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 the New York Times. Business writer Joe Nocera accused TomorrowNow of "the most serious business crime you can commit" and that former SAP chief L??Â«o Apotheker, Hewlett-Packard's new chief executive, "clearly knew about the theft."
"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 firm's involvement."
SAP didn't buy the "I didn't know" defense.
"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 material.
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 News, 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 Larry Ellison, a harsh critic of the former SAP leader.
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.