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HP’S NOVEMBER 22, 2011 CASE MANAGEMENT CONFERENCE STATEMENT: CASE NO.: 1-11-CV-203163

Gibson, Dunn &

Crutcher LLP

GIBSON, DUNN & CRUTCHER LLPROBERT E. COOPER (SBN 35888)[email protected] G. LIVERSIDGE (SBN 180578)[email protected] South Grand AvenueLos Angeles, CA 90071-3197

Telephone: 213.229.7000Fax: 213.229.7520

BARTLIT BECK HERMAN PALENCHAR & SCOTT LLPMARK E. FERGUSON ( pro hac vice)[email protected] W. GALLAGHER ( pro hac vice)[email protected] West Hubbard Street, Suite 300Chicago, Illinois 60654Telephone: 312.494.4400Facsimile: 312.494.4400

Attorneys for Plaintiff and Cross-Defendant,HEWLETT-PACKARD COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

HEWLETT-PACKARD COMPANY,

Plaintiff,

v.

ORACLE CORPORATION,

Defendant.

CASE NO.:1-11-CV-203163

Action Filed: June 15, 2011Trial Date: February 27, 2012

HEWLETT-PACKARD COMPANY’SNOVEMBER 22, 2011 CASEMANAGEMENT CONFERENCESTATEMENT

Assigned For All Purposes ToThe Honorable James P. Kleinberg

Hearing Date: November 22, 2011Time: 10:00 a.m.Dept: 1

ORACLE CORPORATION,

Cross-Complainant,

v.

HEWLETT-PACKARD COMPANY,

Cross-Defendant.

CONDITIONALLY FILED UNDER SEAL PURSUANT TO STIPULATED PROTECTIVE

ORDER ENTERED ON OCTOBER 17, 2011



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Oracle seeks to delay the trial in this matter. Given that Oracle has undertaken a business

strategy that is harming customers and HP’s business, in violation of Oracle’s contractual

commitments, HP does not want to delay. HP wants Oracle to honor its contractual commitments

and to answer for its conduct as soon as possible.1

A. Introductory Statement

1. Oracle’s Anti-Customer Business Strategy To Leverage Its Software DominanceTo Drive Hardware Sales From Itanium To Inferior Sun Servers.

Oracle’s internal documents make clear that Oracle’s announcement in March 2011 that it

would no longer develop or support software for Itanium servers was implemented as part of a

calculated business strategy to leverage Oracle’s dominance in database software to try to force

Itanium customers to purchase Sun servers. Oracle’s documents reveal that its public announcement

that it was ending support for Itanium because Itanium was at an “end of life” was a pure pretext to

hide Oracle’s real purpose: to take away the choice of Itanium from customers and restrict the

competition faced by its inferior Sun servers. While Oracle styles itself a champion of customers in

its CMC Statement, the reality is that Oracle is lying to the marketplace and harming competition to

the detriment of customers.

Oracle knew that its hardware products were weak. As one Oracle executive wrote in 2011,

“Our hardware offering is simply not strong enough to enable the channel to grow if we do not blend

our offering with the software stack.” (ORCL00177574.) Oracle also knew that its SPARC/Solaris

server sales were on the decline. To compensate, Oracle implemented a series of tactics designed to

undermine competition on the merits and force customers to migrate to Sun servers. These tactics

included, and continue to include, pricing misconduct, withholding of benchmarking scores that show

that HP server products outperform Oracle products and then offering misleading advertisements that

capitalize on the withheld benchmarks, abusing customers on support issues, and, finally, cutting off

1Oracle says in its CMC Statement that HP refused to sign on to a Joint CMC Statement unless

Oracle removed its explanation for the filing of its forthcoming Amended Cross-Complaint. Thisis a mischaracterization of the facts. HP refused to sign the proposed Joint CMC Statement

because Oracle misrepresented the topics to be covered in the joint statement and tried to include

at the last minute arguments and evidence regarding the merits of the case. HP appreciates theCourt allowing HP additional time to file this CMC statement.



