Oracle vs. SAP Trial Set for 2009

The judge suggests that both parties look to mediation as an alternative dispute-resolution measure before the trial. Oracle and SAP may well have their day in court… in two years. But that's only if mediation hasn't settled Oracle's suit against SAP—alleging corporate theft and illegal hacking—first.

Following a Sept. 25 case management conference in the United States District Court, Northern District of California, San Francisco Division, Judge Martin Jenkins suggested that both parties look to mediation as an alternative dispute-resolution measure. He also outlined a schedule leading up to a 2009 trial.

The pertinent dates boil down to a second case management conference on Feb. 12, 2008, and a trial commencement date of Feb. 9, 2009. The Judge has allotted four weeks for the trial and indicated Nov. 13, 2008, as the last date the court will hear motions.

But, according to Randall Kahnke, an intellectual property litigator with Faegre & Benson in Minneapolis, mediation will be the first step.

The case "will have an ADR [alternative dispute resolution] that will be required, and mediation is the most frequently used ADR method amongst sophisticated parties like Oracle and SAP," said Kahnke. "They will participate in mediation sometime before a court date that the court establishes."

SAP said in a statement Tuesday that the court recommended mediation prior to a trial.

Oracle filed suit against SAP last March alleging that SAP's third-party application support company TomorrowNow, illegally downloaded documentation from Oracle's support site. In June, Oracle amended the suit to include copyright infringement and breach-of-contract claims that included allegations of illegal hacking. In July, SAP CEO Henning Kagermann admitted that some employees at TomorrowNow had downloaded more support documentation on behalf of customers than the company had legal rights to. Kagermann said at the time that the information was never passed on to SAP, and that SAP does not have access to Oracle's intellectual property.

Oracle, in a joint conference statement filed in August in preparation for Tuesday's meeting in court, requested at least 18 months of discovery that would include 69 customer witnesses and dozens of depositions. SAP in the same statement requested the court forgo a jury trial and order the matter settled through mediation.

Tuesday's scheduling of a 2009 trial date—six months before Oracle's requested date—with the allowance of 20 witness interviews and three experts from both parties seems to indicate standard operating procedure, according to Kahnke.

"I don't think you can read too much into [the trial designation]," Kahnke said. "The judge has effectively put this case on a standard schedule for complex matters of this nature."

Kahnke said the real meat in the process—whether or not Oracle has a case—will come once discovery is completed. "If there is not a case, then SAP will bring a motion for summary judgment," he said. The motion would essentially amount to SAP requesting the court forgo a jury trial, based on a lack of evidence on Oracle's part, and have the matter settled by Judge Jenkins.

Whether Oracle's case will settle in mediation or wend its way through a jury trial remains to be seen. Oracle, known for its mud-slinging ways, is "looking to get mileage out of what has occurred" with SAP, according to Kahnke. But, he added, Oracle has to be careful it doesn't push the matter too far.

"Oracle has to be careful not to overplay this or SAP will say, at some point, 'Did you contribute to this—were you properly monitoring what TomorrowNow was doing? Were you properly monitoring your IP?'" said Kahnke. "Oracle has to be careful [this suit] doesn't come back to bite them."

Author: Renee Boucher Ferguson @ eWeek.com

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