Jury selection for Oracle's corporate theft lawsuit against SAP got under way Monday morning in a California courtroom, where potential jurors were warned they would have to refrain from posting on Facebook or Twitter about the case if they are selected to take part in the trial.
"I need to be sure that each of you will be able to resist the temptation," Judge Phyllis Hamilton told the potential jurors. They will also have to refrain from doing online searches on Google and other search engines about the case to learn more about it.
Judge Hamilton questioned 27 potential jurors about any connection or opinions they might have of Oracle or SAP that could prevent them being impartial in the case. Lawyers for the two companies will get to quiz them next.
Eight jurors said on their pre-trial questionnaires that they might not be able to be fair to SAP because it is a German company, Judge Hamilton said. It turned out that six of them had misunderstood the question, but two of the jurors seemed likely to be excused on those grounds.
Others had indicated that they had a negative opinion of Oracle CEO Larry Ellison, the judge said. They are likely to be questioned further about that but probably not in open court. Sensitive issues about jury selection are being discussed by the judge and a lawyer for each company off to the side.
Some of the discussion seemed barely relevant. One juror said his uncle had been awarded a patent for the first "Afro toupee." Another juror said her knowledge of courtrooms came from watching Judge Judy on TV. "I'm a little nicer than she is," Judge Hamilton said, getting a laugh.
The process was slow going and it seemed unlikely that opening statements will start before Tuesday morning.
The jurors were told the trial will last about four weeks and they will be asked to begin their deliberations no later than Monday, Nov. 29, just after the US Thanksgiving holiday.
Oracle sued SAP in 2007, alleging that its TomorrowNow subsidiary illegally downloaded terabytes of customer support materials and other Oracle software from a customer support website and then used those materials to lure away Oracle customers.
Last Thursday, just before trial was due to start, SAP said it wouldn't contest the issue of "contributory infringement" or whether its executives knew about the software theft. That means the trial will focus mainly on how much damages SAP should pay.
Oracle is keen to get current and former SAP executives on the stand to testify, including Leo Apotheker, who is now CEO of HP. Judge Hamilton has said Oracle can call the executives only if their testimony is relevant to the question of damages.
SAP filed papers to the court on Monday arguing that video-taped deposition testimony from former SAP executive Shai Agassi that Oracle plans to play at trial isn't relevant to the damages question.
The questions he is asked on the tape have to do with whether Agassi knew that TomorrowNow's operations were illegal and whether he knew there was a risk Oracle might sue SAP over the acquisition, court papers show.
It's likely there will be similar arguments throughout the trial about whether Oracle can present deposition from SAP executives and call them to the stand as witnesses.