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software support for Itanium, despite a clear contractual commitment that required Oracle to continue

to support HP hardware platforms. A senior Oracle hardware executive confirmed Oracle’s plans

with respect to the sale of Sun server products with direct and vulgar language, writing that “hp is

dead” because “we have a lot up our sleeve” and “we are going to fuck hp.” (ORCL00364933.)

Immediately after Oracle’s fraudulent announcement that Itanium was near its “end of life”

hit the wires on March 22, 2011, Oracle exhorted its sales force to strike at HP’s base of Itanium

customers now that Oracle believed there was blood in the water. The day after the announcement,

an Oracle executive tried to whip up Oracle’s sales force to go in for the kill with Itanium customers

now that Itanium was vulnerable:

We need to make this BIG, and get out AHEAD of IBM. I want that list of accountswith Oracle on Superdome. I want [] calls from our HW Reps THIS WEEK to the top

500 those customers to open a dialogue about future directions for their mission-critical Oracle workloads running on HP-UX. And I want to document outcomes.

(ORCL00001531-532.) Oracle’s internal documents describe Oracle’s sales strategy based on its

Itanium announcement as a competitive assault targeted at HP server customers running Oracle

databases – a “‘competitive take out’ sales play – go to HPUX customers and move them to our

gear.” (ORCL00105401-403.) Oracle referred to its Itanium plan as the “HP Superdome Takeout

Program,” “our HP attack initiative,” and “HP Away.” (ORCL0031306; ORCL00011773.)

Oracle identified over 750 Itanium customers and directed its sales force to call every single

one to use the uncertainty about Itanium’s future created by Oracle’s fraudulent announcement to

coerce them into abandoning Itanium for Sun servers. On March 23, 2011, an Oracle executive

wrote, “Monday the entire hardware sales force and channels team gets trained on the messages of

our announcement. . . . Monday night they start calling 769 itanium customers and the top 50 VARS

for meetings explaining our announcement, talking about M and Exa series as alternatives to itanium,

and offering up Insight migration workshops to customers.” (ORCL00353524-526.) Oracle

internally touted its fraudulent Itanium announcement as creating a huge sales opportunity for Oracle.

On March 24, 2011, an Oracle executive wrote:

Today’s Oracle announcement is a very significant milestone. The implications for our customers and our opportunities is immense. It is absolutely CRITICAL that weseize this opportunity to engage and execute. . . . To this end, at tomorrow’s Forecast



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Meeting I will first review yesterday’s Itanium announcement with you and our immediate action plan. . . . Following the launch of our engagement activities, we will begin tracking all customer engagements in a similar manner to the CLARITY program last spring. My personal objective will be to have contacted all 485 identifiedcustomers from Tim Kelly’s work in the following 48 hours, and to confirm this in our tracking.

(ORCL00011631.)

So while Oracle was telling the marketplace that Itanium was a dying business and that Oracle

was being forced to go in a different direction, internally it knew and said just the opposite – that

“[t]his is a huge opportunity for us and everyone should be fired up” and “[t]here’s so much for us to

go after and win out there.” (ORCL00027014-018; ORCL00001653-655.)

Oracle targeted customers who owned HP Superdome servers running Oracle databases,

knowing that Oracle’s announcement had its intended effect and created concern about the continued

viability of operating Itanium servers. Oracle documents in fact reveal that it urged its sales teams to

create fear, uncertainty and doubt in the minds of customers about the risks of not migrating off

Itanium, suggesting high-level messages to be used with customers. (ORCL00353871.) On March

28, 2011, an Oracle sales executive wrote, “The main targets are HP Superdomes running Oracle

databases. . . . This is the ideal time to convince Superdome customers to migrate their hardware

platform to a brand new SPARC server and Oracle storage.” (ORCL00313028-036.) As one Oracle

executive reported, “We’re launching a North American initiative on Monday to meet and present to

every HP Itanium shop in the US and Canada, and accelerate discussions to move them to Exa*

and/or Sparc.” (ORCL00001653-655.)

