Rosenblum motion

ATTORNEY GENERAL ELLEN ROSENBLUM

MARKOWITZ HERBOLD PC SPECIAL ASSISTANT ATTORNEYS GENERAL

SUITE 3000 PACWEST CENTER

1211 SW FIFTH AVENUE

PORTLAND, OREGON 97204-3730

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

ELLEN ROSENBLUM, the Attorney General for the State of Oregon; STATE OF OREGON, by and through Ellen Rosenblum, the Attorney General for the State of Oregon, the Oregon Health Authority, and the Oregon Department of Human Services; and the OREGON HEALTH INSURANCE EXCHANGE CORPORATION, dba Cover Oregon, an Oregon public corporation,

Plaintiffs,

vs.

ORACLE AMERICA, INC., a Delaware corporation; STEPHEN BARTOLO, an individual; THOMAS BUDNAR, an individual; KEVIN CURRY, an individual; SAFRA CATZ, an individual; BRIAN KIM, an individual; RAVI PURI, an individual; and MYTHICS, INC., a Virginia corporation,

Defendants.

No. 14C20043

The Honorable Courtland Geyer

PLAINTIFFS’ MOTION TO REMOVE CONFIDENTIAL

AND ATTORNEYS’ EYES ONLY DESIGNATIONS AND

MOTION TO ENFORCE THE AMENDED PROTECTIVE

ORDER

ORCP 36 C

Oral argument requested

REDACTED UNDER PROTECTIVE ORDER

REDACTED UNDER PROTECTIVE ORDER

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TABLE OF CONTENTS

COMPLIANCE WITH UTCR 5.010 ....................................................................................... 1

COMPLIANCE WITH UTCR 5.050 ....................................................................................... 1

MOTIONS ................................................................................................................................ 1

POINTS AND AUTHORITIES ............................................................................................... 1

INTRODUCTION .................................................................................................................... 1

SUMMARY OF THE ARGUMENT ....................................................................................... 2

I. Oracle cloaks in secrecy documents that contradict its position and show that Oracle was at fault. ................................................................................................ 2

II. Oracle violates the Amended Protective Order by over-designating documents as “confidential” and “AEO.” ..................................................................... 5

FACTUAL BACKGROUND ................................................................................................... 7

I. The Amended Protective Order limits what can be designated “confidential” and “AEO” to trade secrets and competitively sensitive information. ................................................................................................................... 7

II. Oracle designated more than 95% of its Litigation Material “confidential” or “AEO” and refuses to remove those designations. ................................................... 8

ARGUMENT .......................................................................................................................... 10

I. Motion 1: The Court should order Oracle to remove its improper “confidential” and “AEO” designations and re-designate its documents in good faith according to the APO. ............................................................................... 10

A. Oracle failed to designate its documents in good faith. .................................. 10

B. Oracle’s over-designation obstructs plaintiffs’ ability to prepare its case. ................................................................................................................. 13

C. Oracle’s over-designation hampers plaintiffs’ ability to fully respond to government investigations. ........................................................... 14

D. The Court should order Oracle to re-designate all its documents in good faith. ....................................................................................................... 15

II. Motion 2: The Court should order Oracle to immediately remove its improper “confidential” and “AEO” designations from the Deposition Documents. ................................................................................................................. 16

A. Pre-trial discovery documents are public unless a party establishes “good cause” to limit access to trade secrets or other confidential research, development, or commercial information. ...................................... 16

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B. Oracle bears the burden of demonstrating “good cause” to maintain the “confidential” and “AEO” designations on the Deposition Documents. ..................................................................................................... 17

C. To establish good cause warranting a “confidential” or “AEO” designation, Oracle must show that each document meets a two-prong test. ........................................................................................................ 18

1. Oracle must establish that the Deposition Documents contain protectable information. ......................................................... 18

2. If the first prong is satisfied, Oracle must establish good cause for protecting the Deposition Documents by demonstrating that their disclosure will work a clearly defined and serious injury. .................................................................. 19

D. Oracle cannot meet its burden to show “good cause” to maintain the “confidential” or “AEO” designations on the Deposition Documents under the two-prong test. ............................................................. 20

1. HIX bugs and blockers are not trade secrets or commercially sensitive............................................................................................... 21

2. Communications regarding testing are not trade secrets or commercially sensitive........................................................................ 22

3. Resource allocation and internal assessments are not trade secrets or commercially sensitive. ...................................................... 22

4. Documents Oracle marked “confidential” for internal purposes are not trade secrets or commercially sensitive. .................. 23

E. Even if some of the Deposition Documents contain protectable information, the Court should order that information redacted and remove the “confidential” or “AEO” designations. ........................................ 23

CONCLUSION ....................................................................................................................... 24

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TABLE OF AUTHORITIES

Cases Page(s) Agency Solutions.Com, LLC,

819 F Supp 2d at 1017 .......................................................................................... 21, 22

Andrew Corp. v. Rossi, 180 FRD 338, 341 (ND Ill 1998) ................................................................................ 19

Arvco Container Corp. v. Weyerhaeuser Co., No 1:08-CV-548, 2009 WL 311125 (WD Mich Feb 9, 2009) ................................... 14

Brown & Williamson Tobacco Corp. v. F.T.C., 710 F2d 1165, 1179 (6th Cir 1983) .............................................................................. 6

Cipollone v. Liggett Grp., Inc., 785 F2d 1108, 1122 (3d Cir 1986).............................................................................. 17

Citizens’ Util. Bd. of Or. v. Or. Pub. Util. Comm’n, 128 Or App 650, 658 (1994) ........................................................... 5, 10, 17, 18, 20, 21

Deford v. Schmid Products Co., 120 FRD 648, 654 (D Md 1987) ........................................................................... 15, 20

First Health Grp. Corp. v. Nat’l Prescription Adm’rs, Inc., 155 F Supp 2d 194, 220 (MD Pa 2001) ...................................................................... 22

Healthtrio, LLC v. Aetna, Inc., No 12-CV-03229-REB-MJW, 2014 WL 6886923 (D Colo Dec 5, 2014) ............................................................................ 5, 11, 13, 15, 16

In re Agent Orange Prod. Liab. Litig., 821 F2d 139, 145 (2d Cir 1987).................................................................................. 17

In re Parmalat Sec. Litig., 258 FRD 236, 244 (SDNY 2009) ............................................................................... 20

In re Roman Catholic Archbishop of Portland in Or, 661 F3d 424 (9th Cir 2011) .................................................................... 5, 16, 23

