Oracle in a filing last week said it might file an amended complaint alleging what its attorneys are calling "a broader program of copyright infringement" by SAP above and beyond the scope of allegations it has already made against its archrival's TomorrowNow subsidiary.

The vague reference to other alleged infringement activity was outlined in a joint statement issued January 29 by attorneys for both software behemoths ahead of a February 12 case management hearing in a San Francisco District Court.

"Virtually all discovery sought and received thus far has centered on Oracle's current allegations," the filing said. "However, in the process of conducting this discovery, Oracle has uncovered a broader program of copyright infringement that is entirely different from the scheme alleged in the current complaint."

In the filing, Oracle also claims SAP has failed to adequately respond to its discovery requests and that it needs still more time to review information housed in a TomorrowNow SAS database that holds more than nine gigabytes of pertinent data.

"As stated above, this database contains an enormous amount of data in a customized format that requires expert assistance and special programming to use or review," the filing said. "Further, because [SAP executives] have blanket-designated the entire SAS database as highly confidential under the protective order, Oracle's counsel cannot consult with knowledgeable Oracle personnel about any of the data and documents in the database."

"This blanket designation, combined with the size of the database and its late production, has significantly complicated and slowed Oracle's case preparation," Oracle attorneys wrote in the statement.

The long and the short of the filing is that Oracle may or may not want to expand Judge Jenkins' initial discovery limits and timeline to gather evidence and depose witnesses. But it plans to let the court—and everyone else—know of its intentions in the next 60 days.

In the joint statement, SAP took exception to the request.

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"At the September case management conference, the Court gave the parties over 10 months for fact discovery and increased the limits on the numbers of depositions and interrogatories the parties could use," SAP attorneys said in the statement. "Now, Oracle asks the Court to delay the schedule and to increase the burden and expense of this case by expanding discovery, but only after waiting another 60 days to see just how long and how much.

"This request should be refused," it said.

Attorneys and spokespeople for both firms declined to provide any further illumination on the specifics of additional copyright infringements Oracle claimed in the joint statement.

"Oracle has not shared with SAP, TomorrowNow or the Court any information about an amended complaint, so we are not in a position to comment on it now," SAP spokeswoman Lindsey Held said in statement e-mailed to InternetNews.com.

Oracle spokeswoman Deborah Hellinger, also in e-mailed statement, wrote "we do not have any additional comment but will let you know if that changes."

The troubles with TomorrowNow

The TomorrowNow saga really began back in January 2005 with Oracle's takeover of PeopleSoft, which had previously acquired J.D. Edwards. By adding the PeopleSoft-J.D. Edwards coup to its own acquisition of Siebel Systems, Oracle instantly became a real threat to SAP's stranglehold on the customer relationship management (CRM) (define) and enterprise resource management (ERP) (define) software markets and the bounty of services revenue that came with them.

SAP immediately responded by acquiring TomorrowNow, a third-party service and support company based in Bryan, Texas, two weeks later and introduced what it called a "safe passage program" to persuade organizations to migrate to its mySAP ERP software and NetWeaver platform.

Under this program, companies now pay a maintenance fee of 17 percent of the original price of their PeopleSoft and J.D. Edwards software licenses, not only undercutting Oracle's standard rate of 22 percent but also priming the pump for future SAP applications down the road.

In late 2006, Oracle discovered some TomorrowNow employees were downloading Oracle customer files for the purpose, Oracle says, of taking away some of its lucrative services business. In a complaint filed in March 2007, Oracle claims SAP stole intellectual property and violated the Federal Computer Fraud and Abuse Act as well as the California Computer Data Access and Fraud Act.

SAP acknowledged that some TomorrowNow employees were guilty of some "inappropriate" downloads but dismissed the vast majority of Oracle's allegations.

In November, SAP announced that TomorrowNow CEO Andrew Nelson and other senior executives had resigned and that it was considering a number of strategic options, including the possible sale of services subsidiary.

Ahead of next week's case management hearing, Judge Jenkins gave both sides a limit of 20 depositions, 150 document requests, three expert witnesses to evaluate forensic evidence and determine potential damages and an August 8 deadline to submit its expert disclosure reports. He also said the last day he will hear pre-trial motions will be November 13.