When the Oracle sales force did not initially respond with the urgency Oracle’s executives

had hoped for in terms of aggressively targeting HP’s Itanium customer base in the immediate

aftermath of the Itanium announcement, Oracle’s executives ratcheted up the pressure on them. An

Oracle senior executive wrote on March 30, 2011, a week after the announcement, “I am F2F with

Keith on this today. He wants to know how many customers we’ve contacted since the 2pm All

Hands Monday. And he wants to know of the customers we contacted that will NOT take a meeting,

WHY NOT and WHAT ARE WE DOING ABOUT IT? . . . Maybe we need a fucking bonfire, not a



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match. My impression is the Sales Managers (and by definition the Sales Reps) do not get the gravity

or urgency. We can fix by forcing now.” (ORCL00012718-722.)

Oracle’s efforts to unseat Itanium at HP’s customers did not stop with its false statements

about Itanium’s future viability. Oracle has also attempted to strong-arm customers into replacing

their existing Itanium servers by cutting off support, including bug fixes and patches for software

defects. Stunningly, this directive came all the way from the top. Not long before Oracle’s public

announcement regarding Itanium, Oracle CEO Larry Ellison directed Oracle to stop providing certain

bug fixes for Itanium customers. In an email to his senior executive team, including Oracle Co-

Presidents Mark Hurd and Safra Catz, Ellison wrote, “Have we updated our support policies to

clearly communicate that there be no more one off patches for Itanium?” (ORCL00976929.)

Regardless of what Ellison may have believed about the future of sales of new Itanium servers, it

cannot justify his edict to withdraw support for existing Itanium customers, who were left high and

dry by Oracle with bugs and other defects in their Oracle software because they had the temerity to

previously purchase HP Itanium servers.

Customers recognized the unfairness of Oracle’s actions and the utter disregard Oracle was

showing for the best interests of its own customers. They complained bitterly to Oracle that they had

never seen such disregard for customers and disregard for fair competition, but to no avail. Here is

just a small sample of the reaction of customers in emails sent to Oracle’s executives:

• Seldom have I seen such a blatant disregard for the market, customers and fair competition. No valid reason has been provided for no longer developingoracle on itanium except the obvious covert reason of removing competition.It would have been more respectable if the announcement made was given based on the competition argument. To try to blame intel - who have a nice balance between X64 and itanium - as if they would suddenly stop wanting tomake money from a high end solution is beyond me. Oracle have proved to bethe most dishonorable company I have ever come across - licensing, support,competition, sales methods are without doubt akin to many third world

dictators.

• In my 35+ years of experience in this business I have never witness such a blatant and deliberate act aimed at destroying competition, while caring not awhit about your customers. Your customers will suffer from your shortsighted and egomaniacal decision on Itanium, as well as your competitors.But, I guess you do not care about your customer running on Itanium do you?… In the end, I utterly despise Oracle’s business practices, lack of trueintegrity and business ethics!



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• I never thought I’d see Oracle publish an out-an-out lie just to stick it to acompetitor, re: that the Intel Itanium chip is nearing end-of-life. This wholething is shameful ad just makes Oracle/Sun look bad, and makes Larry Ellisonlook stupid. Five years ago Ellison said: ‘There is no more important platformfor Oracle than HP and Itanium.’ You’re not a reliable, honest business partner. An amazingly reckless act.

•

I see the move of stopping development of software on Itanium as amonopolistic move and will kill the competition and will severely impact thecustomer rights.

(ORCL00000754.)

One public sector customer highlighted the unfair impact Oracle’s decision to not support

Itanium would have on cash-strapped government entities and other public sector customers who

could not afford to switch platforms at Oracle’s whim:

In the public sector, we are unable to secure funding for frequent server upgrades, nevertheless we are expected to maintain the most current softwareenvironment on our servers. Oracle’s decision to drop Itanium developmentwill hinder our support efforts and certainly will negatively influence our viewof Oracle and its attitude toward customer support.

