The judge overseeing the U.S. government's case to block Oracle's proposed takeover of PeopleSoft has grown weary of the amount of material being filed under seal and is pushing both sides to make more information public.
"It does appear to me it has gotten out of hand," Judge Vaughn Walker told lawyers for Oracle and the U.S. Department of Justice (DOJ) before witness testimony began Thursday morning in U.S. District Court for the Northern District of California in San Francisco.
The case involves hundreds of thousands of documents from Oracle, PeopleSoft, SAP and other vendors, as well as testimony from customers. The documents, many of which have been redacted or filed under seal, include information about how big software deals were brokered, how vendors view their competitors, and other matters.
Sounding impatient, Walker said he's yet to see any materials used in the trial that reveal sensitive competitive information, and he told the battling sides that from now on they'll have to show why information would compromise a company's competitive position if they want to keep it under wraps.
"I'm going to take a much tougher line about receiving any more redacted documents, any more documents under seal going forward," Walker told attorneys for the two sides.
Earlier Thursday, Oracle attorney Dan Wall told Walker that "the rubber is going to hit the road" next week about the issue of confidentiality. Among the DOJ's witnesses due on the stand is Douglas Burgum, head of Microsoft's business applications unit, who is expected to testify about the extent of Microsoft's ambitions in the market for high-end ERP (enterprise resource planning) applications.
The trial has already forced Microsoft to reveal that it was in talks last year to acquire ERP giant SAP. Oracle uncovered the information during the discovery process and disclosed it to the court during its opening arguments on Monday.
Microsoft's lawyers are still negotiating with Oracle and the DOJ about how much further information will be made public, Thomas Barnett, deputy assistant attorney general for the DOJ, told reporters outside the courtroom.
The government says an Oracle-PeopleSoft merger would stifle competition in the market for high-end human resources and financial management applications, resulting in higher prices. Oracle says there are numerous other competitors, and that other vendors such as Microsoft could enter the market at any time.
Later Thursday, the DOJ called its witness Richard Allen, who was chief financial officer for the former J.D. Edwards & Co. (JDE), which has since been acquired by PeopleSoft. The DOJ used his testimony make their argument that barriers to entry are too high to let other vendors enter the market.
Allen testified that JDE spent 10 years and US$1 billion on its unsuccessful bid to reach past the midmarket and sell high-end ERP software to large corporations. The company abandoned its ambitions in 2001 because it didn't have the products, services or reputation it needed, he said.
"Software is the kind of business where to get a reference you need a client, and to get a client you need a reference," he said.
During cross-examination, Oracle attorney Thomas Rosch presented a document prepared by McKinsey & Co., which was advising JDE in its efforts. It showed that the vendor could potentially have made more revenue by expanding its existing products to reach more midmarket customers, instead of going after the high-end applications business.
"Isn't the reason that J.D. Edwards focused more on sales to the midmarket ... because you concluded that the market to large enterprises was saturated, and that the revenue opportunity existed with the midmarket?" Rosch asked.
"That is not correct," Allen said. Asked a similar question moments later, he insisted that JDE dropped its high-end bid because it didn't have the products or reputation to compete.
Rosch also used Allen's testimony to make the point that Microsoft could emerge as a potential competitor. Earlier in the day, Allen had been asked by a DOJ lawyer what it would have taken for JDE to succeed in the high-end applications market. He said it would have taken "three to five (more) years and a boatload of money."
Rosch asked him later: "What would your answer have been if you had the resources of Microsoft?"
"I'd (still) say I needed three to five years and a boatload of money," Allen replied.
"And they've got that, haven't they, sir?" Rush asked.
"I don't know if they've got three to five years, but I know they have a boatload of money," Allen replied, getting a laugh from the court.
The DOJ was due to call a witness from BearingPoint Inc. Thursday afternoon, who was expected to discuss customer software requirements and the competitive landscape.
Each side has two weeks to present its case in the month-long trial. The court is closed Friday for a federal holiday in remembrance of former President Ronald Reagan, who died last weekend. The DOJ will continue presenting its case Monday.