Oracle and SAP Keep Hammering Each Other

Are the vendors locked in a death dance? Or a war of attrition?

Oracle on Wednesday filed the third amendment of its lawsuit against SAP over allegations of industrial espionage. However, it may have breached some provisions of the agreement between the two that allowed it to file the amendment.

SAP, which is scheduled to file its response to the amended complaint by October 15, declined to discuss the issue. An SAP (NYSE: SAP) spokesperson said in an e-mailed statement that the firm will not comment on Oracle's filing until after its own filing is delivered to the court and "court filings are the most appropriate place for SAP to respond to Oracle's allegations."

Oracle (NYSE: ORCL) did not respond to requests for comment by press time.

Last month, both parties filed a stipulation that would let Oracle file the third amended complaint (available here in PDF format). In return, Oracle agreed not to expand the scope of the case's evidence-gathering phase through its additional amendment and also pledged not to change the overall schedule of the case.

That would benefit SAP, which is being financially drained by the lawsuit. "Defendants continue to expend millions of dollars each month timely meeting its discovery obligations in this case," SAP said in a joint discovery conference statement (available here in PDF format).

Although it had pledged not to broaden the scope of evidence, Oracle, which has already deposed 12 executives of SAP and SAP America, including co-CEOs Leo Apotheker and Henning Kagermann, has served another 10 deposition notices and "anticipates 25 to 30 more, not counting third party depositions," according to a joint deposition statement filed with the court October 3.

Just slow going

And Oracle now wants documents related to additional software lines -- Siebel, eBusiness Suite, Hyperion and Retek, according to the joint discovery statement. Despite this, Oracle contends in the joint discovery statement that the delays in discovery might jeopardize the case schedule.

However, if Oracle is to be believed, it is SAP that is delaying the process.

In the joint discovery statement, Oracle claims that SAP has not yet made available portions of two servers containing at least 7 terabytes of information, plus three other servers containing about 3.5 terabytes of information, on the grounds that it has encountered "unexpected technical complexities," and says these 10.5 terabytes of information "are the most critical to evaluating liability and damages claims."

Also, Oracle expressed fears in the joint discovery statement that the data might not be preserved in a "forensically reliable manner."

SAP and its subsidiary TomorrowNow, which will be closed down at the end of this month, deny this and contend in the joint discovery statement that Oracle "seeks to endlessly broaden and lengthen this case."

SAP has already admitted wrongdoing in the suit. It acknowledged that TomorrowNow, which offered third-party support for various Oracle applications, including Siebel and PeopleSoft, had engaged in "inappropriate" downloads of Oracle support materials. However, CEO Henning Kagermann said SAP did not have access to those downloads and dismissed "the majority" of the more than 150 complaints in the lawsuit as "unfounded."

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