Apotheker to testify in the Oracle/SAP trial, but all eyes will be on Larry Ellison when he takes to the stand

Hewlett-Packard has refused to allow its new CEO to testify as a material witness in the copyright-infringement lawsuit Oracle has brought against arch-rival SAP.

But all eyes will be on Larry Ellison after it was revealed that the Oracle CEO will testify 8 November and provide his perspective on the case.

In a third action, SAP agreed to a partial payment of $120 million (£75 million) to help cover Oracle’s court costs while agreeing to not pursue punitive damages. Nonetheless, Oracle is still pursuing business damages related to copyright infringement.

Targeting Apotheker

The $120 million amounts to a de facto down payment on the total amount that the Germany-based company will have to pay Oracle.

HP chief executive Leo Apotheker, who officially started his new role on 1 November, served as SAP’s CEO three years ago during a period in which the enterprise application provider violated enterprise middleware copyrights held by Oracle.

The trial in federal district court in Oakland, California, is being held to ascertain how much in restitution SAP owes Oracle for copyright infringement by its now-defunct TomorrowNow customer-support division.

Oracle is asking for $2.15 billion (£1.3 billion) to pay for the software it says was stolen. SAP believes “tens of millions” of dollars is a fair amount.

Ellison said several weeks ago that he wants to see Apotheker on the stand to give witness to the illegal downloading of Oracle’s software and thousands of pages of supporting documents by TomorrowNow.

HP claims Ellison and Oracle are trying to implicate Apotheker in the illegalities in order to discredit HP, which is a competitor – and ironically, also a partner – to Oracle in several key IT businesses.

“Oracle had its chance”

HP said in a statement to the press that Oracle had its chance to grill Apotheker two years ago.

“Oracle had ample opportunity to question Leo during his sworn deposition in October 2008 and chose not to include him as a live trial witness until he was named CEO of HP,” the company said.

“Given Leo’s limited knowledge of and role in the matter, Oracle’s last-minute effort to require him to appear live at trial is no more than an effort to harass him and interfere with his duties and responsibilities as HP’s CEO.”

Two years after it was acquired by SAP, TomorrowNow was caught stealing Oracle’s intellectual property by gaining unauthorised access to a customer-support Oracle website and downloading copyrighted instances of support software and thousands of pages of documentation.

Oracle claimed that more than 8 million instances of its enterprise support software worth $2.15 billion were stolen, stored on SAP’s servers and used without its permission.

It also charged that SAP/TomorrowNow deployed automated bots that used Oracle’s own software to lure customers from PeopleSoft (owned by Oracle) over to SAP.

Enterprise support software amounts to about one-half of Oracle’s annual revenue.

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