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Reuters, citing unnamed sources “familiar with the situation,” reported Nov. 10 that Oracle has been using private detectives to try to locate new Hewlett-Packard CEO Leo Apotheker.
Apotheker is a key material witness Oracle would like to question in copyright infringement litigation it has brought against SAP, Apotheker’s longtime former employer.
Reuters and other news outlets reported later on Nov. 10 that Apotheker was seen Nov. 5 in Japan being interviewed by two reporters from the Nikkei national newspaper. HP confirmed this with eWEEK.
Oracle would not comment on those reports.
However, there seems to be some disagreement on exactly how Oracle is going about finding Apotheker. John Paczkowski of AllThingsDigital reported late Nov. 10 that a source he trusts told him that Oracle isn’t using private investigators at all but instead is utilizing regular process servers — agents who do the dirty work of delivering subpoenas to their intended recipients.
Under court rules, process servers can only work within a 100-mile radius of the trial location.
Apotheker gave a several hour-long deposition to Oracle lawyers in 2008 about his role at SAP during the time the copyright infringements took place. HP noted to eWEEK that Apotheker’s name did not appear on Oracle’s witness list until after he was named CEO of HP on Oct. 9, 2010.
Thus, HP claims Oracle simply wants to harass its new chief executive in an effort to discredit him. HP and Oracle, though partners in some product lines, are now bitter rivals in others — including sales of servers, storage and enterprise middleware.
Apotheker took over the top executive position at HP on Nov. 1. If he comes within 100 miles of the trial location in Oakland, Calif., he will become subject to a subpoena to testify in the case.
Oracle is trying to persuade the federal court and an eight-person jury to fine SAP $2.15 billion for stealing its intellectual property and using it to lure customers away. So the stakes are quite high.
Apotheker was CEO of SAP when the company — through an American-based affiliate, TomorrowNow — illegally downloaded millions of instances’ worth of Oracle software and product documentation some three to five years ago. SAP already has admitted responsibility for TomorrowNow’s actions.
Case has been in play since 2007
The court case, originated by an Oracle lawsuit first brought in 2007, is to determine how much SAP will be fined for the actions of its now-defunct, former wholly owned subsidiary. Oracle wants $2.15 billion in restitution; SAP believes a figure in the neighborhood of $40 million is fair.
SAP already has paid $120 million to cover court costs incurred by Oracle.
HP refused to accept a subpoena for Apotheker requested by Oracle last week, when the trial began in federal court in Oakland, saying it does not divulge the whereabouts of its executives.
Apotheker was named the new CEO of HP on Oct. 9, two months after his predecessor, Mark Hurd, was forced to resign following charges of sexual harassment by a former HP employee and a subsequent expenses-related coverup. Hurd has since settled the complaint out of court.
To add even more intrigue to the case, Hurd was named co-president of Oracle on Sept. 6, one month after leaving HP.
Oracle CEO Larry Ellison, testifying in the punishment phase of the trial that started Nov. 1, told Federal Court Judge Shirley Hamilton and a packed courtroom Nov. 8 that he was “deeply worried” about his company “bleeding customers” because of SAP’s actions to lure customers away from Oracle.
Ellison said that Oracle actually estimates that the copyright infringement has cost Oracle upwards of $4 billion, although he admitted in court that he does not have documentation to prove that he and his staff discussed this figure.
Two years after it was acquired by SAP, TomorrowNow was caught stealing Oracle’s intellectual property by gaining unauthorized access to a customer-support Oracle Website and downloading copyrighted instances of support software and thousands of pages of documentation.
Oracle claimed that more than 8 million instances of its enterprise support software worth $2.15 billion were stolen, stored on SAP’s servers and used without its permission.
It also charged that SAP/TomorrowNow deployed automated bots that used Oracle’s own software to lure customers from PeopleSoft (owned by Oracle) over to SAP.
Enterprise support software amounts to about half of Oracle’s annual revenue.
Editor’s note: This story has been updated to include more detail about the case and to include information about the sighting of Apotheker in Japan.