Judge Wants Oracle Case Kept ‘Open’

SAN FRANCISCO — A federal judge on Friday said the government’s case against Oracle will be open to the public, including the corporate secrets submitted by some of the biggest names in IT.

The U.S. Department of Justice and 10 states are seeking to block Oracle’s $9.4 billion proposal to acquire PeopleSoft by arguing that the merger between two major enterprise software providers would be anti-competitive and limit customer choice. Oracle is fighting to thwart the DoJ’s stance. The trial is scheduled to begin on June 7.

District Court Judge Vaughn R. Walker said he was extremely concerned about any “restrictions that would impair the transparency of the case.”

Representatives with the Department of Defense and Fidelity Employer Services — both large customers of Oracle’s — as well as rivals like Microsoft , SAP , Siebel Systems, Sungard Bi-Tech and niche software vendors such as Lawson Software and QAD , have asked the court to block certain parts of their business technology and best practices from being entered as evidence.

The documents could contain detailed data on customers, competitive bids on contracts, pricing details, budgets and product information.

Judge Walker acknowledged that confidential interests might be presented at trial but reiterated that the public and media should be given equal and fair access to the proceedings.

“This is not a national security case. Putting things under wraps would be problematic,” Judge Walker said during a pre-trial conference here.

The issue drew concerns from both Oracle counsel Dan Wall and DoJ attorney Claude Scott. Both commented that third parties may ask for additional protection but any decision would be premature until the two sides finalized what evidence would be
included in the case on June 2.

“Once we get to the point of what is going to be used, then we may or may not be in a position to file our response,” Scott said.

Currently, the government is preparing some 45 customers, Oracle personnel, and other vendors that Oracle has pointed to in the past as possible witnesses. The DoJ has already subpoenaed representatives from St. Louis-based manufacturing conglomerate Emerson Electric. Documents and statements from Fairchild Semiconductor and Panasonic have also been acquired, Scott said.

Oracle said it had about 17 declarations and depositions from a dozen customers but said that the number could grow. Witness lists are due on April 26. Each side will be limited to 25 witnesses and will have the option to substitute five names before trial.

The lawyers also discussed how both sides will present their cases in court — including the use of videotape supplied by Boston-based Keane

The judge ruled that each side would have about two hours to make their tutorial presentation on May 21. The DoJ said it will use the Keane tapes. Oracle said it will opt to present their side with a live demonstration.

Gary Reback, an attorney with Carr & Ferrell and counsel for PeopleSoft, told internetnews.com the tapes would be relevant to defining Oracle’s market definition of a enterprise resource planning (ERP) tools including Human Resource Management or Financial Management Services.

“We’re looking forward to presenting our side in court as we are certain that it will show how Oracle is presenting itself to the public,” he said. “They can’t pick and choose which market definition to use and then defend against it.”

Josh Wenderoff, a PR consultant for Oracle, said the DoJ is hypocritical as companies like Fidelity and Ceridian are also bending the rules when it comes to ERP.

“Both of these companies are outsourcers like ADP and they compete head-to-head with Oracle, PeopleSoft and SAP, not to mention Lawson, SSA Global and Microsoft,” Wenderoff said. “CKE was using PeopleSoft until it decided to outsource to Ceridian. And
Fidelity, which uses its own proprietary software, is replacing Exult Inc., another outsourcer that uses PeopleSoft.”

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