SAP seeks gag order for upcoming Oracle trial

Citing a recent New York Times column, SAP says lawyers should be barred from discussing the case outside the courtroom

SAP is seeking a court order to prevent Oracle's lawyers from making public statements about the companies' TomorrowNow lawsuit, fearing the talk will influence potential jurors and prevent SAP from getting a fair trial, according to an SAP motion filed on Friday.

To back up its request, SAP cited a recent New York Times column that said SAP had committed "the most serious business crime you can commit." The column also said a former SAP senior executive, Léo Apotheker, "clearly knew" about the theft of Oracle software.

The New York Times acknowledged later that the column's author, Joe Nocera, is the fiancee of the communications director of the law firm representing Oracle against SAP.

"Although the author denies knowing that his fiancee's law firm represents Oracle, he does not deny that she was the source of the detailed information and evidence he cites in his article," SAP's lawyers wrote in their motion.

As a result, they asked the court to sign an order preventing lawyers on both sides from discussing the case outside the courtroom. They asked for a quick decision since the trial is due to start Nov. 1, in a federal court in Oakland, California.

Oracle's lawsuit accused SAP and its TomorrowNow subsidiary of stealing thousands of big fixes, patches and other support materials from an Oracle website and using them to provide cut-price maintenance service for Oracle customers.

SAP admitted last month the illegal downloads took place, and the trial is expected to focus on how much it should pay in damages. Oracle is seeking billions of dollars, while SAP says the amount should be in the tens of millions.

The SAP filing shines a light on the challenges the Internet and social media such as Twitter and Facebook are creating for the courts. The need to control pre-trial publicity "is even stronger in the digital Internet age where access is almost immediate and, for many, addictive and irresistible," SAP's lawyers said in their motion.

At a pretrial conference last month, an attorney for Oracle asked the judge hearing the case, Phyllis Hamilton, how to deal with the "big problem" of jurors searching online for information about the case. "Even when you instruct the jurors, they do it anyway," said attorney Donn Pickett, according to a partial transcript of the meeting.

Judge Hamilton agreed, saying she had four trials over the summer and "each time, it's really an issue." She invited the lawyers to write instructions for the jury to dissuade them from Googling about the case. The instructions should cover "the whole panoply of gadgets and devices" so that "they don't think that by omission it's OK for them to, you know, tweet about it from the jury room," the judge said.

Oracle's lawyer suggested that some jurors are more likely to trust what they read on the Internet than what is presented as evidence. "[T]here are jurors now who resent authority, and if you tell them not to do something, they'll start doing it because they think they're the -- they want to know the truth rather than the admitted evidence," Pickett said, according to the transcript.

The judge said some jurors were "let go" in an earlier case because they didn't think they could "resist the temptation" of searching online for information about the trial. That might make lawyers selecting a jury "skew" toward older people who might be less tempted to search, she judge said.

The TomorrowNow trial is due to last five weeks. Jury selection is scheduled for the opening day.

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