According to court documents filed late Tuesday, Oracle tried
to publicly reveal its rival’s corporate secrets. This despite the fact that Oracle’s
lawyers did not use the documents during its recent defense against the
U.S. Department of Justice (DoJ).
The DoJ is seeking to block Oracle
with its $7.7 billion takeover bid for PeopleSoft
District Court Judge Vaughn R. Walker is expected to file his opinion
either by the end of the month or in early September. A hearing
is scheduled for August 13 in San Francisco to finalize requests by third-party
companies to keep their corporate secrets secure. Insiders suggest this court date
indicates the judge is preparing a draft of his opinion, which
can only be based on publicly available information.
As part of a previous pre-trial agreement, only Oracle’s and the DoJ’s
legal teams have been privy to documents that contain detailed data on
customers, competitive bids, contracts, pricing details, budgets and product
information. The third parties include Oracle rivals like Microsoft and IBM,
as well as customers like Ford Motor Company and Bank of America.
At the start of the trial, Judge Walker noted that Oracle, the DoJ and some third
parties significantly “over-designated” documents as confidential without
the proper procedure. Several times during the trial Judge Walker said he
would seek to keep as many submissions as open as possible.
As of press-time, some 64 exhibits and one small portion of the trial
transcript remain under seal. Many of the documents were submitted following
conversations among the court-appointed mediator — former U.S. District
Judge Charles Legge — and the third parties.
“By keeping this material sealed, this harm will not occur; the other
interests articulated by the third parties and oracle will be fulfilled; and
the public’s ability to monitor the judicial system will not be impeded
because of the substantial volume of material relating to this case that
remains available to the public,” Claude Scott, lead attorney for the
government, said in his 34-page brief.
A spokesperson for Oracle declined to comment on the reasons for asking
for only PeopleSoft’s sealed documents other than the fact that it “failed
to demonstrate any ‘compelling reasons’ to overcome the strong presumption
in favor of public access to court records.”
Oracle’s lawyers are asking the
court to submit in full five pieces of evidence (P2368, P2369, D5937, D6023,
But Gary Reback, an attorney and litigation specialist hired by
PeopleSoft, said Oracle’s motives are merely self-serving.
“It’s a little weird that the trial is over, they haven’t used them in the
case and they are still asking for the evidence to be revealed,” Reback told
Reback said the topper was that out of the 15 or so companies seeking
court protection, Oracle only asked for PeopleSoft’s discount information to
be made public.
“There were two or three documents that Oracle’s legal team said they
wanted revealed after they failed to bring [PeopleSoft CEO] Craig Conway to
the stand,” Reback said. “They didn’t even have a witness. When the judge
asked them about it, they said, ‘Maybe we will use it with [Haas School of
Business professor and market expert] David Teece.’ But these documents would
be a competitive advantage that Oracle’s sales people could use in closing
So just how damaging could the information be? Already, some juicy
tidbits of information have been revealed in court. The biggest being secret
Microsoft acknowledged that it initiated preliminary discussions with SAP
late last year but has since dropped the issue.
Oracle itself was not immune to the disclosures. Testimony from top brass
revealed sales tactics including the practice of undercutting PeopleSoft’s
offers to customers to “lowball the price to nowhere.”
In a separate filing Tuesday, several news organizations, including the
Associated Press, Los Angeles Times and the San Francisco Chronicle, again
stepped up efforts to admit more evidence as public record.
Lessons for the Enterprise
There are many lessons for companies using or considering enterprise
Forrester Research analyst Paul Hamerman suggests customers move forward
with their PeopleSoft upgrades and maintenance renewals since his firm does
not expect support to be directly impacted by the outcome of the trial.
“Already customers have benefited because there have been substantial
discounts offered,” Hamerman told internetnews.com. “If PeopleSoft
loses the case, they would be in a difficult area to close contracts.
Potentially there would be more discounts.”
Hamerman also suggests customers proceed with caution as some PeopleSoft
licenses may be negotiated while the court’s decision is pending or during
an appeal. He also recommends clients press PeopleSoft for the maximum time
allowed under PeopleSoft’s Customer Assurance Program protection on new
license deals — a minimum of two years.
“PeopleSoft has been offering two-to-five times license fee refunds as an
insurance policy in the event of a takeover, to be paid by Oracle,” Hamerman
said. “Clients, however, should recognize the inherent risks of making a
commitment at this time and should weigh potentially adverse scenarios
related to the company and product lives.