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Oracle charges SAP executives were complicit in downloads

Oracle will amend its lawsuit against SAP, charging that SAP executives were aware of the practices of its TomorrowNow subsidiary. SAP countered that Oracle is using court papers "as press releases."

Oracle plans to step up its lawsuit against SAP, charging that SAP executives knew about illegal activity being...

conducted by its TomorrowNow subsidiary.

In court papers filed yesterday in U.S. District Court in San Francisco, Oracle wrote that it intends to file a second amended complaint that "will reveal a pattern of unlawful conduct that is different from, and even more serious than, the mass downloading that was the primary focus of the [first complaint]."

Oracle sued SAP one year ago, arguing that TomorrowNow, an SAP subsidiary that provides maintenance and support for PeopleSoft and JD Edwards applications, was guilty of "corporate theft on a grand scale" and claiming that SAP stole copyrighted software and other proprietary information. SAP has admitted to some "inappropriate downloads" but has denied the rest of the charges and claimed that SAP executives had no involvement in the practices.

In yesterday's filing, however, Oracle suggested that, based in depositions with TomorrowNow employees, "It appears that SAP AG and SAP America knew – at executive levels – of the likely illegality of TN's business model from the time of their acquisition of TN and, for business reasons, failed to change it."

For more on the Oracle-SAP lawsuit
See how the lawsuit is affecting third-party support

Learn why third-party support competitor Rimini Street has backed off plans to buy TomorrowNow

In that filing, a joint case management statement, SAP responded, suggesting that Oracle was abusing the court filing system.

"Oracle continues to submit hyperbolic argument in the guise of [court documents]," SAP wrote. "[These court filings] are not meant to be closing arguments or press releases."

Oracle also suggested that TomorrowNow's illegal downloads extended beyond just Oracle support material and included Oracle applications.

"This business model relied on the theft and use of infringing copies of Oracle's underlying software applications, not just the mass-downloaded Oracle support materials," Oracle wrote, adding that TomorrowNow used the copied software "to service other customers, train its employees, and create fake 'SAP' branded fixes, updates and related documentation for distribution."

Yesterday's filing also made it clear that the lawsuit will be costly and lengthy.

"To date, the discovery in this case has involved immense computer records, including terabytes of data that require weeks to simply copy, not to mention produce, review and digest," Oracle wrote. "Even without considering the amended claims, the large scope of discovery has already required both sides to hire small armies of contract attorneys to review the millions of pages of documents collected for possible production."

The discovery process remains a matter of contention, but both sides have agreed to delay the tentative trial date by one year to February 2010. However, the cost and scope of the proceedings was one area where both sides appeared to concur.

"Defendants have spent millions of dollars and tens of thousands of man hours on production in this case to date," SAP wrote further on in the 30-page document.

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