HP Snubs Subpoena Request for New CEO in SAP Trial, Ellison to Testify Nov. 8

UPDATED: HP said in a statement to the press said Oracle had its chance to question Apotheker two years ago.

Hewlett-Packard on Nov. 4 refused to accept a request from Oracle to subpoena its incoming CEO to testify as a material witness in a copyright-infringement litigation Oracle has brought against arch-rival SAP.

It also was revealed that Oracle CEO Larry Ellison will testify Nov. 8 as to his perspective on the case.

In a third action, SAP agreed to a partial payment of $120 million to help cover Oracle's court costs while agreeing to not pursue punitive damages. Nonetheless, Oracle is still pursuing business damages related to the copyright infringements.

The $120 million amounts to a de facto down payment on the total amount that the Germany-based company will have to pay Oracle.

HP chief executive Leo Apotheker, who officially started his new role on Nov. 1, served as SAP's CEO three years ago during a period in which the enterprise application provider violated enterprise middleware copyrights held by Oracle.

The trial in federal district court in Oakland, Calif., is being held to ascertain how much in restitution SAP owes Oracle for copyright infringement by its now-defunct TomorrowNow customer-support division.

Oracle is asking for $2.15 billion to pay for the software it says was stolen. SAP believes "tens of millions" of dollars is a fair amount.

Ellison said several weeks ago that he wants to see Apotheker on the stand to give witness to the illegal downloading of Oracle's software and thousands of pages of supporting documents by TomorrowNow.

HP claims Ellison and Oracle are trying to implicate Apotheker in the illegalities in order to discredit HP, which is a competitor -- and ironically, also a partner -- to Oracle in several key IT businesses.

HP: 'SAP had its chance'

HP said in a statement to the press that Oracle had its chance to grill Apotheker two years ago.

"Oracle had ample opportunity to question Leo during his sworn deposition in October 2008 and chose not to include him as a live trial witness until he was named CEO of HP," the company said.

"Given Leo's limited knowledge of and role in the matter, Oracle's last-minute effort to require him to appear live at trial is no more than an effort to harass him and interfere with his duties and responsibilities as HP's CEO."

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 one-half of Oracle's annual revenue.

Chris Preimesberger

Chris J. Preimesberger

Chris J. Preimesberger is Editor-in-Chief of eWEEK and responsible for all the publication's coverage. In his 13 years and more than 4,000 articles at eWEEK, he has distinguished himself in reporting...