In re ULLICO Inc. Litig., 237 FRD at 317 ......................................................................................... 11, 13, 15, 16

Koch v. Greenberg, No 07 CIV 9600 BSJ DF, 2012 WL 1449186 (SDNY Apr 13, 2012) ..... 12, 16, 18, 20

Paradigm All., Inc. v. Celeritas Techs., LLC, 248 F.R.D. 598, 605 (D Kan 2008)............................................................................. 10

Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Grp., Inc., 121 FRD 264, 268 (MDNC 1988) .............................................................................. 17

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Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2015 WL 4430955 (SD Fla July 20, 2015) .................... 13, 15, 16

Procter & Gamble Co. v. Nabisco Brands, Inc., 111 FRD 326, 331 (D Del 1986) .................................................................... 19, 21, 23

Richmond Newspapers, Inc. v. Virginia, 448 US 555, 595 (1980) ................................................................................................ 6

Salomon Smith Barney, Inc. v. HBO & Co., No 98CIV8721 (LAK), 2001 WL 225040 (SDNY Mar 7, 2001) .............................. 19

San Jose Mercury News, 187 F3d at 1103 ......................................................................................................... 17

State of Oregon, by and through the Oregon Health Authority, et al. v. Oracle America, Inc., et al., Marion County Circuit Court Case No 15 CV 03287................................................... 8

Take It Away, Inc. v. The Home Depot, Inc., No CIV.A 05-12484-DPW, 2009 WL 458552 (D Mass Feb 6, 2009) aff’d, 374 F App’x 47 (1st Cir 2010) .......................................................... 7, 13, 19, 23

THK Am., Inc. v. NSK Co., 157 FRD 637, 647 (ND Ill 1993) ............................................................................ 6, 16

THK America, Inc. v. NSK Co., 157 FRD 637, 647 (ND Ill 1993) .................................................................... 11, 13, 16

Statutes ORS 646.461 ........................................................................................................... 7, 19, 21, 22

Rules ORCP 36 C ............................................................................................................. 1, 10, 17, 18

1 - PLAINTIFFS’ MOTION TO REMOVE CONFIDENTIAL

AND ATTORNEYS’ EYES ONLY DESIGNATIONS AND MOTION TO ENFORCE THE AMENDED PROTECTIVE ORDER






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COMPLIANCE WITH UTCR 5.010

Counsel for plaintiffs Ellen Rosenblum, the Attorney General of Oregon, and the

State of Oregon, by and through Ellen Rosenblum, the Oregon Health Authority, the

Department of Human Services, and the Department of Consumer and Business Services,

(“plaintiffs”) certify that they made a good faith effort to resolve this dispute through

discussion with counsel for defendant Oracle America, Inc. (“Oracle”) but were unable to

resolve the dispute.

COMPLIANCE WITH UTCR 5.050

Plaintiffs request oral argument for this motion. The time estimated for argument is

60 minutes, and official court reporting services are requested.

MOTIONS

Pursuant to ORCP 36 C, plaintiffs move:

1. For an order requiring Oracle to remove its “confidential” and “attorneys’

eyes only” (“AEO”) designations from its document production and re-designate its

documents in good faith according to the terms of the Court’s September 30, 2015 Amended

Protective Order and Oregon Rule of Civil Procedure 36 C within 30 days, and provide

justification for each designation.

2. For an order removing Oracle’s “confidential” and “AEO” designations from

the 10 documents described in the declaration of Harry B. Wilson (“Wilson Decl”) and

attached to that declaration as Exhibits 1 – 10 (the “Deposition Documents”).

These motions are based upon the pleadings in this matter, the supporting

Memorandum of Points and Authorities below, and the declarations of Harry B. Wilson and

Greg Scott.

POINTS AND AUTHORITIES

INTRODUCTION

In violation of this Court’s Amended Protective Order (“APO”), Oracle designated








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public letter from its CEO excoriating Oregon officials, presented a slideshow to Congress

absolving itself of wrongdoing, lobbied each member of Oregon’s congressional delegation,

and made frequent statements to the press faulting Oregon for Oracle’s shoddy work and

broken software. Oracle even lobbied the Oregon legislature. In October 2014, Oracle’s

CEO, defendant Safra Catz, wrote a letter to Oregon legislative leaders suggesting that they

should pull funding for this litigation. Last month, an Oracle lobbyist repeated this message

to the leadership of the Oregon Senate.

Although its internal documents support the State’s claims, Oracle has told Congress,

the press, and the Oregon legislature that the HIX Project “was not a failure of technology”

and the HIX was “fully functional” by February 2014. (Ex 11 to Wilson Decl (11/20/2015

Guest column by Oracle executive Ken Glueck); also Ex 12 to Wilson Decl) Oracle has

further declared that the State should have hired a systems integrator to integrate Oracle’s

products (even though Oracle had promised that its products were “pre-integrated”) and

contends that the absence of a system integrator doomed the HIX failure. (Ex 12.)

Contrary to Oracle’s spin, Oracle’s documents demonstrate its own culpability, the

shoddiness of its programming, its active opposition to Oregon’s hiring a systems integrator,

and its misappropriation of Oregon and federal grant funding to develop code to sell to other

customers. None of these documents satisfy the APO criteria for treatment as “confidential”

or “AEO.” They contain organizational plans for the Projects and internal evaluations of

Oracle’s work for plaintiffs, not protectable trade secrets and competitively sensitive

information.

Oracle over-designated, among others, the following documents without justification:

A November 22, 2013 internal email from an Oracle developer stating that








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(Ex 1 to

Wilson Decl.)

An October 16, 2013 senior Oracle developer’s assessment that

(Ex 2 to Wilson Decl.)

A November 2013 Oracle assessment of its software development concludes

that


A February 22, 2014 email between Oracle developers indicates tha


Another Oracle email confirmed that


A March 16, 2012 email from Oracle’s Senior Practice Director for Oracle

Government and Health Care Consulting says:


In the same March 16, 2012 email, the Senior Practice Director recommends

that








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(Id.)

A November 16, 2013 email exchange


Oracle’s analyses of the HIX Project and Oracle’s plans specific to the HIX Project are not

trade secrets and do not reveal competitively sensitive information. Instead, those documents

and many others like them belie Oracle’s public relations story, undermine its litigation

defenses, and strongly support plaintiffs’ claims. They are also crucial to preparing the

State’s witnesses for testimony, fully advising clients, and providing the Oregon legislature,

Congress, federal authorities, and Oregon citizens with a complete history of the Projects.

