Oracle, Justice Dept. seek June trial

The trial date is among the topics to be discussed Wednesday, during the parties' first court meeting before U.S. District Court Judge Vaughn Walker. The Justice Department, which last month announced it planned to challenge Oracle's bid, said both parties expected to take 10 days each to present their case during a trial.

While the court meeting will center on the mundane issue of scheduling, a few sparks may fly when the Justice Department argues that it should get access to the bulk of Oracle's customer discount request forms. The Justice Department has been seeking the forms since late last year in an effort to demonstrate how the company's pricing decisions affect competitors.

Oracle, meanwhile, is expected to argue that its corporate attorneys should have access to "highly confidential" documents and information taken by the Justice Department from its competitors and customers. Currently, only Oracle's outside attorneys will have access to such information.

Attorneys say case-management conferences are usually short, often with very little of substance discussed. However, industry watchers may be interested in the outcome of this first case-management conference, since it could provide insight into how confidential information given to the Justice Department will be shared with Oracle, as well as a window into the discounts that Oracle provides to certain customers.

Early in the Justice Department's investigation into Oracle's takeover bid for PeopleSoft, antitrust regulators said they learned Oracle discounted the price of its software applications when competing against SAP and PeopleSoft for deals.

After reviewing some of the "U.S. Executive Approval" forms that were generated when a price discount was being sought by a customer, the Justice Department determined the documents were "among the most important evidence in the investigation."

But when the Justice Department asked Oracle for the bulk of the relevant discount forms, Oracle refused to provide the documents, even though the company certified that it had "substantially complied" with what the agency wanted, according to the court filing.

"These forms are unquestionably relevant to the matter before the court. They provide first-hand accounts from (Oracle's) salespeople and executives of how competition affects pricing," the Justice Department stated in its court filing. "They reveal that (Oracle) can and does engage in price discrimination and that the identity of (Oracle's) competition in a deal often affects the level of discount offered to a customer."

Oracle said in its court filing that the Justice Department is now seeking to substantially expand its request for the documents, without going through the proper court procedures.

The parties also disagree over whether Oracle can have two of its in-house attorneys--Dorian Daley and Jeff Ross--access proprietary information from third parties without first notifying the parties who submitted the information.

"These third parties submitted this information with the assurance that they would have an opportunity to review a protective order entered in this case and determine whether to designate as confidential business information particular documents and testimony to prevent disclosure of such competitively sensitive information to (Oracle's) employees, including in-house consul," the Justice Department filing states.

Oracle, however, notes that this would make it difficult for its in-house attorneys to participate alongside the company's outside attorneys in the case.

"Ms. Daley and Mr. Ross are litigators who will take an active role in the defense of the action. They will be unable, as a practical matter, to participate in the defense of the action if they are not permitted to see documents designated 'highly confidential,'" Oracle's filing states. "Under the terms of the proposed protective order, Ms. Daley and Mr. Ross will be obligated to use information revealed to them only in connection with this litigation and not to disclose such information to any but designated individuals, and then only as necessary to defend the action."

One attorney who specializes in business law and antitrust matters said Judge Walker will have to balance two issues in ruling on this matter.

"He can go either way, depending on the safeguards Oracle has put up," said Stan Gorinson, a business law and antitrust attorney with Kilpatrick Stockton. "If you allow in-house attorneys to view the materials, they could share it with people in business development, who can use the information to their competitive advantage. And if you have a strong-willed CEO like Larry Ellison, there's nothing to prevent them from sharing the information if they want to keep their job."

But he agreed that Oracle's in-house attorneys would find it hard to participate in litigating the case if they were not familiar with the documents being reviewed by their outside law firm.

"It's a little bit like flying blind," Gorinson said.