( Id.)

Customers immediately recognized Oracle’s Itanium business strategy as self-serving and

anti-customer. In particular, customers expressed dismay at the prospect of being forced by Oracle to

purchase what they view as low-quality, unreliable Sun servers in the future. One Oracle customer

summed his view up in an email to Safra Catz:

Oracle’s decision to cut support for Itanium servers (and consequently HP-UX)is short sited and anti-customer. I believe that Oracle is simply trying to pushcustomers to Sparc based solutions. I will be pushing our customer to movetowards RHEL Linux in the future in order to not reward your anti-competitive behavior. System engineers I’ve talked to in multiple locations (governmentand civilian) have all stated that Sun support has gone through the toilet sincethe purchase by Oracle. The Itanium/HP-UX combination has provided our customer with a stable sure platform superior to anything Sun based. Supportservices are also far better than any interaction we’ve had with Oracle.

(ORCL00340868-69.)

Oracle’s customers contrasted Oracle’s lack of integrity and poor quality Sun servers with

HP’s track of honoring and supporting its customers. Many Oracle customers saw through Oracle’s

false rationales for its Itanium decision and recognized Oracle’s plan for exactly what it was: a



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clumsy and ham-fisted attempt to prop up the declining sales of an inferior line of Sun servers. One

customer wrote to Larry Ellison directly:

HP has a 10-year roadmap for HPUX and it is the longest in the industry. HPwill provide a transition path for its HPUX customer base. It’s in HP’s DNAto honour their customers. We understand fully the motivation behind the

decision to terminate development for HPUX / Itanium because we are notidiots. It is a function of two facts: [1] Sun server sales are decaying in linewith the underlying hardware platform. [2] A ‘toxic’ ex-HP CEO has beenhired by Oracle. Of course Oracle will never confess to this but the temporal proximity of these events / facts is compelling evidence.

(ORCL00976164.)

Yet, despite all of this evidence from its own documents, Oracle asks the Court in its Case

Management Conference Statement, “So why is Oracle the defendant in this case?” The answer is

obvious, even to Oracle’s own customers.

2. Oracle’s Feigned Rationale For Its Business Decision Is Contrary To TheUndisputed Facts About Intel’s Itanium Roadmap.

Oracle initially tried to justify its Itanium decision by falsely ascribing to Intel the position

that Itanium is at end of life. Having been embarrassed by Intel’s unequivocal and repeated

statements to the marketplace that Itanium is not at an end of life, Oracle has been forced to come up

with new excuses, the most recent of which is nonsensical. In its November 18, 2011 CMC

statement, Oracle tries to rationalize its Itanium decision by arguing that, despite the undisputed

existence of committed support for Itanium that stretches to the end of this decade and beyond, Intel

would not have made this commitment to Itanium if it were not for a contractual agreement with HP.

Oracle’s feigned “shock” that there is a contract between HP and Intel related to the development of

Itanium is too much.

Oracle repeatedly refers to HP’s and Intel’s agreement regarding Itanium as “secret,” as if

having a confidential agreement were somehow nefarious.2 For one thing, the fact that HP and Intel

had a contractual business relationship regarding Itanium development and supply is not a “secret.”

2It is common practice for companies to have confidential agreements with customers, suppliers

and partners. Oracle itself must have hundreds of confidential agreements with third parties.



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This has been known for years. HP announced in 2004 that it had signed a contract with Intel and

was “entering into a long-term relationship with Intel, which essentially guarantees us a supply of IPF

(Itanium product family) chips for a very long period of time.”3

Indeed, it has been public knowledge

that Intel and HP have had an agreement governing the Itanium platform since the inception of their

collaboration. It is also public knowledge that HP has spent billions of dollars over the years in

developing the Itanium platform4

– indeed it was HP that conceived the architecture and brought it to

Intel for further development.