II. Oracle violates the Amended Protective Order by over-designating documents as

“confidential” and “AEO.”

Ordinarily, the State would be able to share these critical documents with the Oregon

legislature, Congress, and federal authorities. “As a general rule, the public is permitted

access to litigation documents and information produced during discovery.” In re Roman

Catholic Archbishop of Portland in Or., 661 F3d 417, 424 (9th Cir 2011) (quotation marks

and citation omitted).

However, Oracle’s violation of the APO hides the true story. The APO permits the

parties to designate documents containing private personal information, trade secrets, and

commercially and competitively sensitive information as “confidential” or “attorneys’ eyes

only.” The law requires Oracle to apply these designations in good faith and to use them

only when public “disclosure will work a clearly defined and serious injury.” Citizens’ Util.

Bd. of Or. v. Or. Pub. Util. Comm’n, 128 Or App 650, 658 (1994). But rather than obey the

proscriptions of this Court’s Amended Protective Order and Oregon law, Oracle applied

“confidential” or “attorneys’ eyes only” designations to approximately 97% of the 514,000

documents it produced. (Declaration of Greg Scott (“Scott Decl”) ¶ 2, 4.) As one court put

it: “90% is an absurd number.” Healthtrio, LLC v. Aetna, Inc., No 12-CV-03229-REB-MJW,








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2014 WL 6886923, at *3 (D Colo Dec 5, 2014). Oracle’s abuse of the APO is further

demonstrated by its confidentiality designations of even innocuous documents such as emails

(Exs 15 – 23 to Wilson

Decl.)

By misusing the APO, Oracle obstructs plaintiffs’ preparation of its case. Oracle’s

abuse of the “confidential” and “attorneys’ eyes only” designations hampers plaintiffs’

ability to file documents with the Court, prepare witnesses for depositions and trial, and

advise their clients on strategy and settlement. Furthermore, Oracle’s improper designations

conceal Oracle’s critical self-assessments and error reports and prevent the Oregon

legislature, Congress, and federal authorities from receiving information about Oracle’s role

in the failure of the HIX Project. A federal district court faced with a similar over-

designation of documents condemned tactics like Oracle’s: “Courts are too overburdened

with heavy caseloads and backlogs to be taxed by parties engaging in uncooperative,

dilatory, and obstructionist litigation tactics, or similar stratagems designed to increase the

litigation expenses of the opposing party. The risks for engaging in such conduct must be

substantial in order to act as an effective deterrent.” THK Am., Inc. v. NSK Co., 157 FRD

637, 647 (ND Ill 1993).

The State and Cover Oregon spent more than $240 million in taxpayer money on the

Modernization and HIX Projects. The Oregon legislature, Congress, federal authorities, and

the public have a right to a full and complete understanding of the reasons why those Projects

failed. As Justice Brennan observed, “Secrecy is profoundly inimical to [the] demonstrative

purpose of the trial process.” Richmond Newspapers, Inc. v. Virginia, 448 US 555, 595

(1980) (Brennan, J. concurring). It “insulates the participants, masking impropriety,

obscuring incompetence, and concealing corruption.” Brown & Williamson Tobacco Corp.

v. F.T.C., 710 F2d 1165, 1179 (6th Cir 1983). Where, as here, a corporation has attempted to

hide its malfeasance and incompetence, “common sense tells us that the greater the








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motivation a corporation has to shield its operations, the greater the public’s need to know.”

Id. at 1180. The Court should order Oracle to remove its improper “confidential” and

“AEO” designations.

FACTUAL BACKGROUND

I. The Amended Protective Order limits what can be designated “confidential” and

“AEO” to trade secrets and competitively sensitive information.

The APO permits the parties to designate documents and deposition testimony

(“Litigation Material”) as “confidential” “any Litigation Material, or any portion thereof,

* * * that contains private personal information, including financial information, or that

contains trade secrets, commercially or competitively sensitive information, including

confidential research or development information, or information subject to protection under

applicable law or regulation[.]” (APO § 2.) The “AEO” designation may be applied only to

Litigation Material that “contains information that is commercially sensitive, contains trade

secrets, or is otherwise extremely proprietary or confidential such that disclosure of this

information, if reviewed by anyone other than attorneys, will significantly harm the

designating party[.]” (Id.)

A “trade secret” is “information, including a drawing, cost data, customer list,

formula, pattern, compilation, program, device, method, technique or process that: (a)

Derives independent economic value, actual or potential, from not being generally known to

the public or to other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its

secrecy.” ORS 646.461(4). “Commercially or competitively sensitive information” is

essentially identical to trade secrets. See Take It Away, Inc. v. The Home Depot, Inc., No

CIV.A 05-12484-DPW, 2009 WL 458552, at *7 (D Mass Feb 6, 2009) aff’d, 374 F App’x 47

(1st Cir 2010) (“trade secrets and confidential business information ‘are essentially identical

concepts’”).








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The APO establishes restrictions on dissemination of Litigation Material designated

“confidential” and “attorneys’ eyes only.” The APO provides that Litigation Material

designated “confidential” and “attorneys’ eyes only” “shall be used solely for the purposes of

this Action and the case State of Oregon, by and through the Oregon Health Authority, et al.

v. Oracle America, Inc., et al., Marion County Circuit Court Case No. 15 CV 03287 * * * ,

and shall not be used, made available, or disclosed for the purposes of any other litigation,

investigation, inquiry, judicial or administrative proceeding, dispute or case, or used for any

commercial, business, competitive, or other purpose[.]” (APO § 4.)

Litigation Material marked “confidential” may be shared only with the Court, counsel

for the parties, consultants and experts, counsel for insurers, witnesses and potential

witnesses, and parties to the litigation. (APO §§ 5-6.) AEO material may not be revealed to

the parties to the litigation. Instead, AEO material is limited to the Court, counsel for the

parties, consultants and experts. (Id.)

Under the APO, any party can challenge another parties’ designation of Litigation

Material as “confidential” or “AEO.” The party opposing designation (the “Requesting

Party”) must send a letter to the party that designated the Litigation Material (the

“Designating Party”) requesting that the Designating Party remove the designations and

“identify[ing] the document(s) at issue and the reason for the request.” (Id. § 10.) The

Designating Party must respond within 10 days by either removing the designations or

“stat[ing] the reasons for refusal.” (Id.) If the Designating Party refuses to remove the

designations, the Requesting Party may, after 14 days from the date of the refusal, file a

motion for an order requiring the Designating Party to remove the “confidential” or “AEO”

designations.

