SAP asks court to gag Oracle's lawyers

The German software maker wants to prevent Oracle's lawyers from talking to journalists about the TomorrowNow copyright case, on the grounds that it could influence jurors' opinions
Written by Ben Woods, Contributor on

SAP has asked the court overseeing its copyright fight with Oracle to prevent the American software maker's legal team from talking about the case to journalists.

Walldorf, Germany-based SAP filed the gagging request in the Northern District of California court on Friday, saying that media coverage during the upcoming TomorrowNow hearing could unfairly influence jurors' opinions.

To support their request, SAP's lawyers pointed out a story in The New York Times on the recent appointment of Leo Apotheker as chief executive of HP. In that story, columnist Joe Nocera wrote that "as a member of SAP's executive board, Mr Apotheker clearly knew about the theft".

The article also said that Apotheker and SAP were "involved — however tangentially — with the most serious business crime you can commit".

After the publication of the article, The New York Times acknowledged that the author's fiancée is director of communications for the law firm representing Oracle.

"The episode involving The New York Times article — coupled with Oracle's counsel's refusal to eschew publicity efforts during trial, despite recognising that jurors may not heed a court instruction not to read press coverage — leads to this motion," SAP's legal team said in the district court filing.

Oracle's own lawyers have previously acknowledged that media coverage could reach those on the jury in the trial.

"I fear there will be a lot of press about this case on a daily basis," the company's counsel said during a pre-trial consultation in September. They also noted that even when jurors are specifically told not to seek out information online, "they do it anyway".

Oracle, which launched the case in March 2007, alleges that TomorrowNow made unauthorised downloads of proprietary copyrighted Oracle software while conducting its business as a third-party provider of support to users of PeopleSoft products. SAP purchased TomorrowNow in January 2005 and closed the subsidiary in July 2008.

In August this year, SAP accepted liability for copyright infringment by TomorrowNow but contested the scale of the damages sought by Oracle.

"Although TomorrowNow did make mistakes in its operations, [Oracle's] damage claims are vastly exaggerated," the German software company said in a trial brief at the time. "Plaintiffs have asserted a claim for billions [of dollars], where their true damages measure in the tens of millions."

The hearing is scheduled to begin on 1 November.

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