The level of investment in the Itanium collaboration by HP and Intel has been a continuing

point of discussion and negotiation between the two companies over the years, and has continually

been re-balanced, most recently in connection with the 2010 renewal of the parties’ collaboration

agreement. The parties negotiated a final agreement in October 2010. Ultimately, however, what

matters in all of this is the product roadmap that the companies agree to develop. Although HP has

produced to Oracle a copy of this agreement in this litigation, Oracle ignores the contractual

provisions laying out the future plans for the development of Itanium. Instead, Oracle cherry picks a

handful of internal HP documents that were generated during negotiations between Intel and HP over

how they would share the cost to ensure the continued robust development of Itanium. It is

misleading for Oracle to cite a few emails during the negotiation process and ignore the actual facts

about the agreement and the Itanium roadmap.

Of course, the salient point here is that Intel and HP do in fact have a contract for the

continued development of Itanium. This hardly provides Oracle with the basis for any claim of fraud

or false advertising. To the contrary, the existence of that contract completely undermines Oracle’s

stated rationale for discontinuing Itanium support by taking the future of Itanium out of the realm of

speculation and firmly establishing as a matter of undeniable fact that there is committed support for

Itanium that extends out toward the end of this decade. Indeed, it is telling that although Oracle has

3 http://www.arnnet.com.au/article/4958/hp_drops_itanium_development?fp=16&fpid=0.

4 http://www.xbitlabs.com/news/cpu/display/20060127070557.html.



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the relevant Itanium roadmaps in its possession, it never once discusses those roadmaps or the actual

“facts” regarding what is coming from Intel.

What those documents show, and what Oracle knows, is that there are two more generations

of Itanium microprocessors already on the roadmap – code named Poulson and Kittson. Moreover,

Intel has stated publicly and directly to customers that it has started exploratory work for what comes

after Kittson. As Intel wrote to customers in March of this year:

Last year we introduced the Itanium 9300 series processor (code name Tukwila)which more than doubled the performance of its predecessor. Recently we disclosedour next generation Itanium processor (code name Poulson), which is currently in Inteland customer labs for validation and is on track with targeted availability in 2012.This product is a brand new architecture design that will provide significant performance, reliability and power enhancements, and will be delivered on Intel’snewest 32 nm manufacturing process technology. Following will be Kittson, of whichwe are in the architecture and early development phase, and we are currently starting

exploratory work for what comes after Kittson. We firmly believe that the Itanium platform provides a sound foundation for mission critical computing well through thiscoming decade.

(Intel “Itanium Commitment Letter” (Kirk Skaugen), sent to customers March 2011.)

Indeed, Intel’s reaction to Oracle’s false statements in its March 2011 announcement about

Itanium being at end of life was swift and strong. Oracle based its decision to discontinue support for

Itanium on the claim that “Intel . . . made it clear . . . that Itanium was nearing the end of its life.”

(Oracle Press Release, March 22, 2011.) The next day, on March 23, Paul Otellini, CEO and

Chairman of Intel, repudiated Oracle’s accusation, declaring that “Intel’s work on Intel

Itanium . . . continues unabated with multiple generations . . . in development and on schedule. . . .

[W]e remain . . . [committed to] . . . HP-UX and other operating system customers that run the

Itanium architecture.” (Intel Press Release, March 23, 2011.)

Oracle argues that a line HP suggested for Intel’s press statement was left out. But Intel’s

executives in their press statements could not have been any more clear or unequivocal about Intel’s

commitment to the continued development of Itanium and the future of Itanium, stating that

development of Itanium “continues unabated with multiple generations” and that Intel maintains a

“strong commitment to the Itanium processor family” and is “enthusias[tic] about the future of the

product line.” ( Id.; Itanium Commitment Letter.) Intel in fact communicated privately to Oracle that

its announcement regarding Itanium’s end-of-life was completely inaccurate. In a March 23, 2011



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email to Oracle regarding Oracle’s announcement an Intel executive wrote, “This took our company

by complete surprise. Unclear if you or any of your team had a part in this, but not only is this totally

inaccurate, but it puts us in a terrible situation with our largest customer.” (ORCL00177387.)