II. Oracle designated more than 95% of its Litigation Material “confidential” or

“AEO” and refuses to remove those designations.

Oracle has produced approximately 514,000 documents. (Scott Decl ¶ 2.) On








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November 24, 2015, plaintiffs asked Oracle to provide information indicating what

percentage of its documents it had designated “confidential” or “AEO.” (Id. ¶ 3.) Oracle did

not respond. (Id.) To determine what percentage of documents Oracle designated

“confidential” or “AEO,” plaintiffs randomly selected 1,000 documents from Oracle’s

production. (Id. ¶ 4.) Plaintiffs’ review team recorded the designation on each document:

210 documents were designated “AEO” (21%); 759 were designated “confidential” (76%);

only 31 had no designation (3%). Based on this random sample, plaintiffs estimate that 97%

of Oracle’s documents are designated “confidential” or “AEO.”

Oracle also admits that it made a blanket designation of all its communications on the

project. In a November 6, 2015 letter from Oracle to plaintiffs, Oracle indicated that it had

“designated all communications it exchanged with the State, Cover Oregon, and third parties

as either ‘CONFIDENTIAL’ or ‘ATTORNEYS’ EYES ONLY.’” (Ex 25 to Wilson Decl at

p 2 (emphasis added).)

On December 10, 2015, plaintiffs, as required by the APO, requested Oracle remove

its improper “confidential” and “AEO” designations from its documents and deposition

transcripts. (Ex 13 to Wilson Decl.) Plaintiffs also requested that Oracle immediately

remove its improper “confidential” and “AEO” designations from 77 documents that

plaintiffs have or intend to use during depositions. (Id.) Plaintiffs have selected ten of the 77

documents to bring to the Court’s attention in this motion (the “Deposition Documents”).1

(Exs 1 - 10 to Wilson Decl.)

Oracle refused to remove its inappropriate “confidential” and “AEO” designations.

In a letter to plaintiffs on December 18, 2015, Oracle stated unequivocally: “Oracle Will Not

De-Designate The Deposition Exhibits.” (Ex 14 to Wilson Decl, 12/18/2015 letter from

Oracle (emphasis omitted).) Oracle further stated that the Deposition Documents

1 Plaintiffs limited their selection to ten documents in order to streamline resolution of

this motion. The parties can use the Court’s ruling on these ten Deposition Documents to guide the de-designation of the remainder of Oracle’s over-designated production.








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“undoubtedly reflect Oracle’s confidential information[.]” (Id. at 1.) Oracle failed to

specifically “state the reasons for the refusal” (APO § 10) for the 77 documents, relying

instead on broad statements about all of the documents. (Id.) Later, during the parties’

further conferral on this Motion, Oracle agreed to change the designations on two of the 10

Deposition Documents that are the subject of this Motion. Specifically, Oracle re-designated

the emails attached as Exhibits 1 and 6 to the Wilson Declaration from “AEO” to

“confidential.” Oracle refused to remove its “confidential” designations from these two

documents.

ARGUMENT

I. Motion 1: The Court should order Oracle to remove its improper “confidential” and “AEO” designations and re-designate its documents in good faith according to the APO.

Where a party does not apply “confidential” or “AEO” designations properly and in

good faith, a court may order that party to re-designate its documents. Oracle’s designation

of approximately 97% of its documents as “confidential” or “AEO” demonstrates that Oracle

did not comply with the APO. The Court should order Oracle to re-designate its documents

in good faith.

A. Oracle failed to designate its documents in good faith.

The APO requires the parties designate their documents in good faith. Paradigm All.,

Inc. v. Celeritas Techs., LLC, 248 F.R.D. 598, 605 (D. Kan. 2008) (“Implicit in the

protective order and its provision for designating documents as ‘confidential’ or ‘AEO’ is a

requirement of good faith.”).2 Despite this requirement, Oracle designated approximately

97% of its documents either “confidential” or “AEO.” (Scott Decl ¶ 4.) Indeed, Oracle

admitted that it designated every single email exchanged between Oracle and the State that it

produced as “confidential.” (Ex 25 to Wilson Decl (11/6/2015 letter from Oracle))

2 Oregon courts look to federal case law for guidance on protective orders entered

under ORCP 36 C. Citizens’ Util. Bd. of Or. v. Or. Pub. Util. Comm’n, 128 Or App 650, 658 (1994) (relying on federal district court decision).








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Oracle’s designation of approximately 97% of its documents “confidential” or “AEO”

demonstrates that Oracle did not designate its documents in good faith. In THK America,

Inc. v. NSK Co., 157 FRD 637, 645 & 647 (ND Ill 1993), the defendants designated at least

79% of their documents “AEO.” The court stated that this percentage was “absurdly high”

and stated that defendants’ over-designation was “uncooperative, dilatory, and

obstructionist.” The court concluded that the defendants’ over-designations were “the

product of bad faith” and ordered the defendants to re-review and re-designate their entire

production. Id. at 647. It also forbade the defendants from marking any document “AEO.”

In another case, a court held that a party designated its documents in bad faith where it

marked 90% of its documents “AEO.” Healthtrio, LLC v. Aetna, Inc., No 12-CV-03229-

REB-MJW, 2014 WL 6886923, at *3 (D Colo Dec 5, 2014). The court stated that “90% is

an absurd number” even though “this is a complex patent case going to the heart of

Defendants’ business.” Id. In In re ULLICO Inc. Litig., 237 FRD at 317, a party designated

99% of documents “confidential.” The court concluded that the party “grossly abused the

use of the ‘confidential’ designation.” Id.

A cursory examination of Oracle’s document production reveals that Oracle

designated countless documents “confidential” or “AEO” with no plausible basis. Examples

include:

• ORACLE_STATE_00006269

(Ex 15 to Wilson Decl.);

• ORACLE STATE 00028610

(Ex 16

to Wilson Decl.);



• ORACLE_STATE_00455290 (Ex 18 to

Wilson Decl.);








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(Ex 20 to

Wilson Decl.);


(Ex 21

to Wilson Decl.);


(Ex

22 to Wilson Decl.).

Plaintiffs identified each of these documents to Oracle in their December 10, 2015 letter. (Ex

13 to Wilson Decl.) In response, Oracle’s December 18, 2015 letter did not contest that the

documents did not warrant “confidential” or “AEO” designations.3 (Ex 14 to Wilson Decl.)

