OAKLAND (Reuters Legal) - Oracle Corp plans to rest its high profile copyright case against SAP AG early next week without the testimony of Hewlett Packard Co CEO Leo Apotheker, attorneys for the company said on Friday.
However, Oracle attorney David Boies said they still may play Apotheker's videotaped deposition during their rebuttal case on the last day of trial -- if they are unable to serve him with a subpoena.
SAP and Oracle, which together dominate the global market for software that helps businesses run more efficiently, are slugging it out in court to determine the amount of damages for software theft by SAP.
SAP has accepted liability for its TomorrowNow subsidiary having wrongfully downloaded thousands of Oracle files, but argues it owes tens of millions -- not billions -- of dollars in compensation.
Apotheker's credibility -- and his ability to effectively lead HP, the world's largest technology company by revenue -- may come under attack if he testifies.
Oracle has said that Apotheker has evaded its attempts to subpoena him since he began his job as CEO of HP on November 1, and even hired professional investigators to try to track him down.
In recent weeks Oracle CEO Larry Ellison has stated he has evidence Apotheker was complicit in SAP's improper downloading of Oracle's software.
On Friday, Boies again called Apotheker "a very important witness." Other SAP officials testified that Apotheker was a member of the company's executive board and fully supported the TomorrowNow acquisition, Boies said.
"We think it is very important that Mr. Apotheker testify now, as a live witness in court, to explain his and SAP's conduct," Boies said.
An SAP spokesman called the Apotheker issue a "sideshow" that had little to do with the damages at issue in the case.
Testimony continued on Friday in U.S. District Court in Oakland, California. Kevin Mandia, CEO of computer forensics firm Mandiant, testified that downloads of materials by TomorrowNow increased after January 2005, when SAP purchased the company.
Mandia, an expert witness for Oracle, said that TomorrowNow built an automated computer program to better facilitate downloads after it was acquired by SAP.
"It was made by TomorrowNow to get Oracle support materials faster," Mandia told the jury of eight men and women.
On cross examination by SAP, Mandia acknowledged that at least some of the Oracle software found on TomorrowNow's systems could have come from licensed sources.
Oracle attorneys also played a short video clip of former SAP CEO Henning Kagermann's deposition. Through a German translator, Kagermann acknowledged that some of TomorrowNow's downloads were "inappropriate."
However, Kagermann could not recall when he learned copies of Oracle files were on TomorrowNow's systems.
SAP is expected to begin presenting its case on Monday.
The case in U.S. District Court, Northern District of California is Oracle USA, Inc., et al. v. SAP AG, et al, 07-1658. Oracle is represented by the San Francisco office of Bingham McCutchen; the Menlo Park, California, office of Davis Polk & Wardwell; and the Armonk, New York, and Oakland, California, offices of Boies, Schiller & Flexner. SAP is represented by the San Francisco, New York, Palo Alto and Houston offices of Jones Day.
Reporting by Dan Levine and Jim Finkle of Reuters; Additional reporting by Jeff Roberts of Reuters Legal