What this means, and what is undeniable, is that Oracle’s statements to the marketplace in

March 2011 in connection with its Itanium announcement that Itanium was at or “near” an “end-of-

life” were false, plain and simple. Oracle apparently recognizes that now and wants to rationalize

away its misstatements by blaming HP and Intel for not publicly disclosing all of the details of the

inner-workings of their collaboration. This will not work. The facts regarding the Itanium roadmap

cannot be disputed. If Oracle files the cross-claims it has previewed in its CMC Statement, HP looks

forward to responding to those claims and having the actual facts come to light.

B. The Parties Are On Track For The Existing Trial Date They Agreed To And OracleShould Not Be Allowed To Unduly Delay The Trial Date While Implementing ABusiness Strategy To Continue To Harm HP And Customers.

A few months ago, in connection with the initial Case Management Conference, HP urged the

Court to set an expedited trial schedule that would resolve first the core contractual issues in this

case. HP explained that early resolution of the contractual issues not only would assist in moving this

case toward effective ADR and possible final resolution, but it would be by far the best approach for

the thousands of HP and Oracle customers who truly need certainty and clarity over this dispute.

Oracle, however, strongly rejected this idea, saying “bifurcation is unnecessary because Oracle is

willing to expedite the discovery schedule for the entire case, so that HP will not suffer any prejudice

due to delay.” Oracle argued as follows:

HP claims one central justification for bifurcating this case: that early resolution of the parties’ disputes will provide clarity and certainty to the parties and their customers, and minimize supposed damage to HP’s business. But bifurcation is notneeded for speedy resolution. Oracle has told HP repeatedly that it will move forwardexpeditiously as to all of the claims in this litigation. HP seeks to limit focus to a

portion of a single claim for strategic benefit, not in the interests of time.

So there is no doubt, Oracle asks the Court to set a very expedited discovery and trialschedule—but on all claims, not the fractional claim that most advantages HP and prejudices Oracle. If that means a trial set in early 2012, as HP seeks on its singlegerrymandered issue, no problem. Oracle is eager to resolve this case, provide clarityto the market and clear its name. Indeed, Oracle has already begun its internaldiscovery process.



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Nothing has changed since Oracle made these representations to the Court to justify Oracle’s

abrupt request to now continue the schedule and delay the trial date.

Soon after the August 12, 2011 Case Management Conference, the parties responded to the

Court’s schedule by implementing a detailed discovery plan that governed the document production

and certain written discovery. The parties have been executing on this plan, having each produced

approximately a half-million pages of documents in short order pursuant to the parties’ agreed-upon

schedule. The document production process continues on schedule. The parties also have served and

responded to copious written discovery and are now preparing to take depositions. Two weeks ago,

HP transmitted to Oracle a proposal to take party depositions that would allow for an orderly

deposition schedule and account for all relevant depositions within the current fact discovery cut-off.

There was no reason for Oracle to stop participating in this process and instead seek to continue the

trial date. There was and is a plan for getting this case to trial on February 27, 2012.

Oracle’s recent decision to amend its cross-complaint likewise is no excuse to delay the trial.

Oracle told the Court in connection with the initial Case Management Conference that it sought an

expedited trial on “all of HP’s claims and all of Oracle’s forthcoming cross-claims.” It was thus

contemplated from the beginning that Oracle would file cross-claims and that these claims would be

part of the expedited discovery and trial schedule proposed to the Court. Indeed, when the parties

negotiated the search terms and document requests, Oracle went to great lengths to ensure that

materials related to its forthcoming cross-claims would be part of the discovery process.