Nonetheless, Oracle did not agree to remove the improper designations or to examine the

remainder of its designations. These documents, as well as Oracle’s improper designation of

approximately 97% of its documents as either “confidential” or “AEO” demonstrate that

Oracle did not designate its documents in good faith.4

In addition, Oracle concedes that it ignored the APO by designating documents as

“confidential” simply because Oracle had written the word “confidential” on the documents

3 For two of these documents, Oracle contended that its improper “confidential” and

“AEO” designations are warranted because the documents are attached to other documents that are “confidential” or “AEO.” (Ex 14 to Wilson Decl.) Documents must be designated on a document-by-document basis. See Koch v. Greenberg, No 07 CIV 9600 BSJ DF, 2012 WL 1449186, at *5 (SDNY Apr 13, 2012) (requiring party to review all confidential designations and make good faith revisions on a document-by-document basis).

4 Indeed, Oracle even designated








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when they were created. Oracle, when defending its designation of a small sample of

documents, stated that a document was appropriately designated as “Confidential” under the

APO simply because Oracle has written the word “confidential” on the email when it sent it

in April 2014. (Id. at 3.) In other words, Oracle marked it “confidential” now without

actually determining if the document was “confidential” under the APO. Oracle cannot make

a document confidential simply by having called it confidential in the past. See Take it

Away, Inc., 2009 WL 458552, at *7 (party cannot manufacture “confidential” status).

Just as in THK America, Healthtrio, and In re ULLICO, Oracle’s designation of

approximately 97% of its documents “confidential” or “AEO” is “absurd” and demonstrates

that Oracle did not designate its documents in good faith.

B. Oracle’s over-designation obstructs plaintiffs’ ability to prepare its case.

Oracle’s bad faith designation of approximately 97% of its documents “confidential”

or “AEO” obstructs plaintiffs’ ability to prepare its case. The improper use of the

“confidential” designation “create[s] unnecessary logistical restraints on [plaintiffs] filing

these documents with the court, including * * * having to file all of these documents under

seal.” In re ULLICO Inc. Litig., 237 FRD at 318. Moreover, by over-designating its

documents in bad faith, Oracle inequitably shifts the burden of reviewing those documents

for protectable information from itself to plaintiffs, wasting plaintiffs’ time and resources.

See Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2015 WL 4430955, at *8 (S.D. Fla.

July 20, 2015) (“it is inequitable to shift the burden of reviewing” documents to the party

receiving those documents).

Oracle’s improper designation of documents as “AEO” “poses a significant handicap”

on plaintiffs “because discovery, trial preparation, and trial are made more difficult and

expensive if an attorney cannot make complete disclosure of the facts to” its clients.

Procaps, 2015 WL 4430955, at *6 (quotation marks, citation, and alterations omitted).

Among the handicaps, the APO prohibits parties from sharing “AEO” documents with








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potential witnesses. Plaintiffs cannot prepare witnesses for depositions and trial when they

cannot show those witnesses a significant portion of the relevant evidence in the case. For

example, plaintiffs cannot show their witnesses internal Oracle emails designated “AEO” that

discuss the witness or issues raised by the witness. Moreover, “AEO” designations make

settlement discussion impractical: It “is difficult, and perhaps impossible, for an attorney to

counsel a client to compromise * * * a case on the basis of information kept secret from the

client.” Arvco Container Corp. v. Weyerhaeuser Co., No 1:08-CV-548, 2009 WL 311125, at

*6 (WD Mich Feb 9, 2009).5

C. Oracle’s over-designation hampers plaintiffs’ ability to fully respond to

government investigations.

Oracle’s improper designations prevent plaintiffs from using documents produced by

Oracle in related investigations. Congress and federal authorities are investigating the failure

of Oregon’s health insurance exchange to launch. By designating its documents

“confidential” or “AEO,” Oracle has prevented the State from sharing documents with

Congressional and federal investigators or referring to the content in those documents in

answer to questions by investigators. Yet, such documents and the information they contain

are crucial to presenting federal authorities with a complete and balanced understanding of

the history of the health insurance exchange project.

5 Further, as Oracle originally argued to this Court, Oracle should be limited to using

the AEO designation to documents unrelated to the Oregon Projects. Oracle, in arguing for an AEO designation in the Protective Order, stated that the “AEO” designation was needed because, according to Oracle, plaintiffs’ Requests for Production “call for production of documents beyond the Project[.]” (Ex 24 to Wilson Decl (5/26/15 joint email from Oracle and plaintiffs to the Court).) Oracle told this Court that Litigation Materials about the Projects would warrant, at most, only “confidential” designation. (Id.) Contrary to Oracle’s statements to this Court, Oracle designated documents about the Projects as “AEO.” Oracle should not be allowed to hide documents about the HIX with inappropriate “AEO” designations.








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(Exs 11 and 12 to

Wilson Decl.)

Facilitating the sharing of documents produced in discovery in related actions is a

valid reason for permitting disclosure. See Deford v. Schmid Products Co., 120 FRD 648,

654 (D Md 1987) (“The plaintiffs’ primary argument in favor of disclosure is their desire to

share information with other litigants [in other cases] and their counsel. This is an

appropriate goal under the Federal Rules of Civil Procedure[.]”). Oracle should not be

permitted to use this Court’s protective order to hide its wrongdoing from federal and state

authorities.

D. The Court should order Oracle to re-designate all its documents in good

faith.

The Court should order Oracle to correct its bad faith over-designation. In In re

ULLICO, the court held that a corporation that designated 99% of its documents

“confidential” had “grossly abused the use of the ‘confidential designation.’” In re ULLICO

Inc. Litig., 237 FRD at 317. The court ordered the corporation to “come into compliance”

with the protective order “by re-doing its entire confidentiality designations.” Id. at 318.

The court also ordered the corporation to pay the opposing parties’ attorney fees in

challenging the over-designation.

Numerous other courts have entered similar orders. In Procaps S.A., 2015 WL

4430955, the plaintiff designated 95% of its documents “highly confidential.” Based on that

percentage, the court concluded that the plaintiff’s “use of the highly confidential designation

was significantly incorrect and over-inclusive on a grand scale[.]” Id. at *10. The court

ordered the plaintiff to perform a “good faith re-designation, on a specific, document-by-

document basis” of all 141,525 documents designated highly confidential and pay the

defendant $25,000 in attorney fees. Id. at *9, 11. In Healthtrio, 2014 WL 6886923, at *3,

the defendants designated 90% of the 226,834 documents it produced as “AEO.” The court








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found that such a percentage demonstrated that the defendants acted in bad faith. Id. The

court ordered the defendants to re-review and re-designate its production of documents and

pay the plaintiff its attorney fees in bringing the motion. Id. at *4; see also Koch v.

