SAP is seeking a gag order to keep both companies from making public statements about Oracle's lawsuit to prevent tainting the jury pool.
SAP's lawyers have asked a federal judge
to issue a gag order on Oracle on all things related to the TomorrowNow
lawsuit, according to a motion filed on Oct. 22.
The request was spurred by an Oct. 8 "Talking Business" column in
. Business writer Joe Nocera accused TomorrowNow of "the
most serious business crime you can commit" and that former SAP
, Hewlett-Packard's new chief executive, "clearly knew about
"He may not have been directly involved in this brazen theft of
intellectual property, but it defies belief to say he didn't know about it. And
he did nothing to stop it until it was far too late," Nocera wrote.
Nocera didn't initially disclose the fact that his fianc??Â«e was the director
communications for Oracle's lead counsel on this case, Boies, Schiller &
Flexner. The New York Times acknowledged the conflict four days later, claiming
Nocera would "not have written about the case if he had known of the law
SAP didn't buy the "I didn't
"Although the author denies knowing that his fiancee's law firm
represents Oracle, he does not deny that she was the source of the detailed
information and evidence he cites in his article," SAP's
lawyers wrote in their five-page motion
Oracle has accused SAP subsidiary
TomorrowNow, now defunct, of stealing intellectual property. In the lawsuit,
Oracle said TomorrowNow gained unauthorized access to a customer support Website
and copied thousands of pages of software documentation and other confidential
SAP has acknowledged
the illegal downloads
took place but said the information never left
TomorrowNow and that SAP never saw them. The
trial, scheduled to start Nov. 1 in Federal District
Court for Northern California
in San Francisco, will determine
how much SAP should pay in damages. Oracle
has asked for $2 billion, but SAP claims the
amount should be in "tens of millions."
In the motion, SAP's lawyers said
articles such as the New York Times piece were "inflammatory" and
"prejudicial," and could influence the jury.
"The episode involving the New York Times article-coupled with Oracle's
counsel's refusal to eschew publicity efforts during trial despite recognizing
that jurors may not heed a court instruction not to read press coverage-leads
to this motion," SAP's attorneys wrote.
The lawyers were referencing the pre-trial conference held in September when
Oracle's lawyers said jurors search online for information about the case even
when instructed not to. The judge invited the lawyers to draft up detailed instructions
for the jury about what they can't do online, such as searching Google for
information or tweeting from the jury room.
According to IDG
, which obtained a copy of the partial transcript, Oracle's lawyers
demurred, saying, "If you tell them not to do something, they'll start
doing it because they think they're the-they want to know the truth rather than
the admitted evidence."
SAP said the gag order would prevent
lawyers on both sides from discussing the case outside the courtroom. "The
jurors should hear evidence and argument in court only; they should not be
exposed to counsels' extrajudicial repetition of, or spin on, the in-court
evidence and argument," the lawyers wrote in the motion.
HP's board has defended its new chief, saying Oracle has offered no evidence
that Apotheker had been involved. Apotheker led SAP
from April 2008 to February 2010.
Apotheker is expected to testify at the trial, as well as Oracle CEO
, a harsh critic of the former SAP
United States District Judge Phyllis Hamilton has not ruled on the motion
yet. Arguments on the gag order are due Oct. 27. SAP
asked the judge for a quick decision, since the trial is scheduled to start
with jury selection on Monday.