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G. Howard Recaps Discovery Process in Oracle Victory

The American Lawyer, June 1, 2011 — A Bingham team, led by partners Geoff Howard and Donn Pickett, secured a landmark victory for Oracle in 2010 that has been recognized as the top plaintiff’s verdict of the year, the largest ever copyright infringement victory, the 23rd largest all-time award for any jury verdict and the top intellectual property verdict of the year. Howard admitted that discovery was a very long process in proving that Systems, Applications and Products (SAP) had illegally downloaded Oracle’s software and resold it. After seeing Oracle’s logs detailing the suspicious activity, Howard said, “I don’t think any of us had ever seen anything [that] massive.”

In March 2007, Oracle cited unauthorized downloads of more than 10,000 software and support materials made between September 2006 and January 2007. A more significant development occurred when TomorrowNow produced internal emails, spreadsheets and instruction manuals that detailed acts of infringement dating back to 2003. This new information suggested that SAP was aware of TomorrowNow’s mass infringement and led Oracle to file an amended complaint in July 2008. SAP fought these discovery requests. According to Howard, it was not until Oracle lawyers found some 26,000 instant messenger chats that the tides began to change. “Here we had been through two-and-a-half years of discovery, dozens and dozens of depositions, multiple motions to compel with the court, and millions of pages of documents,” Howard said. “All of that, and then we find out months later that there were 26,000 IM chats that had never seen the light of day.”

News of this victory was also reported by the National Law Journal, the Wall Street Journal, the New York TimesForbes, the Financial Times, the Associated PressReutersYahoo! FinanceBusinessWeekAmerican Free PressAmLaw Litigation DailyBloomberg, the Straits Times, the Himalayan TimesBangkok PostFrance 24Brisbane TimesNew Zealand HeraldIndiatimesMyVietnamJakarta Today, the Singapore Times, Law360, CNN and MSNBC.

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