Greenberg, No. 07 CIV 9600 BSJ DF, 2012 WL 1449186, at *5 (SDNY Apr 13, 2012)

(over-designating party “directed to review all of his confidentiality designations * * * on a

document-by-document basis, and to make good-faith revisions to his designations”); THK

Am., Inc., 157 FRD at 647 (“we order defendants to de-designate all of the ‘Attorney's Eyes

Only’ documents and reclassify them ‘Confidential’ or ‘Non-confidential’, and to do so

forthwith.”).

Applying the decisions in In re ULLICO, Procaps, Healthtrio, Koch, and THK

America, Inc., here, the Court should require Oracle to remove its current designations and

re-designate only documents that contain trade secrets with independent economic value

adhering to the terms of the APO and Oregon law.

II. Motion 2: The Court should order Oracle to immediately remove its improper

“confidential” and “AEO” designations from the Deposition Documents.

In addition to ordering Oracle to re-designate its entire production, the Court should

also order Oracle’s improper “confidential” and “AEO” designations removed from the

Deposition Documents. Litigation documents and testimony are presumptively public unless

a party shows good cause to prohibit their disclosure under a protective order. Oracle cannot

establish good cause to prohibit the disclosure of the Deposition Documents. The Court

should, therefore, order Oracle to remove the improper “confidential” and “AEO”

designations from the Deposition Documents. (Exs 1 - 10 to Wilson Decl.)

A. Pre-trial discovery documents are public unless a party establishes “good cause” to limit access to trade secrets or other confidential research, development, or commercial information.

“As a general rule, the public is permitted access to litigation documents and

information produced during discovery.” In re Roman Catholic Archbishop of Portland in








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Or., 661 F3d 417, 424 (9th Cir 2011) (quotation marks and citation omitted); San Jose

Mercury News, Inc. v. U.S. Dist. Court--N. Dist. (San Jose), 187 F3d 1096, 1103 (9th Cir

1999) (pre-trial discovery is “presumptively public”). However, upon a showing of “good

cause,” a court may enter a protective order to limit the dissemination of pre-trial discovery

containing “trade secret[s] or other confidential research, development, or commercial

information.” ORCP 36 C(7); San Jose Mercury News, 187 F3d at 1103 (“Rule 26(c) [the

federal analog to ORCP 36 C] authorizes a district court to override this presumption where

‘good cause’ is shown.”). If “good cause is not shown, the discovery materials in question

should not receive judicial protection and therefore would be open to the public for

inspection.” In re Agent Orange Prod. Liab. Litig., 821 F2d 139, 145 (2d Cir 1987).

B. Oracle bears the burden of demonstrating “good cause” to maintain the

“confidential” and “AEO” designations on the Deposition Documents.

Oregon law and the APO provide that Oracle bears the burden to show that the

Deposition Documents warrant protection. (APO § 10 (“The proponent of retaining the * * *

designation of the document shall have the burden of proof * * *.”)); Citizens’ Util. Bd. of

Or. v. Or. Pub. Util. Comm’n, 128 Or App 650, 658 (1994) (“The party seeking protection

must show that the information is a trade secret or confidential commercial information.”).

Plaintiffs, in compliance with the APO, “identif[ied] the document(s) at issue and the

reason for the request.” (APO § 10 (rule); Ex 13 to Wilson Decl (complying with rule).) It is

Oracle’s responsibility to “state the reasons for” refusing plaintiff’s request. (APO § 10.)

Under an umbrella protective order such as the APO, the “burden of proving confidentiality

never shifts from the party asserting that claim—only the burden of raising that issue.”

Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Grp., Inc., 121 FRD 264,

268 (MDNC 1988) (citing Cipollone v. Liggett Grp., Inc., 785 F2d 1108, 1122 (3d Cir 1986)

(holding that “burden of proof would be at all times on the” party requesting “confidential”

protection)). Plaintiffs identified documents that Oracle improperly designated. Oracle has








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the burden to justify its designations.

C. To establish good cause warranting a “confidential” or “AEO” designation, Oracle must show that each document meets a two-prong test.

Under Oregon law, Oracle must show that each Deposition Document meets a two-

prong test. First, Oracle must show that each Deposition Document contains “private

personal information, including financial information, * * * trade secrets, commercially or

competitively sensitive information, including confidential research or development

information, or information subject to protection under applicable law or regulation[.]”

(APO § 2); Citizens’ Util. Bd. of Or., 128 Or App at 658 (“The party seeking protection must

show that the information is a trade secret or confidential commercial information.”).

Second, if the document contains such protectable information, Oracle must then “establish

good cause for the protective order by demonstrating that disclosure will work a clearly

defined and serious injury.” Id. (quotation marks and citation omitted).

1. Oracle must establish that the Deposition Documents contain

protectable information.

The first prong of the test requires Oracle to establish that each of the Deposition

Documents contains: (1) private personal information, such as personal financial

information; (2) trade secrets; (3) commercially or competitively sensitive information, such

as confidential research or development information; or (4) information subject to protection

under a law or regulation.6 (APO § 2.) Oracle may not rely on bare and unsupported

assertions to make this showing. See Koch, 2012 WL 1449186, at *8 (party’s bare assertion

that information is commercially sensitive “is patently insufficient to satisfy his burden to

demonstrate good cause for maintaining the confidentiality of that information under the

Protective Order”).

6 This definition is consistent with the provision of ORCP 36 C(7), which permits a

court to enter a protective order protecting “a trade secret or other confidential research, development, or commercial information.”








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Oregon law defines a “trade secret” as “information, including a drawing, cost data,

customer list, formula, pattern, compilation, program, device, method, technique or process

that: (a) Derives independent economic value, actual or potential, from not being generally

known to the public or to other persons who can obtain economic value from its disclosure or

use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain

its secrecy.” ORS 646.461(4).

“Commercially or competitively sensitive information” is essentially identical to

trade secrets. See Take it Away, Inc. v. The Home Depot, Inc., No CIV.A 05-12484-DPW,

2009 WL 458552, at *7 (D Mass Feb 6, 2009) aff’d, 374 F App’x 47 (1st Cir 2010) (“trade

secrets and confidential business information ‘are essentially identical concepts’”).