Oracle points to a discovery dispute it is having with Intel about a tiny fraction of the

documents produced in this litigation. To be clear, this is not a dispute about whether Oracle has

received these relatively few documents in question, because it has. Rather, the only issue is that

Intel has limited the disclosure of these documents to Oracle’s outside counsel. While this may be a

dispute that is worth resolving, it far from qualifies as a legitimate ground to delay the expedited trial

date that both parties sought. HP understands that Oracle also may have a dispute with Intel

regarding the scope of documents called for in Oracle’s document subpoena to Intel. But the fact that

a third party is balking at producing all documents sought by a litigant is neither surprising nor

unusual. Oracle cannot credibly claim that its insistence on an early trial date was predicated on the



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assumption that third parties would capitulate fully to Oracle’s broad document requests. The

remainder of Oracle’s argument focuses on the enormity of the task at hand, which is not something

new. The parties understood and contemplated these issues from the beginning.

The bottom line is HP believes that the parties have sufficient time under the current schedule

to complete the necessary discovery and motion practice before the February 27, 2012 trial date.

Oracle’s characterization of the remaining discovery as something insurmountable is overstated and

unconvincing; the various issues cited by Oracle are common in all complex litigations and there is

no reason why the parties cannot overcome them within the current schedule. Oracle cites as an

impediment to getting to trial the substantial volume of documents produced in the case, and to be

produced, and the many depositions to be taken. The reality, however, is that the core issues in this

case are relatively straightforward and do not touch numerous witnesses and inordinate numbers of

documents. Indeed, the key documents from most of the critical witnesses have already been

produced. There is no reason that the parties cannot complete in the next several months the

depositions that would be required to take this case to trial. HP is prepared to do so.

As a matter of professional courtesy, HP would be willing to agree to a short continuation of

the trial date of 30-45 days if Oracle believes it needs more time to prepare its case and the Court’s

schedule will allow it. However, HP cannot agree to a longer delay in the trial schedule for the

reasons explained to the Court at the initial Case Management Conference. These reasons include:

i. The uncertainty in the marketplace created by Oracle’s abrupt announcement in March

2011 remains unabated. There is no question that Oracle’s decision has had and continues

to have a significant impact on customers. This situation must be resolved as soon as

practicably possible, even if doing so places a significant burden on the parties.

ii. The ongoing impact on HP’s business. Documents produced by Oracle in this case

confirm that immediately upon its announcement that it was ceasing support for the

Itanium platform, Oracle set in motion a worldwide plan designed to capitalize on its

announcement, and the uncertainty created thereby, by converting Itanium customers to

Sun server hardware. That campaign continues today. So Oracle’s request to continue the

trial date does not sit well with HP, when Oracle is ignoring its contractual commitment to



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Crutcher LLP

continue its support of HP’s platforms, and is exploiting this time period to pursue a

business strategy designed to harm HP and its business.

iii. At the time Oracle signed the settlement agreement at issue, promising HP that it would

continue to port is products to HP’s platforms, Oracle had been working with HP for

months to prepare to port Oracle’s new database scheduled for release in 2012 (version

12g) to HP’s Itanium platform. Following its announcement that it would no longer

support software development for the Itanium platform, however, Oracle stopped this co-

development work with HP, even though the work had been ongoing for more than a year.

In the meantime, Oracle is continuing porting work on 12g for its own Sun server

platforms as well as for other manufacturers’ servers. Therefore, it is critical to HP and its

customers that this Court resolve the core contractual dispute in sufficient time to ensure

that, if HP prevails, Oracle can complete necessary development work on its 12g database

in a timely fashion so as not to delay the porting of its 12g database to Itanium when it

launches 12g on competing server platforms. Otherwise, a favorable judgment for HP in

this lawsuit could be rendered pyrrhic.

There is a compelling need for this case to be resolved on an expedited basis. HP will be

guided by the Court and its schedule, but it respectfully urges the Court to keep this case moving

forward on an expedited track and trial schedule.

DATED: November 21, 2011

GIBSON, DUNN & CRUTCHER LLP

BARTLIT BECK HERMAN PALENCHAR & SCOTTLLP

By: /s/ Robert E. Cooper_________________ Robert E. Cooper

Attorneys for Plaintiff and Cross-Defendant,HEWLETT-PACKARD COMPANY101189613.1