Commercially and competitively sensitive information is information of which “disclosure

will result in a clearly defined and very serious injury to [the] business.” See Andrew Corp.

v. Rossi, 180 FRD 338, 341 (ND Ill 1998) (defining “confidential business information”)

(quotation marks and citations omitted). According to the APO, this sort of information

includes confidential “research and development information.” (APO § 2.) The mere fact

that a corporation does not ordinarily publicly disclose information is not sufficient to qualify

such information as “commercially or competitively sensitive.” See Salomon Smith Barney,

Inc. v. HBO & Co., No 98CIV8721 (LAK), 2001 WL 225040, at *3 (SDNY Mar 7, 2001)

(“[I]mplicit in the notion of ‘confidential business information’ is something beyond the

mere fact that the particular datum has not previously been made available to the public.”).

Information that is old, stale, or out-dated does not qualify as commercially or competitively

sensitive. Procter & Gamble Co. v. Nabisco Brands, Inc., 111 FRD 326, 331 (D Del 1986)

(information that is two-to-three years old not entitled to protective order).

2. If the first prong is satisfied, Oracle must establish good cause for protecting the Deposition Documents by demonstrating that their disclosure will work a clearly defined and serious injury.

If Oracle can satisfy the first prong of the test, the second prong requires Oracle to








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“establish good cause for the protective order by demonstrating that disclosure will work a

clearly defined and serious injury.” Citizens’ Util. Bd. of Or., 128 Or App at 658. Where, as

here, “a business is the party seeking protection, it will have to show that disclosure would

cause significant harm to its competitive and financial position. That showing requires

specific demonstrations of fact, supported where possible by affidavits and concrete

examples, rather than broad, conclusory allegations of potential harm.” Deford v. Schmid

Products Co., a Div. of Schmid Labs., 120 FRD 648, 653 (D Md 1987). “The harm must be

significant, not a mere trifle.” Citizens’ Util. Bd. of Or., 128 Or App at 658. “Simply

because the disclosure of information ‘might result in adverse publicity’ does not, in itself,

suffice to render it proprietary or commercially sensitive, sufficient to justify judicial

protection from disclosure.” Koch, 2012 WL 1449186, at *2 (quoting In re Parmalat Sec.

Litig., 258 FRD 236, 244 (SDNY 2009)).

Several questions can guide the determination of whether disclosure of documents

will work a clearly defined and serious injury on a business: (1) will disclosure of the

documents reveal information that could be used by a competitor to underbid the business?

(2) will disclosure allow a competitor to steal the business’s suppliers? (3) will disclosure

allow a competitor to steal the business’s customers? See Koch, 2012 WL 1449186, at *16

(“The testimony does not reveal information that could be used by a competitor of

Greenberg’s to underbid him, to raid his sources, or to steal his customers.”).

D. Oracle cannot meet its burden to show “good cause” to maintain the “confidential” or “AEO” designations on the Deposition Documents under the two-prong test.

The Deposition Documents do not satisfy either prong of the good cause test. None

of the Deposition Documents contain private personal information, trade secrets,

commercially or competitively sensitive information, or information subject to protection

under a law or regulation. (Exs 1-10 to Wilson Decl) Even if they did, Oracle has not shown

that disclosure of these documents “will work a clearly defined and serious injury” on








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Oracle. Citizens’ Util. Bd. of Or., 128 Or App at 658.

Oracle’s December 18 letter fails to justify Oracle’s improper designations. The APO

requires Oracle to “state the reasons for” refusing to remove the improper designations.

(APO § 10.) Instead, it made a blanket statement that the Deposition Documents

“undoubtedly reflect Oracle proprietary information[.]” (Ex 14 to Wilson Decl) Oracle also

wrongly contended that it can cloak documents as “confidential” if they contain “[1]

discussion regarding bugs and blockers, [2] communications identifying Oracle’s internal

testing processes, [3] discussion regarding resource allocation, and [4] internal reports on the

overall assessments of projects[.]” (Id. (numbers added).)

1. HIX bugs and blockers are not trade secrets or commercially

sensitive.

Oracle’s conclusory explanations do not establish good cause to designate the

Deposition Documents “confidential” or “AEO.” First, “[d]iscussions regarding bugs and

blockers” do not satisfy the two-prong test. Such discussions fail the first prong because the

“way the source code works when compiled and run is not” a trade secret. Agency

Solutions.Com, LLC, 819 F Supp 2d at 1017 (emphasis in original). Furthermore, the bugs

and blockers concern Oracle’s work on one specific project that is no longer in use: Oregon’s

HIX. The discussions of the bugs and blockers have no “independent economic value,” ORS

646.461(4)(a), to Oracle. And, the discussions about bugs and blockers are two years old.

Stale information does not qualify as commercially or competitively sensitive. See Procter

& Gamble Co., 111 FRD at 331 (information that is two-to-three years old not entitled to

protective order).7 Discussions about bugs and blockers also fail the second prong because

Oracle cannot show that disclosure of the bugs and blockers on Oregon’s HIX Project would

7 In its contracts with plaintiffs, Oracle conceded that for the documents that Oracle

designated as “confidential” under the contracts, those documents do not need to be protected as confidential if they are more than three years old. (Ex 26 to Wilson Decl at 4 (Cover Oregon OLSA § K, “We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure.”).)








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significantly harm Oracle by allowing Oracle’s competitors to undercut its bids, steal its

clients, or gain its suppliers.

2. Communications regarding testing are not trade secrets or

commercially sensitive.

Second, “communications identifying Oracle’s internal testing processes” do not

warrant protection. These communications fail the first prong of the test because they do not

contain protectable information. Oracle has not identified, and cannot identify, any particular

“testing process” that is unique to Oracle. All software companies test their software.

“Proprietary ways of doing the same thing that others in the same field do are not trade

secrets.” Agency Solutions.Com, LLC v. TriZetto Grp., Inc., 819 F Supp 2d 1001, 1017 (ED

Cal 2011). Oracle’s decision to use one particular testing process as opposed to another is

also not a trade secret. See First Health Grp. Corp. v. Nat’l Prescription Adm’rs, Inc., 155 F

Supp 2d 194, 220 (M.D. Pa. 2001) (company’s use of a particular “commercially available

product” not a trade secret). Even if such information were a trade secret or competitively

sensitive, Oracle cannot satisfy the second prong of the test because disclosure of this

information, two years after the fact, will not work a clearly defined and significant harm to

Oracle.

3. Resource allocation and internal assessments are not trade secrets

or commercially sensitive.

Third, “discussion regarding resource allocation, and internal reports on the overall

assessments of projects” are not subject to “confidential” or “AEO” designations. Oracle

obtains no “independent economic value” from these discussions and assessments, as

required by ORS 646.461(4)(a); their only value is specific to Oracle’s work for the State and

Cover Oregon. Moreover, these discussions and assessments do not contain “drawing[s],

cost data, customer list[s], formula[s], pattern[s], compilation[s], program[s], device[s],

method[s], technique[s] or process[es.]” ORS 646.461(4). Furthermore, the Deposition








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Documents are two or more years old. Oracle has made no showing that discussions about

resource allocation two years ago and assessments of a project that has long since been

abandoned have any value to Oracle’s competitors now. See Procter & Gamble Co., 111

FRD at 331 (information that is two-to-three years old not entitled to protective order).

4. Documents Oracle marked “confidential” for internal purposes

are not trade secrets or commercially sensitive.

Oracle may also incorrectly argue that there is good cause to designate the Deposition

Documents “confidential” or “AEO” because Oracle employees marked them as confidential

at the time they created the documents. A party cannot make a document confidential simply

by calling it confidential. See Take it Away, Inc., 2009 WL 458552, at *7 (“Plaintiff cannot

create confidential trade secrets merely by entering into a nondisclosure agreement that

claims information as proprietary.”). To qualify as “confidential” or “AEO” under the APO,

the document must actually contain trade secrets or commercially or competitively sensitive

information and disclosure must work a clearly defined and serious harm.

The Deposition Documents do not contain protectable information. Even if they did,

Oracle cannot show that disclosure will work a clearly defined and significant harm. The

Court should order Oracle to remove its improper “confidential” and “AEO” designations

from these documents.

E. Even if some of the Deposition Documents contain protectable information, the Court should order that information redacted and remove the “confidential” or “AEO” designations.

Even where the two-part test “weigh[s] in favor of protecting the discovery material

* * *, a court must still consider whether redacting portions of the discovery material will

nevertheless allow disclosure.” In re Roman Catholic Archbishop of Portland in Oregon,

661 F3d 417, 425 (9th Cir 2011). If the Court determines that some information contained

within the Deposition Documents warrants protection, the Court should order that

information redacted so that the remainder of the documents can be produced without








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“confidential” or “AEO” designations.

CONCLUSION

Plaintiffs respectfully request that the Court order Oracle to remove the “confidential”

and “AEO” designations, order Oracle to review its entire document production, and within

30 days re-designate only those documents that comply with the Court’s Amended Protective

Order and Oregon law and provide the justification for each designation, just like it would for

a privilege log.

Plaintiffs also request that the Court grant their motion to remove Oracle’s improper

“confidential” and “attorneys’ eyes only” designations from the 10 Deposition Documents.

(Exs 1-10 to Wilson Decl.)

DATED this 13th day of January, 2016.

ELLEN ROSENBLUM ATTORNEY GENERAL FOR THE STATE OF OREGON By: s/ Harry B. Wilson

David B. Markowitz, OSB No. 742046

[email protected] Lisa A. Kaner, OSB No. 881373 [email protected] Dallas DeLuca, OSB No. 072992 [email protected] Harry B. Wilson, OSB No. 077214 [email protected] Special Assistant Attorneys General for Plaintiffs

CERTIFICATE OF SERVICE

ATTORNEY CERTIFICATE OF SERVICE I hereby certify that on January 13, 2016, I have made service of the foregoing

PLAINTIFFS’ MOTION TO REMOVE CONFIDENTIAL AND ATTORNEYS’ EYES

ONLY DESIGNATIONS AND MOTION TO ENFORCE THE AMENDED

PROTECTIVE ORDER on the party/ies listed below in the manner indicated

Brenna Legaard

Jeffrey S. Eden

Schwabe, Williamson & Wyatt, P.C.

1211 SW Fifth Ave., Suite 1900

Portland, OR 97204

Attorneys for Defendants Oracle

America, Inc., Stephen Bartolo, Thomas

Budnar, Kevin Curry, Safra Catz, and Brian

Kim

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[email protected]

Via Odyssey eFile & Serve™

Karen G. Johnson-McKewan

Robert S. Shwarts

Erin M. Connell

Nancy E. Harris

Catherine Y. Lui

Warrington S. Parker III

Orrick, Herrington & Sutcliffe LLP

The Orrick Building

405 Howard Street

San Francisco, CA 94105-2669




Kim

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[email protected]

[email protected]

[email protected]

[email protected]

[email protected]


Jacob M. Heath

Robert L. Uriarte


1000 Marsh Road

Menlo Park, CA 94025




Kim

U.S. Mail

Facsimile

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[email protected]



Robert P. Reznick


1152 15th Street, NW

Washington, DC 20005-1706




Kim

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Milo Petranovich

Pilar C. French

Lane Powell PC

601 SW Second Ave., Suite 2100

Portland, OR 97204-3158



Budnar, Kevin Curry, Safra Catz, Brian Kim,

Ravi Puri

U.S. Mail

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[email protected]

[email protected]


Edward N. Siskel

Charles Speth

Jamie S. Gorelick

Matthew L. Haws

Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Ave.

Washington, DC 20006



Budnar, Kevin Curry, Safra Catz, Brian Kim,

Ravi Puri

U.S. Mail

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[email protected]

[email protected]

[email protected]


Deborah K. Miller

Oracle Corporation Legal Department

M/S 5 Op 764

500 Oracle Pkwy

Redwood City, CA 94065-1675

Attorneys for Defendant Oracle America, Inc.

U.S. Mail

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Dorian E. Daley

Oracle Corp

Mail Stop 5OP784

500 Oracle Pkwy

Redwood City, CA 94065


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Peggy E. Bruggman

Oracle USA,Inc

M/S 5OP772

500 Oracle Pkwy

Redwood Shores, CA 94065


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Timothy D. Belevetz

Holland & Knight

1600 Tysons Blvd., Suite 700

Tysons Corner, VA 22102

Attorneys for Defendant Mythics, Inc.

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Dayna E. Underhill

Holland & Knight LLP

111 SW Fifth Ave., Suite 2300

Portland, OR 97204

Attorneys for Defendant Mythics, Inc.

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DATED this 13th day of January, 2016.

s/ Harry B. Wilson

_______________________________________

Harry B. Wilson, OSB No. 077214

Special Assistant Attorney General for

Plaintiffs